Writ Petition No.503 of 2001

12th April, 2004

Petitioner Counsel: Shri. R. B. RAGHUWANSHI
Respondent Counsel: Shri. J. R. SHAH

JUDGMENT

JUDGMENT :- Heard Shri. Magre, Adv. holding for Shri. R. B. Raghuwanshi, Adv. for petitioner and Shri. J. R. Shah, Adv. for respondent No.16.

2. This petition takes an exception to the judgment and order passed by the learned Civil Judge (Junior Division), Nandurbar below Exhibit 81 and 86 in Regular Civil Suit No.85/1991. It seems that the present petitioner is the original plaintiff and respondents are the original defendants. It seems that the plaintiff has filed R.C.S. No.85/1981, in the Court of Civil Judge Junior Division, Nandurbar, seeking specific performance of the agreement, which is referred to, in the body of the plaint. By way of consequential relief, appointment of Court Commissioner for execution of the document of sale as well as possession of the suit property, with mesne profits is also sought for. By way of alternative relief, the plaintiff has also sought refund of earnest money. The defendants, in response to the suit, filed their written statements. It appears that the defendant Nos.1 to 7 have filed their written statement on 27-11-1981. The defendant No.11 has filed separate written statement on 24-11-1985. It seems that the contention is raised in the written statement by defendant No.11, especially in para No.8, regarding jurisdiction of the Civil Court. According to the defendant No.11, the original defendants Nos.1 to 10 are residing at remote villages situated in state of Gujarat. Defendant No.11 has also stated in his written statement that defendant Nos.1 to 10 are closely related to defendant No.11. According to the contention of the defendant No.11, the suit property is being cultivated as a tenant by the defendant No.11 since 1974-75 and the rent of the suit property is Rs.1200/- per year. In short, the defendant No.11 claims to be a tenant in the suit property.

3. The written statement filed by defendant Nos.1 to 7, does not refer to any such tenancy of defendant No.11.

4. Defendant No.11 had filed an application at Ex.81 on 11-2-1987. In the said application, the defendant No.11 has claimed tenancy of original defendant Nos.1 to 10. The issues, which are framed on 18-2-1986, are being referred in the said application Ex.81. The defendant No.11 has stated in the said application, that the status of defendant No.11 as a tenant, can be decided by the Revenue Authorities and, therefore, matter be referred under section 85-A of the Bombay Tenancy and Agricultural Lands act, 1948. In this application, defendant No.11 has referred to the written statement and claimed the status of a tenant. I have examined this application, as well as the contention raised by the defendant No.11. In my view, the contentions raised are not sufficient, prima facie, to hold that the defendant No.11, at any point of time, was cultivating the suit property as a tenant. In the absence of sufficient material on record, the application filed by defendant No.11 at Ex.81, dated 11-12-1987, ought not to have been considered by the learned Civil Judge Junior Division, Nandurbar for referring Issue Nos.9 and 10 to the tenancy authorities. In fact, Issue Nos.9 and 10, on the basis of the pleadings, cannot be said to have been arisen for consideration of the Court. In appears that vague plea of tenancy is raised in the written statement. Prima facie, it is not sufficient, either for framing issue and referring the said issue to the tenancy authorities in accordance with the provisions laid down under Section 85-A of the Bombay Tenancy and Agricultural lands Act, 1948.

In this view of the matter, the learned Civil Judge J. D. cought to have allowed application Exh.86 filed by the present petitioner/plaintiff for deletion of the issue Nos.9 and 10. The application Exh.86, is filed somewhere in the month of March, 1987. This Court, initially granted Rule with interim relief in terms of prayer Clause (C), by order dated 17-6-1988.

5. The learned counsel Shri. J. R. Shah for the respondent No.16 is heard. He refers to written statement filed by him. In para no.2 of the written statement, he has taken a plea of tenancy. In para no.5 of the written statement, he states that the suit property is being cultivated by him as a tenant. He also claims rent of Rs.1200 per year of the said property. He therefore, states that his status is that a "tenant" of the suit property owned by defendant Nos.1 to 10. He, therefore, states that he is entitled to protect his possession. He, therefore, seeks reference under Section 85-A of the said Act. The provisions of Section 85-A, read thus :-

"85-A. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Explanation : For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under he Mamlatdar's Court Act, 1906."

6. From plain reading of Section 85-A, it appears that if any issues which are required to be settled, decided or dealt with by any competent authority, under the Bombay Tenancy and Agricultural Lands Act, 1948 arise, the Civil Court shall stay the suit and refer such issues to such competent authority for determination. It is important to note here the nature of the suit, as explained above, is a suit for specific performance with alternative relief. No issues, which require adjudication by the competent authority under said Act of 1948 arises in between the parties in the present case. The contention of Shri. J. R. Shah, learned counsel for respondent No.16, regarding dispute of his status, may be inter se in between the defendant Nos.1 to 10 on one hand and the defendant No.11 on the other. For that dispute, respondents cannot resort to provisions laid down under Section 85-A of the said Act. The main object of Section 85-A is to have settlement of issues, which are required to be settled, decided or dealt with by any competent authority under the said Act. In this suit, status of defendant No.11 is not required to be decided. The defendant No.11, if he is claiming as a tenant, remedies under the said Act of 1948, can be exhausted. Shri. Shah, also brought to my notice amendment to the extent of joining the defendant No.11, as party defendant, somewhere in the month of August, 1985. He states that he is in possession of the property as a tenant. He has also filed written statement as stated above. He can contest the suit and if he so desires, he can lead evidence regarding possession over the property. However, he cannot raise issue of tenancy in the suit and seek reference under Section 85-A of the said Act of 1948.

7. In the result, writ petition is allowed. The judgment and order passed by the Civil Judge (J.D.) Nandurbar, below Ex.86 dated 3rd December, 1987, is quashed and set aside. The application filed by the petitioner/plaintiff Ex.86, is allowed and issues Nos.9, 10, 11 framed by the learned Civil Judge (J.D. ) are directed to be deleted. Looking to the fact that the suit is pending since the year, 1981, the learned Civil Judge (J.D) Nandurbar is directed to decide the suit as expeditiously as possible, and preferably within a period of six months from the date of receipt of writ of this Court.

Rule made absolute in above terms. No costs.

Petition allowed.