LAXMAN WALU RAWLE Vs. SHANKAR MADHAVRAO KSHIRAGAR

JUDGEMENT

(1.) THIS Civil Revision Application seeks to challenge the order of reference made under Section 85-A of the Bombay Tenancy and Agricultural lands Act passed by the Had Joint Civil Judge, Senior Division, nasik on 9th November, 1987,

(2.) FEW facts which are relevant for the purpose of this Civil Revision application are that the petitioner-plaintiffs filed civil suit for specific performance of the agreement of sale. The defendants filed written statement and they raised a plea that the plaintiffs are not agriculturists. In view of this contention in the written statement, Issue No. 14 viz. Whether the plaintiffs are the agriculturists? If not, what is the effect was framed by the learned civil Judge Senior Division, Nashik on 10th March, 1987? Thereafter, the defendants filed an application for referring the Issue No. 14 on 29th October, 1987. This application is at Exhibit 54. The learned Civil Judge Senior division, Nasik allowed this application and referred Issued No. 14 to the competent authority under Bombay Tenancy and Agricultural Lands Act. It is this order which is impugned in this application.

(3.) SHRI Tulpule, learned Counsel appearing for the petitioners contended that the reference is bad since, before filing of the suit, notice was served upon the defendants and defendants did not raise any plea that the petitioners-plaintiffs are not agriculturists, even in the first written statement which was filed, no plea was raised. In the amended written statement, plea was raised. However, it appears that at the stage of framing of the issues, after hearing rival contentions of the parties, issue was framed by the learned Judge on 10th March, 1987. Even this order of framing of the issue was not challenged by the present petitioners. Even in the present Civil revision Application, no prayer is made for quashing and setting aside the order framing issue on 10th March, 1987. However, once the issue is framed in view of the decision of this Court reported in 76 Bom LR p. 368 Pandu dhondi v. Ananda, the Court is bound to refer the issue and moreover in view of the Supreme Court decision reported in AIR 1979 SC 653, Gundaji v. Ramchandra, the issue whether plaintiffs or defendants are agriculturist is required to be decided by the tenancy Court and hence reference is required to be made. I see no substance in the contention raised by the petitioner and hence the order passed by the IId Civil Judge, Senior Division, Nasik needs no interference. C. R. A. is rejected. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.