SATVASHILA Vs. RUKMINI D GATH

JUDGEMENT

(1.) The opponent plaintiff herein filed Special Civil Suit No. 67 of 1976 in the Court of Civil Judge, Senior Division, Kolhapur, against the petitioners defendants herein for specific performance of an agreement of sale in respect of an agricultural land admeasuring about 2 acres and 18 gunthas out of Division Survey No. 56/6 which survey number admeasured about 5 acres and 18 gunthas assessed at Rs. 23.74 p. Various defence were raised to the said suit. On September 28, 1976 the trial Court framed at Exhibit 15 as many as 15 issues out of which Issue No. 9 was as follows :

(2.) On 22nd August, 1978 the plaintiff through her Advocate filed an applicant at Exhibit 25 for review of the aforesaid order of reference dated 27th March, 1978 contending inter alia that the aforesaid Issue No. 9 was not at all relevant and useful in any way for either the plaintiff or the defendants and that the decision of the said issue by the Tenancy Court would be futile and outside the real intention of the parties. It was further contended that the finding of the Tenancy Court on the said issue would be totally abortive and the error in question (i.e. framing the referring the said issue to the Tenancy Court) was so manifest that the Court would not permit such an error to remain on record. On the said application the trial Court passed an order on 29th August, 1978, to the effect that section 63 of the Tenancy Act prohibited an actual sale and that there was no restriction for an agreement of sale. Status had to be seen with reference to the date of the actual sale and not with reference to the date of the agreement of sale. The trial Court consequently held that Issue No. 9 aforesaid could not be said to be correctly framed or required for deciding the dispute between the parties in a suit as the instant one for specific performance of an agreement of sale. Issue No. 9 was consequently struck off and deleted. As this order was passed in the absence of the defendants or their Advocate, an application was made for hearing them in the matter. The defendants were thereupon heard through the Advocate and the trial Court by its order dated September 8, 1978, reiterated its earlier observation that section 63 of the Tenancy Act did not prohibit sale to a non agricultural in toto but permits such a sale if permission in that behalf is obtained form the Collector. It was further observed that section 63 was only a conditional restriction and an agreement of sale even to a non-agriculturist can be enforced if the conditions of section 63 are satisfied. In the circumstances the order striking off and deleting Issue No. 9 was maintained and a Yadi was directed to issue to the Mamlatdar for calling back the reference. It is this decision of the trial Court striking off and deleting Issue No. 9 and recalling the reference from the Tenancy Court that is being challenged before me very strenuously on behalf of the petitioners-defendants by Mr. P.M. Pradhan the learned Advocate.

(3.) According to Mr. Pradhan, on issue whether the plaintiff is an agriculturist even at the date of the agreement of sale was a relevant issue arising from the pleadings between the parties and consequently, such an issue was required to be referred for its determination to the Tenancy Authority under the provisions of section 85-A of the Tenancy Act. I am unable to accept this contemption. None of the provisions of the Tenancy Act debars an execution of an agreement of sale of an establish agricultural land in a favour of a non-agriculturist. Indeed the Tenancy Act contenoilates even a sale deed in favour of a non-agriculturist the only condition in that behalf being permission of the Collector under the provisions of section 63 of the Tenancy Act. If that is the legal position, I do not see how an issue as to whether the plaintiff is an agriculturist at the date of an agreement of sale is, in any way, relevant for the decision of the suit. Merely because the impugned agreement of sale is referred to by the parties in their pleadings, that does not necessarily mean that an issue is required to be settled, decided or determined under any of the provisions of the Tenancy Act. Indeed, validity of an agreement of sale cannot be said to be a question arising within the exclusive jurisdiction of the tenancy authorities.