Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Vaishali Abhay Mandle vs Sakharam Vithal Mandle on 17 November, 2011
Bench: S. S. Shinde
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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                              
               WRIT PETITION NO. 2770 OF 2011




                                      
     1.   Vaishali Abhay Mandle,
          Age: 40 years, Occ: Household
          and Service,




                                     
     2.   Ashutosh Abhay Mandle,
          Age: 15 years (Minor),
          Occ: Education, under
          Guardianship of her mother,




                           
          petitioner No.1 herein, namely
          Vaishali Abhay Mandle.

     3.
                 
          Sangita Raosaheb Mandle (died),
          Age: 35 years,  Occ: Household,
                
     4.   Rishikesh Raosaheb Mandle,
          Age: 15 years (Minor),  
          Occ: Education, under Guardianship
          of petitioner No.1 herein.
      


     5.   Sau. Nanda Baban Mandle,
   



          Age: 31 years, Occ: Household,

     6.   Rohan Baban Mandle,
          Age: 10 years (Minor),  





          Occ: Education, under Guardianship
          of mother petitioner No.5 herein,
          namely Sau. Nanda Baban Mandle.

     7.   Kiran Baban Mandle,
          Age: 8 years (Minor),  





          Occ: Education, under Guardianship
          of mother petitioner No.5 herein,
          namely Sau. Nanda Baban Mandle.

          All above R/o. Kamargaon,
          Tal. & Dist. Ahmednagar.        ...PETITIONERS 




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            VERSUS             

     1.   Sakharam Vithal Mandle,




                                                            
          Age: 47 years, Occ: Labour,
          R/o. Kamargaon,
          Tq. & Dist. Ahmednagar.




                                    
     2.   Abhay Vithal Mandle,
          Age: 44 years, Occ: Labour,
          R/o. as above.




                                   
     3.   Raosaheb Vithal Mandle,
          Age: 41 years, Occ: Labour,
          R/o. as above.




                           
     4.   Baban Vithal Mandle,
          Age: 59 years, Occ: Labour,
                 
          R/o. as above.

     5.   Satish Chandmal Chopda,
                
          Age: 48 years, Occ: Business,
          R/o. Ramchandra Khunt,
          Ahmednagar.
      

     6.   Hiralal Madhav Thokal,
          Age:  years, Occ: Agri. & Business,
   



          R/o. Kamargaon, 
          Tal. & Dist. Ahmednagar.        ...RESPONDENTS





                          ...
     Mr. Vishal S. Badakh, Advocate for petitioners.
     Mr. Parikshit P. Dawalkar, Advocate for respondent 
     No.5.
     Respondent Nos.1 to 4 & 6 served.
                          ...





         
                            CORAM: S.S. SHINDE, J.

DATE : 17TH NOVEMBER, 2011

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ORAL JUDGMENT :

. Rule. Rule made returnable forthwith.

Heard finally with the consent of parties.

2. Brief facts as disclosed in the writ

petition are as under :

. Petitioner No. 1 is wife and petitioner

No.2 is son of respondent No.2. Petitioner Nos. 3

and 4 are wife and son of respondent No.3.

Petitioner Nos. 5 and 6 are wife and son of

respondent No.4. Respondent Nos. 5 and 6 have

purchased the suit property from respondent Nos. 1

to 4. It is the case of the petitioners that,

respondent Nos. 1 to 4 sold out the suit property

to respondent No.5, who is not agriculturist. Said

property is sold on 19-12-1995 and 15-11-1997.

3. The petitioners herein instituted Special

Civil Suit No.97 of 2008 before the Civil Judge,

Senior Division, Ahmednagar against the

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respondents for partition, separate possession and

declaration that the sale deeds dated 19-12-1995

and 15-11-1997 executed by respondent Nos. 1 to 4

in favour of respondent Nos. 5 and 6 are null,

void and not binding upon the share of the

plaintiffs-petitioners with further relief of

injunction against respondent Nos. 5 and 6.

. In response to the suit summons,

defendants appeared in the matter and filed

Written Statement denying claim/contentions of the

plaintiffs-petitioners and accordingly, issues

came to be framed at Exhibit-22.

4. On 08-12-2010 the petitioners herein

filed application at Exhibit-47 praying therein to

refer the matter to competent authority to decide

the issue as to “whether respondent No.5 is

agriculturist or not?’ contending that respondent

No.5 is not agriculturist in view of Section 63 of

the Bombay Tenancy and Agricultural Lands Act,1948

(for short, “said Act”) and respondent No. 5

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cannot purchase the agricultural land and

therefore under Section 85A of the said Act, issue

has to be referred to the competent authority to

decide the same.

. Respondent No. 5 filed his Say to the

said application. On 14-12-2010 learned Civil

Judge, Senior Division, Ahmednagar was pleased to

reject the said application. Hence this writ

petition.

5. Learned Counsel appearing for the

petitioners invited my attention to the provisions

of Section 63 and also Section 85A of the Bombay

Tenancy and Agricultural Lands Act, 1948 and

submitted that, in the light of averments in

para-5 of the plaint, it was incumbent upon the

concerned Court to frame issue with respect to

“whether respondent No.5 is an agriculturist or

not?” and further to refer the said issue to the

Revenue Authority i.e. Tahsildar for inquiry.

However, the mandate of provisions of Section 63

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and 85A of the said Act has not been followed by

the concerned Court. Therefore, the Counsel for

petitioners would submit that, this writ petition

may be allowed.

6. On the other hand, learned Counsel

appearing for the respondents submits that, the

proviso to Section 63 of the said Act enables the

purchaser to seek permission from the competent

officer and then enter into the transaction.

However, the Counsel for the respondents is not

able to inform this Court that whether such

permission has been obtained by respondent No.5

before entering into transaction. Learned Counsel

further submits that, this Court may not interfere

in the impugned order.

7. I have given due consideration to the

rival submissions. At the outset, it would be

relevant to reproduce herein-below the provisions

of Section 63 and 85A of the said Act.

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“63. Transfers to non-agriculturists
barred.–(1) Save as provided in this

Act-

(a) no sale (including sales in execution
of a decree of a Civil Court or for
recovery of arrears of land revenue or

for sums recoverable as arrears of land
revenue), gift, exchange or lease of any
land or interest therein, or

(b) no mortgage of any land or interest
therein, in which the possession of the

mortgaged property is delivered to the
mortgagee,

shall be valid in favour of person who
is not an agriculturist (or who being an

agriculturist (will after such sale,
gift, exchange,lease or mortgage, hold

land [exceeding the ceiling area0
determined under the Maharashtra
Agricultural Lands (Ceiling on Holdings)
Act, 1961 9such permission shall not be

granted, where land is being sold to a
person who is not an agriculturist for
agricultural purposes, if the annual
income of such person from other sources
is Rs.12,000 or more) or who is not an

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agricultural labourer;

Provided that the Collector or an
officer authorised by the (State)

Government in this behalf may grant
permission for such sale, gift, exchange,
lease or mortgage, on such conditions as

may be prescribed.

(Explanation.- For the purpose of

this sub-section the expression

“agriculturist” includes any person who
as a result of the acquisition of his

land for any public purpose has been
rendered landless for a period not
exceeding ten years from the date of

possession of his land is taken for such
acquisition).

[(1A) Where any condition subject to

which permission to transfer was granted
is contravened then the land in respect
of which such permission was granted
shall be liable to be forfeited in

accordance with the provisions of section
84 CC.

(1B) Where permission is granted to
any transfer to land under sub-section

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(1) any subsequent transfer of such land
shall also be subject to the provisions

of sub-section (1)]

(2) Nothing in this section shall be
deemed to prohibit the sale, gift,
exchange or lease of a dwelling house or

the site thereof or any land appurtenant
to it in favour of an agricultural
labourer or an artisan [or a person

carrying on any allied pursuit.]

[(3) Nothing in this section shall

apply or be deemed to have supplied to a
mortgage of any land or interest therein
effected in favour of a co-operative

society as security for the loan advanced
by such society [ or any transfer

declared to be a mortgage by a Court
under section 24 of the Bombay

Agricultural Debtors’ Relief Act, 1947.]]

[(4) Nothing in section 63A shall
apply to any sale made under sub-section

(1).]”

“85A. Suits involving issues required
to be decided under this Act.- (1) If any

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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 an decide such issue 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 the
Mamlatdar’s Courts Act,1906.]”

8. A bare perusal of Section 63 of the said

Act would make it abundantly clear that, buyer

should be an agriculturist. Therefore, in the

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light of averments in Para-5 of the plaint, in all

fairness, the application of the petitioners

should have been allowed by the trial Court. The

point raised by the petitioners goes to the root

of the matter and therefore, such issue become

important in the facts and circumstances of this

case.

9. In the light of what is stated

hereinabove, Writ Petition deserves to be allowed.

Accordingly, impugned order is set aside. 2nd

Joint Civil Judge, Senior Division, Ahmednagar is

directed to frame the issue in respect of “whether

respondent No.5 is an agriculturist or not?” and

after hearing the respondents will consider the

prayer of the petitioners to refer it to the

Tahsildar for inquiry as provided under

Section 85A of the said Act. Writ Petition is

allowed to the above extent and stands disposed

of. Rule made absolute as indicated above.

sd/-

[S.S. SHINDE, J.]
sut/NOV11

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