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2011 DIGILAW 1136 (BOM)

Pradeep Vaikunth Kamat v. Vithal Shamba Shetye

2011-09-14

F.M.REIS

body2011
JUDGMENT F.M. REIS, J. 1. Heard Shri P. Lotlikar, learned Counsel appearing for the petitioner and Shri U. Tari, learned Counsel appearing for respondent Nos. 1 to 3. 2. The above petition challenges the order passed by the learned Civil Judge Senior Division at Bicholim, in Special Civil Suit No.42/2007/A whereby an application filed by the petitioner to treat the issue No.2 as a preliminary issue came to be rejected. 3. Shri P. Lotlikar, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that it is the case of the respondents that they are tenants of the suit property and according to him the petitioner has disputed such claim of tenancy. The learned Counsel further pointed out that in case the respondents are tenants of the suit property, the jurisdiction of Civil Court to entertain the suit would be barred. The learned Counsel further pointed out that on the basis of the pleadings of the parties issue of tenancy ought to have been framed by the learned Judge and such issue ought to have been referred to the learned Mamlatdar for appropriate decision. The learned Counsel as such submitted that the learned Judge has erroneously exercised the jurisdiction whilst passing the impugned order which requires interference by this Court under Article 227 of the Constitution of India. 4. On the other hand, Shri U. Tari, the learned Counsel appearing for respondent Nos. 1 to 3 has supported the impugned order. The learned Counsel has pointed out that as far as first relief sought by the respondents in the suit is to the effect that the sale deeds executed in favour of the petitioner are null and void which is a matter to be adjudicated by the Civil Court. The learned Counsel further pointed out that in any event the question of jurisdiction raised by the petitioner is a mixed question of law and fact which cannot be decided at this preliminary stage. Shri U. Tari, learned Counsel did not dispute the fact that the issue of tenancy arises on the basis of the pleadings in the suit and as such the issue ought to have been framed by the learned Judge in the said suit. Shri U. Tari, learned Counsel did not dispute the fact that the issue of tenancy arises on the basis of the pleadings in the suit and as such the issue ought to have been framed by the learned Judge in the said suit. The learned Counsel further pointed out that the question of referring the issue to the learned Mamlatdar does not arise as according to him the application filed by the respondent Nos. 1 to 3 under Section 8A of the Agricultural Tenancy Act is pending for adjudication before the concerned Mamlatdar. The learned Counsel as such submitted that the above petition deserves to be rejected. 5. Having heard the learned Counsel for the parties and on perusal of records, the learned Judge whilst passing the impugned order has come to the conclusion that the issue with regard to the jurisdiction as advanced by the petitioner is a mixed question of law and fact which can be decided only after the evidence is recorded. Considering the said aspect, I find no reason to interfere in the impugned order whereby the application filed by the petitioner to treat the issue No.2 as preliminary issue came to be rejected. But however considering the contention of Shri P. Lotlikar, the learned Counsel appearing for the petitioner to the effect that the issue of tenancy arises from the pleadings of the parties which has not been disputed by the learned Counsel appearing for respondent Nos. 1 to 3, I find it appropriate that the petitioner should be given liberty to file an appropriate application before the learned Judge to frame such an additional issue. If any such additional issue is framed, the learned Judge shall consider whether the issue has to be referred to the learned Mamlatdar or the Civil Suit be stayed until the final adjudication of the proceedings initiated by the respondent Nos. 1 to 3 before the concerned Mamlatdar under Section 8A of the Agricultural Tenancy Act. 6. Subject to the above, the Writ Petition stands rejected. The interim relief granted by this Court on 03.05.2011 in terms of prayer clause 'B' is vacated.