1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR SECOND APPEAL NO.350/2009 Appellant :- Nilkanth s/o Atmaram Dhope Aged about 72 years, Occupation - Agriculturist, r/o Tembhi, Tq. Ner, District : Yavatmal. ...Versus... Respondent :- Pramod s/o Mahadeorao Dal, Aged about 39 years, Occupation – Labourer, r/o Digras, Tq. Digras, District – Yavatmal, Presently r/o Nababpur, Tq. Ner, District – Yavatmal. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- [Shri B.M. Kasat, Adv. for appellant] [Shri A.V. Bhide, Adv. for respondent] CORAM:- A.B. CHAUDHARI, J. DATED :- 11.12.2009 1. In support of the appeal, learned Counsel for the appellant made the following submissions. This Court in Writ Petition No.550/2004 had directed the trial Court to frame additional issue whether original plaintiff was agriculturist or not and accordingly that issue was framed and therefore, the trial Court was under obligation to refer the said issue to the competent tenancy Tahsildar for determining the said issue as civil Court does not have jurisdiction to decide the said issue. Failure on the part of the trial Court to refer the said issue 2 for decision to the tenancy Tahsildar is contrary to the judgment of the Supreme Court in the case of Gundaji Satwaji Shinde...Versus...Ramchandra Bhikaji Joshi, reported in 1979 Mh.L.J. 283 and judgment of this Court in the case of Asudamal s/o Laxmandas Sindhi...Versus...Kisanrao s/o Wamanrao Dharmale and others, reported in 2003 (4) Mh.L.J. 134. He, therefore, argued that the Courts below have wrongly appreciated the evidence regarding readiness and willingness of the plaintiff inasmuch as parol evidence of plaintiff has been believed without there being any corroboration from any other independent evidence which the plaintiff failed to bring before the Court and therefore, there is perversity in the finding regarding readiness and willingness. He then argued that the trial Court committed an error in deleting the issue that was already framed in terms of the order recorded by this Court in the said writ petition. Reliance of the trial Court on permission by the Sub-Divisional Officer under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as “the Bombay Tenancy Act”) is misplaced because in the first place whether or not he was agriculturist was required to be decided and the question of consideration of such permission would have arisen thereafter. 2. Per contra, learned Counsel for respondent – plaintiff opposed the appeal and argued that the deletion of additional issue No.8 that was done was after hearing the appellant – defendant and not behind his back and that 3 deletion was made because the plaintiff produced permission from Sub-Divisional Officer in accordance with proviso to Section 89 of the Bombay Tenancy Act and/or if on any ground the appellant wanted to challenge the permission the appellant ought to have challenged the same before the appropriate forum under the provisions of the Bombay Tenancy Act rather than putting any challenge before the Civil Court since the Civil Court will not be in position to determine validity or otherwise of the permission under Section 89 of the Bombay Tenancy Act. He then argued that the said Supreme Court judgment in the case of Gundaji Satwaji Shinde, cited supra, was considered by the learned Single Judge of this Court and relying on the other Supreme Court judgments it was held that even a conditional decree in the matter of specific performance of contract, in the event of want of permission under Section 89 of the Bombay Tenancy Act, can be passed and therefore, decisions relied by learned Counsel for appellant are distinguishable. Inviting my attention to finding of fact recorded by both the Courts below about readiness and willingness learned Counsel argued that the same is finding of fact that has been recorded on the evidence and it is not open to this Court to examine whether the Courts below could have relied on the parol evidence of respondent or not. 3. I have gone through the impugned judgments and orders made by the Courts below. Having heard learned Counsel for the rival parties, I find that framing of additional issue No.8 at the instance of this Court in 4 Writ Petition No.550/2004 does not mean that the trial Court was under obligation to refer the said issue to tenancy Court. As a matter of fact if at all the appellant wanted that the issue should have been referred to the tenancy Court the appellant should have taken care to make application accordingly to the Civil Court for making reference to the tenancy Court. The obligation spoken of in the judgment of the Supreme Court in the case of Gundaji Satwaji Shinde, cited supra, on the trial Court to refer the issue will not be attracted in the present case because there is permission granted in favour of the respondent - plaintiff under proviso to Section 89 of the Bombay Tenancy Act and that permission has become final and conclusive between the parties. Nothing prevented the appellant from putting challenge to the said permission before the appropriate forum. In the wake of such permission, therefore, the Civil Court was right in not referring the issue under tenancy Court since the said issue No.8 became redundant. I, therefore, do not find any fault with the trial Court in holding the said issue to be redundant and consequently, not referring to the tenancy Court as a part of his duty for the above reasons. The decision of the Hon’ble Supreme Court, cited supra, is of no application in the instant case because even a conditional decree can be passed but that occasion did not arise in the instant case because there is already permission granted by the competent authority, namely, Sub-Divisional Officer. Therefore, the decisions cited by learned Counsel for the appellant on facts will have no application in the instant 5 case. In so far as readiness and willingness is concerned, there is finding of fact recorded by the Courts below that the respondent/plaintiff was always ready and willing. That apart, the fact that the agreement between the parties was registered before the Sub-Registrar and the fact that out of Rs.63,000/- which was total consideration major amount of Rs.50,000/- was paid to the appellant in the presence of Sub-Registrar and balance was only Rs.13,000/-, inference about readiness and willingness will have to be drawn in favour of the respondent. This is a strong circumstance in favour of the respondent that he had already paid Rs. 50,000/- and small amount of Rs.13,000/- was only required to be paid. I, therefore, hold that the said question is merely a finding of fact, which cannot be disturbed or interfered with in the second appeal. In the result, I do not find any substantial question of law in the present case. There is no merit in the present second appeal. The same is, therefore, dismissed. No order as to costs. Learned Counsel for respondent opposes the request made by learned Counsel for appellant for continuance of interim order made by this Court for a period of three months. In the interest of justice, I grant period of six weeks to the appellant and no further extension shall be granted. Hence, interim order made by this Court shall continue only for a period of six weeks from today. JUDGE ssw