1 207 ao.1031.03 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1031 OF 2003 Gopikabai Keshav Goltode. ... Appellant Versus Dattu Vithoba Mali (Devkar) and others. ... Respondents ­­­­­ Mr. Surel Shah for the Appellant. Mr. Sandeep S. Salunke for Respondent No.3. ­­­­­ CORAM : A.S.OKA, J. DATE : 01 st April, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant and the learned counsel appearing for Respondent No.3. None appears for Respondent Nos.1 and 2. 2 The Respondents are the original plaintiffs and the Appellant is the original defendant. In the suit a case is made that one Vithoba was the father of the Respondents, who died on 12 th September, 1970. The Respondents claim to be in possession of the suit land. It is their 2 207 ao.1031.03 contention that their father never executed any document relating to suit land and therefore, the alleged sale deed dated 29 th April, 1963 relied upon by the Appellant is illegal. It is contended that on 29 th April, 1963, the suit land was in possession of an agricultural tenant and therefore, the alleged sale transaction was in violation of the provisions of Section 84 (C) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the said Act”). According to the case of the Respondents, even price of the suit land was fixed under Section 32 (G) of the said Act. It is contended that the sale deed was null and void. The first prayer in the suit filed by the Respondents was for declaration that there is no sale­deed executed by their father and the Appellant is not entitled to claim right of ownership. The second prayer is for declaration that the sale deed dated 29 th April, 1963 was illegal being contrary to Section 84 (C) of the said Act. The learned trial Judge came to the conclusion that the suit was barred by the provisions of the said Act and therefore, the learned trial Judge by the impugned order proceeded to reject the Plaint. 3 207 ao.1031.03 3 An appeal was preferred by the Respondents. In the appeal, an order of remand has been passed by the District Court. 4 The learned counsel appearing for the Appellant submitted that in view of Section 85 read with Section 70 of the said Act, the issue whether there is a breach of Section 84 (C) oft he said Act will have to be determined only by the Authority under the said Act and the jurisdiction of the Civil Court stands ousted. He submitted that the finding recorded by the District Court is completely erroneous and the suit was not maintainable in the Civil Court. The learned counsel appearing for the Respondents supported the impugned judgment and order. 5 I have considered the submissions. There are two prayers in the suit. In the first prayer, a declaration is claimed that the Respondents’ father had not executed any sale­deed. The first prayer was for declaration that the sale­deed did not exist at all. The said relief cannot be granted by the Authority under the said Act. Even as regards the third prayer, it is a consequential prayer to the first prayer and therefore, 4 207 ao.1031.03 jurisdiction of the Civil Court is not ousted. The second prayer is for declaration that the sale­deed be declared as illegal being executed in violation of Section 84 (C) of the said Act. The third prayer in the suit is for decree for possession. On plain reading of the plaint, the bar of Section 85 of the said Act will not be attracted as far as the first prayer is concerned. Thus, the trial Court was completely in error when the plaint was rejected on the ground of bar under the provisions of the said Act. Issue of jurisdiction may arise insofar as second prayer is concerned. The suit is of the year 1979. The plaint could not have been rejected as going by the averments made in the plaint, the jurisdiction of the Civil Court to grant first prayer was not ousted. Therefore, no fault can be found with the judgment of the Appellate Court to the extent to which it is held that the plaint could not have been rejected. However, the Appellate Court has concluded the issue of jurisdiction of the Civil Court to entertain the suit. Insofar as second prayer is concerned, the said issue could not have been concluded by the Appeal Court and the said issue will have to be decided at the time of final hearing of the suit alongwith other issues. Accordingly, the impugned order deserves to be modified. 5 207 ao.1031.03 6 Hence, I pas the following order: i. The order of remand passed by the District Court is confirmed. However, subject to what is observed above, it is made clear that the issue of jurisdiction of the Civil Court is kept open, which shall be decided by the trial Court alongwith the other issues ; ii. The appeal is partly allowed on above terms with no order as to costs ; iii. Hearing of the suit is expedited. [ A.S.OKA, J ]