1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR M.C.A. NO. 389/2008 IN SECOND APPEAL NO. 294 OF 1990 Ramjag Ramroop Pandey & Ors. vs. Mahadeo Brijlal Tiwari & Anr. ____________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 17, 2008. Heard Shri Singh, Advocate for the applicants (original respondents) in Second Appeal No. 294 of 1990 decided by me on 15.1.2008. The prayer is to review said judgment on the ground that there is error apparent. The reliance is being placed on the judgment of the Hon'ble Apex Court in the case of Gulam Abbas vs. Mulla Abdul Kadar, reported at 1970 (3) SCC 643, to state that as there is error apparent, review jurisdiction can be invoked. There can be no debate about this proposition. I have heard Shri Singh, Advocate, to find out what is error apparent. The advocate points out that this Court has by relying upon the judgments of the Hon'ble Apex Court concluded that question whether person is or is not an agriculturist, being disputed question of fact, cannot be looked into by this Court for the first time in Second Appeal and also Civil Court cannot decide it in view of 2 provisions of Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. He contends that thus, this Court has not followed the judgments which are shown to it while actually forming its view in the course of delivery of judgment. He points out that the trial Court in present matter had in fact found that present applicants are not agriculturist and said finding of trial Court could not have been restored by this Court because of view taken by it in the judgment. According to the learned counsel, thus a judgment and decree of trial Court, taking a view to the contrary, has been restored by this Court and hence there is error apparent. After hearing learned counsel for the applicants, I find that the trial Court found present applicants not to be agriculturists and said finding was not assailed by present applicants by filing Regular Civil Appeal. Not only this, lower appellate Court while considering this aspect found that as land is falling within municipal limits, its area was less i.e. 4 Gunthas and therefore the provisions of Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. were not at all applicable. The controversy has been considered in Second Appeal in this background and said 3 approach of lower appellate Court has been found to be incorrect. During hearing of Second Appeal, Civil Application No.8365 of 2007 was moved by present applicants under Order 41, Rule 27 of Civil Procedure Code, seeking leave to place certain documents on record to show that he is an agriculturist and inherited the ancestral agricultural land at Village – Ratapur, Tahsil – Amethi, District – Sultanpur, State – Uttar Pradesh. This Court has also considered said application and expressed its view on it in the course of judgment. Reference under Section 125 of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, is necessary only when Civil Court is prima facie satisfied on the basis of material before it, of the bonafides of the person raising such plea. It is, therefore, apparent that as the view taken by lower appellate Court was found to be unsustainable, the judgment and decree of trial Court has been restored. There is no error apparent as sought to be contended by learned counsel for the applicants. Misc. Civil Application for review is, therefore, dismissed. No order as to costs. JUDGE *GS.