( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2359 OF 1996 1. Smt. Kamalabai Rupchand Bari 2. Vasant Rupchand Bari 3. Dattu Rupchand Bari 4. Sham Rupchand Bari 5. Shaila Rupchand Bari 6. Rajani w/o Subhash Bari Nos. 1 to 6 are residents of Shirpur, Tq. Shirpur, District Dhule. (Nos. 3, 4 and 5 being minors, through their guardian petitioner No. 1 – mother) 7. Kalabai w/o Dagadu Bari, R/o Shahada, Dist. Dhule. 8. Gangabai w/o Bhanudas Bari, R/o Yawal, Dist. Jalgaon. PETITIONERS VERSUS Madhukar Gaba Patil, R/o Shirpur, Dist. Dhule. RESPONDENT ..... Mr. Pawan Pawar, advocate holding for Mr. S.P. Brahme, advocate for the petitioners. Mr. S.P. Shah, advocate holding for Mr. P.M. Shah, Senior Counsel, for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 16th February, 2010] ( 2 ) ORAL JUDGEMENT : 1. By this petition, legal representatives of original plaintiff impugn order rendered by the learned Civil Judge (J.D.), Shirpur on their application (Exh-94) filed in the suit (R.C.S. No. 13/1980). 2. The deceased plaintiff had filed suit (R.C.S. No. 13/1980) alleging that the suit land was kept as mortgage with the defendant though execution of sale-deed was effected in terms of agreement dated 31-10-1972. He alleged that intention of the parties was to create creditor-debtor relationship between them. He alleged further that transaction was un-conscionable. He further contended that the defendant was not an agriculturist and no permission was obtained under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”) and, therefore, the transaction was invalid. The defendant denied all the material averments. ( 3 ) 3. The trial Court framed necessary issues below Exh-15. The petitioners filed application (Exh-94) seeking framing of additional issues. It was contended that framing of an issue regarding non-agriculturist’s status of the defendant was essential. It was alleged that transfer of the suit land in favour of the defendant was void without permission because the defendant was not an agriculturist. The learned Civil Judge, however, rejected the application for the reason that there were certain entries in the 7/12 record to show name of the defendant in respect of another land, bearing Gat No. 100 situated at village Wanjare. The trial Court observed that if not an agriculturist, the defendant could be treated as atleast an agricultural labour. The order of the trial Court, rejecting the application for framing of issues and making reference of the relevant issue to the competent authority, is subject matter of challenge in this petition. 4. Heard learned counsel for the parties. 5. Section 63 of the BT&AL Act reveals that ( 4 ) transfer of agricultural land to non-agriculturist is barred unless the Collector or an authorized officer would grant permission for such sale, gift, exchange, lease or mortgage. The proviso appended to section 63 (1) is by way of exception to the main provision. Ordinarily, the transfer without permission of the competent officer or Collector is legally untenable. It will have to be treated as invalid having regard to plain language of section 63 (1). Section 70 of the BT&AL Act enumerates duties of the Mamlatdar. It is the duty of Mamlatdar to decide whether the person is an agriculturist. 6. The issue whether status of the person can be decided by the civil Court merely on basis of such stray entries in the revenue record is no more res integra. A Division Bench of the Apex Court in “Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi” (AIR 1979 SC 653), held that issue whether a party is an agriculturist will be within exclusive jurisdiction of Mamlatdar. Considering the provisions of sections 70, 85 and 85A ( 5 ) and 63 of the BT&AL Act, the Apex Court held : “Such an issue would indisputably arise under the Tenancy Act though not in a proceeding under the Tenancy Act. Now, if, Section 85 bars the jurisdiction of the Civil Court to decide or deal with an issue arising under the Tenancy Act and if Section 85-A imposes an obligation on the Civil Court to refer such issue to the competent authority under the Tenancy Act, it would be no answer to the provisions to say that the issue is an incidental issue in a properly constituted civil suit before a Civil Court having jurisdiction to entertain the same.” 7. In view of the law settled by the Apex Court on the question involved in this petition, it is not necessary to consider any other aspect of the matter. Suffice it to say that framing of the issue was necessary in view of the nature of dispute raised and, therefore, the application could not have been rejected. In this view of the matter, the petition is allowed. The impugned order is set aside. The civil Court is directed to frame the issues as sought by the ( 6 ) petitioners and to do the needful including reference of issue to the Tenancy Tribunal. The suit is old one and, therefore, an early action in this context is warranted. The reference Court may be directed to answer the reference within period of six (6) months and thereafter, the suit shall be expeditiously decided. Liberty is granted to the respondents to seek framing of an additional issue, if so required. Rule made absolute accordingly. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp2359-96