((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.379 OF 2001 Sunita Manohar Pingale Appellant versus Damodar Mahadeo Pingale Respondent Mr.P.S.Dani for appellant. Mr.Teja Katdare for respondent. CORAM : SMT.R.P.SONDURBALDOTA, J. DATE : 09th July 2008 PC : 1. The short question that arises for consideration of the Court in the instant appeal is whether the pleadings of the parties justify raising of issue relating to the question of the appellant being an agriculturist. 2. The appellant filed a suit being Regular Civil Suit No.130 of 1990 in the Court of Joint Civil Judge, Junior Division, Alibag seeking a declaration that she is the owner of the suit agricultural land and for an injunction to restrain the respondent, inter alia, from disturbing her possession and cultivation of ((-2-)) the land. The appellant contends in the plaint that she being an agriculturist, purchased the suit agricultural land from the respondent for a consideration of Rs.5,000/- vide sale deed dated 30th April 1984. According to her, after execution of the sale deed, her name came to be entered in the record of rights for the land. Since the date of purchase, she started cultivating the land through labourers and enjoying the fruits. When the prices of the lands in the surrounding area started rising, the respondent started causing obstruction to the appellant’s possession and cultivation of the suit land. Therefore, she brought the suit against the respondent. 3. The respondent in his written statement denies that the appellant is an agriculturist. He also denies that he sold the suit land to the appellant. According to him, the sale deed dated 30th April 1984 is an ostensible document, and the real transaction between him and the appellant was that of a loan. He contends that at the relevant time he was in need of Rs.5,000/- and had borrowed the same from the appellant. Then at the insistence of the appellant and her husband, he executed the ((-3-)) sale deed but only by way of security for repayment of the loan. Later, when he approached the appellant with repayment of the loan amount, the appellant deliberately avoided to accept the same. He claimed a right to redeem the suit property. The respondent also claimed to be in possession of the suit land. 4. When the parties went to trial, two of the issues amongst others, framed by the Trial Court, which are relevant for the present purposes, were : (a) whether the defendant proves that the so-called sale deed executed by him in favour of plaintiff is invalid and unenforceable on the ground that it was obtained by force, fraud and undue influence? and (b) Does the defendant prove that, alleged sale deed is a mortgage transaction i.e. mortgage by conditional sale and as a security for loan transaction? Both the issues were answered in negative in favour of the appellant. After considering all the issues raised including the above two issues, the Trial Court decreed the suit on 14th December 1994, inter alia, declaring the appellant as the owner of the suit land. ((-4-)) 5. Being aggrieved by the Trial Court’s judgement and decree, the respondent preferred an appeal being Civil Appeal No.9 of 1995 in the Court of District Judge, Raigad, Alibag. The appeal was allowed by order dated 29th April 1999. While considering the appeal the Appellate Court opined that it was necessary for the Trial Court to frame an issue on the question of the appellant being an agriculturist. It observed that in the written statement the defendant has raised a plea that the plaintiff was not an agriculturist. In the circumstances, the issue as to whether the appellant was an agriculturist or not, had material bearing on the fact of the suit. It further observed that if it is proved that the appellant was not an agriculturist, then the sale deed becomes invalid and the appellant will not be entitled to the relief of declaration of ownership as well as for recovery of possession. With these observations the Appellate Court set aside the decree and remanded the matter with a direction that the Trial Court shall frame the issue as to whether the appellant was an agriculturist on the date of sale deed in question and then refer that issue to the competent Court for ((-5-)) decision and decide the matter afresh on receipt of finding on that issue from the competent authority. This is the order presently under challenge. 6. Mr.Dani, the learned counsel appearing for the appellant submits that the Trial Court erred in holding that the issue of the appellant being an agriculturist arises in the suit and needs to be referred to the Tenancy Court. He submits that the Appellate Court has not properly appreciated the pleadings of the parties. Merely because the respondent has put one sentence in the written statement challenging status of the appellant, it cannot be said that an issue arises therefrom. 7. It will be convenient to refer, at this stage, to the relevant provisions of law i.e. Order XIV, Rule 1(1) and (2) CPC which read thus:- Order-XIV :- Settlement of Issues and Determinations of Suit on Issues of Law or on Issues agreed upon : 1. Framing of issues.- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. 2. Material propositions are those ((-6-)) propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. It is thus seen that every averment in the plaint meeting with the denial in the written statement does not give rise to an issue. For an issue to arise, the proposition of fact has to be such that the plaintiff must allege the same in order to show a right to sue and the defendant must allege the same so to constitute his defence. This is the provision of law on the touchstone of which the question at para 1 above is required to be answered. 8. At paragraph 1 of the plaint the appellant states that she is an agriculturist and by the sale deed dated 30th April 1984 she purchased the suit agricultural land from the respondent for a consideration of Rs.5,000/-. No doubt, the respondent at paragraph 6 of the written statement does deny that the appellant is an agriculturist. But it is to be noted that this is a bare one line denial which is bald in nature. The principal defence of the respondent is not based on this denial at all. The respondent does not deny execution of the ((-7-)) sale deed dated 30th April 1984. However, it is his case that the document is an ostensible document and the real transaction between the parties was a loan transaction. He claims to have taken loan of Rs.5,000/- from the appellant and executed the document only by way of security for repayment of that loan. It is clear from the pleadings that neither the right of the plaintiff to sue flows from the proposition that she is an agriculturist nor the principal defence of the respondent is dependent upon it. As rightly submitted by Mr.Dani, it is not the case of the respondent that the sale deed dated 30th April 1984 is illegal on account of ineligibility on the part of the appellant in purchasing an agricultural land. Had it been so, the natural corollary of the events would have been the respondent filing either a counter suit or a counter claim in the appellant’s suit challenging the sale deed. This is not the course of action taken by the respondent. He has instead defended the suit contending that the agreement was executed by way of security to the loan. In the circumstances the issue as regards status of the appellant as an agriculturist does not arise. ((-8-)) 9. Mr.Dani submits that reference of matters to the revenue authorities cannot be done in a mechanical manner. The Court has a duty to examine the substance of the claim and refuse to frame and remit any issue if same appears to be demonstrably frivolous. In this connection he relies upon two decisions of our High Court in Nilesh Construction Company and another Vs. Gangubai w/o Bablya Choudhary and others reported in 1982-Mh.L.J.-664 and Pulmati Shyamlal Mishra and another Vs. Ramkrishna Gangaprasad Bajpai and others reported in 1981-Mh.L.J.-321. The facts of the two cases cited are slightly different from the facts of the case on hand, however, the ratio would be relevant and applicable to it. In the two cases cited, one of the parties before the Court had claimed to be agricultural tenant in respect of the suit properties involved. The Court was required to consider whether the claim warranted making of a reference for deciding the issue of tenancy as provided by Section 85-A of the Bombay Tenancy and Agricultural Lands Act. Our High Court held that the Court is not under any obligation to frame and remit the issue of tenancy ((-9-)) mechanically, merely on the same being raised in the written statement, without judicial satisfaction of its necessity and justification. It is observed that the cases can be conceived, when tenancy plea may appear to be patently frivolous, fraudulent and part of the dilatory strategy, and may not by itself attract sections 85 and 85-A of the Tenancy Act. The remittance of any such tenancy issue is known to have become a long winding and time consuming process. Unwarranted remittance of such issue for trial in literal and mechanical compliance with the above provisions, enables the litigants to abuse process of the Court and cause grave miscarriage of justice. Before a reference is made for deciding the issue of tenancy under the Tenancy Act, the alleged tenant must disclose in his pleadings the details about tenancy and the exact nature of right which is claimed by him and that an issue of tenancy cannot be raised on a vague plea. In the instant case, the reference being made is of the status of the appellant as an agriculturist. Therefore, the principle laid down in the two decisions cited by Mr.Dani would be applicable with suitable modifications to the facts of the instant case. As seen at ((-10-)) para 8 above, the written statement contains a bald denial of the status of the appellant. There is no defence taken based on that denial. Therefore, reference by the Appellate Court of the issue becomes literal and mechanical. The pleadings do not warrant raising of such issue and referring it to the appropriate authorities for decision. 10. In the above circumstances, the appellant succeeds in appeal. The impugned order dated 29th April 1999 in Civil Appeal No.9 of 1995 passed by the Additional District Judge, Raigad is set aside. The Appellate Court is directed to hear and decide the appeal expeditiously within a period of two months from the date on which this order is brought to its notice. (SMT.R.P.SONDURBALDOTA, J.)