1 W.P.No.6089/11 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.6089 OF 2011. 1. Sudam Baburao Bagul, Age 65 years, Occ.Agri & Business. 2. Sau. Shashikala Sudam Bagul, Age 51 years,Occ.Household, R/o Uasgalli, Opp. Agrawal Bhuwan, Dhule, Tq.& Dist.Dhule. ... Petitioners. Versus 1. Mushir Ahmed Ayyub Shah, Age 41 years, Occ.Agri & Business, R/o Ajmera Nagar, Suryamandir Road, Dhule, Tq. and Dist.Dhule. 2. Latif Shah Musa Shah, Age 47 years, Occ.Agri & Business, R/o Hajarkholi, Opp. Madani Masjid, Dhule, Tq. and Dist.Dhule. 3. Latif Rauf Deshmukh, Age 41 years, Occ.Agri & Business, R/o 4715/29,Firdos Nagar, Nandiroad,Dhule Tq. and Dist.Dhule. 4. Alluddin Shaikh Salluddin, Age 42 years, Occ.Agri & Business, R/o Galli No.5, Kisanbatti Khunt, Dhule, Tq. & Dist.Dhule. 2 W.P.No.6089/11 5. Dr.Shaukatali Usman Shah, Age 57 years, Occ.Agri & Medical Practitioner, R/o Muslim Nagar, Near Natinal High School, Dhule, Tq. & Dist.Dhule. 6. Mohammad Asalam Abbas Ali, Age 37 years, Occ.Agri & Business, R/o Lokhandbazar Near Ansar Nagar, Dhule, Tq.and Dist.Dhule. ... Respondents. ... Mr.S.P.Brahme, advocate for the petitioners. Mr.S.P.Tiwari, advocate for Respondent Nos.1 to 6. ... CORAM : S.V.GANGAPURWALA,J. Date : 16.11.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 3. The present Respondents had filed suit for specific performance of contract and "issues" 3 W.P.No.6089/11 came to be framed regarding the status of the plaintiff as agriculturist. The petitioners filed applications Exh.58 and Exh.88 for referring the said issue to the Tenancy Court. The applications filed by the petitioners came to be rejected. Aggrieved thereby, the present petition is filed. 4. Mr.Tiwari, learned counsel for the Respondents submits that earlier application Exh. 58 was rejected. The said fact was suppressed while filing application Exh.88 for the same purpose. The act of the petitioners is not bonafide. The petitioners have certificate of the Tahsildar, stating that the plaintiffs are agriculturists. In such circumstances, there is no need to refer the issue to the Tenancy Court. Learned counsel contends that even otherwise the Court can pass a conditional decree and this aspect has been properly considered by the Court. 5. When an issue is framed regarding status of the plaintiffs as an agriculturists, in view of the bar engulfed in Section 63 of the 4 W.P.No.6089/11 Bombay Tenancy and Agricultural Lands Act, the said issue is required to be decided by the Tenancy Court. Civil Court does not have any jurisdiction to decide the same. The Apex Court in a case of "Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi" reported in 1979 (2) SCC 495, has specifically observed thus : "18. Thus, both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdiction of the Civil Court to settle, decide or deal with the same is not only ousted but the Civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon the 5 W.P.No.6089/11 reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act. 19. If, plaintiff sued for specific performance of a contract for sale of agricultural land governed by the provisions of the Tenancy Act in the Civil Court and the defendant appeared and raised a contention that in view of the provisions contained in S.63 of the Tenancy Act the plaintiff being not an agriculturist he is barred from purchasing the land, the issue would arise whether the plaintiff is an agriculturist. Such an issue being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the Civil Court to refer the issue to the competent authority under the Tenancy Act and the Civil Court has no jurisdiction 6 W.P.No.6089/11 to decide or deal with the same. That issue arises in the suit from which the present appeal arises and both the trial Court and the High Court were in error in clutching at a jurisdiction which did not vest in them and, therefore on this ground alone this appeal will succeed." 6. In view of the dictum of the Apex Court, as the issue has been framed by the Civil Court, the said issue about status of the plaintiffs as an agriculturists has to be decided by the Tenancy Court and will have to be referred to the Tenancy Court. 7. In light of the above, the impugned orders below Exh.58 and Exh.88 are quashed and set aside. Rule is made absolute in terms of prayer clause (C) and the said application Exh.58 is allowed. The issue be referred to the competent authority under the Tenancy Act, to decide the same. The Tenancy authority to whom 7 W.P.No.6089/11 the issue is referred shall decide the said issue expeditiously. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp6089.11