1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Misc. Civil Application No.1145/2008 In First Appeal No.364/2006 (Decided) [Murlidharrao s/o Namdeorao Khangar .vrs. Rajesh s/o Deorao Meshram] ............................................................................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... Mr. Dara Singh J. Sindhu, Advocate for the applicant, Mr. R.V. Gaikwad, Advocate for the non-applicant. .......... CORAM : K.J. ROHEE AND R.C. CHAVAN, JJ. DATED : DECEMBER 05, 2008. 1. Original defendant/respondent in First Appeal No.364/2006, seeks review of judgment dated 11.12.2007 whereby the appeal was allowed and Special Civil Suit No.850/2003 for specific performance of a contract dated 29.4.2000 was decreed by this Court. 2. The applicant states that he had specifically resisted the suit on the ground, among others, that the appellant/plaintiff was 2 not an agriculturist and so could not have purchased the suit land and that the agreement was void abinitio. The trial court had no jurisdiction to decide that the plaintiff was an agriculturist and that the question was required to be referred to Tahsildar, who alone was competent in view of provisions of Sections 89, 100, 124 and 125 of the Bombay Tenancy and Agricultural lands (Vidarbha Region) Act, 1958. In the absence of such adjudication, this court could not have allowed plaintiff's appeal and decreed the suit. 3. We have heard both the learned counsel for the applicant and the respondent. The learned counsel for the applicant submitted that the applicant had specifically raised the questions of ineligibility of the plaintiff to purchase land as plaintiff was not an agriculturist, as also the questions of lack of jurisdiction is a civil court to decide the issue as to whether the plaintiff was an agriculturist. He submitted that in view of judgment of the Supreme Court in Gundaji Satwaji Shinde .vs. Ramchandra Bhikaji Joshi, reported at AIR 1979 SC 653 followed by this Court in Topa Dhenu Rathod .vs. Maheshkumar 3 Shankarlal Agrawal, reported at 1996(2) Mh.L.J . 426 , without adjudication of the said question by competent revenue authority, this court would not have allowed the appeal. This position had been overlooked by this court and hence the judgment was required to be reviewed. 4. The learned adversary first submitted that this court had duly considered the question of ineligibility of the plaintiff to purchase the land and negatived the contentions of the applicant/defendant in para 22 of the judgment. The applicant may have his own view of the matter, which may be different from the view taken by this Court. But, in that case, his remedy may lie elsewhere and not in invoking provisions for review. The learned counsel submitted and rightly in our view, that a review would be possible only if it shown any new or important matter or evidence has been discovered after the judgment which after exercise of due diligence was not within applicant's knowledge or could not have been produced by him before this Court. Such is not the present case. There is neither any error apparent on the face of record, nor any other sufficient reason to invoke 4 jurisdiction under Order 47 of the Civil Procedure Code. 5. Apart from this, the learned counsel for the non- applicant submitted that though the applicant/original defendant had indeed stated that the plaintiff was not an agriculturist, merely saying so was not enough, particularly on the face of the facts that the applicant/original defendant sold 2 acres of land to the plaintiff prior to this transaction or as a part of the same agreement. He also pointed out that the plaintiff has placed on record 7/12 extract of another piece of agricultural land owned by him which prima facie shows that the plaintiff was an agriculturist. Therefore, it was for the applicant/original defendant to demonstrate that the plaintiff was not an agriculturist so that the issue can be framed. Relying on the judgment of Division Bench of this Court in Pulmati Shyamlal Mishra and another .vrs. Ramkrishna Gangaprasad Bajpai and others, 1981 Mh.L.J . 321 followed in the judgment of Single Judge in Uttam Sambha Deshmukh and others .vrs. Yamunabai w/o Chandrabhan Bhoyar and others, 1998(2) Mh.L.J . 144 , the learned counsel submitted that every denial does not give rise 5 to an issue and unless it is shown that the question is required to be decided in order to consider plaintiff's entitlement to the relief claimed, such issue need not be framed. 6. We have carefully considered the rival contentions in this case. The facts have already been noted in the judgment. It is not that the plaintiff purchased the land for the purpose of cultivation. The plaintiff has purchased it for being developed for non-agricultural use. The agreement provided that the appellant was to have the authority to lay plots, to enter into transactions with customers, receive earnest amount, and to sell two plots out of the layout to the applicant/defendant. The defendant, having received a consideration for 2 acres of land, executed the sale deed in appellant's favour. In this context, the plea that the plaintiff could not purchase remaining land under the same agreement because the plaintiff was not an agriculturist, was indeed a very strange plea which smacks of taking advantage of a provisions of law in order to protract the litigation. In Gundaji Satwaji Shinde .vrs. Ramchandra Bhikaji Joshi, reported at AIR 1979 SC 653 on which the learned counsel for the applicant 6 placed reliance in para 10, the Supreme Court observed that : “Therefore, if a person intending to purchase agricultural land files a suit for enforcing a contract entered into by him and if the suit is resisted on the ground that the plaintiff is ineligible to buy agricultural land, not for any other reason except that it is prohibited by Section 63 of the Tenancy Act, an issue whether plaintiff is an agriculturist would directly and substantially arise in view of the provisions of the Tenancy Act.” (emphasis supplied). Such is not the present case. The suit was resisted on all imaginable grounds including that the plaintiff was not an agriculturist. It was not for any other reason except that it was prohibited by Section 63 of the Tenancy Act. Therefore, issue was not required to be referred to a revenue authority. 7. Firstly, this application is beyond the scope of review under order 47 of the Code of Civil Procedure. This court had duly considered pleas raised. There is neither any new material discovered nor any error apparent on the face of record. 7 Secondly, the applicant herein had already transferred 2 acres of land under the same agreement to the appellant. It does not stand in the mouth of the applicant that though he transferred 2 acres of land to the applicant, he could not transfer the remaining land on the specious plea that the plaintiff is not an agriculturist. Most importantly, the transaction was, in fact, for development of the land and had nothing to do with the cultivation. Therefore, the question whether the appellant was cultivator or not was irrelevant. If the applicant has grievance about the view taken by this Court, review is definitely not an appropriate remedy. 8. The application is, therefore, rejected. JUDGE JUDGE Gulande