1 wp 7210.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7210 OF 2011 Balasaheb Bhaurao Arangale .. Petitioner Versus 1. Shaikh Asrar Mohammad Husain and others .. Respondents Shri R. N. Dhorde, Advocate h/f Shri V. H. Dighe, Advocate for the Petitioner. Shri R. R. Mantri, Advocate h/f Shri L. B. Palod, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 01ST DECEMBER, 2011. PER COURT : . The present respondent No. 1 has filed a suit for specific performance of contract on the basis of agreement of sale. The Trial Court framed issues. Thereafter, the present petitioner filed an application Exhibit 50 for framing of an issue as under : "Does plaintiff proves that he is an agriculturist and the transaction is hit by the said provision" and further prayed to refer the said issue to the A. L. T. 2 wp 7210.11 Kopergaon. The Trial Court rejected the said application Exhibit 50, so also deleted issue No. 3 which reads as under : "Whether the transaction is hit by the provisions of The Bombay Tenancy and Agricultural Lands Act ?" The said order is assailed in the present petition. 2. Shri R. N. Dhorde, the learned counsel for the petitioner submits that as per the provisions of Sec. 63 of the Bombay Tenancy and Agricultural Lands Act, no sale can be effectuated in favour of a person who is not an agriculturist. As per Sec. 70 of the Bombay Tenancy and Agricultural Lands Act, the Mamlatdar has to decide as to whether a person is an agriculturist or not. According to the learned counsel, the said issue would go to the root of the matter and it is during the pendency of suit itself the said issue is required to be decided. The Civil Court cannot decide the said issue. The Trial Court has erroneously rejected the application. The learned counsel relies on the judgment of the Apex Court in a case of Gundaji Satwaji Shinde V. Ramchandra Bhikaji Joshi reported in AIR 1979 S.C. 653. The learned counsel further contends that in such circumstances, the issue as proposed needs to be framed and referred to the A. L. T., Kopergaon for its decision and the 3 wp 7210.11 same has to be done before the suit is decided. 3. Shri Mantri, the learned counsel for the respondent No. 1 submits that the issue as to whether the plaintiff is an agriculturist or not does not arise at all. The plaintiff has produced on record the certificate declaring the plaintiff to be an agriculturist. The said certificate is issued by the competent authority. The learned counsel further contends that the issue would arise only if there is a pleading to that effect. Specifically no such issue can be framed on the basis of vague pleadings, nor in a suit for specific performance of contract it is necessary. The learned counsel relies on the judgment of the Apex Court in a case of Thomas Antony Vs. Varkey Varkey reported in 2000 (1) SCC 35, so also the judgment of the Apex Court in a a case of Ramrameshwari Devi and others Vs. Nirmaladevi and others reported in 2011(6) Mh. L. J. 116 and the judgment of the Division Bench of this Court in a case of Pulmati Shyamlal Mishra and another Vs. Ramkrishna Gangaprasad Bajpai and others reported in BCI (1981) 25 and the judgment of the learned Single Judge of this Court in a case of Uttam Sambha Deshmukh and others Vs. Yamunabai w/o Chandrabhan Bhoyar and others reported in 1998(2) Mh. L. J. 144 to 4 wp 7210.11 contend that the Civil Court cannot frame an issue unless the specific contentions in that regard is raised and if the said issue does not arise, then the Court need not frame the issue at all. The Court has to take due care and caution while framing the issues. In the present matter, no specific pleadings are there. The application was only made to protract the matter and according to the learned counsel the Trial Court has properly considered the said aspect. It has rightly relied on the judgments in a case of Ambadas vs. Shaikh Razaq reported in 2009(1) Mh. L. J. 471 and in a case of Krishna Kale Vs. Bhagwan Natthu Kale reported in 2008(4) All MR 529. The learned counsel contends that when there is no error in the order passed by the Trial Court, the said order is required to be maintained as it is and no further directions are necessary. 4. The application was made to frame the issue regarding status of the plaintiff as an agriculturist and refer the same to the A. L. T. for its decision. The Trial Court was right in observing that in a suit for specific performance the Court has to decide about the ingredients required for relief of specific performance. The plaintiff contends that he has already filed on record the certificate issued by the competent authority declaring 5 wp 7210.11 him to be an agriculturist. In the present petition also the 7/12 extracts are filed to substantiate the said contention. At this stage, I am not required to decide the validity of the same. It is for the Trial Court to consider all these aspects. 5. Suffice it to state that the Trial Court would consider all the documents i. e. the certificate produced by the plaintiff about its declaration and its status on record and the evidence of the parties to come to a proper conclusion. It is for the Trial Court to decide the genuineness of the claims of either of the parties for passing a decree of specific performance. If the Court is satisfied about the declaration of the status of the plaintiff and is satisfied about the validity of the said certificate as contended by the plaintiff, then in that case no further question would arise. It is only if the Court feels that the genuine dispute arises about the status of the plaintiff as an agriculturist, then it can pass further orders. 6. In the light of the above, no interference is called for in the impugned order. As such, the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11