: 1 : 3183-10-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3183 OF 2010 Shakil Abdul Sayyed & Anr. .. Petitioners v/s. Subhashchandra Ramvilas Tapdiya & Ors. .. Respondents ......... Mr. Vivek Salunkhe i/b P.B. Shah for the petitioners Mr. Vishwanath Talkute for respondent no.1 ......... CORAM : R.Y.GANOO, J DATE : 21st SEPTEMBER,2011. P.C. : 1. Rule. Rule is made absolute forthwith. Learned Counsel Mr. Talkute appearing on behalf of respondent no.1, original plaintiff waives service. By consent, petition is taken up for hearing. 2. In the suit filed by respondent no.1 in the Court of learned Civil Judge, Junior Division, Satara being R.C. Suit No.284 of 2004, the petitioner was permitted to amend the written statement. After that was done, the petitioners filed an application dated 16th February, 2009 and : 2 : 3183-10-wp=.sxw prayed that additional issue be framed. The text of which is as follows. “Whether the plaintiff prove that he was an agriculturist on the date of Sale Deed i.e. 22.09.1987”. 3. According to the petitioners, the respondent no.1 was not an agriculturist as of 22nd September, 1987 and, therefore, the Sale Deed in his favour was bad in law in accordance with the provisions of Section 63 of the Bombay Tenancy and Agriculture Lands Act, 1948. 4. The learned Judge before whom this application was made below Exh.94 considered the submission and by order dated 22nd February, 2010 rejected the said application. 5. I have perused the said order dated 22nd February, 2010. A reading of the paragraph 4 would go to show that the learned Judge perused certain documents exhibits which are stated in paragraph 4 and came to the conclusion that respondent no.1 is an agriculturist and on that count, he declined to frame the additional issue as prayed for by the petitioners. After having perused the entire record, it is required to be observed that : 3 : 3183-10-wp=.sxw the request made on behalf of the petitioners for framing of additional issue in the manner in which it was set out in the text, is not correct. It appears that it is the stand of the petitioners that because the respondent no.1 was not the agriculturist on the relevant date i.e. the date of the Sale Deed, the transaction is bad in law as per the provisions of Section 63 of the Bombay Tenancy and Agriculture Lands Act, 1948. The petitioners should have requested the learned Judge to frame the issue in the light of their stand about the transaction of sale being void as per Section 63 of the Bombay Tenancy and Agricultural Lands Act. 6. The learned trial Judge went through certain documents mentioned in paragraph 4 of the impugned judgment and declined to frame the issue on the basis of amended written statement. The course adopted by learned Trial Judge was not proper. In my view, he should have considered plaint and written statement as it stood amended and then consider the framing of additional issue in the light of application dated 16th February, 2009 and the stand that on 22nd September, 1987 respondent no.1 was not an agriculturist and sale deed is bad in and ab­initio void. 7. Keeping the aforesaid principle in mind, I am inclined to set aside : 4 : 3183-10-wp=.sxw order dated 22nd September, 1987 and direct learned Judge before whom, the aforesaid suit is pending to consider the pleadings and decide whether an appropriate issue is required to be framed in the wake of the written statement, which has been filed since after the amendment thereof and in particular the stand of the petitioners that respondent no.1 was not an agriculturist on 22nd September, 1987 and that the said Sale Deed is bad in law. 8. For the reasons mentioned aforesaid, petition is disposed of by passing following order. ORDER (i) Impugned order dated 22nd February, 2010 is set aside. The learned Trial Judge shall hear the learned advocates appearing on behalf of the respective sides, peruse the pleadings and consider whether additional issue / issues are required to be framed on the basis of pleadings before him and in particular stand of petitioners that on 22nd September, 1987, respondent no.1 was not an agriculturist and Sale Deed is void as per the provisions of Bombay Tenancy and Agriculture Lands Act, 1948. : 5 : 3183-10-wp=.sxw (ii) The learned Trial Judge shall complete this exercise by 21st October, 2011. All the questions are left open. There shall be no order as to costs. (R.Y.GANOO, J.)