1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR (1) Writ Petition No.1456/2010 Ashok M. Wankhade Vs. Sheikh Sikandar Sk. Haidar (2) Writ Petition No.1767/2010 Pramod Motiram Wankhede Vs. Sheikh Sikandar Sk. Haidar and others. ----------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A. S. Chandurkar, Advocate for the petitioner. Mr. R. L. Khapre, Advocate for the respondents. CORAM: B.P.DHARMADHIKARI, J. DATE : 22nd JUNE 2010. 1] The plaintiff in Regular Civil Suit No.21/2006 and 22/2006 has questioned the identical order dated 14.12.2009 passed by the Civil Judge, Junior Division, Balapur below Exhibit 1 referring the issue of status of the plaintiff as agriculturist to Tahsildar for determination as per Section 125 of Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958. 2] Advocate Chandurkar for the petitioner/plaintiff invites attention to the judgment dated 27th April, 2009 delivered by this Court in Writ Petition Nos. 5000/2008 and 5001/2008 in between the parties to show that though the issue about such status of the plaintiff was directed to be framed, this Court has also directed that the documents on record should be perused and parties should be heard to find out 2 whether that issue needed reference to the Competent Authority. He has also relied upon the judgment in 2009(6) Mh.L.J. 115 (Amarjyot Singh Jaswant Singh Jaggiand others Vs. State of Maharashtra and others, particularly in paragraph 5, to urge that even after the issue is raised, if material on record is sufficient to adjudicate, reference under Section 125 of the above Act need not be made. In the light of these judgments, he contends that earlier on 29th July, 2009 the status of the plaintiff was already adjudicated upon by the Tahsildar and in view of that order which is produced before the Civil Court reference under Section 125 was unnecessary. He further states that, that order was questioned in revision by the respondent under Section 110 of the above Act and the Revisional Authority, after noticing that the respondent was not party to order dated 29th July, 2009, remanded the matter back to the Tahsildar for giving the respondent an opportunity. This order of remand passed by the Additional Collector on 2nd March, 2010 is further questioned by the petitioner in revision under Section 111 of the above Act before Maharashtra Revenue Tribunal. His argument is, if M.R.T. accepts the revision, the order of Tahsildar dated 29th July, 2009 will stand revived and that order will then be binding on the Civil Court. According to him, in such circumstances, if the order of reference dated 14.12.2009 passed by the Civil Judge, Jr. Dn. Balapur is maintained, it will be unnecessary duplication and in any case till adjudication of the proceeding in MRT, the order of reference cannot be acted upon by the Tahsildar. 3 3] Advocate Khapre for the respondent/defendant in both the suits points out that in revision MRT may take any view of the matter but in reference proceeding because of orders of the Civil Court the respondent/defendant has got right to demonstrate before Tahsildar that the petitioner/plaintiff is not an agriculturist. He contends that thus this entitlement of defendant which is contingent in revision proceeding is not so if the order of reference is maintained. He, however, argues that such order of Tahsildar dated 29th May 2009 has been obtained behind the back of the respondent and that order is not binding on him. He further states that proceeding before the Tahsildar remanded back by the Additional Collector and matter on account of reference from Civil Court can be clubbed and prosecuted together. 4] It is apparent that the judgments on which Advocate Chandurkar has placed reliance stipulate that after an issue is framed about status of the plaintiff, if on the basis of available material on record, Civil Court is in a position to decide that issue, reference need not be made. Though Advocate Khapre is disputing this proposition, I am not required to record any finding on this controversy in the present matter. 5] The petitioner is relying upon the order dated 29th July, 2009. The said order is obtained by the petitioner on an application moved by the petitioner and admittedly the present respondent/defendant was not party to that application. It is, therefore, obvious that the said orders passed by the Tahsildar cannot bind the present defendant/respondent in 4 any proceedings. In view of this position, it is clear that there is no material before the Civil Court, which it can legally use against present defendant/respondent to record finding on issue referred by it to Tahsildar. 6] In this view of the matter, the proceeding filed by the petitioner in revision before the MRT are totally irrelevant and are not helpful in any way. 7] I find that interest of justice also warrants that reference proceeding should be expedited and the Tahsildar shall attempt to decide the same as early as possible and in any case by 31st December, 2010 and if possible, the said reference and proceeding on application filed by the petitioner shall be clubbed and tried together. 8] The order of the Civil Court impugned in the present writ petition dated 14.12.2009 passed in both suits does not suffer from any jurisdictional error or perversity and the same is accordingly maintained. Writ Petitions are disposed of. No costs. JUDGE Ambulkar.