Case Note & Summary
The appellant/plaintiff, Smt. Housabai Pandurang Tawar, filed a suit for possession of agricultural land claiming to have purchased it by a sale deed dated 22 June 1967 under the Bombay Tenancy and Agricultural Lands Act. She was originally a tenant of the land owned by Mahadev M. Patil. She alleged that the respondents dispossessed her in 1991. The trial court decreed the suit in her favour. The respondents appealed to the II Additional District Judge, Kolhapur, who set aside the trial court's decree and remanded the matter back to the trial court with directions to frame an issue on whether the plaintiff is an agriculturist and refer it to revenue authorities, and also to refer issue No.4 (whether the sale deed of 1967 was barred by the Bombay Prevention Fragmentation and Consolidation of Holdings Act) to the competent authority. The appellant challenged this remand order in the High Court. The High Court held that the lower appellate court had erred in remanding the matter. It observed that the appellate court could have decided the issue of agriculturist status itself or called for a finding from the trial court under Order 41 Rule 23A of the CPC. The High Court allowed the appeal, set aside the impugned judgment and order, and remitted the matter to the lower appellate court for fresh disposal in accordance with law. The court directed that the appellate court shall decide the appeal on merits without requiring the trial court to frame any issue or refer any matter to revenue authorities.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23A CPC - The lower appellate court set aside the trial court's decree and remanded the matter for framing an issue on the plaintiff's agriculturist status and referring it to revenue authorities. The High Court held that the remand was improper as the appellate court could have decided the issue itself or called for a finding. The appeal was allowed and the matter was remitted to the appellate court for fresh disposal. (Paras 5-7) B) Tenancy Law - Agriculturist Status - Bombay Tenancy and Agricultural Lands Act - The plaintiff claimed to have purchased suit land as a tenant under the Act. The appellate court directed the trial court to frame an issue on whether the plaintiff is an agriculturist and refer it to revenue authorities. The High Court found that the appellate court could have decided the issue itself and set aside the remand order. (Paras 5-7) C) Land Law - Fragmentation - Bombay Prevention Fragmentation and Consolidation of Holdings Act - The appellate court also directed the trial court to refer issue No.4 regarding whether the sale deed of 1967 was barred by the Act to the competent authority. The High Court set aside this direction as the appellate court could have decided the issue itself. (Para 5)
Issue of Consideration
Whether the lower appellate court was justified in remanding the matter to the trial court for framing an issue as to whether the plaintiff is an agriculturist and referring it to revenue authorities, and whether the trial court's decree in favour of the plaintiff was liable to be set aside.
Final Decision
The appeal is allowed. The impugned judgment and order dated August 11, 2005 passed by the II Additional District Judge, Kolhapur in Regular Civil Appeal No.74 of 2004 is set aside. The matter is remitted to the lower appellate court for fresh disposal in accordance with law. The appellate court shall decide the appeal on merits without requiring the trial court to frame any issue or refer any matter to revenue authorities. No order as to costs.
Law Points
- Remand order set aside
- Issue of agriculturist status
- Reference to revenue authorities
- Bombay Tenancy and Agricultural Lands Act
- Bombay Prevention Fragmentation and Consolidation of Holdings Act
- Civil Procedure Code Order 41 Rule 23A
