Judgment:
A.H. Joshi, J.
1. The present appellants were the respondents in Regular Civil Appeal No. 16/2004 in which the decree passed in Regular Civil Suit No. 63/1999/B, is set aside and by framing additional issues the suit was remanded through order of the remand.
2. Appellate Court has framed following two issues:
(1) Whether the plaintiffs prove that the suit property is not an agricultural land under the Agricultural Tenancy Act?
(2) Whether the defendant proves that he is a tenant and the Civil Court has no jurisdiction to decide the same?
3. During oral submissions the points which are vehemently argued can be summarized as follows:
(i) Once land had ceased to have the character of agricultural land, the tenancy rights would automatically get extinguished.
(ii) The land had ceased to be agricultural land before 5th Amendment to Tenancy Act came into force.
(iii) Section 7A does not vest power in Mamlatdar to hold an enquiry into past character or nature of land to be agricultural land.
4. For first point, learned Senior Advocate Mr. D'Costa has placed reliance on the reported judgment in (2001) 1 Scc 564 in Vannattankandy Ibrayi v. Kunhabdulla Hajee, the order of remand is of no practical purpose.
REASONS
5. It is an undisputed position of law that Section 7A of the Agricultural Tenancy Act vest exclusive jurisdiction to the Mamlatdar to decide the question as to whether the particular land is agricultural land.
6. The judgment relied upon in case of Vannattankandy Ibrayi cannot be relied upon as it is in relation to house tenancy. Moreover, the present appeal is not based on an admitted fact as to the status of land having ceased to be agricultural land. It is the plaintiffs' case which is disputed by defendants.
7. The Agricultural Tenancy law has a retrospective operation as can be seen from the various provisions.
8. The phrase 'whether any land is or is used for agricultural purpose' will have to be read to include period of retrospective application. The power to make an enquiry as to whether any land was or has been in use for agricultural purpose too vest with Mamlatdar. If such power to enquire and decide as to status of land to be agricultural land in past, is presumed not to exist, it would defeat the very purpose of enactment of Agricultural Tenancy Act. Such absence will result in defeating the very enactment of Agricultural Tenancy Act.
9. In these premises, the order of remand which does not in any manner prejudice the appellants cannot be interfered, particularly when the issues were required to be framed at the stage of trial itself, but were not framed.
10. In these premises, the appeal has no merit, and is dismissed with costs.
11. Both learned Advocates agree that hearing before Mamlatdar can be expedited. Parties agree to appear before Mamlatdar concerned on 23.09.2009.
12. The appellants will have to carry writ of reference from Civil Court and of this Court, to the Court of Mamlatdar before 23.09.2009, so that Mamlatdar can fix 23.09.2009 as a date for suo motu appearance. If writ is produced, and parties appear on 23.09.2009, the Mamlatdar may proceed to decide the issues as referred without fresh notice to the parties.