SHAIKH KASAMBHAI NURBHAI Vs. JENATBIBI
HIGH COURT OF GUJARAT
SHAIKH KASAMBHAI NURBHAI
JENATBIBI HUSAINALI NIYAJALI SAIYAD
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(1.)These two revisions arise out of the two interlocutory orders dated 22nd September 1972 and 7th August 1972 respectively made by the Civil Judge (J.D.) Dholka in Civil Suit No. 87 of 1964 filed by one Jenatbibi Husainali against Shaikh Kasambhal Nurbhai for possession of five pieces of agricultural land situated within the revenue limits of Dholka town bearing S. Nos. 1482 to 1486 together with the superstructures and fixtures thereon. By the order of 22ad September 1972 the learned Civil Judge refused to refer the question raised in issue No. 4 namely whether the plaintiff proves that she became deemed purchaser on 1-4-1957 on the ground that the civil court has jurisdiction in the matter on the ratio of the decision of Supreme Court in Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai and others A.I.R. 1969 SC 439 as it involves determination of a question about the past tenancy. By the order of 7th August 1972 the learned Civil Judge rejected the application filed by the plaintiff Bai Janatbibi to delete and recast various issues including the aforesaid issue No. 4 regarding the status of the plaintiff. In order to appreciate the rival contentions of the parties. It is necessary to advert to a few facts leading to these two revision applications.
(2.)The plaintiff Bai Jenatbibi had filed Regular Civil Suit No. 87 of 1964 in May 1964 in the Court of Civil Judge (J.D.) Dholka against the defendant Kasambhai for declaration that the fields are of the sole ownership and possession of the plaintiff and for permanent injunction in respect of the aforesaid five pieces of agricultural land and for restraining the defendant from interfering with her possession. In that suit ad-interim injunction was granted but ultimately it was vacated after hearing the parties. The case of the plaintiff was that she was the owner of the suit land and the defendant was a trespasser. She claimed the ownership on the ground that originally the land belonged to one Abdul Karim Rasulbhai and she was his tenant and became the statutory owner of the land on April 1 1957 under the Bombay Tenancy and Agricultural Lands Act 1948 The defendant contended that he was a tenant in possession of the suit land from 1956-57 and was not a trespasser. The trial court has therefore raised issues on these pleadings. There was one issue about the status of the plaintiff which numbered as 8A and raised the following question:
"Whether the plaintiff proves that she became the deemed purchaser on 1-4-1957" ?
The defendant therefore made an application to the trial Court for referring the issue to the competent authority under the Tenancy Act. The said application was rejected on the ground that the question involved was of past tenancy and therefore the civil Court has jurisdiction to decide the same. From that order a revision was preferred by the defendant by his civil Revision Application No. 590 of 1971. When the Revision came up for hearing before the learned Single Judge of this Court (Coram-A. D. Desai J.) the plaintiff filed an affidavit requesting the court to delete issue No. 8A as it was not necessary to raise the issue for purposes of the relief of the declaration or injunction. That prayer of the plaintiff was opposed by the defendant who was the petitioner in that revision. However in the opinion of the learned Single Judge as the suit was filed on the basis that the plaintiff was the owner of the suit land and the petitioner was a trespasser the request of the plaintiff to delete the said issue was justified. In that view of the matter therefore the revision filed by the defendant to refer the question to the competent authority under the Tenancy Act was not necessary and the revision was dismissed with the result that the matter came back before the trial Court. It appears that the plaintiff thereafter amended her plaint praying for possession in case if it was found by the trial court that the defendant was in possession of the suit fields. The plaint was allowed to be amended and the relief for possession was added. The defendant filed his written statement to this amended plaint. On these new pleadings the trial court raised necessary issues. Issue No. 4 which dealt with the question of status of the plaintiff was raised in the following terms :
"Whether the plaintiff proves that with effect from 1-4-1957 she became the deemed purchaser of the suit properties by virtue of the Bombay Tenancy and Agricultural Lands Act 1948 as alleged in the plaint para 4".
The issues were raised by the trial court on 15th July 1972 It appears that by Ex. 162 the defendant applied to the court again for referring this issue No. 4 to the competent authority. It also appears that by Ex. 161 the plaintiff applied for amendment of issues and framing additional issues as prayed in the said application. I am not concerned with the application of the plaintiff regarding other issues except issue No. 4 in these revision applications. The plaintiff wanted this issue No. 4 to be deleted. Both these applications namely Ex. 162 for reference to the competent authority under the Tenancy Act at the instance of the defendant and Ex. 161 for deletion of issue No. 4 at the instance of the plaintiff were rejected by the trial court by the orders of 22nd September 1972 and 7th August 1972 which are the subject matter of these two revision applications before me.
(3.)As these two orders from which these two revisions have been filed relate to the same issue I propose to dispose of these two revision applications by this common judgment. 4 I will first take up Civil Revision Application No. 1237 of 1972 filed by the plaintiff from the order of the trial court refusing to delete issue No.
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