BHIL SEVA MANDAL Vs. SHANA DABODA

JUDGEMENT

(1.) . This is a revision application by the original defendants of the civil suit No. 10 of 1978 pending in the Court of the Civil Judge (J. D.) Baria in Panchmahals District. This application is directed against the order passed by the learned trial Judge below the opponents (plaintiffs) application Ex. 18. As per the order passed by the learned trial Judge the issue about tenancy being issue No. 8 at Ex. 16 was deleted by the learned Judge at the instance of the opponents-plaintiffs. The original defendants have therefore invoked the revisional jurisdiction of this court by contending that jurisdictional illegality have been committed by the learned trial Judge by deleting the said issue.

(2.) . The opponents-plaintiffs have filed the suit against these petitionersdefendants for possession of a piece of land on the ground that the defendants are trespassers on the land of their ownership. The defendants inter alia contend in the suit that they are tenants (farmers) on the land. Because of this particular contention raised by the defendants the issue No. 8 was raised about the tenancy. The learned Judge who struck the issues came to be transferred and the present incumbent came to hold the charge of the office. The plaintiffs therefore gave an application Ex. 18 to the learned successor Judge praying for deletion of the issue No. 8. The learned Judge having granted that request the defendants have moved this court.

(3.) . The learned trial Judge has deleted the issue on two courts. The first ground is that there is no evidentiary material on the record to justify prima facie the raising of the issue because in the opinion of the learned trial Judge the issues are required to be struck not only out of pleadings but also out of the documents on the recordThe view of the learned Judge is ex-facie erroneous. If there is a pleading the issue will be required to be raised. The reference to documents in Order 14 Rule 3 of the Code is for the purpose of enabling the court to raise the issue even if there is no clear pleading calling for a particular issue. This does not and cannot mean that unless the plea in the written statement is buttressed by some documentary evidence the issue is not to be raised. Secondly the learned trial Judge has misconstrued the word farmer. As a matter of fact the defendants have used the word Khedut in the written statement. The learned Judge translated that terms as a farmer and then held that whoever is a Khedut means a cultivator cannot necessarily be said to be a tenant. If the learned Judge was feeling doubt about the exact import of the defendants using the word Khedut in the written statement it was perfectly open to him to examine any of the defendants for elaboration and clarification. When his predecessor Judge interpreted the word Khedut to mean a tenant and in Gujarati this ward is equally capable of importing the meaning of a tenant the learned Judge should not have taken only one meaning of the term Khedut and then concluded that there was no pleading about tenancy.