BHIKHUMIYA GURUMIYA Vs. USMANKHAN MISRIKHAN PATHAN

JUDGEMENT

(1.) By filing the present petition, the petitioner herein prayed to set aside order dated 07.01.2006 below Exh.152 passed by learned 9th Addl. Senior Civil Judge in Civil Suit No.193 of 1993 as well as order dated 15.11.2006 below Exh.161. It was prayed to direct the trial court to remit the matter to the competent authority under the Bombay Tenancy and Agricultural Lands Act, 1948 to decide Issue No.2A framed in the Suit.

(2.) Petitioner Bikhumiya Gurumiya was original defendant in the Civil Suit No. 193 of 1993 instituted in April 1993 by the respondent herein before the Court of Civil Judge (S.D.), Nadiad. The Suit was for redemption of mortgage and it was prayed by the plaintiff that the defendant be directed to execute re-conveyance deed and handover possession of the agricultural field in question on redeeming the mortgage thereof. It was pleaded in the plaint that the agricultural fields bearing Survey No.238/3 admeasuring 19 gunthas and Survey No.238/5 admeasuring 31 gunthas situated in the sim of village Chaklasi, Taluka Nadiad, were mortgaged with the defendant on 28.04.1978 for Rs.16,000/- by executing a deed which was a mortgage with condition of sale. It was pleaded that the mortgage had become redeemable on 28.04.1993 and the plaintiff was accordingly entitled to redeem the same and to get back the possession of the mortgage property.

(3.) Learned advocate Mr. Jigar Rawal for the petitioner submitted that once the additional issue in respect of tenancy right claimed by the petitioner defendant was framed, it was obligatory on the part of trial court to refer the same to the competent Tribunal under the Bombay Tenancy Act. He relied on the provisions of sections 85 and 85A of the Bombay Tenancy Act and submitted that by virtue of section 85, the jurisdiction of a civil court is barred to decide or dealt with any question, which is about determination of tenancy right under the said law. It was submitted that section 85A requires the court to refer the additional issue to the competent authority. He submitted that the issue was framed pursuant to the order of this court in the writ petition, and it arises out of pleadings. Once the tenancy aspect is required to be determined, the trial court has no other option to refer the issue to the competent authority under the Bombay Tenancy Act for its decision, it was submitted.