GOPALBHAI VITTHALDAS KANSARA Vs. NARANBHAI SHAMALBHAI PATEL

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging the order dtd. 26/7/2021 passed in Regular Civil Suit No.4136 of 2015 (Old Special Civil Suit No.367 of 1994) and all consequential proceedings by the Principal Senior Civil Judge, Vadodara, below Exhibit - 208, whereby the learned Judge framed two more issues and referred the same to the Agricultural Land Tribunal (ALT) (Tenancy Court, Mamlatdar), having jurisdiction to decide tenancy dispute for the suit land.

(2.) Mr. Salil Thakore, learned advocate for the petitioners - plaintiffs submitted that issues in the present suit filed by him, came to be framed in the year 2009 and this application Exhibit- 208 preferred for framing new issue in light of the subsequent facts as per an order dtd. 16/4/2015, came to be filed nearly about 27 years of the filing of the suit, and therefore, on that ground alone the impugned order passed by the learned Judge below Exhibit - 208, framing additional issues and referred the same to the Mamlatdar for decision thereon under the Gujarat Tenancy and Agricultural Lands Act, be set aside. He has further submitted that though the Court has power to recast the issue, it should be based on the pleadings alone. He has further submitted that despite counter-claim is raised by the contesting respondent - defendant, there is no prayer sought for seeking cancellation of the sale deed in question, and there is no averment in the suit itself that the petitioners - plaintiffs are not an agriculturist and therefore, no such fresh issues could have been framed dehors the pleadings.

(3.) As against that, Mr. Dhruv Dave, learned advocate, appears for respondent No.1.3 on caveat and submitted his affidavit-in-reply to the petition. Drawing attention of the Court, he submitted that the impugned order challenged before this Court is dtd. 26/7/2021, pursuant to which, the competent Authority being Mamlatdar & ALT has already concluded the hearing in the last proceedings i.e. on 07/06/2022. Therefore, it is submitted that, having submitted to the jurisdiction of Mamlatdar & ALT, pursuant to a framing of fresh issue, the petitioners at this stage i.e. after nearly about a year, cannot challenge the framing of an additional issue and referring it to the Mamlatdar under any pretext.