SHAIKH KASAMBHAI NURBHAI Vs. JENATBIBI

JUDGEMENT

(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:

(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.