MANGALBHAI KANJIBHAI PARMAR Vs. JETHABHAI DHULABHAI THAKOR

JUDGEMENT

(1.) This petition, under Article 227 of the Constitution of India, arises from the order dated 27.03.2015 below application Ex. 68 passed by the learned (Ad-hoc) Civil Judge, in Regular Civil Suit No. 92 of 1997. By the aforesaid order, the petitioners' - defendants' application Ex. 68 for framing an additional issue was rejected.

(2.) The respondents filed a suit being Regular Civil Suit No. 92 of 1997 against the present petitioners. In the suit so filed, it was the case of the plaintiffs that since their economic position was weak, they were in need of finances. In order to obtain a loan from the original defendant who after death is now being represented by his heirs and legal representatives, on 18.06.1987 on execution of a mortgage deed, the land was mortgaged to the original defendant and a sum of Rs. 48,000/- was given by the original defendant as financial assistance. The possession of the land was given to the original defendant. According to the deed of mortgage, on repayment of the amount advanced, the defendant was to release the mortgaged land. The plaintiffs were willing to pay the amount, however, the original defendant was not willing to release the land by executing a deed of redemption and therefore a declaration was sought that the defendant be directed to enter into a reconveyance deed in favour of the plaintiffs and hand over vacant and peaceful possession to the plaintiffs.

(3.) Mr. Mrugen Purohit, learned advocate appearing on behalf of the petitioners submitted that the learned trial Judge committed an error in rejecting the application wherein the original defendant had prayed for framing of an additional issue. Mr. Purohit drew my attention to paragraph no. 13 of the written statement and contended that a specific plea was raised that the defendant was a tenant and therefore the appropriate forum under Section 85A of the Tenancy Act was the Civil Court and the suit be referred to the tenancy Court.