RAWAN BAJIRAM PAWAR Vs. MOHAMMAD ISAR SHAIKH AMIR

JUDGEMENT

(1.) This revision petition under section 115 of the Code of Civil Procedure by the original defendant is directed against the order dated 8th December 1980 passed by the Civil Judge, Junior Division, Kallam, on his application (Exh. No. 21) filed by him in Regular Civil Suit No. 99 of 1977.

(2.) The Respondentsoriginal plaintiffsfiled Regular Civil Suit No. 99 of 1977 against the Petitioneroriginal defendantin the trial Court for possession of filed Survey No. 40 admeasuring 26 acres 26 gun- thas situated at village Ekruka, taluka Kallam, District Osmanabad and for mesne profits. They alleged that plaintiff No. 1 and his deceased brother Abdul Razak were joint owners of the filed in question and the defendant was their servant, but he had set up tenancy rights on the basis of forged bated patrak, with the result that they had started mutation proceedings before the Revenue Courts and they succeeded in the Revenue Courts, which held that the defendant was not in possession of the suit field as tenant. The suit was resisted by the defendant (Petitioner herein) vide his written statement in which he set up a plea that he was a tenant of the suit field.

(3.) The learned trial Judge framed six issues on 7-10-1978, but did not frame any issue regarding the tenancy. On 16-10-1980, the defendant filed an application in the trial Court at Exh. No. 21 and made a prayer that, since he was the tenant of the suit field, an issue regarding his tenancy of the suit land be framed as additional issue and it be referred to the tenancy Court. This application at Exh. No. 21 was opposed by the plaintiffs, who contended that the issue regarding tenancy had already been decided by the Naib-Tahsildar in mutation proceedings and as the matter regarding tenancy stood concluded, there was no need to frame an issue about the tenancy of the defendant. The learned trial Judge was of the view that the defendant had already raised plea of tenancy in mutation proceedings and that plea was negatived by all the revenue Courts and hence question of framing additional issue as regards the tenancy did not arise. He accordingly dismissed the defendant's application at Exh. No. 21. Feeling: aggrieved by this order on Exh. No. 21, the defendant has filed this revision application.