RAMU SHIVAPPA AGALGAVE Vs. IMAM KASHIM PATHAN

JUDGEMENT

(1.) THE trial Court by its order dated 1st December, 1983 refused to frame an issue as to whether the plaintiffs (present petitioners) prove that the suit land is leased to the plaintiffs and defendant No. 6 is a joint family and that they were in possession of the suit land as tenants. It is against this order of refusal to frame that issue, the petitioners (original plaintiffs) have filed the present writ petition.

(2.) IT is urged that the plaintiffs made a specific claim in their plaint that they were the tenants in respect of the suit land having taken lease of the same from respondent No. 1 and that this tenancy was prior to 1st April 1957 and that since this claim has been denied by respondent No. 2, the reliefs claimed by the petitioners in that suit cannot be decided without deciding upon this claim made by the petitioners and that therefore the trial Court was bound to frame the above said issue and then refer the same to the Tenancy Court under the provisions of section 85a of the Bombay Tenancy and Agricultural Lands Act, 1948 and await the decision of the Tenancy Court before proceedings to decide the suit. The merits of this contention will have to be considered in the light of certain facts and views expressed by a Division Bench of this Court reported in 1981 Maharashtra Law Journal 321 (Pulmati Shyamlal Mishra v. Ramkrishna Gangaprasad Bajpai)

(3.) THE facts are as follows