JUDGMENT -N.P. CHAPALGAONKER, J.:---Shaikh Badruddin, respondent No. 1 herein, had filed Regular Civil Suit No. 475 of 1987 in the Court of Civil Judge (S.D.), Jalna, for the recovery of possession of agricultural lands Block Nos. 24 and 25 situated at village Majarewadi, Taluka District Jalna and for the mesne profits. It is the case of the plaintiff that he along with respondent No. 2 had purchased land Survey No. 6/2 admeasuring 14 Acres 7 Gunthas for consideration of Rs. 4,000/- from the previous owners Kachru, Sampat and Shankar. It is his further case that there was a partition between respondent Nos. 1 and 2 - purchasers and eastern half portion was allotted to respondent No.1/plaintiff, whereas western half portion was allotted to respondent No. 2 Imam. It is further contended that Survey No. 6/2 was divided and converted into Block Nos. 24 to 30 as per the proceedings under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. After this consolidation, respondent No. 1/plaintiff was allotted Block No. 27 and he has dug a well in this land allotted to him and petitioner No. 1 Shaikh Usman agreed to purchase land Block No. 25 by an agreement executed in favour of petitioner No. 3.

2. In this Civil Suit, defendant Nos. 1 to 4 filed their written statement contending that since the `Akshatritiya of 1962, plaintiff and defendant Nos. 2 and 3 and younger brother of defendant No. 3 i.e. Khannu were inducted as tenant. The terms of tenancy were also narrated in the written statement.

3. The learned trial Judge framed issue on 10th July, 1989. However, no issue regarding the alleged tenancy of the defendant was framed. On 9th November, 1989, an application came to be moved on behalf of defendant Nos. 2 and 3 that three additional issues be framed. The proposed Issue Nos. 2 and 3 were ordered to be framed and so far as proposed Issue No. 1 is concerned, the trial Court did not find it necessary to frame issue and was pleased to reject the application. The proposed Issue No. 1 prayed was to the following effect :

"Do defendants prove that defendants 2 and 3 are and were tenants of Survey No. 6/2 now Gat No. 24 to 29 along with plaintiffs and Khannu as contended by them?"

4. By this revision application, defendants seek to get this proposed Issue No. 1 framed and added by setting aside the order dated 5th May, 1990 passed by the learned trial Judge.

5. Shri R.R. Jethalia, learned Counsel appearing for respondent No.1, objected to the prayer for framing of this additional issue firstly on the ground that the issue has been already adjudged by the competent Court and, therefore, there is a bar to fresh suit by virtue of the principles analogous to section 11 of the Code of Civil Procedure, 1908. The second objection raised by Shri Jethalia is that in previous proceedings when the occasion did arise, present petitioners/defendants did not plead that they are tenants of the suit land and, therefore, the plea of tenancy is waived. The third submission of Shri Jethalia is that since the defendants have purchased the land, the tenancy has merged into sale and, therefore, they cannot fall back upon the contract of tenancy. Shri R.D. Deshpande, learned Counsel for petitioners, contended that no competent Court had decided the question of tenancy of the defendants in respect of the suit lands and they had not waived the plea of tenancy and, therefore, neither the principles of res judicata nor the waiver would preclude the entitlement of the defendants to get this issue framed and decided in the present suit.

6. In support of the third contention that the tenancy has merged into the contract and, therefore, defendants cannot fall back upon the contract of tenancy, Shri Jethalia relied on a judgment of Supreme Court in (Badri Narain Jha others v. Rameshwar Dayal Singh others)1, A.I.R. (38)1951 S.C. 186. Section 111 of the Transfer of Property Act, 1882 listing the incidents of determination of lease of immovea

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