By filing the present petition, the petitioner herein prayed to set aside order dated 07.01.2006 below Exh.152 passed by learned 9th Addl. Senior Civil Judge in Civil Suit No.193 of 1993 as well as order dated 15.11.2006 below Exh.161. It was prayed to direct the trial court to remit the matter to the competent authority under the Bombay Tenancy and Agricultural Lands Act, 1948 to decide Issue No.2A framed in the Suit.

2. Petitioner Bikhumiya Gurumiya was original defendant in the Civil Suit No. 193 of 1993 instituted in April 1993 by the respondent herein before the Court of Civil Judge (S.D.), Nadiad. The Suit was for redemption of mortgage and it was prayed by the plaintiff that the defendant be directed to execute re-conveyance deed and handover possession of the agricultural field in question on redeeming the mortgage thereof. It was pleaded in the plaint that the agricultural fields bearing Survey No.238/3 admeasuring 19 gunthas and Survey No.238/5 admeasuring 31 gunthas situated in the sim of village Chaklasi, Taluka Nadiad, were mortgaged with the defendant on 28.04.1978 for Rs.16,000/- by executing a deed which was a mortgage with condition of sale. It was pleaded that the mortgage had become redeemable on 28.04.1993 and the plaintiff was accordingly entitled to redeem the same and to get back the possession of the mortgage property.

1. In the written statement filed by the present petitioner original defendant he denied the case of the plaintiff and raised a contention inter alia that the deed dated 28.04.1978 was essentially a sale executed in his favour. It was alternatively contended that even prior to the said transaction, since 1954, he was cultivating the lands since the time of his forefathers and that he was a tenant of the land having acquired such status under the Bombay Tenancy and Agricultural Lands Act, 1948. It was contended that in capacity of tenant he was entitled to purchase the land and accordingly the land was sold in 1978.

2.2 After the trial court framed the issues, petitioner-defendant submitted an application at Exh.17 for additional issue in respect of tenancy rights, which was rejected by the learned Judge on 20.10.1995. Another application at Exh.24 was submitted by the petitioner for review of the said orders, which too was rejected on 15.03.1996. Thereafter an application Exh..39, the petitioner-defendant prayed for framing a proper issue as to whether the plaintiff was entitled to recover the possession in the event the defendant providing that he was the tenant of the land before 29.04.1978. By order dated 04.10.1997 the trial court rejected the prayer of framing the said issue by dismissing application exh.39 on the ground inter alia that the defendant was unable to produce any prima facie evidence about his claim of tenancy. That order below Exh.39 came to be challenged before this court in Special Civil Application No.7155 of 2006 and cognate petitions. This court by order dated 17.03.2005 quashed the said order below Exh.39 and directed the trial court to add issue more particularly Issue No.4 referred to in the application below Exh.39. Thus, the issue relating to the assertion of tenancy right by the defendant was inserted.

2.3 Thereafter, the defendant filed application below Exh.151 on 18.08.2005 making prayer for stay of the Suit and for referring the issue to the Mamlatdar and Agricultural Lands Tribunal in view of the provisions of section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as `the Bombay Tenancy Act' for sake of brevity), which was dismissed by order dated 07.01.2006. A review application below Exh.161 was filed against the said order which too came to be rejected by the trial court by order dated 15.11.2006. Both the rejections were mainly on the ground that the application was filed with a view to delay the Suit proceedings and to while away time. It was also reasoned by the trial court that since the defendant was p