N.H. Bhatt, J.
1. This is a petition under Section 115 of the Civil Procedure Code by the original defendants of the civil suit no. 1495 of 1972 pending in the court of the Civil Judge (J.D.) Baroda. The petitioner-defendants hereby challenge the order of the learned trial Judge, deleting the issue about their tenancy of the suit land and, therefore, declining to refer the said issue to the Mamlatdar under Section 85A. of the Bombay Tenancy Act, 1948.
2. A few facts require to be stated. The respondent-plaintiff has filed the said suit for an injunction restraining these petitioners-defendants from interfering with his possession of the suit land, which, according to the plaintiff, admeasures about 37 Bighas. The prayer sought for in the suit is reproduced below from paragraph 11(1) of the plaint, after translating it:
Please give a permanent injunction to the defendants to the effect that they should not interfere with or enter the suit land of the plaintiff's ownership and possession or should not interfere in any manner with the plaintiff's possession or should not obstruct the plaintiff in his possession either through their servants or agents.
It would, therefore, appear that the suit is essentially one for permanent injunction in terms of Section 38 of the Specific Relief Act. In paragraph 1 of the plaint, the plaintiff has elaborated his case. He has firstly described the land and then proceeded to state as follows, (duly translated):
That land is of our ownership and exclusive possession. In it we carry on our personal cultivation and its ownership, possession and enjoyment are ours. We take produce out of it.
3. The petitioners-defendants by filing the written statement, Ex. 12, in substance did not dispute the plaintiff's ownership over the land. Their say in substance is reproduced below as translated:
Said land was given for cultivation to our father Vasantrao Narsirai Kharde, who was the plaintiff's chauffeur since the plaintiff's father's time, as per the Royal order issued by the plaintiff on 26-4-52 and the defendants' father was put into possession... since then, we have taken the produce of the said land by pursuing agriculture at our cost and through our means and have paid the rent as per the royal order. In other words, since May 1952, the possession of the said laud came to be with Vasantrao, as the plaintiff's tenant and the rent has been paid upto 1971-72.
4. The learned Judge had raised various issues at Ex. 21. They are as follow:
1. Whether this Court has got jurisdiction to try this suit;
2. Whether court fees paid by plaintiff is not proper;
3. Whether plaintiff proves that she is cultivating the suit land personally and this defendant was supervisor as a servant;
4. Whether pltf. is entitled for the injunction as prayed for;
5. Whether deft, proves that suit land in their possession from 1951-52 has tenant;
6. What relief pltf. is entitled to;
Then the plaintiff gave application, Ex. 71, requesting the learned Judge that the issue about tenancy did not arise and so there was no question of referring that issue of tenancy to the competent authority and the further prayed was made to the effect that the issue should be deleted. The defendant on the other hand by filing the application, Ex. 69, requested the learned Judge to refer the issue regarding the tenancy to the Mam-latdar, Baroda. The learned Judge rejected the defendants' application Ex. 69, and granted the plaintiff's application, Ex. 71, by deleting the issue pertaining to tenancy. It is this common order passed below the two applications, Exs. 69 and 71, that is challenged by the original defendants by filing the present revision application.
5. Mr. Vin, the learned advocate appearing for the petitioners-defendants, urged that from the pleadings of the parties (the substance whereof has been extracted by me) the issue about tenancy arose as a matter of inevitability and he further urged that under the mandate of Section 85A of the Bombay Tenancy Act read with Section 85 thereof, the reference to the Mamlatdar and consequential stay of the suit till the issue came to be thrashed out were inevitable. If it is held that the issue does arise, the latter submission of the learned advocate is unassailable, in view of the settled legal position. So the moot question that would arise in this case is whether the issue about tenancy arises or not.
6. Under Order 14 Rule 1 of the Civil Procedure Code, issues arise when a material proposition of fact or law is affirmed by one party and denied by other. The word 'material' is emphasised by me for the reasons that will be instantly clear. The pleadings in places other than the Presidency Towns are branded as mofussil pleadings because of the looseness of statements. The law of pleadings requires that only material facts that constitute the cause of action are to be stated in the plaint, but no evidence in support of those material facts is to be stated. As far as the defendant is concerned, he is entitled to file his written statement in defence. The defence is of two kinds. One is of denial and the other is what is popularly known as special defence. Say for example a suit is filed on the basis of a contract. The defendant may deny the contract and then there will arise an issue whether the contract is proved or not. The defendant may admit the contract, but seek to avoid it by raising a special defence, like, minority, exercise of undue influence, coercion, want of consideration, etc. This kind of defence is known as a special defence. So what a defendant can plead is either denial of the material facts averred by the plaintiff, the facts that go to constitute the cause of action, or may raise certain special defence that may go to annihilate the cause of action. This is the genesis of the law of pleadings, which is more ignored than followed, as we find from our daily stint with them in the courts of law. In my view, this position of law of pleadings and this proposition about the emergence of issues as clearly laid down in Order 14 Rule 1 of the Civil Procedure Code are too clear to call for any further elaboration. In the light of this established legal position, let us proceed to examine the nature of the present suit.
7. The plaintiff's case is that the land in question, which is admittedly agricultural land, is in his possession as an owner and his further allegation is that the defendants are trying to invade his right to possession or his right to enjoyment thereof. The plaintiff's averment in the plaint is that he is keeping agricultural implements, he is cultivating the lands personally and enjoying the produce are all uncalled for embellishments. The material facts of this case are his allegedly uninterrupted and peaceful possession and enjoyment of the land, based on his ownership, which ownership is not under challenge in the present litigation between the parties. The defendants join issue with the plaintiff only regarding possession. As stated by me above, an issue would arise if a material proposition is affirmed by one party and denied by the other. The material proposition in a suit for injunction is the plaintiff's de facto lawful possession and enjoyment of the property in question. The defendants have denied that and so an issue would arise whether the plaintiff proves that he is in lawful possession and enjoyment of the property and whether the defendants threaten to invade that right. The defendants' further statement that they are the tenants on the land lawfully inducted in the year 1952 is not a material proposition aimed at the denial of the plaintiff's case. Even if the defendant does not say how the plaintiff is not in possession, as far as the pleadings go, the nature of the issues emerging from mere denial of the plaintiff's alleged possession and enjoyment would spring and would be required to be dealt with in accordance with law. In order to assail the plaintiff's case and in order to make him fail in making good that issue, the defendants may incidentally show as to how the plaintiff is not in possession, but they are in possession and for the purpose of proving their possession, they may incidentally show the material, which may have indirect bearing on the question of tenancy. That will not be tantamount to saying that the civil court will be called upon to decide the question of tenancy itself, which is within the exclusive jurisdiction of the Mamlatdar. Without that issue regarding alleged tenancy, which is deleted by the learned Judge, the material proposition put forward by the plaintiff in his plaint and denied by the defendants in their written statement would continue to remain in the field with the right to both the parties respectively to make good and smash the issue. The plea of tenancy does not necessarily or really arise in the contest between the parties.
8. Mr. P.V. Nanavati, the learned advocate for the respondent-plaintiff, has invited my attention to one unreported judgment of A.D. Desai J. in the Civil Revision Application no. 590 of 1971 decided on 20-3-72. It was a case in which the issue no. 8A about tenancy was raised. After that issue was raised, the defendant (applicant in that revision application) filed an application ex, J24 contending that the said issue should be referred to the relevant authority constituted under the Bombay Tenancy Act. The learned Judge having rejected that application, the matter was brought to this Court by the defendant. When the matter was before the High Court, the plaintiff on the strength of whose pleadings the issue no. 8A was raised, himself requested the learned Judge to delete that issue on the ground that the issue did not arise at all. Obviously her prayer before this High Court was stoutly resisted by the defendant and so a question squarely arose before the learned Judge as to whether such an issue arose in the circumstances of the case or not. The learned Judge in this connection observed as follows:
It is stated in the affidavit of the opponent that she claimed title to the lands and according to her the petitioner is a trespasser and for establishing title to the property, it was not necessary to raise issue no. 8A. This request of the opponent to delete issue was opposed by Mr. Bhatt. He objected on the ground that the issue had been raised by the court on the basis of the pleadings and at the instance of the opponent to issue cannot now be deleted. He also suggested that this is a revision application filed only against the order of the trial court refusing to refer the issue to the relevant authority under the provisions of the Bombay Tenancy and Agricultural Lands Act and, therefore, the question of deleting issue no. 8A cannot be agitated. In my opinion, none of these contentions has any force. The plaintiff has filed the suit on the basis that she is the owner of the suit land and the petitioner is a trespasser. The plaintiff based her claim on the basis of title and her possession The question in dispute whether the plaintiff is the owner of the suit lands or not. Issue no. 8A is raised at the instance of the plaintiff-opponent. In view of the pleadings of the parties in this case the material issue is whether the plaintiff is the owner of the suit property. Under the circumstances, the request of the opponent to delete issue no. 8A is justified.
9. The above underlined ratio supports the view taken by me above, though the facts and some averments in the suit obviously were different. The ratio of the decision of A.D. Desai J. in the above-quoted decision is that an issue in a suit against a trespasser, based on the plaintiff's title, the question of tenancy is immaterial. The judgment is, therefore, an authority for the proposition that simply because some reference to tenancy rights of one or the other of the parties is there in the course of loose pleadings, an issue cannot necessarily arise with the consequential obligation on the part of the court to refer it to the tenancy authorities.
10. Ultimately, it is the nature of the suit that decides the fate of a matter like the one on hand. The nature of the suit is the guiding feature in such a situation. I have held above that the suit to all intents and purposes is a suit for an injunction, based on possession and the only conceivable defence that the defendants can take in such a suit is either denial of the plaintiff's basic right of ownership or the denial of the plaintiff's being in possession. If the plaintiff fails in making good his de facto possession of the suit land on the date of the suit, the plaintiff's suit would fail, irrespective of the tenancy of the defendants. It is in this context that I have emphasised that the plea of tenancy is uncalled for and is far-fetched. The material proposition asserted by the plaintiff and denied by the defendants in the context of the case is alleged possession and enjoyment of the plaintiff on the day of the suit, which is denied by the defendants and from this affirmation and denial, the only issue that arises is whether the plaintiff makes good his possession and enjoyment of the suit property on the day of the suit. For the purpose of smashing this case of the plaintiff, the defendants may incidentally introduce evidence of their alleged tenancy, but that will not be a decision on the question of tenancy. It will be a question essentially and principally on the question of alleged possession and enjoyment of the plaintiff on the day of the suit.
11. Mr. Vin was at pains to emphasise time and again that the plaintiff's allegation about his personal cultivation of the land was the sina qua non of his case and his personal cultivation having been denied by the defendants by pleading their own personal cultivation as tenants, it was again a counter denial, which gave rise to the issue. The above observations made by me, in my view, clearly meets with his contention.
In above view of the matter, I confirm the order of the learned trial judge and reject this civil revision application. Rule stand discharged with no order as to costs.