1. Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants herein -original plaintiffs to quash and set aside the impugned judgment and order passed by the learned Principal District Judge, Mehsana dated 25.10.1978 passed in Regular Civil Appeal No.1 of 1977 in so far as while allowing the said appeal preferred by the appellants herein-original plaintiffs by quashing and setting the judgment and decree passed by the learned trial Court dismissing the suit and holding that the appellant herein-original plaintiffs are entitled to redemption of mortgage, the learned Appellate Court has directed that before passing the preliminary decree for redemption, following two issues are required to be referred to the Mamlatdar under Section 86 A of the Act (1) whether defendants are permanent tenants of the plaintiffs in respect of land in suit? (2)Whether the defendants i.e. original mortgagee Vithaldas Gokuldas and Babhaidas Gokaldas were tenants of the land in dispute on the date of mortgage dated 10.7.1918 ?
2.0. Today, when the present Second Appeal is taken up for final hearing, Shri Hemang Parikh, learned advocate for Shri R.C. Jani, learned advocate for the appellants -original plaintiffs has stated at the bar that he does not press the present Second Appeal challenging the direction issued by the Appellate Court referring two issues to the Tenancy Court. However, has requested that all the contentions and defences which may be available to the respective parties, be kept open with respect to tenancy rights of the original defendants.
3.0. In view of the above, present Second Appeal is dismissed as not pressed. It is observed that the Tenancy Court to finally decide and dispose of the Reference at the earliest but not later than six months from reference to it and all concerned are directed to cooperate the Tenancy Court to decide and dispose the said Reference with respect to tenancy rights of the defendant as on 10.7.1918 as referred by the learned Appellate Court. It goes without saying that Tenancy Court to decide and dispose of the said alleged tenancy right of the original defendants in accordance with law and on merits and on the basis of the evidence led and all the contentions and defences which may be available to the respective parties are kept open. With this, present Second Appeal is dismissed as not pressed. Registry is directed to send the Record and Proceedings to the learned trial Court immediately but not later than 1st May 2012.
( M. R. Shah, J. ) "kaushik"
Top