Allahabad High Court
Smt. Sughra Begum vs Additional District Judge Xiith, ... on 20 March, 1998
Equivalent citations: 1998(3)AWC1935
JUDGMENT R.H. Zaidi, J.
1. After considering the arguments made by the learned counsel for the parties and after perusing the record of the case thoroughly, the writ petition was partly allowed and operative portion of the judgment was dictated in the open Court in presence of the learned counsel for the parties and was also signed on 17.3.1998, but to save the time of the Court, the reasons for the said judgment/order were not dictated in the Court, they were directed to follow. I hereunder state the reasons for the judgment and order.
2. By means of this petition under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 18.11.1997 rejecting the application of the petitioner for return of the plaint for presentation before a Court of competent jurisdiction and the order dated 13.1.1998, whereby revision filed against the order of the trial court was dismissed by the revisional court.
3. The facts of the case, as set out in the writ petition, are that the building in question was originally owned by Smt. Nasaseem Jaan who sold the same in favour of Sri Mohd. Yaqub Khan, who let out the same to Late Ghulam Husain, the husband of the petitioner. It was on 30.10.1940 that the building in dispute was purchased by one Smt. Kishwari Begam since deceased from Sri Mohd. Yaqub Khan, Smt. Kishwari Begam had died issueless in the year 1941 and the building in question devolved upon her brother Syed Ashfaq Ali. The petitioner used to pay rent to Sri Ashfaq Ali and his son on his death to Ali Miyan and Syed Akhtar Naqvi (son-in-law). O.S. No. 93 of 1990 was already pending in respect of the property in dispute in the Court of Civil Judge (Sr. Division], Mohanlalganj, Lucknow. Respondent Nos. 3 and 4 served a notice of demand and termination of tenancy dated 24.10.1996 upon the petitioner with the allegation that the building in question was purchased by them from the heirs of Late Mohd. Yaqub Khan through sale deeds dated 31.10.1992 and 10.10.1993. The said notice was replied by the petitioner denying the relationship of landlord and tenant between the parties. The respondent Nos. 3 and 4 thereafter filed the S.C.C. Suit No. 126 of 1997 for ejectment of the petitioner from the building in question and for recovery of arrears of rent. On receipt of the summons, petitioner filed written statement denying the relationship of landlord and tenant between the parties and the right of the said respondents to eject her from the building in question. Petitioner also made an application under Section 23 of the Provincial Small Cause Courts Act, 1887 (for short the Act). Ali Miyan son of Syed Ashfaq Ali also filed an application under Order 1, Rule 10, C.P.C. for impleadment as a party in the suit, claiming that in respect of the property in dispute, title suit was pending in the Court of Civil Judge, Mohanlalganj since 1990. In support of their cases, the parties have produced evidence. The trial court held that the properties involved in Original Suit No. 93 of 1990 and in the present suit were different on the basis of description of boundaries in the sale deeds, which formed part of the record and dismissed the application filed by the petitioner under Section 23 of the Act by judgment and order dated 18.11.1997. The revision filed against the said judgment and order also failed and was dismissed by the Court below vide its judgment and order dated 13.1.1998.
4. On behalf of the contesting respondents. Mr. A. R. Khan and Mr. Sandeep Dixit filed caveat and accepted notices. Thereafter an application dated 24.3.1998 was filed on behalf of Mirza Mohammad Husain through his counsel Mr. Sandeep Dixit, which was supported by an affidavit. A short-counter was also filed on behalf of the contesting respondents along with the list of dates and events by Mr. Sandeep Dixit. On behalf of the contesting respondents. Mr. Umesh Chandra, Senior Advocate also appeared. Rejoinder-affidavits and the supplementary affidavit filed on behalf of the petitioner were also taken on record.
5. Learned counsel for the petitioner vehemently urged that under the facts and circumstances of the present case, provisions of Section 23 of the Act were fully attracted and the plaint of the said suit was liable to be returned for presentation before the Court of competent jurisdiction inasmuch as intricate question of title was involved and the trial court, i.e., Judge Small Causes had no jurisdiction to decide the same.
6. On the other hand," Mr. Umesh Chandra, Senior Advocate, vehemently urged that the judgments and orders passed by the Courts below were perfectly valid. They did not suffer from any illegality or infirmity. It was submitted that no question of title was involved in the case ; but only the question of relationship of landlord and tenant between the parties was involved which could be decided by the Judge. Small Causes Court, therefore, there was no question of return of the plaint.
7. I have considered the submissions made by the learned counsel for the parties and carefully gone through the record. Section 16 of the Act provides the suits which are cognizable by Court of Judge Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of Small Causes Court by which the suit is triable. Section 23 of the Act provides for return of the plaint in a suit involving title. Sub-section (1) of Section 23 of the Act reads as under :
"23. (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title."
8. Thus, I will have to see as to whether in the instant case, the right of the contesting respondents and the relief claimed by them in the trial court depends upon the proof or disproof of the title to the immovable property or the other title which the trial court could not finally determine. The Courts below only on the basis of boundary description of the building in the sale deeds dated 30.10.1940, 31.10.1992 and 10.10.1993 came to the conclusion that the boundaries of the property involved in the aforesaid two suits, i.e., (O.S. No. 93 of 1990 and S.C.C. Suit No. 126 of 1997) were different and that it was not necessary to return the plaint for presentation before of a Court of competent jurisdiction, as the Small Causes Court had jurisdiction to entertain and decide the suit. The Courts below have failed to note that sale deed on the basis of which Suit No. 93 of 1990 was filed, was executed on 30.10.1940 and the sale deed in favour of respondent Nos. 3 and 4 were executed on 31.10.1992 and 10.10.1993. There was a gap of more than fifty years in execution of the said sale deeds. It is a matter of common knowledge of which Court can take judicial notice that during the last fifty years, the boundaries of not only of the properties situated at various places, have changed ; but the boundaries of the countries have undergone drastic changes, therefore, in the present case because of the long gap in execution of two sets of sale-deeds, the boundary description in the said sale deeds could not be the correct and valid basis to hold that the properties involved in two suits were different. It was not disputed that originally the property in dispute was owned by Mohd. Yaqub Khan. Both the contesting respondents and Ali Miyan, son of Ashfaq Ali claimed title from Mohd. Yaqub. In the sale deed executed in favour of the petitioner on 10.10.1993. It was recited as under :
"Jaldad uprokt aadi per pahle bhi mukadme bazi chali hai, aur ab bhi mukadme bazi chal rahi hai. Jiski sampurn jaankari kharidar saheb ko swain gyan hai. Aaj ke bad samast mukadmat maujuda va ainda ki pairavi bazimme uprokt kharidar hogi. Aur ham mukiran uapsi rakam bainama haza ya kisi bhi perkar nuksaan kharidar ya patravi mukadma ke zimmedar nahin hoongen."
9. From the aforesaid recital, it is apparent that the vendor of the sale deed dated 10.10.1993, which is a title deed of the contesting respondents. cautioned and warned the contesting respondents that in respect of the property, which was a subject-matter of sale deed, litigation was already going on about which they had knowledge. Therefore, the contesting respondents will have to do the pairvi in the said cases and in case ultimately the contesting respondents suffer any loss, the vendors shall not be responsible for the same. It will not be liable refusal the money. The contesting respondents knowing fully well that they have not only purchased the property, but also the litigation moved an application under Order, XXII, Rule 10, C.P.C. In Original Suit No. 93 of 1990. Paragraphs 6. 7. 8 and 9 of the said application read as under :
"6. That later on said Smt. Syeda Begum and Mohammada bi also sold their 3/4 share in the said house to the applicant No. 1 vide registered sale deed dated 15.10.1993 and vide correction........deed dated 31.1.94.
7. That thus the applicants are the absolute owner of the said house and at present now their rights and Interest is directly involved in the present case as the plaintiffs without any basis have filed the present suit in respect of a house which was never sold by said Sri Mohd. Yaqoob Khan to Smt. Kishwar Begum their predecessor-in-interest.
8. That as the present defendants of the suit have already sold their right and interest in the house in suit, there remains no interest of them in the present suit as such there is every likelihood that they may not contest the suit properly and due to their negligence the applicants have to suffer a great loss.
9. That in the circumstances mentioned above and in the interest of justice it is necessary and expedient that the applicants be substituted in place of the present defendants being their assignees and the plaintiffs are liable to be directed to implead the applicants as defendant in the abovenoted, suit in place of the present defendants."
10. From the aforesaid application, it is evident that the contesting respondents themselves admitted that they were the assignees of the property which was in dispute in Suit No. 93 of 1990. As assignees of the property in dispute, on the basis of sale deed dated 31.10.1992 and 10.10.1993, themselves sought their impleadment as defendants in the said suit. Thus, it was admitted by them that the property involved in the Suit No. 93 of 1990 and the property involved in the present case was same. The Courts below have completely ignored this aspect of the matter. It may also be noted that the contesting respondents filed Suit No. 117 of 1997 in respect of another portion of the property in dispute against one Mohd. Shafiq. On an application moved by Mohd. Shafiq. Suit No. 117 of 1997 was transferred to the Court of Civil Judge, Mohanlalganj, to be consolidated and tried with Original Suit No. 93 of 1990, by order dated 24.1.1998.
11. In my opinion, under the facts and circumstances of the present case, the provisions of Section 23 of the Act referred to above were fully attracted. Otherwise also to avoid multiplicity of proceedings and to cut-short the litigation, it was necessary either to return the plaint for presentation to a Court of competent jurisdiction or to transfer the suit giving rise to the present petition to the Court of Civil Judge, Mohanlalganj, as the Judge Small Causes Court had no jurisdiction to decide the question of title.
12. It is settled law that when in a suit in Small Causes Court, the question of title is raised, it is expedient for the Court to return the plaint for presentation before a Court competent to decide such a question. It is not necessary that plaintiff-defendant should be rival claimants to the immovable property. The object of Section 23 is to meet cases in which Judge is satisfied that the question is so Intricate that it should not be decided summarily and that it should return a plaint for presentation to a proper Court. A reference in this regard is made to a decision in Noola v. S. Chaman Lal, AIR 1935 All 148.
13. In Buddhumal v. Mahabir Prasad, AIR 1988 SC 1772, the Apex Court of the country ruled that Section 23 of the Act does not make it obligatory on the Court of Small Causes to Invariably return a plaint when once a question of title raised by a tenant and in a suit filed on the basis of the contract of tenancy, question of title could also incidently be gone Into. Any finding recorded by the Judge. Small Causes will not operate resjudicata in a suit based on title. It was also held by enacting Section 23, the Legislature must be held in contemplation in some cases in which the discretion to return plaint ought to be exercised in order to do complete Justice between the parties. In the present case, admittedly, there was no contract of tenancy entered into between the petitioner's husband or petitioner and the respondent Nos. 3 and 4. The said respondents claimed themselves to be the landlords on the basis of the two sale deeds dated 31.10.1992 and 10.10.1993. The validity of the said sale deeds will have to be seen determined in Original Suit No. 93 of 1990 where the respondent Nos. 3 and 4 themselves have applied for their impleadment as defendant on the basis of the said sale deeds. In my opinion, therefore, in the present case, it was obligatory upon the trial court/Judge Small Cause Court to return the plaint for presentation before the Court of competent jurisdiction.
14. As stated above. Suit No. 117 of 1997 Bled by the respondent Nos. 3 and 4 against Mohd. Shafiq has already been transferred to the Court of Mohanlalganj to be consolidated and tried with Original Suit No. 93 of 1990. Therefore, instead of returning the plaint to the respondent Nos. 3 and 4 for presentation before a competent court, it would be expedient in the interest of justice that S.C.C. Suit No. 126 of 1996 giving rise to the present petition, may also be transferred to the Court of Civil Judge. Mohanlalganj, Lucknow with the direction to consolidate the same with Original Suit No. 193 of 1990 and to decide the same in accordance with law.
15. In view of the aforesaid discussions, the present petition deserves to be allowed.
16. The writ petition succeeds and is allowed in part. The judgments and orders dated 13.1.1998 and 18.11.1997 passed by the Courts below are hereby quashed. The District Judge, Lucknow is directed to transfer S.C.C. Suit No. 126 of 1997 pending in the Court of J.S.C.C.. Lucknow to the Court of Civil Judge, Mohanlalganj, Lucknow. On receipt of the records of the aforesaid case, Civil Judge, Mohanlalganj, Lucknow shall consolidate Original Suit No. 93 of 1990 and S.C.C. Suit No. 126 of 1997. He shall try and decide the same in accordance with law, expeditiously, preferably within a period of five months from the date the record of S.C.C. Suit No. 126 of 1997 is received in his Court, it is further provided that the rent, if any, outstanding against the petitioner may be deposited by her in the transferee court without prejudice to the rights of the contesting respondents.