Allahabad High Court
Gurmala & Others vs Mohd. Ishaq & Others on 31 May, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 20.12.2012 Delivered on 31.05.2013 Court No. - 34 Case :- WRIT - A No. - 53552 of 2002 Petitioner :- Gurmala & Others Respondent :- Mohd. Ishaq & Others Petitioner Counsel :- Arvind Kumar Tiwari,Indra Pal Singh Rajpoot Respondent Counsel :- A.N. Bhargava, K.K.Tiwari, Rishikesh Tripathi,S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri A.K.Tiwari, learned counsel for the petitioners and Sri R.K. Tiwari, Advocate, holding brief of Sri A.N. Bhargava, Advocate, for the respondents. No other counsel is appearing on behalf of respondents.
2. This is a tenants' writ petition. The dispute relates to a shop having Municipal Number 77, Jawahar Chowk (Manik Chowk), Jhansi. It was earlier let out to one Sri Prem Chand Jain, husband of petitioner no. 1 and father of petitioners no. 2 to 4. Property had several owners. One Smt. Anwari Begum, widow of Sri Hazi Haidar Waheed, who had 1/3 share in the disputed property sold out her share to petitioner no. 1 vide sale deed dated 1.10.1991 and respondent no. 1, Mohd. Ishaq also transferred by sale his 1/3 share vide sale deed dated 1.12.1992. In the circumstances, petitioner no. 1 became owner of disputed shop to the extent of 2/3rd share. 1/3rd share remained in ownership of respondents 2 and 3.
3. Respondents 1 to 3, however, filed an ejectment suit no. 98 of 1995 on the ground of default in payment of rent since 1.10.1992, seeking ejectment of Sri Prem Chand Jain, husband of petitioner no.1. The suit was dismissed by Trial Court, i.e., Small Causes Court, Jhansi vide judgment dated 12.1.1999. It held that there was no relationship of landlord and tenant between the plaintiffs and respondent, Prem Chand; plaintiffs did not join another co-owner i.e. Smt. Gurmala, (petitioner no. 1) and, therefore, notice determining tenancy was illegal, and, since entire amount was already paid on the first hearing of suit, defendant was entitled for benefit against eviction under Section 20 (4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972").
4. Plaintiff-respondents filed S.C.C. Revision No. 9 of 1999 which has been allowed by Additional District Judge, Court No. 2, Jhansi vide judgment and order dated 14.11.2002. Hence, this writ petition at the instance of petitioner-defendants.
5. Petitioner-defendants came to be impleaded before Revisional Court after the death of Sri Prem Chand Jain, the sole defendant, during pendency of revision.
6. Revisional Court has reversed findings of co-ownership of petitioner no. 1 on the ground that sale deeds dated 1.10.1991 and 1.12.1992 were not proved and contained incorrect recitals about building and there was no dispute that defendant Prem Chand had admitted his tenancy vis-a-vis plaintiffs and for the purpose of a suit under Section 20 (2) (a) of Act, 1972, relevant is the relationship of landlord and tenant and not the ownership. Once relationship of landlord and tenant is proved and rent was not paid, the case of default was there. It also held that there is no compliance of Section 20 (4) inasmuch petitioners deposited rent at the rate of Rs. 42/- per month in place of Rs. 84/- and, therefore, benefit under Section 20 (4) of Act, 1972 could not have been extended to them.
7. In the counter affidavit, filed before this Court on behalf of respondent 1 to 3, a dispute has been raised about sale of alleged 1/3 share by Smt. Anwari Begum to petitioner no. 1 contending that Smt. Anwari Begum having only 1/ 4 share in the property could not have sold 1/3 share thereof. Moreover, so far as alleged sale by Mohd. Ishaq is concerned, it is seriously disputed and said that his thumb impressions were obtained illegally and there is no sale at all.
8. Sri A.K. Tiwari, learned counsel for petitioners contended that findings of fact recorded by Trial Court could not have been reversed by Revisional Court, by re-appraising evidence, and instead, if it comes to the conclusion that certain evidence was ignored by Trial Court, the proper course was to remand the matter instead of deciding revision as a fact finding Court. He further contended that alleged claim that petitioner no. 1 became owner of 2/3rd share of property was seriously disputed by the respondents. The sale deeds were also challenged. Therefore, in the Small Cause Suit, issue of ownership ought not have been decided, since, it was an important issue necessary to be adjudicated for granting relief to plaintiff-respondents, therefore, the plaint ought to have been returned so as to be filed in regular Court. He further contended that without joining of other co-owner of property in dispute, suit itself was not maintainable. The Revisional court, in taking an otherwise view, has completely erred in law. Counsel for the petitioner vehemently contended that petitioner no.1 was a joint owner and co-sharer of the disputed building. She has never permitted the plaintiff respondents to seek ejectment of the tenant, Sri Prem Chand Jain, husband of petitioner no.1, and, therefore, the suit itself was not maintainable without impleadment of petitioner no.1. He also contended that validity of sale deed executed by Sri Mohd. Ishaq could not have been looked into by a Small Cause Court and so also by the Revisional Court.
9. Sri R.K. Tiwari, Learned counsel for respondents submitted that incidental issue relating to title also could have been seen by Small Cause Court. The revisional court having looked into entire facts, has recorded finding after appropriate appreciation of evidence and, therefore, in writ jurisdiction, the impugned revisional order warrants no interference and this writ petition deserves to be dismissed.
10. Having considered rival submission, in my view, this writ petition deserves to be allowed since the judgment of Revisional court is palpably erroneous, contrary to law, and therefore, it is unsustainable and liable to be set aside.
11. The suit was presented by impleading Sri Prem Chand Jain, as a sole defendant, who was husband of petitioner no.1. Sri Prem Chand Jain, admittedly was a tenant and his wife and children, therefore, also were entitled to have tenancy rights, being members of family of Sri Prem Chand Jain. Similarly, at the time of instituting the suit, Sri Prem Chand Jain's wife Gurmala (Petitioner no.1), according to her claim, was owner of 2/3rd part of the disputed property, though there was no substantial difference in the status of Premchand Jain and petitioners, the members of his family, which had vanished on the death of Sri Premchand Jain, when tenancy rights also devolved upon his heirs including petitioner no.1. Before the revisional court the petitioner no.1 had both the capacity, the tenant in part of the building and had also ownership in major part of the building. The revisional court has completely failed to appreciate that the tenant acquired partial ownership, i.e., to the extent of one-third share in the disputed property, i.e., the tenanted property, pursuant to sale deed dated 01.10.1991, executed by Anwari Begum, widow of Haji Haider Wahid and another one-third share of Mohd. Ishaq, acquired by the tenant vide sale deed dated 01.12.1992. Therefore, only one-third of tenanted premises remained to be in the ownership of plaintiff respondent, while rest two-third came to be vested in the petitioner no.1. That being so, if plaintiff-respondent's suit is held maintainable, by applying the principle that one co-owner can institute suit on behalf of others, it would mean that a co-owners is asking for eviction or ejectment of other/ another co-owner(s). The law laid down by the Apex Court in Harish Tandon Vs. Additional District Magistrate, Allahabad, U.P. and others 1995(1) ARC 220, has no application in such a case. In fact, the question where a suit or legal proceedings instituted by one co-owner, for ejectment, but objected by other co-owners, whether such a suit at the instance of one co-owner, would be maintainable or not, has been left unanswered in Harish Tandon (Supra). This judgment is applicable where one co-owner has instituted a suit for ejectment of tenant and other co-owners did not raise any objection thereto. It does not contemplate a situation where tenant or his family member(s) possess ownership of certain part of property under tenancy inasmuch as such a tenant and his family obviously cannot be forced to vacate the premises or a part thereof owned by him. Further more, in the present case, ownership rights of plaintiff-respondents and defendant-appellants are not emanating from a single unit of ownership, inasmuch as, here the tenant has acquired ownership by virtue of two sale deeds executed by two co-sharers, having one third share each. The position of petitioner no.1 (tenant) and plaintiff respondents was that of owners in common, in respect of property in dispute. They had ownership right over the same property, wherein, shares are identified but boundary in the property is not divided. Moreover, this is not a situation which has come after filing of suit, but this was the situation existing on the date when the suit was filed. A similar situation has recently been considered by this Court in Gulam Zilani Vs. Abdul Rehman and another (Second Appeal No. 421 of 1984, decided on 23.4.2013). It would be appropriate to refer para 3 thereof wherein relevant decisions of Apex Court have been considered in detail as under:
"3. In the present case it is not in dispute that status of defendant as joint owner came into existence before filing of the original suit no.1043 of 1976. This Court in Civil Misc. Writ Petition No.29301 of 2004 (Munshi Lal (deceased) represented by LRs. Vs. Gopal Sao & Ors.) decided on 01.2.2013 considering two authorities of Apex Court in Abdul Alim Vs. Sheikh Jamaluddin Ansari & Ors., 1998 (2) ARC 614 = JT 1998(7) SC 192 and M/s Indian Umbrella Manufacturing Co. & Ors. Vs. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla & ors., JT 2004 (1) SC 200, in paras 16, 17, 18, 19, 24, 25 and 26 said:
"16. In Abdul Alim (supra), there was a shop owned by Sheikh Jamal Uddin Ansari and his brother-Sheikh Burhan Uddin. It was in tenancy of Abdul Alim. Sheikh Burhan Uddin executed a registered sale deed on 12.4.1988 and sold his share in the shop to Abdul Alim. The other brother Sheikh Jamal Uddin Ansari filed an application for release of shop under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") but Prescribed Authority rejected application on the ground that tenant being co-owner of half of the share in shop, cannot be ousted therefrom and application is not maintainable. Same view was expressed by Appellant Court after dismissing the appeal of Sheikh Jamal Uddin Ansari but High Court held that sale deed would not result in converting status of tenant to that of owner, therefore, release application of Sheikh Jamal Uddin Ansari was maintainable. The Apex Court reversed decision of High Court and held that release application under Section 21(1)(a) of Act, 1972 was not maintainable because the tenant, acquired co-ownership rights in the demised shop even before filing of release application and it cannot thus be said that landlord co-owner has consent of other co-owner for seeking release of tenanted accommodation. The change of status of tenant to that of being an equal co-owner of unpartitioned property, would, therefore, lead to an irresistible conclusion that release application was not maintainable particularly when admittedly there was no partition of suit properties till the date of judgment of Apex Court. This is a decision rendered by Apex Court on 27.11.1997 by a Bench consisting of two Hon'ble Judges.
17. In M/s Indian Umbrella Manufacturing Co. (supra), the facts are slightly but remarkably different. The suit property consisted of a house and outhouses. The entire property including the land and building owned by one late Ladi Aggrawalini. It was in possession of two tenants. On 24.8.1957, late Ladi Aggrawalini made a gift of the suit property in favour of her two daughters namely Bhagabandei and Buchi Devi. The tenants were informed about such gift and they also attorned in favour of the donee sisters. On 1.6.1967, fresh deeds of lease were executed between the two co-landlords jointly and the two tenants individually. The two tenants were M/s. India Umbrella Manufacturing Company and M/s Bharat Stores & Agencies through its proprietor Tulsiram Swami. In the two lease deeds both the tenants agreed to pay monthly rent, though half thereof, to each of the two co-owners, separately. In other words, though the property itself was undivided and jointly owned by the two sisters, the rent agreed upon by the two tenants with the consent of the two co-owners to be apportioned in equal shares between the two co-owner. In 1971-72, both the co-owners initiated proceedings for partition of only land and not that of structure standing thereupon. According to the local laws, orders were passed in partition case dividing land by metes and bounds but no such partition took place in respect to the structure of house standing over the land. The reason assigned by the two co-owners therefore was that both have decided to demolish the superstructure and then to construct their separate houses on their respective pieces of land, which had fallen to their respective shares pursuant to the land partition proceedings. The two co-owner and co-landlady sisters joined together in filing suits for ejectment against the two tenants from the building in dispute. They pleaded that having no other house for their own residence, they proposed to demolish the house occupied by two tenants and thereafter would raise their own independent construction, besides alleging certain default in payment of rent against the tenants. The Trial Court dismissed the suit. Thereafter, Buchi Devi, one of the co-owner, executed a registered sale deed dated 12.6.1981 in respect to her share in the suit house to the partners of M/s. India Umbrella Manufacturing Company carrying on business in the suit premises. Subsequent to the aforesaid sale, another sister Bhagabandei alone filed appeals challenging dismissal of the suits by the Trial Court. Buchi Devi was impleaded as a proforma respondent. The purchasers of share of Buchi Devi were also impleaded as parties in the appeal. During pendency of appeal, the purchasor of the share of Buchi Devi filed an application stating that they were not interested in ejectment of tenants so far as their share in the property is concerned and thus prayed for dismissal of the suit. Another application was filed by tenant submitting that right to evict vests in the co-landlords and as one of them had transferred away her rights and the transferees were not interested in pursuing eviction, the appeal was incompetent and liable to be dismissed. The District Judge allowed the two appeals and in respect to the two applications filed by purchasers of share of Buchi Devi, and the tenant, he opined that they were of no consequence but added in the judgment, a rider, that, since some of the partners have purchased rights of one of the co-owners in the house property, unless and until house property is partitioned between the two co-owners by metes and bound, such purchasers cannot be evicted from the suit property and they would continue to pay rent to the extent of same proportion as it was being paid earlier. In substance, learned District Judge found the interest of landlords in the suit house to the extent of one half, i.e. owned by Buchi Devi, having vested in the partners of one of the tenants firm M/s. India Umbrella Manufacturing Company and therefore tenancy extinguished to the extent of one half by merger, but continuing to the extent of one half equivalent to the share owned by Bhagabandei. The other tenant was directed to be ejected.
18. The Apex Court looked into the matter and found that suit was filed by both the co-owners, meaning thereby both had common intention and objective that the two tenants should be evicted from property in dispute. In law, it is also well settled that even one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. The Court refers to its earlier decisions in Sri Ram Pasricha Vs. Jagannath & Ors., (1976) 4 SCC 184, Dhannalal Vs. Kalawatibai and Ors., (2002) 6 SCC 16. The principle is based on the doctrine of agency. One co-owner filing a suit for ejectment against a tenant does so on his own behalf in his own rights and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown as a matter of fact that other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. The facts and circumstances, as available on the date of institution of suit, have to be seen so as to find out whether on that date it was validly filed or not. Admittedly, the suit was filed by both the co-owners with the clear intention of ejectment of two tenants from property in dispute. Having said so, the Apex Court further said:
"One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law." (emphasis added)
19. The Apex Court considered another aspect of the matter in M/s India Umbrella Manufacturing Company (supra). The suit was filed willingly with common objective and intention by both the sisters. During continuation of litigation one of the sisters parted with her share in the property. The tenancy was in the name of the partnership firm. It was not clear whether all the partners or few of them constituted buyers to purchase share of one of the sisters. The fact remains that they had purchased only a share in the property and not the entire property. The applicability of doctrine of merger within the meaning of Clause (d) of Section 111 of the Transfer of Property Act, 1882 thus was not attracted. In order to bring tenancy to an end, the merger should be complete, i.e. interest of landlord in its entirety must come to vest and merge into the interest of tenant in its entirely. When part of interest of the landlord or interest of one of many co-landlords-cum-owners, comes to vest in the tenant, there is no merger and tenancy is not extinguished.
24. It is also not the case of petitioner that in respect to shop in question, he had pleaded since initial stage that it was a joint property of other sons of Raja Sao or that on the date of filing release application assuming that there were some other co-owners, they had any intention of not evicting petitioner from shop in question. The sale deed dated 4.11.1993 in respect to one-forth share in house no.CK37/16 came to be executed after filing of release application as also written statement by petitioner-tenant. A perusal of sale deed dated 4.11.1993 also refers to an agreement between the petitioner and heirs of Sri Bharat Sav regarding sale of one-forth share in the house property CK37/16, Vishwanath Gali, Varanasi and in reference thereto an earlier agreement dated 6th July, 1993 but it did not mention at any stage that the vendors therein had not consented or had expressed any otherwise view in respect to ejectment of petitioner-tenant from shop in question though release application dated 8.9.1992 of respondents 1 to 7 was pending at that time. It is in these facts and circumstances, in my view, what has been stated by Apex Court in M/s. India Umbrella Manufacturing Company (supra) in paras 6 and 7 of the judgment would squarely apply in the present case, inasmuch as, one of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of parties stand crystallised on the date of suit and the entitlement co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit.
25. In Abdul Alim (supra), facts situation was different, inasmuch as, there half of the share was sold by one of the brothers to the tenant before filing of release application and that is why only one of the brothers could file application and not the another one.
26. He cannot presume to have consent of tenant acquiring co-ownership for his own ouster. The Appellate Court, therefore, has rightly followed decision of Apex Court in M/s. India Umbrella Manufacturing Company (supra) and in my view, it warrants no interference so far as this aspect is concerned."
12. Looking to the aforesaid discussion, in my view the facts of the case in hand would squarely be governed by Apex Court's decision in Abdul Alim Vs. Sheikh Jamaluddin Ansari & Ors., 1998 (2) ARC 614 = JT 1998(7) SC 192 as discussed in Munshi Lal (deceased) represented by LRs. Vs. Gopal Sao & Ors. (Civil Misc. Writ Petition No.29301 of 2004 decided on 01.2.2013) and Gulam Zilani vs. Abdul Rahman and another (supra).
13. Revisional Court unfortunately has completely misread and failed to appreciate the above aspect of the matter. Therefore, the judgment under challenge is difficult to sustain.
14. There is one more obnoxious approach on the part of revisional Court. The plaintiff respondents disputed the very sale deed of Mohd. Ishaq, executed on 01.12.1992. It was an issue, involving title and had not arisen from mere relationship of landlord and tenant, but a suit between the two parties i.e., vendor and vendee. I have no hesitation in holding that such an issue was beyond jurisdiction of Small Causes Court and, therefore, revisional Court also could not have looked into this aspect of the matter. The revisional Court while considering the judgment, arising from a Small Cause Court Proceedings, cannot extend its jurisdiction beyond what could have been exercised by a Small Cause Court. With respect to jurisdiction of Small Cause Court, considering provisions of Sections 15 and 23 of Provincial Small Cause Courts Act, 1887, the matter has been dealt in detail time and again and I may remind it in brief hereunder.
15. The civil nature of Court of Small Cause can be examined by looking in detail Section 15 and 23 of Act, 1887. Construing Section 15 of Act 1887, it has been held that a Small Cause Court is not such which has been conferred with a new jurisdiction other than that cognizable by a "Civil Court" but the suits of civil nature are cognizable by Small Cause Court subject to exclusion provided under Section 15 of Act 1887 or to some extent where Section 23 thereof is applicable.
16. Section 15 of Act 1887 deals with the matters in respect whereof, a suit would be cognizable by the Courts of Small Causes. In sub-section 3 of Section 15, as enacted originally, an amendment in the State of U.P., for the first time was made in 1970 by "The Uttar Pradesh Civil Laws (Amendment) Act, 1970" (U.P. Act No. XIV of 1970) w.e.f. 8th April, 1970. Then came another amendment vide U.P. Act No. XXXVII of 1972, w.e.f. 20th September, 1972, whereby a proviso and explanation was added in sub Section 3 of Section 15. There was a minor amendment made in sub Section 2 and sub Section 3 of Section 15 by U.P. Act 57 of 1976 with respect to valuation. Lastly, there is one more amendment made by U.P. Act No. XVII of 1991 w.e.f. 15th January, 1991 whereby the existing sub Sections 2 and 3 have been substituted.
17. In nutshell, Section 15 as applicable in State of U.P. in 1995 when the suit in question was filed, read as under:
"15. Cognizance of suit by Courts of Small Causes.-
(1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in that, Schedule and to the provisions of any enactment for the time being in force, all suits of civil nature of which the value does not exceed five thousand rupees shall be cognizable by a Court of Small Causes:
Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in this sub-section to five thousand rupees shall be construed as a reference to twenty-five thousand rupees.
Explanation- For the purposes of this sub-section, the expression "building" has the same meaning as in Article (4) in the Second Schedule."
18. A reading of the above provision shows that sub-section 1 of Section 15 is exclusionary in nature, namely, it says what not shall be entertained by a Court of Small Causes. In other words, it talks of suits which are not cognizable by the Court of Small Causes. Second Schedule has 44 entries dealing with different kinds of suits which would not be cognizable by Court of Small Causes. Sub-section (2) thereof runs in positive language and provides, that, except what has been excluded in the Second Schedule, and also subject to provision of any enactment for the time being in force, suits of civil nature would be cognizable by a Court of Small Causes subject to pecuniary jurisdiction of five thousand rupees namely, if the valuation of the suit or value of the dispute raised in the suit exceeds five thousand rupees, it shall not be cognizable by a Court of Small Causes.
19. Sub-section (2) of Section 15, therefore, excludes some more civil suits from the jurisdiction of Court of Small Causes, namely, those barred or made non-cognizable under the provisions of any enactment for the time being in force, based on the valuation of suit.
20. The proviso to Section 15(3) raises pecuniary jurisdiction of a Court of Small Causes in respect of suits by the lessor, for eviction of a lessee, from a building after determination of his lease, and for recovery of rent/damage etc. from him in respect of period of occupation during the continuance of lease or for compensation for use and occupation thereof after determination of lease, to the extent of Rs.5,000/-.
21. The language of provisions of statute as noticed above, makes it clear that the Legislature has laboured to specify the cases which shall not be cognizable by Courts of Small Causes when there is already a Court having jurisdiction to try such suits but in view of the Scheme of Act 1887 and Sections 15 and 16 of Code of Civil Procedure, it is clear that the Court of Small Causes is a Court of preferential jurisdiction and not of a exclusive jurisdiction. It cannot be said that a Civil Court on regular side lacks inherent jurisdiction to try suits of nature specified in Section 15(2) of Act 1887.
22. Section 15 of Act 1887 came to be considered before a Full Bench in Manzural Haq and another v. Hakim Mohsin Ali, A.I.R. 1970 All. 604. Though it was in the context of the question whether a decision given by a Court of Small Causes in a suit for arrears of rent will operate as res judicata in a suit filed later in the Court of Munsif for recovery of arrears of rent for a different period for ejectment. In this context, the Court considered the question whether Court of Small Causes is a Court of exclusive jurisdiction and answered it in negative. In para 21 of the judgment of Hon'ble S.D. Khare, J. and para 52 of concurrent judgment of Hon'ble Jag Mohan Lal Sinha, J., it has been said explicitly that Court of Small Causes is not a Court of exclusive jurisdiction but it is Court of "preferential jurisdiction". This decision has been noticed and approved in respect to above legal proposition, by Apex Court in Smt. Gangabai w/o Rambilas Gilda v. Chhabubai w/o Pukharajji Gandhi, A.I.R. 1982 SC 20=1982(1) SCC 4.
23. Having said so, I proceed to consider Article 4 Schedule II of Act 1887, as amended in U.P. A suit for possession of immovable property is barred but there is an exception again to bring a particular species of cases, namely, suits filed by a lessor for eviction of a lessee from a building after determination of his lease and for recovery from him, of compensation for the use and occupation of that building, after such determination of lease.
24. Now I come to Section 23 of Act 1887. It reads as under:
"23. Return of plaints in suits involving questions of title.-- (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.
(2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction."
25. Section 23 of Act 1887 has been considered at umpteen times by this Court and on some occasions by the Apex Court also. The interpretation and mischief covered by Section 23 has been explained and clarified time and again. In my view it is no more res integra.
26. In Ram Jiwan Misra Vs. Smt. Kallo and another, 1980 ARC 522, a suit for ejectment, arrears of rent and damages for use and occupation was filed by Ram Jiwan Misra. He stated in the plaint that Smt. Allahabadni was previous owner of premises in question but executed a sale deed on 2.4.1971 in favour of plaintiff, Ram Jiwan Misra, hence he had become owner. The defendants Smt. Kallo and another, while admitting ownership of Smt. Allahabadni, denied execution of sale deed in favour of plaintiff, Ram Jiwan Misra. Rather they contended that alleged sale deed is fictitious and fraudulent. They further said that daughter of Smt. Allahabadni was the owner and landlady of the building in question. An objection regarding jurisdiction was taken before trial court but rejected by observing that question of title is not involved. This order of Trial Court was reversed by Revisional Court whereafter the matter came to this Court. The real issue therein was stated as under:-
"It is true that the defendants opposite parties were not setting up title in themselves and were setting up title of a third person but all the same, it was denied that the plaintiff-applicant had any title".
27. Referring to an earlier decision of this Court in Noola Vs. S. Chaman Lal, AIR 1935 All 148, this Court in Ram Jiwan Mishra (Supra) said that to attract Section 23 of Act 1887, it is not necessary that there must be dispute of title between the parties in the sense that both of them are claiming title among themselves. Under the section the enquiry is limited only to the right of the plaintiff and to the relief claimed by him. The Court accordingly upheld objection that the suit was not maintainable.
28. Then in Smt. Kela Devi and others Vs. Rameshwar Dayal 1982 ARC 149, this Court said :
"A complicated question of title was involved in the present case. The Small Cause Court has no jurisdiction to adjudicate upon it".
29. In Virendra Prasad Shukla Vs. Ram Swarup and others 1983 ARC 179, suit for ejectment was filed by Ram Swarup and another, against Virendra Prasad Shukla. The plaintiff claimed that defendant no. 1 in the suit was tenant in chief in the disputed accommodation, since 1950, and, had taken Virendra Prasad Shukla as sub-tenant in the aforesaid building. The defendant no.1 accepted all the allegations in his written statement but Virendra Prasad Shukla filed a written statement claiming that plaintiffs were not owners of disputed house nor the defendant no.1 was his landlord nor he was sub-tenant of defendant no.1. He claimed that disputed house belongs to his father Brij Mohan and he was residing in the house alongwith his father. This Court held, since a question of title is involved, the matter could not have been decided by Small Cause Court and hence while setting aside the judgment and decree passed by courts below, this Court directed Small Cause Court to return plaint to the plaintiff for presentation to the regular Court.
30. In Smt. Krishna Devi Vs. District Judge, Mathura and others 1984 (1) ARC 506, she (plaintiff) claimed herself to be the landlady of premises No. 643 Mohalla Golpara, Mathura and one Ballabh Das, defendant as her tenant pursuant to an allotment order dated 18.12.1968. The tenant having committed default in payment of rent, tenancy was terminated and a suit for eviction was filed. Ballabh Das contested the suit asserting that Smt. Krishna Devi was not the owner of property in suit and he was not her tenant. This Court said :
"Under Section 23 of the Provincial Small Cause Court Act it is provided that when the right of a plaintiff and the relief claimed by him in the 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. The Small Cause Court is not expected to decide intricate questions of title. It should, if it found some substance in the plea of the defendant that Smt. Krishna Devi was not the owner of the property, have directed the return of the plaint for presentation to proper court. It should not have proceeded to determine the question itself in summary proceedings."
31. In Jiya Lal Vs. XIth Additional District Judge, Meerut and others 1994 (1) ARC 280, in paragraphs 7 & 9 of the judgment the Court held:-
"7. A suit by a landlord against a tenant is cognizable by Judge Small Causes Court on limited questions. The Judge, Small Causes Court cannot decide the question of title. He has to decide the limited question as to whether there is a relationship of landlord and tenant between the plaintiff and defendant. The right of the plaintiff is based on the relationship of landlord and tenant. In case the plaintiff has based his rights on the basis of a title, then the Court has to return the plaint as provided under Section 23 of the Provincial Small Causes Courts Act, 1887.
9. The Judge, Small Causes Court has to decide the only question as to whether the defendant was let out the disputed shop and his possession at the time of letting was that of a tenant. The controversy as to whether the plaintiff or the father of the defendant and his uncle are owners of the property in dispute is outside the jurisdiction of the Judge, Small Causes Court. The possession of a tenant is the possession of his landlord."
32. In Smt. Sughra Begum Vs. Additional District Judge XIIth, Lucknow and others, 1999 (1) ARC 582, this Court in paragraphs 11 & 12 said as under:-
"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 has 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. Chman Lal, AIR 1935 All 148."
33. In Pratap Singh Vs. IXth ADJ, Fatehpur and others, 2000 (2) ARC 41=300(3)AWC 1995, in paragraphs 5, 6 & 7 of the judgment the Court s(2) Pratap Singh v. IXth Additional District Judge, Fatehpur and Ors. 2000 (3) AWC 1995 : 2000 (2) ARC 41 ;aid:-
"5...........The object of the Section is to enable the Small Cause Court to decline to exercise its jurisdiction in small causes suit when the right of the plaintiff and the relief claimed by him depend upon the proof or disproof of a title to an immovable property or other title which the Small Causes Court cannot finally determine and to return the plaint to be presented to a Court having jurisdiction to determine the title. In effect, the rights to, or interests in immovable property are elaborately excluded, but as questions of this character may arise incidentally in Small causes suits, a facultative provision is made by Section 23 enabling the Small Causes Court to send the matter to ordinary Civil Court but not obliging it to do so.
6. A Small Causes Court is expected to try suits of a comparatively simple character and, therefore, suits involving question of title should not be entertained by that Court. Section 23 is intended to enable the Courts of Small Causes to save their time by returning the plaints in suits which involve enquiry into the question of title. This Section is designed to meet the cases in which Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in ordinary Court in which evidence is recorded in full and the decision is open to appeal. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would, if given by an Original Court, ordinarily be subject to appeal and even to second appeal and which decision would ordinarily be res judicata between the parties, should be given in the particular case before a Small Causes Court, by an Original Court, the Small Causes Court though competent to decide incidentally the question of title in that particular case might exercise with discretion, the power of returning the plaint to be presented to the Original Court which would have jurisdiction to so decide on that title finally. Obviously, the section is designed to meet the cases in which the Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in an ordinary Court in which evidence is recorded in full and decision is open to appeal.
7. Section 23 is framed in optional terms giving discretion to the Court to Act in the matter or not, and therefore, in suits involving question of title, the Small Causes Court has a discretion either to decide the question of title or to Act under this section and return the plaint. It is not always bound to return the same. Nevertheless, when any complicated question of title arises, it would be the wiser course for Small Causes Court in the exercise of its discretion to Act under Section 23 and return the plaint."
34. In Mahendra Pal Singh and others Vs. District Judge, Jhansi and another, 2004 (1) ARC 697, this Court said:
"since intricate question of title is involved in the present case, the revisional Court, had rightly exercised its discretion under Section 23 of the Act in directing the trial Court to return the plaint for presentation to the proper Court".
35. The Apex Court also had occasion to consider Section 23 in Budhu Mal Vs. Mahabir Prasad and others 1988 (2) ARC 260 (SC). It held that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant but if the suit cannot be construed to be one between landlord and tenant, it would not be cognizable by the Court of Small Causes, and, it is for these reasons, in such a case, the plaint ought to have been returned for presentation to appropriate Court so that none of the parties are prejudiced.
36. The aforesaid discussion leaves inescapable conclusion that a Small Cause Court is a Civil Court and has jurisdiction over suits of civil nature. Since the procedure to be followed is slightly summary in nature than that followed by Civil Courts in regular suits, on the intricate questions of civil nature, the law requires, to some extent, that they should be decided by Civil Courts following detail intricate procedure. But one thing cannot be disputed that a Small Cause Court is a Civil Court.
37. From the above, it is also clear that Small Cause Court has no jurisdiction to consider validity of sale deed in the proceedings arising in Small Cause Court Suit and that matter could have been examined only in regular suit. If revisional court was of the view that this issue was necessary to be decided in the case in hand, appropriate course open to it was to direct for return of plaint to plaintiffs so as to be presented before regular court in regular suit proceedings. In view of the above, the impugned judgment cannot be sustained.
38. The writ petition is allowed. Impugned judgment and decree dated 14.11.2002 , passed by respondent no.4 is set aside. Trial Court shall return the plaint to plaintiff respondents so as to be presented in regular court. They shall have then liberty to proceed in such manner, as provided in law.
39. The respondents shall be entitled to cost which is quantified to Rs. Five Thousand only.
Dt.31.05.2013 Akn.