Patna High Court
Prahlad Rai Barolia & Ors vs M/S Manish Kumar Ashish Kumar on 1 September, 2017
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court C.R. No.70 of 2011 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.70 of 2011
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Prahlad Rai Barolia & Ors
.... .... Petitioner/s
Versus
M/S Manish Kumar Ashish Kumar
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Mohojeshwar Pd. Sinha
Mr. Ratan Kr. Sinha
For the Respondent/s : Mr. Shashi Shekhar Dvivedi
Mr. Ranjan Kr. Dubey
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
CAV JUDGMENT
Date: 01 -09-2017
1. This revision has been filed against the order
dated 14.2.2011 passed by learned District Judge,
Muzaffarpur in Misc. Appeal no. 13/2010 by which and
whereunder learned District Judge dismissed the appeal as
not maintainable on the ground that order passed under
section 23 of the Small Causes Act is not an appealable
order under Order 43 of the CPC.
2. The brief facts are that the petitioners filed
Eviction suit no. 29/2006 against opposite parties for their
eviction from the suit premises described in Schedule II of
the plaint on the ground of personal necessity.
3. The case of the petitioners is that the house
standing over RS plot no. 397 of RS khesra no. 225
Patna High Court C.R. No.70 of 2011 2
described in Schedule I of the plaint belonged to Viswanah
Prasad Gupta and Rajendra Prasad Gupta. However,
petitioners purchased entire RS plot no. 397 along with
house by registered sale deed dated 19.9.2005 from the
owner Viswanah Prasad Gupta and Rajendra Prasad Gupta.
Further, the petitioners claimed before the court of learned
Munsif that there are four shops on the ground floor of
purchased house and opposite parties are their tenants in one
of the shops. The petitioners further claimed that shop in
question was required to them for running their own
business and accordingly, they filed the aforesaid eviction
suit.
4. Opposite parties appeared in the aforesaid suit and
sought leave to contest the aforesaid suit and thereafter,
filed their written statement. However, on 16.7.2009 they
filed a petition for return of the plaint of the aforesaid
Eviction suit no. 29/2006 on the ground that complicated
question of title was involved in the aforesaid Eviction suit
no. 29/2006.
5. Learned Munsif vide order dated 26.5.2010
ordered to return the plaint of Eviction suit no. 29/2006 on
the ground that complicated question of title could not be
Patna High Court C.R. No.70 of 2011 3
decided by small cause court in summary proceeding.
6. Petitioners challenged the order dated 26.5.2010
passed by learned Munsif, Muzaffarpur before learned
District Judge, Muzaffarpur in Misc. Appeal no. 13/2010
but the learned District Judge, too, dismissed Misc. Appeal
no. 13/2010 on the ground that order of learned Munsif was
passed under section 23 of the Provincial Small Cause
Courts Act, 1887 and the aforesaid order is not appealable
under Order 43 of the CPC.
7. Petitioners, at the first instance, challenged the
impugned judgment of the learned District Judge passed in
Misc. Appeal no. 13/2010 as well as order dated 26.5.2010
passed by learned Munsif, Muzaffarpur in Eviction suit no.
29/2006 but the office of this court raised objection that
prayer should be confined to only one order and due to the
aforesaid objection, petitioners confined their prayer
towards only order dated 14.2.2011 passed by learned
District Judge, Muzaffarpur in Misc. Appeal no. 13/2010.
8. Although petitioners, at subsequent stage, tried
to challenge the order of learned Munsif also and for that
purpose they sought amendment in the pleadings of the
petition but their prayer was rejected vide order dated
Patna High Court C.R. No.70 of 2011 4
30.3.2015.
9. The claim of opposite parties is that total area of RS plot no. 397 of RS khesra no. 225 including the house is 20 dhurs 5 kanwa out of which petitioners have purchased only 14 dhurs from western side of plot and remaining 6 dhurs of land and house in the eastern side remained with decendants of the original owner and subsequently, opposite party no.2 purchased area of 345 square feet equivalent to 3 dhurs 11 kanwa from eastern side of the said lands consisting disputed shop and accordingly, he denied relationship of landlord and tenant and also claimed his title over the shop in question.
10. Learned counsel appearing for the petitioners submits that certain facts are admitted in this case. He submits that it is an admitted position that RS plot no. 397 of RS khesra no. 225 was recorded in cadestral survey khatiyan in the name of one Fakir Chand Sah and area of aforesaid plot was shown in khatiyan as 20 dhurs. The aforesaid Fakir Chand Sah gifted the aforesaid land to his wife, Ram Piyari Devi vide gift deed dated 2.1.1969 and subsequently, the aforesaid Ram Piyari Devi transferred the aforesaid lands to Viswanah Prasad Gupta and Rajendra Patna High Court C.R. No.70 of 2011 5 Prasad Gupta. However, in revisional survey, area of the aforesaid land was recorded as 96 decimals and the petitioners purchased 14 dhurs of R.S. Plot no. 397 from Viswanah Prasad Gupta and others. It is also an admitted position that opposite parties had not made any claim regarding the area purchased by the petitioners nor they have challenged genuiness and validity of sale deed executed in favour of the petitioners. He further submits that case of opposite parties is that they purchased remaining 3 dhurs 11 kanwa area of RS plot no. 397 from the decendants of the original owner and the petitioners do not have any concern with area purchased by opposite parties. In the aforesaid manner, opposite parties denied the relationship of landlord and tenant. He further submits that even if the aforesaid claim assumed to be true for the sake of argument, then also, it can not be said that complicated question of title was involved in Eviction suit no. 29/2006 but learned District Judge, as well as learned Munsif failed to take note of the aforesaid facts.
11. Learned counsel for the petitioners further submits that no doubt, complicated question of title can not be decided in an eviction suit filed under Bihar Buildings Patna High Court C.R. No.70 of 2011 6 (lease, rent and eviction) Control Act, 1982 but the court can incidentally look into the aforesaid question while deciding with the relationship of landlord and tenant. Therefore, learned Munsif erred in returning the plaint and similarly, learned District Judge committed error in dismissing the appeal holding that the aforesaid appeal was not maintainable. He, further, submits that the petitioners have filed Eviction suit no. 30/2006 against another tenant for his eviction from another shop situated over RS plot no. 397 and the aforesaid suit was decreed and decree of Munsif was confirmed up to this court. He, further, submits that in the aforesaid case, all questions involved in the present matter were decided and settled and, therefore, opposite parties have no right to raise the aforesaid questions. In support of his contentions, learned counsel for the petitioners relies upon several decisions such as AIR 1968 Patna 415, 2004 (I) PLJR SC 28 , 1999 (II) PLJR 712.
12. On the other hand, learned counsel appearing for the opposite parties submits that learned Munsif rightly passed the order dated 26.5.2010 as complicated question of title was involved in Eviction suit no. 29/2006 and section 23 of the Provincial Small Cause Courts Act, 1887 says that Patna High Court C.R. No.70 of 2011 7 where relief claimed in a court of small causes depended upon the proof or disproof of a title to immovable property or other title which such a court can not finally determine, the court may return the plaint at any such of the proceedings. He further submits that in the present case, admittedly, Eviction suit no. 29/2006 was filed by the petitioners under section 11 (c ) of the Bihar Buildings (lease, rent and eviction) Control Act, 1982 on the ground of personal necessity and section 14 of the aforesaid Act prescribes the procedure of the suit filed under section 11 (i) (c ) (e) of the Act and sub-section (7) of section 14 of the Act says that the court while hearing the suit under section 14 of the Act shall follow practice and procedure of the court of small causes including the recording the evidence. Therefore, the court has to adopt procedure of small cause courts, if the suit is filed under section 11 (i) (c) of the Act. He further submits that section 23 of the Small Cause Courts Act, 1887 clearly says that complicated question of title can not be decided by the Small Cause Court and if complicated question of title is involved, Small Cause Court shall return the plaint to the plaintiff to be presented before the court having jurisdiction to determine the title. In Patna High Court C.R. No.70 of 2011 8 support of his contention, he relies upon decision of Radha Devi vs. Deep Narayan Mandal & others reported in 2004(I) PLJR 28 in which the Apex Court of this country held that complicated question of title can not be decided by rent court.
13. He further submits that admittedly, petitioners purchased 14 dhurs of land of RS plot no. 397 whereas 6 dhurs of land of the aforesaid plot no. 397 remained with the original owner and subsequently, opposite party no.2 purchased near about 3 dhurs 11 kanwa out of the aforesaid 6 dhurs land. He, further, submits that opposite parties denied the title of the petitioners and claimed their own title in respect of disputed shop on the basis of their sale deed. Therefore, complicated question of title was involved in the present matter.
14. Having heard the contentions of both parties, I have gone through the record. It is an admitted position that area of RS plot no. 397 recorded as 12 dhurs in revisional survey khatiyan and petitioners purchased 14 dhurs equivalent to 2.8 decimal land of RS plot no. 397 and boundary of the aforesaid land has been given in sale deed dated 19.9.2005. Annexure 1 (the sale deed dated Patna High Court C.R. No.70 of 2011 9 19.9.2005) of the petition goes to show that in northern side of purchased area, there was road whereas in southern side of purchased area, there was one Amarnath Pandey. Similarly, in eastern side, there was road and in western side there was land of Amarnath Pandey. Exhibit 1 also goes to show that entire area of RS plot no. 397 was purchased by the petitioners. It is also an admitted position that after execution of sale deed dated 19.9.2005, opposite party no.2 got executed registered sale deed dated 12.6.2006 from decendants of the original owner in respect of 345 square feet area equivalent to 3 decimals 11 kanwa land of RS plot no. 397 and in the aforesaid sale deed, boundary of purchased area has been given which does not tally with the purchased area of the petitioners. Therefore, it is an admitted case of opposite parties that they have not purchased that area of RS plot no. 397 which was purchased by the petitioners. However, opposite parties claim that the disputed shop is situated in their purchased area and, therefore, they are not the tenant of petitioners. Therefore, in view of the aforesaid facts, it can not be said that complicated question of right and title of the parties was involved in Eviction suit no. 29/2006. It appears from the Patna High Court C.R. No.70 of 2011 10 aforesaid facts that there was only dispute between the parties as to whether there was relationship of landlord and tenant between the petitioners and opposite parties or not?
15. Here, I would like to refer Order 43 rule 1(a) of the CPC which says that if an order of return of the plaint is passed under Order VII Rule 10 of the CPC, said order is appelable order. It is an admitted fact in this case that learned Munsif passed order dated 26.5.2010 under section 23 of the Small Cause Courts Act, 1887 and after that the petitioners appealed before learned District Judge against the order of learned Munsif and learned District Judge, dismissed the Misc. appeal on the ground that if plaint is returned under section 23 of the Small Cause Courts Act, 1887, Misc. appeal under Order 43 of the CPC is not maintainable. Therefore, in my view, learned District Judge rightly dismissed Misc. Appeal no. 13/2010 on the ground of maintainability. Admittedly, Eviction suit no. 29/2006 was filed by appellants-plaintiffs under section 11 (c ) of the Bihar Buildings (lease, rent and eviction) Control Act, 1982 and section 14 (i) of the Act says that every suit by a landlord for the recovery of possession of any premises on the ground specified in clause (c) or (e) of sub-section (1) of Patna High Court C.R. No.70 of 2011 11 section 11 shall be dealt with in accordance with the procedure specified in this section. Furthermore, sub-clause
(vii) of section 14 says that notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law, the Court while hearing a suit under this section shall follow the practice and procedure of a Court of Small Causes including the recording of evidence.
16. A bare perusal of the aforesaid provisions goes to show that if an eviction suit is filed by landlord for the recovery of possession of any premises on the ground of his personal necessity or on the ground of expiry of period of tenancy, the court is bound to adopt the procedure of court of the small cause which has been prescribed in Provincial Small Cause Courts Act, 1887.
17. Admittedly, in the present case, learned Munsif proceeded with Eviction suit no. 29/2006 under the provision as contained in Provincial Small Cause Courts Act, 1887 and returned the plaint under section 23 of the aforesaid Act on the ground that complicated question of title was involved in the aforesaid Eviction suit no. 29/2006. Therefore, in the aforesaid circumstances, petitioners ought to have challenged the above stated order of learned Munsif Patna High Court C.R. No.70 of 2011 12 under section 25 of the aforesaid Act which says that the High Court for the purpose of satisfying itself that a decree or order made in any case decided by a court of small cause was according to law, may call for the case and pass such order with respect thereto as it thinks fit but the petitioners chose wrong forum and challenged the above stated order of learned Munsif before learned District Judge, Muzaffarpur by filing Misc. Appeal no. 13/2010 which was admittedly not maintainable under Order 43 of the CPC.
18. No doubt, after impugned judgment dated 14.2.2011 passed by learned District Judge, Muzaffarpur in Misc. Appeal no. 13/2010, petitioners preferred the present revision petition but in the present revision petition they have not made prayer for setting aside the order dated 26.5.2010 passed by learned Munsif, East, Muzaffarpur in Eviction suit no. 29/2006 rather they confined the present revision petition against the impugned judgment dated 14.2.2011 passed in Misc. Appeal no. 13/2010 and, therefore, in the present revision petition, there is no prayer for setting aside the order dated 26.5.2010 passed by learned Munsif, East, Muzaffarpur in Eviction suit no. 29/2006. Hence, I have no option except to dismiss this revision Patna High Court C.R. No.70 of 2011 13 petition. Accordingly, this revision petition stands dismissed. However, it is made clear that if the petitioners challenge the order dated 26.5.2010 passed by learned Munsif, East, Muzaffarpur in Eviction suit no. 29/2006 in accordance with law, this order shall not cause any prejudice to them.
shahid (Hemant Kumar Srivastava, J) AFR AFR CAV DATE 6.7.2017 Uploading Date 4.9.2017 Transmission 4.9.2017 Date