JAGANNATH PRASAD v. XIV ADDL D J KANPUR — 1996 DIGILAW 141 (ALL)

SUDHIR NARAIN, J. This writ petition is directed against the order dated 6-2-1992 rejecting application of the petitioner filed under Section 23 of Provincial Small Causes Court Act (in short as the Act) for returning the plaint and for dismissing the suit as it raises the question of title, and the order dated 8-9-1995 passed by respondent No. 1 dismissing the revision of the petitioner against aforesaid order. 2. Facts of the case in brief are that Smt. Radhika Devi-respondent No. 3 filed Suit No. 20 of 1986 in the Court of Judge Small Causes Court, Kanpur, against Chhedi Lal for recovery of arrears of rent, ejectment and damages on the allegations that he was tenant of the plaintiff at monthly rent of Rs. 35/- She sent notice dated 1st March, 1983, 20-4-1985 and 12-6-1985 as well as 26-11-1985 demanding the arrears of rent and terminating the tenancy. The defendant did not comply with the notice. The defendant- respondent No. 4 filed written statement and it was stated that Jagannath Prasad was owner of the property and he had been paying rent to him. The petitioner filed application for impleadment under Order 1, Rule 10 of Civil Procedure Code for his impleadment as party. He stated that he was owner of the property in question and he has been realising the rent from the defendant and other tenants. His application was allowed and the petitioner was impleaded as one of the defendant in the suit. 3. Subsequently the petitioner filed written statement. In the written statement, he alleged that the property in dispute belonged to Ram Sukh father of plaintiff-respondent No. 3. She was only daughter of her father. Her father had no son. Her father adopted the petitioner in the year 1845 and after death of her father the petitioner is co-owner of the property to the extent of half of share. Plaintiff filed objection and denied that the petitioner is adopted son of her father. The petitioner filed application on 24-7-1991 under Section 23 of the Act for return of the plaint on the allegation that the suit involves question of title. According to him, as co-owner of the property on the basis of adoption and unless that question is decided, the suit filed by the plaintiff-respondent cannot be decreed as against the tenant. This application was rejected by the trial court on 6-2-1992. 4. According to him, as co-owner of the property on the basis of adoption and unless that question is decided, the suit filed by the plaintiff-respondent cannot be decreed as against the tenant. This application was rejected by the trial court on 6-2-1992. 4. The trial court took the view that the suit has been filed on the basis of contract of tenancy and that can be examined by the Judge, Small Causes Court. Petitioner filed revision against this order and respondent No. 1 has dismissed the revision by order dated 8-9-1995. The petitioner has challenged these orders in the instant writ petition. 5. Learned counsel for the petitioner has urged that main question involved in the suit is as to whether the petitioner is co-owner of the property in question by father of the plaintiff-respondent. This controversy cannot be decided by the Judge Small Causes Court. 6. The petitioner has further filed Suit No. 282 of 1989, Jagannath v. Smt. Radhika Devi which is pending in the court of 1st Additional Civil Judge, Kanpur and issue regarding ownership is involved in the said suit. 7. The petitioner filed an application for impleadment in the suit a copy of which has been annexed as Annexure-3 to the writ petition. In para 3 of the applica tion he had stated that he had inducted the tenants in the disputed premises. Plain tiff- respondent No. 3 filed suit for recovery of arrears of rent, eviction and damages on the allegation that respondent No. 4 is her tenant. In case, it is found that the plaintiff or her predecessor-in-interest had not let out the premises in question to the respondents and it has been let out by the petitioner the suit will fail on the ground that there is no relationship of landlord and tenant between the plaintiff and respondent-tenant. 8. The issue before the Judge Small Causes Court shall be as to whether the petitioner let out the disputed accommodation to the defendant-respondent No. 4 or it was let out by the plaintiff- respondent. This does not raise any question of title. 9. The version of the plaintiff-respondent in the objection filed by her to the impleadment application as well as in her application is that the accommodation in question has been let out by her parents and respondent No. 4 is tenant since the time of her parents. This does not raise any question of title. 9. The version of the plaintiff-respondent in the objection filed by her to the impleadment application as well as in her application is that the accommodation in question has been let out by her parents and respondent No. 4 is tenant since the time of her parents. Petitioner took up a plea that father of respondent (plaintiff) had adopted the petitioner in the year 1945. After death of father of plaintiff- respon dent. Plaintiff as well as petitioner inherited right in the property in question in equal share. According to his pleadings in the written statement, issue arises as to whether the petitioner is adopted son of father of plaintiff-respondent. He has only filed written statement and issue has not been framed nor any evidence has been led in the case. In these circumstances the question is as to whether the plaint should be returned by the Judge Small Causes Court to the plaintiff for presenting it before the competent court. Section 23 of the Act reads as under : "23. Return of plaints in suits involving questions of title.- (1) Notwithstanding any thing in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Com t of Small Causes depend upon the proof or disproof of a title to immovable property of other title which such a court cannot finally determine, the Courts 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 Section 75 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 nature like to that of defect of jurisdiction. " 10. " 10. Section 23 of the Act provides that, 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 title to immovable property of other title which such a court cannot finally determine, the Court may at any stage of the proceedings return the plain, to be presented to a court having jurisdiction to determine the title. 11. It is discretion of the court to return the plaint when a question of title to immovable property or other title is involved in the case. This does not preclude the Judge Small Causes Court to decide the question of title to immovable property incidentally. 12. In Shanker Sahai v. Prabhu Dayal, A. I. R. 1934 All 695 (2), it was held that under Section 23, Small Causes Court is given a considerable discretion and if a bona fide question of title arises incidentally in a Small Cause Court suit, the Court may determine it. But where the Court does not consider whether such question was a bona fide one, or that it was necessary for the purpose of the suit to decide it, but decree the suit, it cannot be said that it acted illegally. The Court laid down the purpose and intention of the provisions of Section 23 in the following words: "no doubt it is true that a question of title to immovable property is not one that can be decided in the Small Causes Court and I have been referred to the case of Alagirisami Naiker v. Inhasi Udayan (1), to show that if a bona fide question of title arises incidentally in a Small Causes Court, suit, the Court should determine it. The Court however evidently did not consider that question was a bona fide one, or that it was necessary for the purposes of the suit to decide it. Under Section 23 of the Act A Small Causes Court is given a considerable discretion and in the present case it did not consider that it was necessary to decide the question of title and in the circumstances I cannot hold it acted illegally. " 13. The Judge Small Cause Court has right to decide the question of title incidently. The decision may not be final as regards the question of title which may be finally determined by competent court of law. " 13. The Judge Small Cause Court has right to decide the question of title incidently. The decision may not be final as regards the question of title which may be finally determined by competent court of law. The intention of the Legislature is that the plaintiff should not be deprived of his right to get the relief which is exercisable by Judge Small Causes Court merely because the defendant or proforma defendant in the suit raises question of title either by denying the right of plaintiff or claiming right of title in himself or in third person. 14. It is the discretion of the Judge, Small Causes Court to determine the question of title incidently. If such court decides the question of title incidently, the decision shall not be treated as final in a regular suit. This will depend upon the pleadings of the parties, bona fide of the dispute and other relevant circumstances. 15. In S. A. A. Annamalai Chettiar v. Molaiyan & Ors. , AIR 1970 Mad 396 , it was held that Small Cause Court is competent to decide the question of title if it arises incidently but its decision on a question of title being a summary one cannot be final. 16. Learned counsel for the petitioner has placed reliance upon the decision in Ram Jiwan Misra v. Smt. Kallo & Am, 1980 A. R. C. 522, wherein landlord set up his title on the basis of sale deed which was disputed by the defendant and prayed that plaint be returned to the plaintiff. The application was allowed by the courts below. This Court held that Court exercised discretion and it was justified in returning the plaint under Section 23 of the Act. It was not held that the Judge, Small Causes Court has no jurisdiction to decide the question of title incidenally. 17. Learned counsel for the petitioner further placed reliance upon Smt. Krishna Devi v. District Judge, Mathura & Ors. , 1984 (1) A. R. C. 506. In this case the suit of the plaintiff was dismissed by the court below on the ground that the plaintiff failed to prove ownership of the property in dispute. There was registered trust deed and property belonged to the trust. This Court set aside the impugned judgment and directed that plaint should have been returned by Judge, Small Causes Court under Section 23 of the Act. There was registered trust deed and property belonged to the trust. This Court set aside the impugned judgment and directed that plaint should have been returned by Judge, Small Causes Court under Section 23 of the Act. None of the parties in this case had filed application before the Judge Small Causes Court for returning the plaint. 18. There is another aspect of the matter. The petitioner is proforma defendant in the suit. His contention is that he is adopted son of father of plaintiff-respondent and, therefore, he has equal share in property in dispute along with her. He is claiming right at the most as co-landlord on the basis of adoption. If a plea is taken that a third party is co-landlord, it is not a plea on the basis of which the suit can be directed to be returned for presentation to the competent court for deciding the question of title. 19. In Mohd. Fasi v. Abdul Qyaum Fasi, AIR 1978. All 470, the defendant had taken plea in his written statement that plaintiff has three other brothers and they were co-owners of the shop in question. It was prayed that plaint be returned as it involved the question of title. The Court relying upon the decision of Honble Supreme Court in Smt. Bela Das v. Samarendra Nath Bose, AIR 1975 SC 398 , held that where the tenant admits the plaintiff as landlord but further asserts that there are some more landlords of the disputed premises, it is not a case of denial of relationship of landlord and tenant and the Court was justified in rejecting the application of defendant under Section 23 of the Act. 20. In Kaluram Jain v. Mahabir Prasad & Ors. , 1978 A. W. C. 443, the proforma defendant raised the question that he was co-owner and landlord of the property in dispute and entitled to realise the rent. An application under Section 23 for returning of the plaint was filed but it was rejected. It was held that if the proforma defendant claims any right he can establish it in civil court. 21. In the present case the petitioner has been impleaded in the suit at his own instance as protorma defendant. He claims right of co-ownership in the property in dispute on the basis of adoption alleged to have been made by the father of the plaintiff-respondent. 21. In the present case the petitioner has been impleaded in the suit at his own instance as protorma defendant. He claims right of co-ownership in the property in dispute on the basis of adoption alleged to have been made by the father of the plaintiff-respondent. He does not assert that there is any registered of adoption-deed which was executed by the father of the plaintiff-respondent. He has already filed Suit No. 282 of 1989 in civil court and it is for him to establish his right m the said suit. 22. The court below rightly exercised its discretion by not returning the plaint to the plaintiff under Section 23 of the Act. 23. In the result, the writ petition fails and it is accordingly dismissed. Petition dismissed. .