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2007 DIGILAW 54 (UTT)

AKRAM KHAN ADULT v. ABDUL RAHIM ADULT

2007-02-22

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Sarvesh Agarwal, counsel for the revisionist. 2. By the present revision filed under Section 25 of the Provincial Small Cause Courts Act, the applicant has prayed for setting aside the order dated 10th September, 2002 by which the plaint has been directed to be returned to the plaintiff for presentation before regular court as it involves question of title of the land and house in suit. 3. Briefly stated, a suit was filed by the plaintiff/applicant praying for the eviction of the defendant alleging himself to be the owner and landlord of the premises and defendant is month to month tenant at the rate of Rs. 600/- per month from 1st April, 1995. 4. The plaintiff has stated in the suit that the defendant has paid the rent for April, 1995 and thereafter has failed to pay the rent from 01.05.1995. The plaintiff sent a notice to the defendant on 18.05.1998, which was refused by the defendant on 20.05.1998 in spite of the fact that the notice was in the knowledge of the defendant and he has failed to vacate the premises and a sum of Rs. 22,560 has become due toward the defendant. 5. The defendant has filed a written statement denying the averments mentioned in the plaint that there is no relationship of landlord and tenant and he is not liable to pay any rent to the plaintiff. 6. In paragraph 11 of the written statement, it has been stated that the defendant has paid a sum of Rs. 17,000/- and thereafter, he has constructed his own premises. 7. PW1 Mohd. Akram was examined on oath, who has reiterated the fact that in April, 1995, the defendant has paid the rent for the month of April, 1995 and thereafter he has failed to pay the rent. He has denied that any amount of Rs. 17,000/- was paid to him. 8. DW1 Abdul Rahim was also examined, who has stated that he paid a sum of Rs. 17,000/- and has constructed the house over the land belong to Nazool. 9. From the aforesaid statement, it is evident that the defendant could not prove the title in himself and has stated that the land belongs to Nazool. 10. Further in view of the statement made by the defendant that he paid a sum of Rs. 17,000/- and has constructed the house over the land belong to Nazool. 9. From the aforesaid statement, it is evident that the defendant could not prove the title in himself and has stated that the land belongs to Nazool. 10. Further in view of the statement made by the defendant that he paid a sum of Rs. 17,000/- to the plaintiff, in fact the defendant is admitting the ownership of the plaintiff as he has paid the amount to the plaintiff for constructing the house. 11. The aforesaid facts require adjudication by the Judge Small Cause Courts. It is well settled that the Judge Small Cause Court can decide the incidental question of title and is not bound to return the plaint to the plaintiff. It is a question of evidence, the same can be dealt with by the Judge Small Cause Court. 12. Further once there is admission of the defendant that he paid a sum of Rs. 17,000/- to the plaintiff, he has to prove the same. It is well established that no tenant can be allowed to deny the title of the landlord in view of the judgment of the Apex Court in Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1997 SCFBRC 503. Relevant paragraph of the aforesaid judgment is quoted below : “This is a settled view that having regard to the provisions of Section 116 of the Evidence Act no tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny the title of the owner of such property. In this connection, it would be relevant to make a reference to the decision of this Court in Veerraju v. Venkanna, 1966 (1) SCR 831 : AIR 1966 SC 629, wherein this Court, with reference to the decision of Privy Council took the view as under : “A tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.” 13. In view of the aforesaid, I find force in the argument of the plaintiff/respondent. The order dated 10.09.2002 passed by the Judge Small Cause Court is set aside. 14. In view of the aforesaid, I find force in the argument of the plaintiff/respondent. The order dated 10.09.2002 passed by the Judge Small Cause Court is set aside. 14. The matter is remanded to the trial Court for framing the points for determination and decide the suit itself within a period of six months from the date of presentation of the certified copy of the order. 15. Revision is allowed. No order as to costs.