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2007 DIGILAW 585 (UTT)

SUNDAR SINGH v. DAULAT SINGH

2007-12-05

RAJESH TANDON

body2007
JUDGMENT Heard Sri Arvind Vashisth, Advocate assisted by Sri Hari Mohan Bhatia, counsel for the revisionist and Sri Sharad Sharma, counsel for the respondent no. 1. 2. By the present civil revision filed under Section 25 of the Provincial Small Cause Courts Act, revisionist has prayed for setting aside the judgment and decree dated 8.8.2007 passed by Additional District Judge/F.T.C. I Dehradun in S.C.C. Case No. 6 of 2002 Sundar Singh Vs. Daulat Singh deciding the Issue no. 5 in favour of the defendant/respondent and the plaint was directed to be returned to the revisionist. 3. Briefly stated, a suit was filed by the revisionist – plaintiff being S.C.C. Case No. 6 of 2002 Sundar Singh Vs. Daulat Singh praying to the following effect : ßvr% ekuuh; egksn; ls fouez izkFkZuk gS fd oknhx.k ds i{k esa rFkk izfroknh ds fo#) fuEu izfrdkjksa dh vkKfIr ikfjr djus dh Ñik djsaA izfrdkj d %& oknhx.k dks izfroknh ls 38]365@& #i;s vo”ks’k /kujkf”k fnyk;h tkosA izfrdkj [k %& oknhx.k dks izfroknh ls fookfnr lEifÙk ls fu’dkflr djds mldk fjDr vè;klu fnyk;k tk;sA izfrdkj x %& fookfnr lEifÙk dk okLrfod v/;klu izkIr gksus rd izfroknh ls oknhx.k dks 16-60 izfrfnu ds fglkc ls vukf/kÑr mi;ksx ,oa miHkksx ds fy;s {kfriwfrZ fnyk;h tkosA izfrdkj ?k %& mijksDr izfrdkjksa ds vfrfjDr vU; izfrdkj tks fd ekuuh; U;k;ky; oknhx.k dks izfroknh ls fnykuk mfpr le>s fnyk;k tkosA fookfnr lwph lEifÙk Hkwfe [kljk uañ 746 fLFkr xzke pkeklkjh ftyk nsgjknwu esa fufeZr Hkou ftl ij izfroknh dk vukf/kÑr v/;klu gSA ftldh lhek;sa fuEu izdkj gSa %& iwjc & Hkwfe okn if”pe & jkLrk mÙkj & Hkwfe eksgj flag nf{k.k & jkLrkÞ 4. According to the plaint averments, the plaintiff-revisionist is the owner of the property mentioned above and the respondents-defendants are tenant at the rate of Rs. 500/- per month. It has been stated in the plaint that the property in question does not come under the purview of U.P. Act No. XIII of 1972. The tenancy started in the month of December, 1997 and the rent of only one month was paid to the revisionist-plaintiff in the month of December, 1997 and thereafter, not a single penny in respect of rent was paid to the plaintiff-revisionist by the defendants-respondents. The plaintiff-revisionist sent an intimation to the defendant-respondent no. 1 on 31.12.1999 demanding a sum of Rs. The plaintiff-revisionist sent an intimation to the defendant-respondent no. 1 on 31.12.1999 demanding a sum of Rs. 12,000/- for the rent of twenty four months and for eviction through their Advocate V.S. Dobhal, but he did not pay any heed to it. 5. Despite the said notice, the respondents-defendants neither deposited the aforesaid amount nor vacated the premises in question, therefore, plaintiff and proforma respondent filed a suit seeking a decree of Rs. 38,365/- against the defendants-respondents towards the rent arrears and vacant possession of the property in question after his eviction. 6. That after service of the notice the respondent no. 1 put up appearance and filed a written statement denying therein the ownership of the revisionist and of the proforma respondent and further alleging his own title in the property in question. In the written statement, it has been stated that the father of the defendant-respondent no. 1 Sri Ghonkar Singh had purchased this property from one Devi Singh i.e. the father of the revisionist on a sale consideration of Rs. 15,000/-. It has been further stated that the sale took place according to customs and practice prevalent in the villages, where the sale of immovable property are made without registration of deeds. Relevant paragraph of the written statement are quoted below : “14. That Sri Ghonkar Singh, son of Sri Chhanchru Singh was the owner in possession of the land bearing Khasra No. 746, having an area of 0.18 acres situated in Village Chamasari Pargana Parwa Doon, District Dehradun having acquired the same from Sri Devi Singh, son of Sri Keshar Singh, R/o Village Silkoti in February, 1986. 15. That the land so purchased by the father of the defendant is bounded and butted as under : North : Land of Sri Mor Singh now purchased by the defendant, land of Chhanchru Singh and others (part of the Gaushala of the defendant is constructed over the land in suit and part over the land situated on the north of the land in suit). South : Kachcha Road East : Land of Chhanchru Singh and defendant. West : Land of Sri Ami Chand and others. 16. That Sri Devi Singh in February, 1986 itself had delivered the possession of the aforesaid land to Sri Ghonkar Singh and ever since then Sri Ghonkar Singh continued to be the owner in possession of the said land. 17. West : Land of Sri Ami Chand and others. 16. That Sri Devi Singh in February, 1986 itself had delivered the possession of the aforesaid land to Sri Ghonkar Singh and ever since then Sri Ghonkar Singh continued to be the owner in possession of the said land. 17. That Sri Ghonkar Singh during his life had laid foundations for construction of a house over the land so purchased by him. As Sri Ghonkar Singh expired on 17.10.1991, he could not complete the constructions. The aforesaid land together with the incomplete constructions standing thereon devolved upon the heirs of Sri Ghonkar Singh including the defendant who are continuing as owner in possession of the aforesaid land. 20. That in the alternative and without admitting, it is submitted that Sri Ghonkar Singh and after his death his heirs including the defendant had been in continuing peaceful, hostile and open possession of the aforesaid land together with constructions standing thereon as owner in the knowledge of the all concerned building Sri Devi Singh and his heirs including the plaintiff since February, 1986 and as such have acquired title over the aforesaid land together with the constructions standing thereon by efflux of time. The alleged title of Sri Devi Singh and his heirs including the plaintiff got extinguished by efflux of time.” 7. As will appear from the aforesaid, the defendants have denied the title of the plaintiffs claiming the title in himself. 8. On the pleadings of both the parties, the trial Court on 3rd March, 2003 has framed the following issues : “(1) Whether the plaintiffs are the owners of the land in suit as claimed in the plaint? (2) Whether the defendants are the tenants of the land in suit on behalf of the plaintiffs on a rental of Rs. 500/- per month as claimed in the plaint? (3) Whether the defendants are the owners of the land in suit having perfected their title by adverse possession as claimed in the written statement? If so, its effect? (4) Whether the constructions over the land in suit have been raised by the plaintiffs as claimed in the plaint or by the defendants as claimed in the written statement? (5) Whether the plaint is liable to be returned U/s 23 of the Provincial Small Cause Courts Act? If so, its effect? (4) Whether the constructions over the land in suit have been raised by the plaintiffs as claimed in the plaint or by the defendants as claimed in the written statement? (5) Whether the plaint is liable to be returned U/s 23 of the Provincial Small Cause Courts Act? (6) Whether the Civil Court lacks the jurisdiction to entertain the suit as mentioned in para 37 of the written statement? If so, its effect? (7) Whether the suit has not been properly valued and proper court-fees has not been paid thereon? (8) To what relief, if any, the plaintiffs are entitled to?” 9. On 8th August, 2007, while deciding the Issue No. 5 as a preliminary issue, the trial Court has recorded a finding that where the right of the plaintiff regarding immovable property and the relief claimed by the plaintiff depends upon proof or disproof or the Court concerned cannot decide the ownership finally, the plaint shall be remitted to the court having jurisdiction at any time. By recording this finding, the trial Court has decided this issue in favour of the defendant. 10. Issue No. 5 was framed as to whether the suit is cognizable by the Small Cause Court or not, the Judge Small Cause has recorded a finding and since the question of title has to be decided, therefore, the Judge Small Cause Court has no jurisdiction to proceed with the suit, therefore, the issue was decided in favour of the defendant. 11. Section 23 of the Provincial Small Cause Courts 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 immoveable 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 paragraphs of Sec. 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 reasons of a cause of a nature like to that of defect of jurisdiction.” 12. Counsel for the appellant has placed reliance on Shamim Akhtar v. Iqbal Ahmad and another AIR 2001 SC 1 relevant observations of the Apex Court are quoted below : “12. The trial Court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff-appellant under Section 23 of the Small Cause Courts Act. Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes 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 power vested under sub-section (1) in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Cause Court depends upon the proof or disproof of a title to the immovable property and the relief sought cannot be granted without determination of the question. In the present case, as noted earlier, the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted respondent No. 1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed the trial Court, at the first instance, had accepted the plaintiff’s case holding, inter alia, that she had got the property by a registered deed of gift from Smt. Khairunnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who, indisputedly was the original owner of the property. The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent court. The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Cause Court to determine finally the title to the property. The tenant-respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Cause Courts Act.” 13. According to the aforesaid observations, the Apex Court has held that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depends upon the proof or disproof of a title to immovable property or other title which suit a Court cannot finally determine, the Court may at any stage of a proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. 14. Counsel for the appellant has referred the judgment of Ram Chandra Lal Vs. VIth Additional District Judge, Varanasi 2006(1) ARC page 229. The aforesaid judgment is not applicable to the facts of the present case, as the defendant has not only denied the title of the plaintiff, but has claimed the title in himself. 15. In Budhu Mal v. Mahabir Prasad AIR 1988 SC 1772, the Apex Court has observed as under : “9. It is true that S. 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. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting S. 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaint ought to have been returned for presentation to a court having jurisdiction to determine the title”. 16. Since the defendant has not only denied the title of the plaintiff, but also has claimed the title in himself, therefore, once the suit is decided by the civil Court that will be beneficial for both the parties. At present, I am not entering into the merit of the controversy as to whether the plaintiff is the owner or the defendant and further as to whether the defendant has perfected his title by way of adverse possession. 17. It may be pointed out that any observation made above, will not prejudice the case of the parties and the Civil Court shall record findings in accordance with the averments made in the plaint and the written statement on all the issues framed by the Judge Small Causes Court. 18. However, in case the plaint is presented before the Civil Court, the same shall be decided within a period of six months from the date of filing of the certified copy of the order. All the pleadings filed before the Judge Small Causes Court shall be filed before the Civil Court along with the issues framed by the Judge Small Cause Court. 19. Subject to aforesaid observations, Civil Revision is dismissed. No order as to costs.