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2009 DIGILAW 1887 (ALL)

SHIV NARAIN v. HAR SWAROOP

2009-04-30

PRAKASH KRISHNA

body2009
PRAKASH KRISHNA, J. Having lost from the two Courts below the plaintiff of the SCC Suit No. 147 of 1997 has prayed this Court by means of pre sent petition for quashing of the two orders dated 15. 9. 2000 passed by the JSCC Agra and the judgment and order dated 7. 9. 2002 passed by the Revisional Court in Revision No. 70 of 2000. The facts of the case may be noted in brief. 2. The petitioner instituted Suit No. 147 of 1997 against the sole respon dent therein on the allegations that both of them are original residents of Village Verrai Tehsil Khairagarh, District Agra and are related with each other. There is a pakka house in the Village Veerai of the petitioner which he got in the registered family partition in the year 1941, in pursuance of an award by the arbitrator dated 11. 5. 1941. The plaintiff is pursuance of the aforesaid award of the arbitrator and partition\is the exclusive owner in possession of a double storeyed pakka house described at the foot of the plaint. The said house was let out to the defendant respondent herein on a monthly rent of Rs. 50/ -. The defendant tenant is in arrears of rent since August, 1993 and that the provi sions of U. P. Act No. 13 of 1972 are not applicable to the said house as it is situ ate in a rural area. The tenancy has been determined by the notice dated 2. 9. 1972 which was served on the defendant on 16. 9. 1997. Ejectment of the de fendants, recovery of arrears of rent for the last three years and the damages pendente lile and future @ Rs. 100/-, was claimed. The said suit was contested by the defendant by denying the relationship of landlord and tenant between the parties. He claimed that under the said award of the arbitrators and fam ily partition, the house in dispute was not allotted to the plaintiff and he is not the owner and possession of the said house. The plea of arrears of rent etc. was also disputed. In paragraph-12 of the written statement a pedigree has been given to show that both the parties are descendants of a common ancestor Raja Ram, who died in the year 1939 and was married twice. 3. The plea of arrears of rent etc. was also disputed. In paragraph-12 of the written statement a pedigree has been given to show that both the parties are descendants of a common ancestor Raja Ram, who died in the year 1939 and was married twice. 3. From the first wife Ram Swaroop (who has died in the year 1982), fa ther of the defendant was born while from second wife namely Har Pyari, the plaintiff was born. The plaintiff subsequently went to family of his paternal uncle by way of adoption. Raja Ram also migrated to his father in laws house at Dholpur, State of Rajasthan. Therefore, Shiv Narain the plaintiff did not inherit any property left by deceased Raja Ram on account of his adoption. The parties led evidence in support of their respective submissions. 4. The issue whether there is a relationship of landlord and tenant be tween the parties, the notice dated 2. 9. 1997 was served and is it valid, whether the defendant has committed default in payment of arrears of rent and whether the defendant is liable for eviction on account of denial of title of the plaintiff, were framed. Issues No. 1 & 4 relating to relationship of landlord and the tenant between the parties and denial of title were decided jointly. The Trial Court found that from the award of the arbitrator and deed of parti tion of the year 1941, it is evident that there were three parties to the said document and Shiv Narain, the plaintiff was third party. At that time he was minor, therefore, his mother Smt. Har Pyari was the natural guardian and in that capacity she signed the partition deed. From the said document, it is evident that the house in dispute was allotted to the plaintiff. Therefore, it rejected the respondents contention that house was allotted to Smt. Har Pyari in the partition and after her death he being the step son inherited the property in dispute singularly. In the alternative, it was found that even if the house was allotted to Smt. Har Pyari the plaintiff/petitioner being the son will in herit the property in question as the defendant has failed to prove the alleged adoption. Thereafter, the Trial Court proceeded to examine the question of re lationship of landlord and tenant existed between the parties. In the alternative, it was found that even if the house was allotted to Smt. Har Pyari the plaintiff/petitioner being the son will in herit the property in question as the defendant has failed to prove the alleged adoption. Thereafter, the Trial Court proceeded to examine the question of re lationship of landlord and tenant existed between the parties. Under the issue No. 2, it was found that the notice dated 2. 9. 1997 was validly served on 16. 9. 1997 on the defendant-respondent, but as there was no relation of landlord and tenant in existence between the parties, issue relating to payment of arrears of rent was decided against the plaintiff and the suit was dismissed accord ingly. 5. The aforesaid order has been confirmed by the Court below. It has dis carded the theory as set up by the petitioner that there was a relationship of landlord and tenant between the parties. It confirmed the findings recorded by the Trial Court as they according to the Revisional Court, are based on correct appreciation of the evidence on record. 6. Shri Manoj Kumar, learned Counsel for the petitioner submits that on the facts of the present case, the Courts below ought to have returned the plaint for presentation before the proper Court as question of title was in volved. Reliance was place on Rakesh Kumar v. VIth Additional District Judge, Bulandshahar, 1998 (33) ALR 574= 1998 (2) ARC 178 ; Kalpnath Pandey v. 11th Additional District, 1993 (22) ALR 183 (LB) and Gopal Chand Singh Roy v. District Judge, Varanasi, 1996 (2) ARC 68=1996 (28) ALR 458. 7. The learned Counsel for the respondent on the other hand supports the impugned judgment and submits that the cause was founded on the basis of the existence of relationship of landlord and tenant between the parties, the Courts below have rightly dismissed the suit due to the failure of the plaintiff to es tablish the said contract of tenancy. 8. Considered the respective submissions of the learned Counsel for the parties and perused the record. 9. The leading case on the subject is of the Apex Court Budhu mal v. Mahaveer Prasad, AIR 1998 SC 1772. Parts of the Paragraphs 9 & 10 of the said authority are quoted below: "9. 8. Considered the respective submissions of the learned Counsel for the parties and perused the record. 9. The leading case on the subject is of the Apex Court Budhu mal v. Mahaveer Prasad, AIR 1998 SC 1772. Parts of the Paragraphs 9 & 10 of the said authority are quoted below: "9. It is true 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. 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 section 23 the Legislature must have had in contemplation some cases in which the dis cretion to return the plaint ought to be exercised in order to do complete jus tice 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 plaints ought to have been returned for presentation to a Court having jurisdiction to determine the title. " 10. In the result, both these appeals are allowed and the judgments and decrees of the Courts below are set aside and the Judge, Small Causes is di rected to return the plaints of these two for presentation to the Appropriate Court as contemplated by section 23 of the Act. " 10. Following the aforesaid authority, this Court in Smt. Dulari and oth ers v. IVth Additional District Judge and others, 2003 (53) ALR 400 ordered the return of the plaint for presentation before the regular Civil Court under section 23 of the Provincial Small Causes Courts Act. 11. Reverting to the facts of the present case, it may be noted that the plaintiff in support of his case has relied upon certain rent receipts allegedly included by the defendant respondent. The execution of the said rent receipts was disputed by the defendant-respondents. Both the parties led evidence in support of their respective case by filing report of handwriting experts. The execution of the said rent receipts was disputed by the defendant-respondents. Both the parties led evidence in support of their respective case by filing report of handwriting experts. The two Courts below have preferred to place reliance on the report of the hand writing expert produced by the defendant stating that the disputed documents do not contain the signatures of the defendant. No attempt was made by the learned Counsel for the petitioner to persuade this Court to take a different view of the matter. 12. In this view of the matter, the findings recorded by the two Courts be low about the non-existence of relationship of landlord and tenant between the parties is confirmed. Simultaneously, as noted herein above, it has been found by the Trial Court that the plaintiff is the owner of the property in question and the defendants happens to be his nephew being son of his step brother. The case of the defendants is that the plaintiff was adopted by the paternal uncle which has not been found to be proved. 13. In the case on hand, a dispute regarding title to the house in question is involved. The petitioner on one hand claims that he is the owner of the said house in pursuance of the partition and the arbitration award. The said parti tion and arbitration award is not disputed by the defendant-respondent but he claims that he is the owner in possession thereof as he got it through his step mother Smt. Har Pyari. A question of title having been arisen, it was necessary for the Courts below to have returned the plaint as provided for under section 23 of the Provincial Small Causes Courts Act and the submission of the learned Counsel for the petitioner in this regard is well founded. 14. In view of above discussions, the writ petition succeeds and is allowed. The impugned orders dated 15. 9. 2000 and 7. 9. 2002 are hereby set aside with the direction that the plaint of the Suit No. 147 of 1997 be returned to the peti tioner for presentation before the Civil Court or original jurisdiction for trial of the suit on the regular side. No order as to costs. Writ Petition Allowed. .