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2014 DIGILAW 3357 (ALL)

Sardar Gurtahal Singh v. Anand Singh Jagdhari

2014-11-11

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal,J. The appellant feeling aggrieved by the judgment and order dated 04.03.2003 passed by the First Additional Civil Judge (Junior Division) Raebareli in Regular Suit No.124 of 1989 and the judgment and order dated 26.10.2005 passed by the Additional District Judge, Court No.VI, Raebareli in Regular Civil Appeal No.45 of 2003 dismissing the appeal, has approached this Hon'ble Court. 2. The plaintiff-respondent no.1 filed a suit against the appellant and eight others for ejectment and possession along with recovery of arrears of rent from the premises in question. According to plaint allegations, late Babu Kismat Rai Jagdhari was a renowned Advocate of District Raebareli. He was living with his family in a Hindu undivided family. He died on 31.01.1953. Before his death, he had purchased two plots of land Nos.124 and 125 by means of a registered sale-deed dated 27.01.1920 from Sardar Amar Singh Talukedar. He constructed a Cinema Hall over Plot No.125 and a palatial house over Plot No.124 leaving besides a big compound. After the death of Babu Kismat Rai Jagdhari, his widow Smt. Shyam Pyari Devi became Karta of the Hindu undivided family and started looking after the property left by her late husband. She had given on rent a house to the appellant-defendant on a monthly rent of Rs.42/-. Smt. Shyam Pyari Devi in her Will appointed the respondent no.1 as Karta during her lifetime disqualifying Babu Ram Singh Jagdhari. The appellant-defendant after the death of Smt. Shyam Pyari Devi started claiming title over the property in question while as a matter of fact his status was only that of a tenant. The defendant-appellant had sublet a portion of the premises in question to Mohd. Javed and Mohd. Taslim, who were also arrayed as the respondents no. 8 and 9 in the second appeal, but on the application of the appellant, their names were deleted. It was further alleged in the plaint that the defendant-appellant did not pay any rent and a sum of Rs.8,000/- became due to him towards arrears of rent. The respondent no.1 served a notice on 06.02.1987 through his Advocate asking him to pay the entire arrears of rent and also terminating his tenancy after the expiry of 30 days from the date of receipt of the notice. The respondent no.1 served a notice on 06.02.1987 through his Advocate asking him to pay the entire arrears of rent and also terminating his tenancy after the expiry of 30 days from the date of receipt of the notice. The respondent no.1 also filed a criminal case in the Court of Chief Judicial Magistrate, Raebareli in which the defendant-appellant did not claim himself as owner of the premises in question. On the basis of the plaint averments, the aforesaid respondent no.1 claimed a decree for ejectment and recovery of arrears of rent. 3. The defendant-appellant contested the suit and filed his written statement alleging therein that Smt. Shyam Pyari Devi had given him the land on rent in the month of October, 1963 with permission to raise permanent structure over it. The defendant-appellant in accordance with the permission given by Smt. Shyam Pyari Devi constructed a pakka house and after construction, the permission given by Smt. Shyam Pyari Devi became irrevocable and consequently the defendant-appellant became the owner thereof. The name of the defendant-appellant was entered into in the record of the Nagar Mahapalika, Raebareli. He denied his status as tenant in respect of the premises in question and submitted that the suit for recovery of rent and ejectment against him was not maintainable. Learned trial court framed the following issues : - ß1- D;k okn voewY;kafdr gS rFkk iznRr U;k;ky; Qhl vi;kZIr gS \ 2- D;k oknh fookfnr lEifRr dk Lokeh ,oa v/;klh gS \ 3- D;k fookfnr lEifRr ij izfroknh la[;k&8 ,oa 9 dk v/;kluv/k gS \ 4- D;k izfroknh la[;k&1 fookfnr lEifRr esa oknh dk fdjk;snkj gS \ 5- D;k fookfnr lEifRr ij izfroknh la[;k 1 dk dCtk ,oa fuekZ.k Jherh ';ke I;kjh nsoh dh vuqefr ls gqvk gS izHkko \ 6- D;k okn fof/kd : i ls viks"k.kh; gS \ 7- D;k okn izLrqr U;k;ky; ds {ks=kf/kdkj ls ckgj gS \ 8- D;k oknh fdlh vU; vuqrks"k dks ikus dk vf/kdkjh gS ;fn gkW rks fdl vuqrks"k dks \ß 4. The parties led their evidence in support of their case and the learned trial court recorded a finding that the plaintiff-respondent no.1 was the owner of the premises in dispute and the defendant-appellant was in possession of the same. The parties led their evidence in support of their case and the learned trial court recorded a finding that the plaintiff-respondent no.1 was the owner of the premises in dispute and the defendant-appellant was in possession of the same. The learned trial court also recorded a finding that even if the defendant-appellant had raised construction with the permission of his landlord, his status as tenant would not be changed and he would be treated as tenant. On the basis of the aforesaid findings, the learned trial court decreed the suit and directed the defendant-appellant as well as respondent nos. 8 and 9, who were subsequently deleted, to vacate the premises in question and hand over its peaceful possession to the plaintiff-respondent. 5. Feeling aggrieved by the aforesaid judgment and decree, the defendant-appellant preferred regular civil appeal before the District Judge, Raebareli which was also dismissed by the Additional District Judge, Court No. VI, Raebareli and the judgment of the learned trial court was affirmed. The defendant-appellant was further directed to comply with the orders passed by the learned trial court within two months from the date of judgment. 6. I have heard learned counsel for the parties and have gone through the record. 7. Shri Munawar Sultan, learned counsel for the appellant has argued that the plaintiff-respondent no.1 filed a suit in the Court of Civil Judge (Junior Division) while as per the allegations made in the body of the plaint the suit was cognizable by the Court of Judge Small Cause. According to him, the jurisdiction of the Court is decided on the basis of the averments made in the plaint. A bare reading of the plaint discloses that it was a constructed house which was given on rent to the defendant-appellant and as such the suit in respect of ejectment and the recovery of arrears of rent was to be filed in the Court of Judge Small Cause. Learned counsel has referred to Sections 15 and 16 of the Provincial Small Causes Courts Act, 1887 which provides that suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. Learned counsel has referred to Sections 15 and 16 of the Provincial Small Causes Courts Act, 1887 which provides that suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. Article 4 of the Second Schedule of the Provincial Small Causes Courts Act provides that a suit by lessor for the eviction of the lesser from a building after the determination of lease and for the recovery of compensation from him for use and occupation of that building is cognizable by the Court of Judge Small Causes. Since the plaintiff-respondent no.1 had come up with the case that building in question was given on rent to the defendant-appellant, therefore, the suit in respect of the recovery of arrears of rent and eviction from the building should have been instituted in the Court of Small Causes because the jurisdiction of Civil Court was barred. In support of his arguments, learned counsel for the appellant has relied upon a case reported in 2004 (2) ARC 608 - Vijay Pratap (Sri) and another vs. VIth Additional District Judge, Saharanpur and others in which it has been held that if a suit is cognizable by a Court of Judge Small Cause, the same shall not be tried by any other Court. Another case relied upon by the learned counsel for the appellant reported in 2008 (3) ARC Page 235 - Meghnath vs. XIth ADJ, Varanasi and others in which this Hon'ble Court has held that from the reading of Article 4 of the Second Schedule, it is clear that a suit for possession of the immovable property or for the recovery of an interest in such property has been excluded from the jurisdiction of JSCC, but a suit by a lessor for the eviction of lessee from a building, after the determination of lease and for the recovery of compensation from him for use and occupation of that building is cognizable by the Court of JSCC. Hon'ble Court has further held that the building means a roofed structure and even if tin shed had been raised by the tenant after the open piece of land had been let out, the existence of the tin shed will be of no significance so far as the jurisdiction of the Court is concerned. 8. In reply to the aforesaid arguments advanced on behalf of the defendant-appellant, the learned counsel for the respondents has argued that it is the own admission of the defendant-appellant himsel that Smt. Shyam Pyari Devi had given him a piece of land in the month of October, 1963 on a rent of Rs.43/- only and he was permitted to raise a permanent structure over it. The defendant-appellant has further admitted in his written statement that on the basis of oral permission by Smt. Shyam Pyari Devi, he raised a permanent structure and also established his Saw Mill. It was further pleaded by him that after the permanent structure was raised, the oral permission given by Smt. Shyam Pyari Devi became absolute and he became the owner of the building. The defendant-appellant also claims that his name was also mutated in the Municipal Record. The submission on behalf of the plaintiff-respondent is that since there was a dispute with regard to title of the property in question, the suit was filed in the Civil Court and not in the Court of Judge Small Cause because Small Cause Court cannot adjudicate upon the question of title. Section 3 of the Provincial Small Causes Courts Act provides that if in a suit for eviction and the recovery of arrears of rent, a question of title is raised and appears to be involved, then the Small Cause Court should return the plaint to be filed before the regular Court. The submission on behalf of the plaintiff-respondent is that since the plaintiff was aware of the fact that the defendant-appellant had been claiming title over the property in dispute, the suit was not filed in the Court of Judge Small Causes but in the regular civil court. 9. Learned counsel for the plaintiff-respondent has relied upon a decision report in 2012 (1) ARC 613 Triloki Nath Agarwal vs. Bata India Limited. 9. Learned counsel for the plaintiff-respondent has relied upon a decision report in 2012 (1) ARC 613 Triloki Nath Agarwal vs. Bata India Limited. In this pronouncement, the Hon'ble Court has held that if a landlord anticipates that the defendant-tenant may raise objection with regard to the title over the property, the landlord may very well file a suit before the regular Court straight away. The Hon'ble Court has further gone to observe that it would be an absurdity to first ask the landlord to file the suit before the Small Causes Court and wait for the objection of the tenant regarding title and then take back the plaint and file the same before the regular Court. It has further been observed by this Hon'ble Court that Court of Small Causes is a Court of preferential jurisdiction and not exclusive jurisdiction. It cannot be said that a suit which is triable by the Small Cause Court can under no circumstances be decided by the regular civil court and the decision of regular civil court in such a suits is not a nullity. 10. On the basis of the aforesaid pronouncement of this Court, the submission on behalf of the plaintiff-respondent is that since the defendant-appellant had started claiming to be the owner of the premises in dispute, the plaintiff-respondent straightway filed the suit in the Court of Civil Judge, which is the competent Court to decide the title. He further submits that irrespective of the fact as to whether the building was let out to the defendant-appellant or the land was let out with permission to raise pakka construction, the status of the defendant-appellant would be that of a tenant. He has relied upon the principle that once a tenant is always a tenant. A person, who has been inducted as a tenant either in respect of land or building cannot become its owner by any means unless the property is purchased by him by means of a registered instrument. In the present case, it has not been the case of the defendant-appellant that he purchased the property in dispute. His contention is that since he raised the pakka construction with the permission of landlord, therefore, he became the owner thereof. In the present case, it has not been the case of the defendant-appellant that he purchased the property in dispute. His contention is that since he raised the pakka construction with the permission of landlord, therefore, he became the owner thereof. This argument raised on behalf of the defendant-appellant cannot be accepted and for this reason both the courts below have recorded a concurrent finding that the defendant-appellant is not the owner of the premises in question. 11. From the discussion made hereinabove, I am of the view that the Court of Civil Judge was fully competent to interfere and decide the suit filed by the plaintiff-respondent for the eviction of the defendant-appellant from the premises in question and also for recovery of arrears of rent because the complicated question of title was involved in it and the Court of Judge Small Cause was not competent to adjudicate upon the question of title. It was only the civil court who was competent to go into the question of title. 12. From the perusal of the material on record and the pleadings of the parties, I do not find any infirmity in the finding of fact recorded by both the courts below that the plaintiff-respondent is the owner of the premises in question and the defendant-appellant is only the tenant thereof. The entry of the name of defendant-appellant in the Municipal Record is only relevant for the purposes of payment of house tax. Any entry made in the Municipal Record does not confer any title upon the person whose name is recorded in the Municipal Record. There is also concurrent finding of both the courts below that the defendant-appellant is in arrears of rent and his tenancy has been terminated by serving a notice upon him a valid notice. The defendant-appellant was, therefore, liable to be evicted from the premises in question. 13. For the reasons recorded hereinabove, I do not find any illegality or infirmity in the judgments passed by both the court below and as such the second appeal is devoid of merit and is liable to be dismissed. 14. In the result, the second appeal is hereby dismissed. 15. However, in the circumstances of the case, the defendant-appellant is allowed three months time to comply with the judgment and decree passed by the courts below.