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2016 DIGILAW 1075 (ALL)

Fazalur Rehman v. Gopal Sahu

2016-03-28

MANOJ MISRA

body2016
JUDGMENT Manoj Misra, J. – Heard Sri Kshitij Shailendra, learned counsel for the defendant-revisionist. 2. The instant revision has been filed by the defendant against the order dated 30.01.2016 passed by the Additional District Judge, Court No. 2, Moradabad/Judge, Small Causes Court, Moradabad in JSCC Suit No. 30 of 2014 by which point/issue No. 5, as to whether the JSCC Court has jurisdiction to hear the suit in view of dispute of title, has been decided against the applicant. 3. A perusal of the record would go to show that the plaintiff/opposite party instituted JSCC Suit No. 30 of 2014 alleging that the defendant/revisionist was tenant of the premises whose erstwhile owner/landlord was plaintiff's grandfather. It was claimed that the plaintiff's grandfather died on 16.05.2010 leaving a Will dated 01.01.2010 in favour of the plaintiff and pursuant to the said Will, the plaintiff became the exclusive owner/landlord of the accommodation in dispute and was, therefore, entitled to institute suit for arrears of rent and eviction. 4. The suit was contested by the defendant/revisionist on various grounds and one amongst the many was that the Will set up by the plaintiff was unregistered and appeared to be forged and fabricated and that the same has not been probated. It was further claimed that the burden was on the plaintiff to prove the Will. A plea was also taken that since the JSCC Court had no jurisdiction to decide the question of title, which was inextricably involved in the suit, therefore, the plaint ought to be returned under Section 23 of Provincial Small Causes Court for presentation before a court having jurisdiction to decide title. On the aforesaid plea, issue No. 5 was framed as follows: - "(5) Is the dispute of title, involved in this case, due to which, JSCC Court has no jurisdiction to hear this suit?" 5. By the order impugned, the trial court rejected the plea of the defendant/revisionist and took the view that since the defendant had not set up title in himself or in any other person, and the title of the predecessor landlord was not disputed, there was no such intricate question of title involved in the adjudication which may require the plaint to be returned to the Court having jurisdiction to decide questions of title relating to immovable property. 6. 6. The learned counsel for the revisionist has submitted that even though a tenant may not be in a position to deny the title of the landlord but he can always deny the derivative title and since in the instant case the adjudication with regard to due execution of Will was involved, therefore, the JSCC Court was not the competent court to address to the said question and the plaint ought to have been returned to the Court having jurisdiction to decide questions of title. 7. Learned counsel for the revisionist placed reliance on Single Judge decisions of this Court in the case of Mst. Bhagmani Devi (D) through L.Rs v. VIIIth Addl. District Judge, Varanasi and others : 2012 (1) AWC 179 ; Ram Jiwan Misra v. Smt. Kallo and another : 1980 ARC 522; Gurmala and others v. Mohd. Ishaq and others : 2014 (3) AWC 2858; and Noola v. Chimman Lal : AIR 1935 Alld 148 so as to contend that for returning the plaint under Section 23 of the Provincial Small Causes Courts Act, it is not necessary that there should be a dispute of title between the plaintiff and the defendant. The plaint can be returned where there is a dispute with regard to the title of the plaintiff, inasmuch as intricate and complex questions of title cannot be adjudicated in summary proceedings as envisaged by the provisions of Provincial Small Causes Court Act. 8. I have given thoughtful consideration to the submissions of the learned counsel for the revisionist and have perused the record. 9. In this case there appears to be no dispute qua the heirs of the erstwhile landlord with regard to inheritance of the property in suit and it is also not in dispute that the erstwhile owner/landlord was the grandfather of the plaintiff, whose Will has been set up by the plaintiff, after his death. A perusal of the written statement also reveals that the defendant has neither set up title in himself nor on anybody else though he has claimed that to prove the Will the burden is on the plaintiff who had set up the same. A perusal of the written statement also reveals that the defendant has neither set up title in himself nor on anybody else though he has claimed that to prove the Will the burden is on the plaintiff who had set up the same. It is well settled that while considering a plea to return the plaint to a Court of competent jurisdiction, in exercise of power under Section 23 of the Provincial Small Causes Court Act, the JSCC Court is vested with a discretion to return or not to return the same and it is not obligatory on the Court to return the plaint once a question of title is raised by the tenant because such questions of title can be incidentally gone into while deciding the question of landlord-tenant relationship between the plaintiff and defendant. In Shamim Akhtar v. Iqbal Ahmad and another, reported in (2000) 8 SCC 123 , the Apex Court took the view that the power vested, under Section 23(1) of the Provincial Small Causes Court Act, in the Court is discretionary. It was observed that the question of title of the plaintiff to the suit house could be considered by the Small Causes Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent Court. Following the said decision in the case of Ram Sewak v. Pramod Kumar, 2011 (84) ALR 634 , this Court approved examination by the JSCC Court of a question relating to valid execution of Will by the erstwhile landlord in favour of the plaintiff by holding that such questions could be incidentally gone into while deciding the question of landlord-tenant relationship between the plaintiff and defendant. In fact, the correctness of the decision in Ram Sewak's case (supra), has not been doubted, rather it has been accepted, in the decision of Mst. Bhagwati Devi (supra), vide paragraph 32 of the report, which has been relied upon by the learned counsel for the revisionist. 10. In fact, the correctness of the decision in Ram Sewak's case (supra), has not been doubted, rather it has been accepted, in the decision of Mst. Bhagwati Devi (supra), vide paragraph 32 of the report, which has been relied upon by the learned counsel for the revisionist. 10. In the instant case, there is no dispute qua the heirs of the erstwhile landlord therefore it is open to the Court below to incidentally examine the question relating to execution of the Will in favour of the plaintiff, particularly in view of the fact that obtaining of probate on a Will is not mandatory for a Will to be set up in respect of property located within the State of U.P. (vide 1968 ALJ 69 : Nobat Ram v. Gayatri Devi). 11. In view of the above, I do not find any good reason to entertain the revision and interfere with the order passed by the court below. 12. Subject to above, the revision is dismissed. Revision dismissed.