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2016 DIGILAW 134 (ALL)

Pradeep Kumar Gupta v. Kanchan Chhabra

2016-01-11

MAHENDRA DAYAL

body2016
JUDGMENT Mahendra Dayal,J. The short question involved in this revision is as to whether in a case where a tenant denies the title of his landlord and claims himself to be the owner of the premises in question, the Court of Judge Small Causes should return the plaint for presentation to the proper Court as provided under Section 23 of the Provincial Small Causes Courts Act. I have heard Shri Jaspreet Singh, learned counsel for the revisionist and Shri N.K. Seth, learned Senior Advocate assisted by Shri Sachin Garg on behalf of the opposite parties and have also perused the record. 2. The facts in brief are that the opposite party No.1 filed a suit for arrears and ejectment and damages for use and occupation against the revisionist and the opposite parties No.2 to 9, who were proforma defendants in the suit. The opposite party No.1 claimed herself to be the owner and landlady of the premises in question and the revisionist-defendant was shown as her tenant. The revisionist in the year 2010 i.e. after three years of the institution of suit, filed an application under Section 23 of the Provincial Small Causes Courts Act for return of the plaint on the ground that he has never been the tenant of the opposite party No.1. The subject matter of the dispute between the parties is a house bearing Municipal No.215/451, situated at Subhash Marg, Naka Hindola, Lucknow measuring 1000 sq. ft. falling in Khasra Plot No.337 of old revenue village Mohalla Dugawan, Paragna, Tehsil and District Lucknow. The revisionist while denying the ownership of the opposite party No.1, claimed himself to be the owner having purchased the same from its rightful owner Maharaja Dharmendra Prasad Singh vide registered sale-deed dated 02.07.2004. According to the revisionist, he was living in the premises in his own rights as owner of the property. With the aforesaid allegations, it was prayed that since the suit involves complicated question of title, therefore, the plaint be returned to be presented before proper Court to adjudicate the dispute of title between the parties. 3. The opposite party No.1 filed objections along with counter affidavit and stated that the predecessor in interest of the defendant No.2 in the original suit, namely, Suraj Prasad admitted and accepted the plaintiff opposite party No.1 as landlord. 3. The opposite party No.1 filed objections along with counter affidavit and stated that the predecessor in interest of the defendant No.2 in the original suit, namely, Suraj Prasad admitted and accepted the plaintiff opposite party No.1 as landlord. Furthermore, in the suit for permanent injunction filed by late Shri Suraj Prasad against the revisionist and its erstwhile owner and predecessor in interest namely late Shri Om Prakash, the revisionist and others got themselves impleaded as legal heirs of late Shri Suraj Prasad and also admitted the opposite party No.1 as their landlady. In view of the admission made by the father of the revisionist, he is now estopped from denying the title of the plaintiff-opposite party No.2. 4. The parties filed certain documents in support of their contention. The plaintiff-opposite party No.1 brought on record certified copy of the plaint of Regular Suit No.479/1996 in which it was mentioned by Shri Suraj Prasad, the father of the revisionist, that he was lawful tenant in possession of a one door shop situated in Building No.215/451, Naka Hindola, Lucknow. It was also stated by Shri Suraj Prasad that originally the shop was let out to Shri Durga Prasad, who was his father. It was also stated by him in the plaint that Om Prakash had agreed to sell this property and the defendants wanted to forcibly evicted him from the shop. The revisionist also filed an affidavit bringing on record certain documents. It was also stated by him that Suit No.26/2004 was filed by the vendor of the plaintiff Om Prakash. The certified copy of the plaint of the aforesaid suit reveals that Om Prakash Bhatt and Jai Prakash Bhatt filed suit against Maharaja Dharmendra Prasad Singh in which it was mentioned that Om Prakash Bhatt was absolute owner of the property in question. It was stated that initially the building in question was owned by Smt. Maharani, who executed a will in the year 1903 in favour of Hari Bhagwan and Bindeshwari Prasad, who were grand father of plaintiff No.2 and father of the plaintiff No.1. In the year 1939 some land was acquired but since there was a pakka construction, the area upon which the building in question is situated, was not acquired. It was further stated that pursuant to the aforesaid will the predecessor of the plaintiff become absolute owner and now plaintiffs are the absolute owners. In the year 1939 some land was acquired but since there was a pakka construction, the area upon which the building in question is situated, was not acquired. It was further stated that pursuant to the aforesaid will the predecessor of the plaintiff become absolute owner and now plaintiffs are the absolute owners. It was also stated that vide sale-deed dated 10.02.1936, a portion of the property was transferred to Gopal Dass, Manohar Dass and Damodar Dass. In the year 1975, a family settlement took place between them. It was also stated that the defendant had executed a sale-deed through his attorney in favour of Pradeep Kumar Gupta. A copy of the written statement filed by Dharmendra Prasad Singh has also been filed in which he has denied the sale-deed executed in favour of the defendant No.2. Thereafter another supplementary counter affidavit was filed in which it was mentioned that Suit No.261/2004 was instituted much after the execution of the sale-deed in favour of the plaintiff. The aforesaid suit was filed only to prevent Maharaja Dharmendra Prasad Singh from executing the sale-deed with regard to the remaining portion of the property in which the learned trial court granted some interim order. 5. Another supplementary affidavit was filed by the revisionist before the court below in which some more allegations were made. However, the learned trial court after considering the matter in detail, dismissed the application of the revisionist on the ground that since the father of the revisionist had admitting himself to be a tenant of the disputed premises, therefore, the revisionist, who is the son, cannot deny his status. It was also observed by the learned trial court that the Court of Small Causes can incidentally go into the question of title and decide as to whether the plaintiff is the landlord or not. Learned trial court has relied upon a judgment of Hon'ble the Supreme Court reported in 2000 (8) SCC 123 - Shamim Akhtar vs. Iqbal Ahmad & Another, in which it has been held that a tenant cannot avoid eviction proceedings under the Rent Control Act merely by denying relationship of landlord and tenant. The power to return the plaint is a discretionary power which has to be exercised only in the cases where relief claimed by the plaintiff depends upon the proof or disproof of title to immovable property. The power to return the plaint is a discretionary power which has to be exercised only in the cases where relief claimed by the plaintiff depends upon the proof or disproof of title to immovable property. In a eviction suit under the Rent Control Act, the question of title can be considered by the Court as an incidental question and final determination of title be left open for the decision of the competent Court. 6. Shri Jaspreet Singh, learned counsel for the revisionist has submitted that it is not a case where the revisionist defendant has denied the status of the plaintiff opposite party only to avoid his eviction. It is a case in which the revisionist defendant has set up his own title on the basis of registered instrument and does not admit any relationship of landlord and tenant between himself and the plaintiff opposite party. He also never paid any rent to the plaintiff opposite party at any point of time. The complicated question of ownership is involved in this case which the Court of Small Causes is not competent to decide. The matter requires evidence on title which can only be done by the competent civil Court. 7. In support of his contention, he has relied upon a Supreme Court decision reported in ARC 1988 (2) Page 260 (SC) - Badhu Mal vs. Mahabir Prasad & Others. In this case, Hon'ble the Supreme Court has held that although it is not obligatory on the Court of Small Causes to invariably return the plaint in every case where the question of title is raised by the tenant. In a case where in order to do complete justice between the parties the determination of question of title is necessary, the Court ought to return the plaint for presentation to a Court having jurisdiction to determine the title. 8. Another case relied upon by him is reported in 2011 (89) ALR Page 166 - Mst. Bhagmani Devi (dead) through L.Rs. vs. VIIIth A.D.J. and another. In this case, this Court while considering the scope of Section 23 of the Provincial Small Causes Courts Act has observed that where serious dispute of title has arose, the Court of Judge Small Causes shall not proceed with the matter but ought to return the plaint for presentation before a competent Court. vs. VIIIth A.D.J. and another. In this case, this Court while considering the scope of Section 23 of the Provincial Small Causes Courts Act has observed that where serious dispute of title has arose, the Court of Judge Small Causes shall not proceed with the matter but ought to return the plaint for presentation before a competent Court. Similar views have been expressed by another coordinate Bench of this Court in a case reported in 2002 (2) ARC Page 393 Munshi Khan vs. District Judge, Ghaziabad and others. He has also relied two more decisions reported in ARC 2000 (2) Page 515 and ARC 1999 (1) Page 582. In these two cases also, this Court has observed that where complicated question of title is involved, the Court of Judge Small Causes is bound to return the plaint under Section 23 of the Act. 9. On the basis of the case laws cited above and the rival claims of the parties, the submission of Shri Jaspreet Singh is that since the present case involves complicated question of title which the Court of Judge Small Causes is not competent to decide, therefore, the Court ought to have returned the plaint to be presented before a competent Civil Court. The learned court below has, therefore, erred in rejecting his application for return of the plaint. 10. Shri N.K. Seth, learned counsel appearing for the opposite party landlady has on the other hand submitted that although Section 23 of the Provincial Small Causes Courts Act provides that where the right of plaintiff and the relief claimed by him depends upon the proof or disproof of a title to immovable property which such Court finally by the determination, Court may at any stage of the proceedings return the plaint to be presented before a Court having jurisdiction to determine the title. But it is not obligatory on the part of the Court to return the plaint in every case where the title of the plaintiff landlord is denied by the defendant tenant. The Court has to examine as to whether the relief claimed by the plaintiff landlord can be granted without proof or disproof of his title. But it is not obligatory on the part of the Court to return the plaint in every case where the title of the plaintiff landlord is denied by the defendant tenant. The Court has to examine as to whether the relief claimed by the plaintiff landlord can be granted without proof or disproof of his title. In case the Court finds that suit can be decided without going into the complicated question of title, the Court of Judge Small Causes shall proceed and decide the suit, but where the Court feels that the grant of relief to the plaintiff landlord depends upon proof or disproof of his title which the Court cannot determine, only then the Court shall make an order for return of a plaint. He further submits that the father of the revisionist, who was admittedly tenant in the disputed premises has admitted in earlier round of litigation that he was tenant of the disputed shop. After his death, the revisionist defendant has stepped into his shoes and has, therefore, no right to deny his status as tenant. Moreover in a suit for eviction and recovery of arrears of rent by the landlord against his tenant, the only question to be considered by the Court is as to whether there exists a relationship of landlord and tenant between the parties and the plaintiff is the landlord of the defendant tenant. The question of title is not required to be gone into by the Court of Judge Small Causes in such suits. 11. In support of his contention, he has relied upon a case reported in AIR 1990 Allahabad Page 112 Babu Khan vs. Smt. Chahti Devi. In this case, this Court has held that a suit filed by landlord for eviction of his tenant where the tenant raised a plea that he himself is the landlord and relationship between the landlord and tenant does not exist between the parties, the plaint cannot be returned because the Court of Judge Small Causes is competent to decide such plea on merits during trial of the case. 12. Another case relied upon, which is reported in 2000 (40) ALR Page 217 - Amir Jahan (Smt.) vs. District Judge, Rampur and others. 12. Another case relied upon, which is reported in 2000 (40) ALR Page 217 - Amir Jahan (Smt.) vs. District Judge, Rampur and others. In this case also, this Court has held that even in a case where the wife of the tenant purchased the property from its co-owners, the relationship of landlord and tenant would not come to an end and the plaint cannot be returned for this reason because this question can be decided by a Judge Small Causes Court. 13. Apart from the above, reliance has also been placed upon a decision reported in (2000) 8 SCC Page 123 - Shamim Akhtar vs. Iqbal Ahmad and another, upon which reliance was placed by the court below also. In this case, Hon'ble the Supreme Court has observed that the question of title can be considered by the Small Causes Court in the proceedings as an incidental question and final determination of the title could be left open for decision of the competent civil court because the findings recorded by the Court of Small Causes would not operate res-judicata in civil suit. It has also been observed that in a suit between landlord and tenant for eviction and recovery of arrears of rent, the only question to be decided by the Court of Small Causes is as to whether there exists relationship of landlord and tenant between the parties or not. The Court is not required to go into the question of title. In case the Court finds that there exists relationship of landlord and tenant between the parties, the Court shall proceed to decide the case and as if it finds that the plaintiff is not the landlord, then the suit would be dismissed. 14. It is not disputed that the father of the revisionist defendant has admitted himself to be the tenant in earlier proceedings which binds the defendant revisionist. Apart from it, the Court of Judge Small Causes is competent to decide the incidental question. In this view of the matter, learned court below has rightly rejected the application of the revisionist for return of the plaint. I do not find any illegality in the order passed by the court below and as such the revision is devoid of merit and is liable to be dismissed. 15. The revision is hereby dismissed. In this view of the matter, learned court below has rightly rejected the application of the revisionist for return of the plaint. I do not find any illegality in the order passed by the court below and as such the revision is devoid of merit and is liable to be dismissed. 15. The revision is hereby dismissed. The record of lower court if available here shall be transmitted back to the Court concerned immediately.