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2017 DIGILAW 398 (ALL)

Mashhoor Rasool v. Abdulla

2017-02-02

ATTAU RAHMAN MASOODI

body2017
JUDGMENT Attau Rahman Masoodi, J. -- It is well settled in the case reported in AIR 2001 SC 1 : 2000 (2) ARC 770 (Shamim Akhtar v. Iqbal Ahmad & another) that the question of title can be incidentally gone into in SCC proceedings instituted between the landlord and tenant. 2. An application i.e. C.M. Application No. 868 of 2017 has been filed by a non-party to the revision. The revision filed by the tenant challenges the decree and judgment passed by the court of Small Causes in SCC Suit No. 100/2012. The application is founded on the fact that the revisionist and opposite party who claims himself to be the landlord had instituted a collusive proceedings so as to grab the property which actually belonged to the father of the applicant on the basis of a registered sale deed executed on 3.10.1978. Reply in response to the application was filed by the opposite party who had claimed himself to be the landlord as per the lease deed dated 21.7.2008. In the reply so filed, it is averred that a sale deed was executed in favour of opposite party (so-called landlord) by none other than the wife of tenant i.e. revisionist. 3. In the sale deed so executed, the transferor has not disclosed any background as to how she came to be the owner of property in question. 4. In nutshell the claim of ownership based on sale deed executed by the tenant's (revisionist's) wife is highly suspicious and deserves to be looked into by the Court of Small Causes in the proceedings in question. Since the applicant was neither impleaded as a party to the suit nor is a party here, therefore, looking to the gravity of the issue apparently reflecting a fraud, the impugned decree is liable to be set aside on this limited ground alone and the matter is remitted to the court below for allowing the applicant's impleadment as a party. The court below shall delve upon the rival stands of the parties for which opportunity shall be granted to them and the matter shall be finally decided in accordance with law. 5. In case the court below finds that the issue as regards title is involved, necessary orders shall be passed accordingly by exercising jurisdiction under Section 23 of the Provisional Small Causes Court Act. 6. 5. In case the court below finds that the issue as regards title is involved, necessary orders shall be passed accordingly by exercising jurisdiction under Section 23 of the Provisional Small Causes Court Act. 6. This Court looking to the peculiar facts of the case had passed an order on 27.1.2017 which reads as under: "An application seeking impleadment as co-revisionist has been filed on the ground that decree passed in the suit proceedings is collusive and fraudulent. The rights on the basis of registered sale deed 3.10.77 have been asserted. The SCC suit is said to have proceeded on the ground of lease deed dated 21.07.2008 but learned counsel for the opposite party(land-lord) is unable to justify the authority on the basis of which such a lease was executed. The ground of fraud in such a situation may call for the protection and requires consideration. Put up on 31.1.2017. In the meantime, it shall be open to the applicant to make a request for adjournment before the execution court which shall proceed to realise the arrears of rent to be kept in an interest bearing account but the delivery of possession of the rented premises, if taken over, shall not be handed over to the decree holder but shall be kept locked and sealed under the custody of local police till further orders. Learned counsel for the opposite parties prays for and is granted two days' time to file objections against application for impleadment." 7. The execution proceedings in terms of above order carried out, if any, shall abide by the outcome of the SCC Suit No. 100/2012. 8. C.M. Application No. 868 of of 2017 is allowed and the impugned judgement and decree dated 27.11.2014 is set aside. In case the possession has been taken over and kept under police custody besides recovery of the decretal amount, if any, the same shall be released in favour of the rightful owner upon conclusion of proceedings. 9. The court below shall proceed to decide the suit expeditiously and preferably within a period of six months in accordance with law. Parties shall appear before the court below on 4.3.2017. 10. The revision stands disposed of accordingly.