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2019 DIGILAW 75 (ALL)

Bhagwati Prasad v. State of U. P.

2019-01-09

MANOJ KUMAR GUPTA

body2019
JUDGMENT : Manoj Kumar Gupta, J. 1. Heard Sri P.C. Jain, learned counsel for the revisionist and Sri Ashok Kumar Rai, learned standing counsel for the State-respondents. 2. The instant revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the Act) is directed against an order dated 11.4.2007 whereby the Court of Small Causes in course of deciding SCC Suit No. 2 of 2006 has directed for return of the plaint for presentation before regular civil court in exercise of power under Section 23 of the Act. 3. The suit in question was instituted by the revisionist (hereinafter referred to as 'the plaintiff') for recovery of arrears of rent and for eviction. The material allegations, in the plaint, are that the plaintiff is owner and landlord of a property consisting of one room, one hall and open land in village Dura, Tehsil Kiraoli, Police Station Fatehpur Sikri, District Agra. It was let out by his father Shriram to the respondents (hereinafter referred to as the defendants) in the month of February 1980 on the basis of an oral contract of tenancy for opening a police chowki. At the time of letting out, the defendants promised to pay rent as fixed by the Government. The defendants kept assuring the plaintiff's father that as soon as the rent is fixed by the State Government, he would be paid the rent but they failed to keep their promise. After death of plaintiff's father, the plaintiff wrote a letter on 14.2.1994 to defendant no. 2 making request to pay the rent. Defendant no. 2 forwarded the aforesaid letter for enquiry to defendant no. 3 on 21.4.1994. On 12.5.1994, defendant no. 2 wrote to Additional District Magistrate (Civil Supplies), Agra to get the rent of the premises determined by the Executive Engineer, PWD. The correspondence between the defendants and the plaintiff continued for some time and ultimately the Executive Engineer, PWD vide letter dated 24.4.2001 informed defendant No. 2 that rent of the premises, as per norms, would come to Rs. 1320/- per month. The defendants still did not pay any rent compelling the plaintiff to serve notice under Section 80 CPC read with Section 106 of the Transfer of Property Act, 1882 claiming arrears of rent and calling upon the defendants to vacate the premises. The defendants still failed to pay the rent nor vacated the premises. 1320/- per month. The defendants still did not pay any rent compelling the plaintiff to serve notice under Section 80 CPC read with Section 106 of the Transfer of Property Act, 1882 claiming arrears of rent and calling upon the defendants to vacate the premises. The defendants still failed to pay the rent nor vacated the premises. Consequently the suit was instituted. 4. The defendants contested the suit by filing a written statement. They categorically denied that they were tenant of the disputed premises or that it was given on rent to them by the father of the plaintiff or by any one else. They asserted that there was no privity of contract between the parties and also denied liability to pay rent. In paragraph 22 of the written statement, they have given the genealogical chart of the family of Kangali Ram, grand father of the plaintiff, which is as follows:- Kangali Ram S/o Sri Amrit Lal Lajja Ram Shri Ram Uttam Chand Purshottam Bhagwati Pd. (Plaintiff) Vishnu Radhey Shyam Rangilal Deena 5. Further case of the defendants was that Radhey Shyam, the brother of the plaintiff was kidnapped by dacoits and there was terror amongst the villagers relating to the said incident. The Vaishya community of the village, which was in majority, by collecting donations from members of their community constructed a Dharmshala and Sri Kangali Ram, grand father of the plaintiff was appointed as Manager of the said Dharmshala. Because of threat of dacoits in the village, the villagers approached defendant no. 2 with a request to get established a police chowki in the village and offered the disputed premises for opening police chowki. The request of the villagers and of the Vaishya community was accepted by defendants 1 and 2 and a police chowki was established in the disputed premises. In paragraph 25 of the written statement, it was pleaded that the Vaishya community, to whom the disputed premises belonged, surrendered its rights in the same in favour of the Police Department. They never claimed any rent nor any rent was paid to any person since the date of establishment of the police chowki. The defendants are in possession as full owner without any obstruction from any one. The plaintiff has no right, title or interest in the disputed premises nor entitled to claim rent. They never claimed any rent nor any rent was paid to any person since the date of establishment of the police chowki. The defendants are in possession as full owner without any obstruction from any one. The plaintiff has no right, title or interest in the disputed premises nor entitled to claim rent. They also alleged that the plaintiff is a seasoned litigant and the suit was instituted with a false claim. They also alleged that the plaintiff moved applications for fixation of rent with incorrect assertions. 6. The trial court, after considering the pleadings of the parties, being of the opinion, that the success of the suit would depend upon proof of title of the plaintiff to the suit property, returned the plaint for presentation before court having jurisdiction to determine the title, as provided under Section 23 of the Act. 7. Sri P.C. Jain, counsel for the plaintiff placed reliance upon a judgment of Supreme Court in Shamim Akhtar vs. Iqbal Ahmad and Another, (2001) AIR SC 1, in contending that the only issue which was required to be determination by Court of Small Causes was the relationship of landlord and tenant, which it is competent to determine. He submitted that the question of title could be gone into incidentally while deciding the other issues and therefore the court below was not justified in directing return of the plaint. He also placed reliance upon fixation of rent by Executive Engineer, PWD and contended that the defendants having got the rent determined, are now estopped from asserting that there does not exist relationship of landlord and tenant between the parties. 8. On the other hand, learned standing counsel submitted that the success of the suit depended upon proof of title of the plaintiff to the suit property, therefore the plaint has been rightly returned for presentation before the regular civil court. He submitted that the defendants had specifically denied the relationship of landlord and tenant between the parties and there being no evidence of payment of rent to the plaintiff or his ancestors, the court below was justified in exercising power under Section 23. He has placed reliance upon a decision of this Court in Noola vs. L. Chimman Lal, (1935) AIR Allahabad 148. 9. He has placed reliance upon a decision of this Court in Noola vs. L. Chimman Lal, (1935) AIR Allahabad 148. 9. The Courts of Small Causes were established to decide petty matters, which are capable of trial in a summary manner, without following the lengthy procedure of a regular suit. By virtue of Order L of the Code of Civil Procedure, 1908, various provisions of the Code specified in the said Order are excluded from their applicability to the Courts of Small Causes. Section 27 of the Act attaches finality to the decree and orders of a Court of Small Causes save as provided under the Act. Thus no appeal lies against the judgments and orders of a Court of Small Causes, but only a revision under Section 25 of the Act. Section 15 of the Act read with the second schedule specifies the suits which are excepted from the cognizance of a Court of Small Causes. A suit for possession of immovable property or for recovery of any interest in such property is excluded from the cognizance of a Court of Small Causes by virtue of Article 4 of the Second Schedule. An exception carved out to the same by U.P. Amendment invests a Court of Small Causes with the jurisdiction to try suit by a lessor for eviction of a lessee from a building after the determination of the lease and for recovery from him of compensation for the use and occupation of that building after such determination. Section 23 of the Act which starts with a non-obstante clause reads thus:- "23. Return of plaints in suits involving questions of title:- (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. (2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure (14 of 1982), and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877 (15 of 1877) be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction." 10. The object, scope and ambit of Section 23 of the Act was considered by a Three Judge Bench of the Supreme Court in Budhu Mal vs. Mahabir Prasad, (1988) 2 ARC 260 and it was held as under:- "It is true that S. 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 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 S. 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties." (Emphasis supplied) 11. For understanding the true impact of the above observations, a brief reference to the backdrop in which the same came to be made would be helpful. The premises in that case was let out by one Mahabir Prasad to the appellant viz. Budhu Mal. On 28.11.1966 Sukmal Chand son of Mahabir Prasad was murdered. On 8.12.1966, Mahabir Prasad executed a deed of family settlement by which he conferred right to realise rent from the tenants upon his daughter-in-law Smt. Sulochana. By another deed dated 3.11.1970 he cancelled the earlier deed, followed by a suit against the tenant for recovery of arrears of rent and for eviction. The appellant-tenant contested the suit claiming that Mahabir Prasad was not competent to unilaterally cancel the deed executed on 8.12.1966. He alleged that he was paying rent to Smt. Sulochana in terms of deed dated 8.12.1966. The appellant-tenant contested the suit claiming that Mahabir Prasad was not competent to unilaterally cancel the deed executed on 8.12.1966. He alleged that he was paying rent to Smt. Sulochana in terms of deed dated 8.12.1966. In other words, he denied the title of Mahabir Prasad in respect of the tenanted premises and also his right to realise rent. The suit was however decreed by the trial Court recording finding in favour of the plaintiff and the revision filed before the District Judge and the High Court came to be dismissed. The Supreme Court, noticing the rival pleas, came to the conclusion that right of the plaintiff to realise rent depended upon determination of the issue as to whether he was competent to cancel the deed dated 8.12.1966, which could only be decided by a regular Civil Court. Accordingly, the provision of Section 23 were held applicable, by holding thus:- "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. In case the plea set up by the appellants that by the deed dated 8th December, 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt. Sulochna Devi and that the said deed could not be unilaterally cancelled, is accepted, it is likely not only to affect the title of Mahabir Prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant between Mahabir Prasad and the appellants which could not be revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated 8th December, 1966. In that event it may not be possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. In that event it may not be possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. If the suits cannot be construed to be one between landlord and tenant they would not be cognizable by a court of small causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate court so that none of the parties was prejudiced." 12. The judgment cited by the learned Standing Counsel in Noola takes the same view. It further goes on to repel a plea raised therein that Section 23 would come into play only where the defendant not only denies title of the plaintiff but sets up title in himself, by observing thus:- "The inquiry therefore is limited to the right of the plaintiff and to the relief claimed by him and it is the right of the plaintiff and the relief claimed by him which has got to be considered. There are no words which would justify the inference that the plaintiff and the defendant should be rival claimants to the immovable property." 13. In the instant case, although the plaintiff claimed that his father was the owner and landlord of the disputed premises and let out the same to the defendants in February 1980 but he admits that there does not exist any contract of tenancy in writing. He also does not dispute that even rent was not settled at the time of alleged letting out, nor rent was ever paid by the defendants to any one. The specific case of the defendants was that the plaintiff was neither owner of the property nor it was ever let out by him or his father but rather Kangali Ram, inducted the defendants in the property in his capacity as Manager of Dharmshala owned by the Vaishya community. According to the defendants, the Vaishya community surrendered its rights in the disputed premises so that their request for opening of the police chowki is considered favourably. The defendants, since then, had been enjoying the property as owner without obstruction from any one. The plaintiff has brought on record certain communications made between the parties since 1994 onward. According to the defendants, the Vaishya community surrendered its rights in the disputed premises so that their request for opening of the police chowki is considered favourably. The defendants, since then, had been enjoying the property as owner without obstruction from any one. The plaintiff has brought on record certain communications made between the parties since 1994 onward. For period prior to that, though it was alleged that his father approached the defendants several times to get the rent settled but no such evidence was filed. In the letter written by the plaintiff dated 14.2.1994, he requested the defendants to get the rental value of the building assessed and pay rent to him claiming to be the landlord of the premises. Defendant no. 2 simply on the basis of said request got the rental value of the premises ascertained from the Executive Engineer, PWD but the plaintiff admits that even thereafter no rent was ever paid apparently for the reason that the State did not admit itself to be tenant of the disputed premises nor the plaintiff as it's landlord. It is extremely difficult to hold from the above facts that the defendants had admitted the plaintiff as landlord or there would be any estopple against them. 14. In the aforesaid backdrop, the plaintiff, in order to succeed, has to establish that his father was the owner of the disputed property and not the Vaishya community. He will also have to prove that the defendants were inducted into the premises by his father and not by Kangali Ram, acting as Manager of the Dharmshala. Apart from proving his title, there is another hurdle in the way of the plaintiff. Since the defendants do not admit their possession over the premises in dispute as tenant, but as owner, or may be as licensee, he will have to prove that the possession of the defendants was as tenant, though there was no lease agreement nor payment of rent since the year 1980. He will also have to establish that the possession of the defendants as tenant was on behalf of his father Shriram and not through Kangali Ram as Manager of the Dharmshala belonging to the Vaishya community. Unless the plaintiff succeeds in proving the aforesaid facts, he would not be able to succeed in the suit. He will also have to establish that the possession of the defendants as tenant was on behalf of his father Shriram and not through Kangali Ram as Manager of the Dharmshala belonging to the Vaishya community. Unless the plaintiff succeeds in proving the aforesaid facts, he would not be able to succeed in the suit. These issues undoubtedly raise intricate questions of title which could only be decided in a regular suit and not in summary proceedings by a Court of Small Causes. The success of the suit depended upon proof of title of the plaintiff to the disputed premises, consequently, the provisions of Section 23 of the Act would get attracted with full rigour. 15. In Shamim Akhtar (supra), cited by learned counsel for the plaintiff, there was no dispute that the tenant was inducted by one Khairunnisa Bibi. During the subsistence of the tenancy, Khairunnnisha Bibi gifted the suit property in favour of appellant Smt. Shamim Akhtar, the daughter-in-law of her deceased sister. She also required the tenant to pay rent to Smt. Shamim Akhtar. However, the tenant did not pay rent to her. The tenant took a plea that he had been paying rent to Mohd. Ibrahim, in whose favour he alleged that there was an oral gift by Fakia Bibi, the original owner of the property. He denied title of Khairunnisha Bibi and refused to accept her as landlady. By amendment in the written statement, he also took a plea that the real owner of the suit property had migrated to Pakistan and the property in question was evacuee property. In the aforesaid background, the Supreme Court proceeded to consider the question as to whether any intricate question of title was involved, to warrant invokation of Section 23 of the Act. The Supreme Court observed that power vested under sub-section (1) of Section 23 to return the plaint, is discretionary. Even while so holding, the Supreme Court held that the said power would be exercised only when the relief claimed by the plaintiff in the proceedings before the Court of Small Causes depends upon proof or disproof of title to the immovable property and the relief sought cannot be granted without determination of the question of title. Even while so holding, the Supreme Court held that the said power would be exercised only when the relief claimed by the plaintiff in the proceedings before the Court of Small Causes depends upon proof or disproof of title to the immovable property and the relief sought cannot be granted without determination of the question of title. The court took specific note of the fact that the plea that the original owner migrated to Pakistan and the property had vested in custodian, Enemy Property had already been rejected by the said Authority by order dated 26.6.1981, which has attained finality. Their Lordships proceeded to hold that it being not in dispute that the respondent was in occupation of the premises as a tenant, the only issue which required consideration, was whether relationship of the landlord and tenant existed between the plaintiff and the defendant. The court could have accepted or rejected the same but definitely, it would not be a case where Section 23 would get attracted. The Supreme Court observed in paragraph 12 as under:- "The trial Court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff-appellant under Section 23 of the Small Causes Court Act. Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in a court of small cause depends upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. The power vested under sub-section (1) in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Causes Court depends upon the proof or disproof of a title to the immovable property and the relief sought cannot be granted without determination of the question. In the present case, as noted earlier, the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted respondent no. 1 as tenant of the premises. The question was whether that case was to be accepted or not. In the present case, as noted earlier, the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted respondent no. 1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed the Trial Court, at the first instance, had accepted the plaintiff's case holding, inter alia, that she had got the property by a registered deed of gift from Smt.Khairunnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who, indisputedly was the original owner of the property. 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. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Causes Court to determine finally the title to the property. The tenant-respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Causes Court Act." 16. The Supreme Court in the facts of that case, was of the opinion that the dispute relating to title raised by the tenant was wholly frivolous. It would not oust the jurisdiction of Small Causes Court as it could go into the said issue incidentally while deciding the issue relating to relationship of landlord and tenant between the parties. In other words, only where intricate question of title is involved and the relief claimed by the plaintiff depends upon proof of his title, Section 23 would come into play. A sham plea of title designedly taken by a tenant will not divest the Court of Small Causes of its power to decide a suit based primarily upon relationship of landlord and tenant. The law laid down in Shamim Akhtar is in no manner contrary to what was laid down in the earlier Three Bench judgment in Budhu Mal. A sham plea of title designedly taken by a tenant will not divest the Court of Small Causes of its power to decide a suit based primarily upon relationship of landlord and tenant. The law laid down in Shamim Akhtar is in no manner contrary to what was laid down in the earlier Three Bench judgment in Budhu Mal. The facts of the instant case are clearly distinguishable and this Court has no hesitation in upholding the view taken by the trial court directing return of the plaint. 17. The petition lacks merit and is dismissed, but there is no order as to costs.