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2020 DIGILAW 889 (ALL)

Pushpa Agarwal v. Mohammad Faruk

2020-05-26

SARAL SRIVASTAVA

body2020
JUDGMENT : 1. Heard Sri Chetan Chatterjee, learned counsel for the petitioners and Sri Sunil Kumar Srivastava, learned counsel for the respondent. 2. The petitioners through the present writ petition have assailed the order dated 20.11.2018 passed by Judge, Small Causes Court, Saharanpur in S.C.C. Suit No. 54 of 2004 rejecting the application No. 47-ga of the petitioners under Order 1 Rule 10 CPC, and the order dated 2.12.2019 passed Additional District Judge, Court No. 11, Saharanpur in S.C.C. Revision No. 10 of 2019 dismissing the revision of the petitioner against the order dated 20.11.2018. 3. The respondent No. 1 (Mohammad Faruk) claiming himself to be the owner and landlord of the suit property described at the foot of the plaint instituted S.C.C. Suit No. 54 of 2004 against the respondent Nos. 2 to 6 for eviction and arrears of rent. In the plaint, the respondent No. 1 has stated that he has purchased the suit property by sale deed dated 6.4.1993 from Rajesh Kumar s/o Yagmohan Swaroop. 4. In the aforesaid suit, the petitioner filed an application under Order 1 Rule 10 CPC seeking direction to respondent No. 1 to implead the petitioner. The impleadment application has been filed by the petitioners contending inter-alia that one Lala Sitaram s/o Lala Bool Chand was the owner of suit property who executed the will date 22.7.1968 in respect of the suit property and many other properties in favour of his son Dhanwant Rai Agarwal. A Letter of probate in respect of the suit property and other properties bequeath to the Dhanwant Rai Agarwal through will dated 22.7.1968 was issued by First Additional District Judge, Lucknow in Case No. 27 of 1973. It is stated that Sri Dhanwant Rai Agarwal before his death bequeathed his properties to the petitioner through will dated 11.3.1993. The petitioners are wife and son of Late Dhanwant Rai Agarwal. It is also stated that Rajesh Kumar son of Yagmohan Swaroop from whom the respondent No. 1 alleged to have purchased the suit property was not the owner of the suit property. 5. The respondent No. 1 filed objection against the application under Order 1 Rule 10 CPC denying the averments of the application. He stated that he has purchased the suit property from Rajesh Kumar, who was the owner of the suit property, by sale deed dated 6.4.1993. 6. 5. The respondent No. 1 filed objection against the application under Order 1 Rule 10 CPC denying the averments of the application. He stated that he has purchased the suit property from Rajesh Kumar, who was the owner of the suit property, by sale deed dated 6.4.1993. 6. The Trial Court by order dated 20.11.2018 dismissed the application 47-ga on the ground that in an eviction suit, the only issue to be determined is whether there exists a relationship of the landlord and tenant between the plaintiff and defendant and as the issue of title is not to be adjudicated in an eviction suit, therefore, the petitioner is neither a necessary nor proper party in the suit. 7. The petitioner filed S.C.C. Revision No. 10 of 2019 against the order dated 20.11.2018 which was also dismissed by the Revision Court affirming the finding of the Trial Court. 8. Challenging the aforesaid orders, learned counsel for the petitioners has contended that the Court below has committed a manifest error of law apparent on the face of the record in rejecting the application of the petitioners under Order 1 Rule 10 CPC. He submits that the court has to record prima facie satisfaction about the title of the plaintiff while deciding the question whether he is the landlord of the suit property and there is relationship of landlord and tenant between the plaintiff and the respondent. He further submits that the petitioner has filed cogent material and evidence on record alongwith application under Order 1 Rule 10 CPC which establishes that the petitioners are the exclusive owner of the suit property, accordingly, the petitioners are the necessary and proper party in the suit. 9. Per contra, counsel for the respondent submits that eviction proceeding is summary proceeding, and the question of title can not be determined in summary proceeding as it requires oral and documentary evidence which is not permissible in summary proceedings. He submits that the petitioner has filed Original Suit No. 640 of 2012 for declaration of the title which is evident from paragraph No. 21 of the writ petition. Thus, the submission is that the petitioners are neither necessary nor proper party in the suit, and both the Court below has rightly rejected the application of petitioner under Order 1 Rule 10 CPC. 10. I have considered the submissions of counsel for the parties and perused the record. 11. Thus, the submission is that the petitioners are neither necessary nor proper party in the suit, and both the Court below has rightly rejected the application of petitioner under Order 1 Rule 10 CPC. 10. I have considered the submissions of counsel for the parties and perused the record. 11. The petitioners have prayed for impleadment in the suit claiming themselves to be the owner of the suit property through will dated 11.3.1993 executed by late Dhanwant Rai Agarwal whereas the case of the respondent No. 1 in the plaint is that he has purchased the suit property through sale deed 6.4.1993 from Rajesh Kumar son of Yagmohan Swaroop. 12. The suit has been instituted by the respondent No. 1 against respondent No. 2 to 6 for eviction and arrears of rent. It is settled in law that in a suit for eviction, the Court has only to determine as to whether there exists a relationship of landlord and tenant between the plaintiff and respondent. The question of title is not to be adjudicated in the eviction suit. The eviction proceedings are summary in nature whereas the determination of title requires oral and documentary evidence which is not permissible in a summary proceeding. 13. The petitioners are claiming title over the suit property on the basis of will deed dated 11.3.1993 executed by late Dhanwant Rai Agarwal in their favour. The petitioners have already instituted a suit for declaration in which in order to succeed they will have to establish their title over the property. The suit of the respondent no.1 is a simple suit for eviction and arrears of rent, and the petitioners are neither necessary nor proper party in the said suit. The Apex Court in the case of Kanaklata Das and others Vs. Naba Kumar Das and others, 2018 (2) SCC 352 has held that in an eviction proceeding, the question of title or rights or extent of share cannot be decided. Paragraph No. 14 of the said judgment- is extracted herein below:- “14. In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.” 14. Paragraph No. 14 of the said judgment- is extracted herein below:- “14. In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.” 14. For the reasons given above, in the opinion of the court, the Court below has not committed illegality or jurisdictional error in dismissing the application of the petitioners under Order 1 Rule 10 CPC. 15. In the light of the above discussion, the writ petition lacks merit and is accordingly, dismissed with no order as to costs.