Akash Zingade vs Munipoojappa

B.S. Patil, J—Though served respondent has remained unrepresented.

Heard the learned counsel for the petitioner. Matter arises in a short compass.

Petitioner was the plaintiff before the Court of Small Causes, Bangalore in S.C. No. 869/2013. He filed the suit for ejectment of the defendant from the suit schedule property. The suit schedule property is a vacant site measuring 40'' x 30''.

Case of the plaintiff has been that the schedule property is absolutely owned by him having purchased the same under a sale deed dated 25.10.2010; indeed, the original owner of the schedule property one Narayanappa executed general power of attorney in favour of the father of plaintiff and it is the father of plaintiff based on the said general power of attorney sold the property to the present plaintiff. After the death of Narayanappa, his children entered into lease agreement with the defendant in respect of the plaint vacant property on a monthly rent of Rs. 600/- by receiving Rs. 50,000/- as security deposit. The plaintiff terminated the tenancy by issuing a notice as per Section 106 of the Transfer of Property Act and filed the present suit invoking the provisions of the Small Causes Courts Act, 1964 (for short the Act''). Plaintiff also urged that the defendant had inducted some third parties in the suit premises with an intention to deprive the plaintiff of his right to secure possession of the property.

Defendant appeared and contested the case. He denied the right, title and interest of the plaintiff over the property. The Court below framed an issue with regard to the maintainability of the suit before the Small Causes Court apart from the question regarding the entitlement of the plaintiff for a decree as sought for.

The Court below has come to the conclusion that in view of the judgment in Abdul Wajid Vs. A.S. Onkarappa, (2011) ILR (Kar) 229 : (2011) 4 KarLJ 414 : (2011) 2 KCCR 147 SN and having regard to the provisions contained in Section 8 of the Act read with schedule appended thereto, suit for possession of the immovable property or for recovery of an interest in such property were exempted from the cognizance of the Court of Small Causes and therefore, as the plaintiff in the instant suit had sought for relief of possession of the suit schedule vacant property measuring 30'' x 40'' and as there was no premises or building constructed on the plaint property, relief of ejectment or eviction under the provisions of the Act could not have been claimed. The Court below has come to the conclusion that plaintiff ought to have instituted the suit for possession of the immovable property. In addition, the Court below has also observed that as the defendant had denied the right, title and interest of the plaintiff over the suit property, there was serious doubt regarding the genuineness and legality of the sale deed executed in favour of the plaintiff by his father as power of attorney holder of the original owner. Further, as the plaintiff had not made the original owner as party to the suit to ascertain whether he had any objection regarding the execution of the sale deed by the plaintiff''s father in favour of the plaintiff based on the power of attorney, the court below held that dispute regarding title to the property was also required to be adjudicated by the Civil Court and not by the Court of Small Causes.

Learned counsel appearing for the petitioner fairly submits that as the suit property is a vacant land without having any premises constructed thereof and as the property is more than 14 Sq. Mtrs., plaintiff ought to have filed a regular suit before the Civil Court as the small Causes Suit was not maintainable. He, however, takes objection to the findings recorded by the Court below as regards the observation about the doubtful nature of the title of the plaintiff over the property.

Having heard the learned counsel for the petitioner and on perusal of the pleadings and the impugned order, I find that the small causes suit filed by the plaintiff was not maintainable as the subject matter of the property was a vacant land measuring more than 14 Sq. Mtrs. without having a premises constructed thereof. Therefore, the Court below was right and justified in returning a finding to present the suit before the Competent Court. However, as regards the observations made doubting the title of the plaintiff over the suit property, only because the father had effected the sale in favour of his son -plaintiff as a general power of attorney holder of the original owner, it has to be clarified that those observations will have no bearing on the merits of the matter which has to be dealt with by the Civil Court.

With the above clarifications, order passed by the Court below is confirmed and the revision petition is dismissed.