Ambika Prasad and another vs Harihar Prasad

U.C. Srivastava, J.—The second appeal is directed against the judgment and decree passed by the Court of VII Additional District Judge, Lucknow, allowing the defendant''s appeal and dismissing the plaintiffs, suit and thereby reversing the order passed by the Court of Munsif South, Lucknow, decreeing the plaintiffs'' suit for arrears of rent and ejectment.

The plaintiffs filed a suit for arrears of rent and ejectment against the defendant alleging that the defendant was tenant of the plaintiffs at the rate of Rs. 10/ per month and that the amount of arrears of rent was due against him which he has not paid despite service of notice on him and has not vacated the premises in question. The disputed premises are house No. 531/152 situate in Mohalla Bhindiya Tola, Mahanagar, Lucknow, the boundary of which, given in the plaint, is as follows :

East: House of Khanai Tamoli.

West : House of Sita Ram Rastogi.

North : Road and house of D.P.N. Rai Sharma.

South : House of Pandit Mata Badal.

Plaintiff No. 1 purchased the said house from Murlidhar vide registered saledeed dated 101280 who, in turn, transferred the said house to the plaintiff No. 2 vide registered saledeed dated 1091980 alongwith arrears of rent and that is why both of them have joined as plaintiffs in the said suit. The boundary of the house given in the plaint is the same which finds place in the saledeed executed by Murlidhar in favour of plaintiff No. 1, and the very same boundary finds place in the saledeed executed by the plaintiff No. 1 in favour of plaintiff No. 2.

The suit was filed in the Court of Judge, Small Causes, as under the Civil Laws Amendment Act suit between the landlord and tenant became cognizable by the court of Judge, Small Causes. The defendant filed written statement and alleged that he was owner and in possession of the house in dispute (emphasis supplied) as such the suit was liable to be dismissed. The defendant further pleaded that the Court has no jurisdiction to try the suit as the dispute is for ownership, and that the plaintiffs should have filed suit for declaration and instead of that they have filed a suit for arrears of rent and ejectment which is liable to be dismissed. On his objection the plaintiffs applied for the return of the plaint. The plaint and the written statement both were returned to the plaintiffs who, thereafter, filed the same in the Court of Munsif, in which court the trial of the suit proceeded. Both the parties tendered evidence. Although no plea on the basis of ''Will'' was taken by the defendant nor did he amend the written statement or moved an application for filing fresh written statement, regarding ''will'', the basis of his title, statement under Order 10 Rule 2 C.P.C. was given. He filed an unregistered ''will'' which was on a plain piece of paper said to have been executed by Murlidhar on 1531971 i.e., after the execution of the saledeed, bequeathing house No. 531/152 in favour of the defendant. The boundary of the said house as given in the said will is as follows :

East : House of Khanai Tamoli.

West: House and Hata of executant.

North: Pratap Singh Road.

South : Vacant land of Maiku Lal.

On the pleadings of parties in the trial Court, that is the Court of Munsif where the plaint was presented again after taking it back from the court of Judge, Small Causes, following issues were framed :

Whether the plaintiff is landlord of the house in suit as alleged in Para 2 of the plaint ?

Whether the defendant is tenant of the house in suit as alleged in Para 2 of the plaint ?

Whether the defendant defaulted in payment of rent as alleged in Para 3 of the plaint ?.

Whether the defendant is the owner in possession of the house in suit hence the suit for arrears of rent and ejectment not maintainable ?

To what relief, if any, plaintiff is entitled ? By this Court an additional issue has been framed :

Whether the plaintiff No. 2 is entitled to a decree for declaration against defendant that he is owner and landlord of house No. 531f152 Bhindia Tola, Bara Ghandganj, Lucknow ?

The plaintiff No. 2 claimed to be landlord on the basis of sale deed from plaintiff No. 1 who claimed right as such on the basis of saledeed. Issues No. 1 and 3 indicate that the dispute between the parties was that on ownership primarily and on failure of defendant''s case the question of decreeing it on the ground of his being tenant of the same was disputed. There was no pleading or dispute as to identity of the house in respect of which suit was filed and no issue on the point was framed. Even in his statement under Order 10 Rule 2 CPC defendant stated that he was residing in the house in dispute and as Murlidhar was very much pleased with him, as such, he executed a ''will'' regarding house in dispute in his favour in 1970 or 1971 The trial proceeded with rather the admitted position that both were claiming ownership over the same house and defendant was residing in the same and claiming ownership right refuting the plaintiff''s case that his status was that of tenant.

The hearing of this appeal was postponed as it was stated on behalf of the defendantrespondent that special leave petition against the order passed by this Court allowing the amendment is pending before the Hon''ble Supreme Court of India and a particular date was fixed. On the adjourned date learned counsel for the respondent stated that when the SLP came up for hearing, the defendant has withdrawn it, He also gave up the plea of valuation and court fee raised by him in the additional writtenstatement and thereafter hearing in the appeal started.

Learned counsel for the respondent raised the plea that the suit being of small cause nature, second appeal under Section 102 CPC is barred and in support of his contention also relied on Full Bench decision of this Court in Bisheshwar Prasad Gautam v. Dr. R.K. Agarwal, AIR 1977 All, Page 103.

The plaint was returned to the plaintiffs on the objection of defendant that the suit was not cognizable by the Court of Judge, Small Causes because there is dispute of ownership, he being owner in possession of the same. It was then the plaint was taken back and no objection of the nature that it should be tried as a suit of small causes was taken by the defendant either before the trial court or first appellate Court.

In view of his successful objection before the court of Judge, Small Causes, and raising of dispute of ownership and investigation of respective claim of title of both the parties, the defendantrespondent is estopped from raising the plea that the suit is of Small cause nature as such no second appeal lies. It is not necessary to cite authorities on the point which is so clear.

The five judges judgment of this Court in Bisheshwar Prasad Gautam (supra relied on by the respondent, does not support him much. The said appeal which was filed by defendant before the High Court arose out of suit for ejectment and arrears of rent in a case in which there was no dispute regarding ownership. The suit was filed in regular court and in view of amendment in law during the pendency of suit it became cognizable by the court of Judges, Small Causes. But no such plea was raised by the defendant and suit was decided by trial court. Against the judgment and decree the defendant filed an appeal. He lost in appeal also. In Second Appeal, bar of Section 102 was taken by defendantrespondent. It was in these circumstances the Court held that Section 102 applies to suits of the nature of Small Causes even if tried on regular side. The Court rejected the plea of conversion of appeal into a revision application observing that the defendant voluntarily had a trial on the merits before a regular court and the procedure before a regular court is more detailed ; further the defendant had another inning on the merits before the lower appellate court. These later observations rather go against the plea taken by the defendantrespondent in the instant case who after losing In case before the trial court instead of filing revision application under Section 25 of the Provincial Small Cause Courts Act, the scope of which is not coextensive with that of appeal, filed an appeal under Section 96 CPC. The defendantrespondent without objection filed an appeal taking it to be against judgment and decree passed in the regular title suit.

Even otherwise, the plea raised by the defendant regarding the maintainability of the second appeal is without any substance. The suit became a suit for ownership between two persons. The plaintiffs had no privity of contract with defendant but according to them he was tenant of the previous owner. The suit, essentially, was, thus, for possession of immovable property or for recovery of an interest therein, and it was no longer a pure and simple suit between landlord and tenant in which question of title was incidentally raised. Such a suit is exempted from the cognizance of a court of Small Causes under the Second schedule to the Provincial Small Cause Court Act. The same was, thus, rightly tried on regular side. If this be not the position the first appeal was incompetent and judgment and decree passed by lower appellate court would itself become without jurisdiction.

Further, in the second appeal, amendment has been allowed and the plaintiff was allowed to claim relief for declaration of title over the disputed house as was contended in the written statement. Suit for declaration of title over immovable property is not cognizable by the Court of Judge, Small Causes and as such second appeal is not barred by Section 102 CPC.

So far as merits are concerned, said Murlidhar executed saledeed in respect of two houses, one of which was numbered as 531/150 and which was in the same locality. Plaintiff No. 1 transferred the same in favour of D.P.N. Rai Sharma, in the year 1979. Evidence was tendered by the plaintiff to prove that the other house which was transferred in favour of D.P. N. Rai Sharma is just in front of the house in dispute and on the other side of the road. The defendant examined witness to prove the alleged ''will'' said to have been executed by Murlidhar in his favour and according to his case, he was a mason and Murlidhar allowed him to live in one of his houses and he was so much pleased with him that he executed a ''will'' in his favour. In the written statement reference to the ''will'' was not made nor was any attempt made to amend the same. It was also not the case of the defendant that there are two houses bearing the same municipal number, boundary of which on two sides tallies. None of the parties stated about the subsequent transfer or change of the boundaries though it was the admitted case that Murlidhar was owning more than 30 houses and he had transferred several houses. The trial court, after appraising evidence, held that the plaintiff had succeeded in proving their case and that the will was a fictitious document and the same was not executed by Murlidhar and the admitted signatures of Murlidhar and on the ''will'' were quite different. The suit was, accordingly, decreed. The matter came up in appeal. The appellate court reappraised the evidence and held the defendant to be owner of the house in dispute on the basis of ''will'', which according to it was proved. The ''will'' contained a recital that he has not transferred the house or executed any ''will'' in respect thereof. The appellate Court further held that it was not necessary to prove that the ''will'' was intelligently executed. The trial court on this point recorded a finding that there was no intelligent execution of the alleged ''will'' by said Murlidhar who is said to have died few months thereafter and that none of the witnesses deposed that the same was read over and after understanding its contents Murlidhar executed it. It was also held that none of the witnesses deposed that they signed before each, as such, execution of ''will'' was not proved. The trial court recorded a finding that admitted signatures of Murlidhar and that on the ''will'' apparently are quite different. The firstappellate court did not enter into this question. No finding has been recorded by the lower appellate court to the effect that there were two different houses. In the house was the same as was admitted iii the written statement, statement under Order 10 Rule 2 CPC and even in defendant''s oral deposition, Murlidhar could not have executed the ''will'' in, respect of the house which had already been transferred by him vide registered saledeed, he having lost lights over the same after the said transfer. The lower appellate court without looking into the written statement, absence of pleading or any evidence whatsoever on the point of identity of the house by the defendant, based his conclusion on the statement of one witness P.W. 2 Chandra Mauli Dixit which according to the appellate Court was to the effect that Murlidhar had Hot transferred any such house of which Harihar Prasad was tenant. Any stray statement in crossexamination cannot be taken to be final or conclusive or binding on the party examining the said witness in the absence of any pleading to the effect by the other side. Moreover, the statement had not been correctly read by the lower appellate court and only one part of the same was read. The statement was to the effect :

�BHINDIYA TOLA KE HATE KA EK BHAG MURLIDHAR NE BECHA THA ISLIYE MAIN HATA DEKHKAR YEH NAHI BATA SAKTA KI KAUN SA BHAG BECHA THA AISA KOI MAKAN NAHI BECHA THA JISKA HARIHAR PRASAD KIRAYADAR HO.�

The statement is very clean the said witness in crossexamination was asked regarding house situate in one hata. The witness stated that one house of the said Hata in Mohalla Bhindiya Tola was also sold by Murlidhar but from the Hata it was not possible for him to fix the house Which was transferred by Murlidhar but there was no such house in which Harihar Prasad was tenant. The statement of the witness was, thus, quite dear that there was no such house in the Hata transferred by Murlidhar in which Harihar Prasad was tenant. It is neither the case of the plaintiff nor the defendant that the disputed house lies in any Hata, which obviously cannot be said, looking into the description of the boundary given by either party, on one side of which is road and on neither side existence of any Hata (enclosure having house in it) is shown by other party. The finding recorded by the lower appellate court by detaching a part of statement of witness from the context and wrongly reading it, ignoring the absence of pleadings, positive admission, same municipal number has recorded a finding regarding the identity of house, are perverse and vitiated.

Even if there was no privity of contract between the parties and relationship of landlord or renant had not been established and the evidence falls short of proof, the plaintiff is entitled to a decree for possession or ejectment of defendant from the house in dispute and compensation for use and occupation. A Full Bench of this Court in Abdul Ghani v. Mrs. �Babni (ILR 25 Allahabad 256) held that in the absence of defendant being taken by surprise, decree for possession can be passed despite failure to establish relationship of landlord and tenant. The same view was taken by a Full Bench in Balmukund v. Daud, 25 Allahabad, 498. A Full Bench of this Court in ILR 31 Allahabad Page 276, Sheo Karan Singh v. Maharaja Prabhu Narain Singh held that in the absence of contract for tenancy, rent could not be recovered by suit but ''the same might be treated as one for use and occupation and in view of the fact that defendant entered into and continued in possession they cannot be heard to say that they are not liable for use and occupation. In Ram Shanker v. Noor Mohammad (1976 ALJ Page 748) R. B. Misra (as he was then) held that Court can pass a decree for possession on the basis of title even if the plaintiff had failed to prove the contract of tenancy put up by him provided no prejudice is caused to the other side. In the instant case which is a title suit, the plaintiffappellant No. 2 having succeeded in establishing that he is the owner of the house by virtue of purchase from plaintiff No. 1 who purchased it from Murlidhar who was admittedly owner the plaintiffs, are entitled to a decree for ejectment or possession and the sum claimed by them as compensation for use and occupation.

The appeal is, accordingly, allowed and the judgment and decree passed by the lower appellate court is set aside and that of trial court with the modification that the plaintiff No. 2''s suit for declaration that he is owner of house in dispute viz. house no. 531/152 Mohalla Bhindia Tola, Bara Chandganj, Lucknow, and for ejectment from the same and for a sum of Rs. 360/as compensation for use and occupation upto the date of possession at a rate of Rs. 10/per month from defendant on payment of court fees. Parties will bear costs of this Court as much of delay be caused by the plaintiff requiring the defendant to bear mere expenses.

(Appeal allowed)