Fazal Gani vs Sarjerao Shitole

Dixit, J.—This revision petition arises out of the Plaintiff-non-applicant''s suit for the (sic) recovery of arrears of rent for the period from 1-4-1948 to 31-12-1948 in respect of a bungalow said to have been in occupation of the applicant as a tenant. The applicant in his written statement admitted that he entered into possession of the bungalow on 1-7-1945 as a tenant of the Plaintiff. But he pleaded that subsequently the Plaintiff''s bungalow was acquired by the Government and that during the period from 1-4-1948 to 30-12-1948, the Government and not the Plaintiff was the owner and landlord of the bungalow and that, therefore, the Plaintiff was not entitled to recover any re(sic) for that period from the Defendant. The Defendant-applicant also raised the objection that as the Plaintiff''s suit raised a question of title, the Small Cause Court had no jurisdiction to try the suit. The lower Court has rejected the applicant''s objection as regard jurisdiction. He has, therefore, come up(sic) revision to this Court.

The only question which arises for decision in this revision petition is whether the suit is excepted from the cognizance of the Small Cause Court because the claim fall under Article 11 of Schedule to the Madhya Bharat Small Cause Courts Act, Samvat 2006. The Article runs as follows:

a suit for the determination or enforcement of any other right to or interest in immovable property.

Mr. Shivdayal learned Counsel for the applicant contended that as the issues soug(sic) be raised by the Defendant involved questions of title, and as the Small Cause Court had no jurisdiction to decide questions involving a right of immovable property, the Plaintiffs suit was excluded from the jurisdiction of the Small Cause Court. In my opinion, this contention of the learned Counsel for the applicant is untenable. It is well settled that the question whether a suit does or does not fall within the jurisdiction of a Court of Small Causes has to be decided ''prima facie'' upon language of the plaint. (See decisions in Sakhya v. Sadashiv AIR 1930 Bom 361 (A); Chaube Bhan Dat Vs. Chube Moti Lal and Deoki Rai Vs. Harakh Narain Lal On a fair reading of the plaint, I have no doubt that the present suit does not fall within Article 11 so as to exclude the jurisdiction of the Small Cause Court to try the suit. The Plaintiff''s suit is in essence and in substance a suit for payment of a sum money as arrears of rent. The fact that incidentally the question of Plaintiff''s title to the bungalow during the period from 1-4-1948 to 31-12-1943 may have to be gone into does not take away the jurisdiction of the Small Cause Court.

The applicant has no doubt questioned the title of the Plaintiff to recover rent of the bungalow in respect of the above period. But the lower Court has not refused to consider the plea of the Defendant as regards the Plaintiff''s title. Indeed, as pointed out by the Bombay High Court in Anandsing v. Lakhesing AIR 1929 Bom 228 (D), from the fact that the Small Cause Court has no jurisdiction to decide the questions involving a right immovable property, it does not necessarily follow that the Court is bound to refuse to consider any question of title which is raised before it. In Bapuji Raghunath v. Eduljee 15 Bom 400 (E), it was held that when a suit is brought in a form cognizable by a Court of Small Causes, that Court cannot decline jurisdiction, because a question of title to immovable property is incidentally raised.

In Pullan Gowda v. Nilkanth 37 Bom 675 (F), a Full Bench of the Bombay High Court went to the extent of saying that a of Small Causes could entertain a suit, the principal object of which was to determine right to immovable property, provided the (sic) claimed in the suit was one for payment a sum of money and not with regard to the(sic) immovable property. In the case be(sic) me, the applicant has raised the question title merely to show that the Plaintiff is not titled to realise the amount of rent from (sic) The question of Plaintiff''s title is merely (sic) dental in the present suit. For these rea (sic) I think the learned Judge of the Small Cause Court is right in holding that he has Jurisdiction to try the suit.

In the result this petition is dismissed. (sic) the circumstances of the present case, there (sic) be no order as to costs of this petition.