Mohammad Fasi vs Abdul Qyayum

R.R. Rastogi, J.—This is Defendant''s application in revision arising out of a suit filed by the Plaintiff-opposite party Abdul Qyayum in the court of Judge Small Causes for ejectment of the Defendant from shop No. C-1/20 situated in Mohalla Phatak Sheikh Saleem, Varanasi and for recovery of rent and damages. The Defendant did not deny in his written statement, as filed originally, that the Plaintiff was the owner of the shop and he was its tenant, but by a subsequent application added paragraph 34-B to the written statement stating that besides the Plaintiff his other three brothers as well were owners of the shop. An application was also moved, paper No. 110 C, stating that since intricate question of title regarding the property was involved in the suit the plaint might be returned to the Plaintiff for presentation to the proper court. The Plaintiff filed an objection to that application.

The trial court took note of certain circumstances which were:

(1) that in the written statement as filed originally Paragraphs 1 and 2 of the plaint were admitted;

(2) In Miscellaneous Case No. 188 of 1970 u/s 7-C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 between the same parties the Defendant who was the applicant in that case admitted the Plaintiff to be the owner of the disputed shop;

(3) In reply to the notice of the Plaintiff dated 7-6-1967 the Defendant did not deny the ownership of the Plaintiff of the disputed shop and

(4) In the municipal records the Plaintiff was shown as the exclusive owner of the disputed shop.

The trial court thus held that no intricate question of title in respect of the disputed property arose in this suit for determination. Reliance was placed on a decision of this Court in Mohammad Iliyas v. Hari Ram AIR 1926 Alld. 344 and of the Supreme Court in Smt. Bala Das v. Samrendra Nath Bose 1975 All India Rent Control Journal 141. In the result the Defendant''s application was rejected.

A revision was filed against that order before the District Judge, Varanasi. The 1st Additional District Judge, who decided the revision, has agreed with the findings given by the trial court and has confirmed its order. Now, a second revision has been filed before this Court.

It was submitted on behalf of the in applicant that the courts below erred taking the view that the Defendant-applicant was estopped from taking the plea that the Plaintiff was not the exclusive owner of the disputed shop because in proceedings u/s 7-C of U.P. Act No. 3 of 1947 it was not necessary that all the owners should have been made parties. As for reply to the notice u/s 106 of the Transfer of Property Act, the Defendant was under no obligation to give any such reply. It was stated that the applicant had taken the disputed shop on rent from Plaintiff''s father, that Plaintiff''s father died leaving behind four sons and all of them are owners of the disputed shop. The Defendant-applicant, therefore, was quite justified in taking this plea and u/s 23 of the Small Cause Court Act, the trial court was not competent to decide this case.

In my opinion the above submission, do not have much force. Section 23 of the Small Cause Courts Act lays down:

(1) Notwithstanding anything in the fore-going provisions of this Act, when the right of a Plaintiff and the reilef 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.

It would appear that in order to attract the application of this Sub-section it is necessary that the court in which a suit has been filed must either be a Court of Small Causes or a court invested with Small Causes powers and the suit must be of the nature of Small Causes. The purpose and intention of this provision is to enable the court of Small Causes to save its time by returning the plaint which involves inquiry into the questions of title and is, therefore, likely to take time. It is only an enabling section and enables the court at any stage of proceeding to return the plaint in order that it may be presented to a court which could determine the title. The section does not say that such suits are not cognizable by the Small Causes Court. It also does not say that Small Causes Court has not got jurisdiction to determine the question of title to Immovable property. It gives that court an option to send the case to the court having jurisdiction to determine the title probably on the ground of convenience. Another aspect is that the enquiry is limited under this provision 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 is no warrant for an inference that the Plaintiff and the Defendant should be rival claimants to the Immovable property.

(His Lordship then discussed in paras 7 to 11 (Hakim) Mohammad Ilyas Vs. Hari Ram and Others, , and proceeded on to observe:)

It would thus appear that the courts below did not act beyond their jurisdiction in holding that the Court of Small Causes could proceed with the suit and no intricate question of title was involved. This is apart from the finding that the Defendant in all earlier proceedings had admitted the Plaintiff to be his sole landlord.

Thus, there is no substance in the revision and it is dismissed with costs.