Smt. Suraiya Begum and Others vs Smt. Ashghari Begum and Others

S.U. Khan, J.—At the time of hearing no one appeared on behalf of respondents even though the case was taken up in the revise list hence only the arguments of learned Counsel for the petitioner were heard.

This is plaintiff''s writ petition. Original plaintiff Asfaq Mohd. Khan instituted suit against original defendant Sri Anis Ahmad Khan in the form of S.C.C. Suit No. 14 of 1986. Relief claimed in the suit was for eviction on the ground of default and for recovery of arrears of rent.

Both original plaintiff as well as original defendant died during pendency of suit and were substituted by their legal representatives Original plaintiff was substituted by the petitioners and original defendant was substituted by the respondents.

Original defendant denied ownership of the original plaintiff or his father. He claimed that his wife(respondent No. 1 in the writ petition) was owner of the house in dispute. Original defendant and after his death his legal representative i.e. respondents of this writ petition asserted that as plaintiff was not the owner and as defendant''s wife was the owner hence there was no question of payment of any rent.

In the plaint it was stated that rate of rent was Rs. 50/- per month and it was let out by the father of the original plaintiff to the original defendant and that rent since 01.02.1984 had not been paid. Regarding the house in dispute, proceedings before custodian of every property had also been taken and certain documents in that regard were filed before the trial Court including copy of an order dated 25.09.1956 Ext. 10 in which Hakim Uddin Khan father of the original plaintiff was held to be the owner. Original defendant had pleaded that his wife had got the property from her father or mother. Mohd. Ahmed Khan, respondent No. 5 son of original defendant Anis Ahmed Khan appeared as witness and stated that his mother got the property in dispute through gift made by her father Kifat Ullah. He stated that oral gift was made at the time of marriage of her mother which took place in the year 1930.

Trial court/J.S.C.C./II Additional C.J.M., Mirzapur after thorough discussion of the evidence held that plaintiff had proved the ownership while defendant failed to prove his or his wife''s ownership.

In respect of contract of tenancy, the trial court on the basis of oral evidence adduced on behalf of plaintiff held that Hakim Uddin Khan, father of the original plaintiff gave the house in dispute on rent to original defendant Mohd. Anis. Ultimately, suit was decreed for the releifs claimed in the plaint through judgment and decree dated 27.04.1993. Against the said judgment and decree respondents filed S.C.C. Revision No. 2 of 1993. A.D.J./Special Judge (E.C. Act) Court No. IV, Mirzapur allowed the revision through judgement and order dated 17.09.2003, set aside the judgment and decree passed by the trial court and allowed the application of the alleged tenants filed u/s 23 of Provincial Small Causes Courts Act and directed that plaint should be returned to the plaintiff for filing before regular Civil Court for decision on the question of title.

Revisional Court held that admittedly house in dispute was situate beyond Nagar Palika limits and U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 was not applicable thereupon.

Plaintiff had admitted that defendant was his relation.

One of the defendants Nafees Ahmad Khan who is respondent No. 2 in this writ petition filed compromise admitting that he was tenant and plaintiffs were landlords. However, Revisional Court held that the said compromise or admission could not bind the other defendants. Revisional Court further held that plaintiff admits that defendant was residing in the house in dispute since 1944.

Revisional Court further held that there was variance in the evidence of the witnesses of plaintiff regrading the agreement of tenancy in between father of original plaintiff and the original defendant. Pedigree was also mentioned by the Revisional Court showing relationship of both the plaintiff and the defendant.

In my opinion, in real since a complicated question of title is involved in between the parties who are very close relatives. Accordingly, no fault can be found with the view taken by the lower Revisional Court. In this regard reference may be made to Supreme Court Authority reported in Budhu Mal Vs. Mahabir Prasad and Others, of the said authority is quoted below:

It is true that Section 23 does not make it obligatory on the court of small causes to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title. In case the plea set up by the appellants that by the deed dated 8th December, 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt. Sulochna Devi and that the said deed could not be unilaterally cancelled is accepted, it is likely not only to affect the title of Mahabir Prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant, between Mahabir Prasad and the appellants which could not be revived by the subsequent unilateral.

The Supreme Court in AIR 2001 S.C.1, Shamim Akhtar v. Iqbal Ahmad and Anr. held that J.S.C.C. in suit for eviction in between alleged landlord and alleged tenant can incidentally decide the question of title and final decision on this point may be left to be decided by the regular Civil Court. However, in my opinion the dispute of title in the instant case is so complicated that the plaint deserves to be returned for filing before regular Civil Court. The facts of this case are more akin to the facts of Budhu Mal authority of 1988 then the facts of Shamim Akhtar authority of 2001.

Learned Counsel for the petitioner has cited two judgments delivered by me. One is reported in Ram Kishore v. A.D.J. 2005 (3) A.R.C. 599 and the other in Mohd. Zakir v. A.D.J. 2005 (3) A.R.C. 384. However, in my opinion in the instant case question of title is the basic question which is involved in between parties and it is not incidental. In this regard reference may be made to a case decided by me reported in Dulari v. A.D.J. 2003(2) A.R.C. 701.

Accordingly, writ petition is dismissed. However, it is observed that either petitioners may take the plaint back and file the same before regular Civil Court and seek amendment in the plaint or they may file fresh plaint before regular Civil Court. If the matter is agitated before regular Civil Court then no finding in either of the two impugned judgments shall be taken into consideration by the regular Civil Court.