Om Prakash vs Jitendra Nanda
2023 Latest Caselaw 2741 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
RESERVED ON 20.01.2023
 
DELIVERED ON 27.01.2023
 
Court No. - 38
 

 
Case :- S.C.C. REVISION No. - 129 of 2014
 

 
Revisionist :- Om Prakash
 
Opposite Party :- Jitendra Nanda
 
Counsel for Revisionist :- Tarun Agrawal
 

 
Hon'ble Salil Kumar Rai,J.

This is is landlord's revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as, ''Act, 1887') against the order dated 13.2.2014 passed by the Additional District Judge, Gautam Budh Nagar in Small Causes Case No. 08 of 2013 under Section 23 of the Act, 1887 returning the plaint for presentation to a court having jurisdiction to determine the title to the suit property.

The suit property in the present case is a shop / building in Sharma Market, Sector - 27, Noida, District Gautam Budh Nagar.

The revisionist instituted Small Causes Case No. 08 of 2013 claiming himself to be the owner and landlord of the suit property and the opposite party a tenant in the same. It is the claim of the revisionist that the opposite party was inducted as tenant in the suit property in May, 1994 on a rent of Rs.500/- per month which was subsequently increased to Rs.2,500/- per month. However, the opposite party defaulted in payment of rent since October, 2010 and, therefore, a notice dated 18/20.3.2013 under Section 106 of the Transfer of Property Act, 1882 demanding arrears of rent and terminating the tenancy of the opposite party was served on the opposite party but the opposite party still did not vacate the suit property, hence, the suit for arrears of rent and eviction of the opposite party from the suit property.

The opposite party filed his written statement denying that he was a tenant in the suit property. The case of the opposite party was that in 1984 he had purchased the land, on which the suit property existed, from the father of the revisionist / plaintiff for Rs.60,000/- and subsequently constructed the shop on it from his own money. It was stated by the opposite party that the sale of the land was through an oral transaction. On the aforesaid plea, the opposite party claimed title to the suit property and denied the landlord - tenant relationship between himself and the plaintiff and also the entitlement of the plaintiff to a decree of eviction or for arrears of rent.

In SCC Case No. 08 of 2013, the plaintiff filed evidence showing his title over the land on which the building existed and also the application filed by the opposite party for registration under the U.P. VAT Rules, 2007 in which he had stated that he was a tenant of the plaintiff on a rent of Rs.900/- per month since 1990 and on a rent of Rs.600/- per month since 1993.

The trial court held that the relief claimed by the plaintiff - revisionist in SCC Case No. 08 of 2013 depended on his proof of title to the suit property which cannot be determined by the Small Causes Court and, therefore, returned the plaint to be presented to a court having jurisdiction to determine the title of the parties. The trial court also took note of the fact that the plaintiff - revisionist had claimed that the land over which the suit property existed came in his share through a family settlement after the death of his father but no document regarding the death of his father had been filed before the trial court. The trial court also considered the application filed by the opposite party under the U.P. VAT Rules, 2007 and held that the entries in the aforesaid application only falsified the case of the plaintiff in as much as the entries in the application indicated that the suit property was let out in 1990 but the plaintiff claims that the tenancy of the opposite party started from 1994.

It was argued by the counsel for the revisionist that the case of the opposite party in his written statement was that the land was sold to him orally by the father of the plaintiff for Rs.60,000/-. It was argued that the aforesaid contention was not tenable in law and the transaction as claimed by the opposite party did not confer any right on him in view of Section 54 of the Transfer of Property Act, 1882. It was argued that in the circumstances, the trial court has committed a material irregularity of law and has illegally exercised its jurisdiction under Section 23 of the Act, 1887. It was argued that the question of title raised by the opposite party in his written statement was not a bona fide plea and was raised only to oust the jurisdiction of Small Causes Court and the said fact would also be evident from Paper No. 27-Ga, i.e., the application filed by the opposite party for registration of his business under the U.P. VAT Rules, 2007. It was argued that the Small Causes Court had the jurisdiction to incidentally look into the question of title and it is only after taking evidence of the parties and on examination thereof if the court found that the relationship of landlord and tenant between the parties could not be decided one way or the other without making an elaborate inquiry into the question of title, the court could exercise its powers under Section 23 of the Act, 1887. It was argued that for the aforesaid reason, the revision is to be allowed, the order dated 13.2.2014 passed by the Small Causes Court is to be set-aside and the case is to be decided on merits by the trial court. In support of his contention, the counsel for the revisionist has relied on the judgments of this Court reported in Iqbal Ahmad vs. VIth Addl. District Judge, Varanasi & Ors. 2000 (1) ARC 142; Smt. Padma Negi vs. Shri Giri Lal Jain & Ors. 1983 ARC 244 and the judgment and order dated 27.4.2006 passed by this Court in C.M. Writ Petition No. 8288 of 2002 (Mahesh Chandra Sharma & Ors. vs. IInd A.D.J. & Ors.).

I have considered the submissions of the counsel for the revisionist.

It is true, as argued by the counsel for the revisionist, that the plea of the respondent - opposite party that he had purchased the suit property for a consideration of Rs.60,000/- through an oral sale made by the father of the plaintiff - revisionist is not tenable in law in view of Section 54 of the Transfer of Property Act, 1882. However, the suit property in the present case is not the land but the building existing over the land. The opposite party pleads oral sale only regarding land. In his written statement, the opposite party has pleaded that the building was constructed by him from his own money and he was not a tenant in the suit property. The opposite party pleads title to the suit property which is different from pleading title to the land on which the suit property exists. In his plaint instituting Small Causes Case No. 08 of 2013, the plaintiff has stated that the opposite party used to make an entry in his notebook regarding payment of rents made by him to the revisionist - plaintiff and used to get those entries signed by the revisionist - plaintiff. Evidently, the revisionist - plaintiff has no evidence regarding payment of rent by the opposite party. A perusal of the judgment dated 13.2.2014 passed by the Small Causes Court also shows that the evidence filed by the plaintiff - revisionist to prove his ownership were regarding the land over which the suit property exists. Paper No. 27-Ga, i.e., the application filed by the opposite party for registration under the U.P. VAT Rules, 2007 does not prove the title of the plaintiff over the suit property. Apparently, a relationship of landlord and tenant between the plaintiff and the opposite party is dependent on the proof or disproof of title to the suit property, i.e., the building in which the shop exists and the said issue is substantially and not incidentally involved in Small Causes Case No. 08 of 2013. The dispute regarding existence of landlord - tenant relationship between the parties cannot be decided without an elaborate inquiry into the question of title regarding the building existing over the land. The judgments referred by the counsel for the revisionist are not applicable in the present case in as much as in the aforesaid cases, the courts had only held that the Small Causes Court can look into the question of title incidentally and will return the plaint under Section 23 of the Act, 1887 if the issue regarding existence of landlord - tenant relationship can be decided only after making an elaborate inquiry into the question of title and further, the power to return the plaint is discretionary in nature. As observed earlier, in the present case it appears from the documents on record that the issue of landlord - tenant relationship between the parties can be decided only after an elaborate inquiry into the question of title regarding the suit property.

For the aforesaid reasons, no irregularity or illegality has been committed by the trial court in returning the plaint under Section 23 of the Act, 1887 for presentation to a court which has the power to determine the title of the parties over the suit property.

The revisions lacks merit and is, hereby, dismissed.

Order Date :- 27.1.2023

Satyam