Allahabad High Court
Jumma @ Jumma Kha vs Umesh Chand on 1 April, 2025
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?
Neutral Citation No. - 2025:AHC:45097
Court No. - 2
Case :- MATTERS UNDER ARTICLE 227 No. - 1921 of 2025
Petitioner :- Jumma @ Jumma Kha
Respondent :- Umesh Chand
Counsel for Petitioner :- Anil Kumar Chaudhary,Syed Ali Imam
Counsel for Respondent :- Anand Kumar Srivastava,Shiv Bahadur Singh
Hon'ble Neeraj Tiwari,J.
1. Heard Sri Dinesh Kumar, Advocate holding brief of Sri Anil Kumar Chaudhary, learned counsel for the petitioner and Sri Shiv Bahadur Singh, learned counsel for the respondent.
2. The present petition has been filed for challenging the judgment and decree dated 03.10.2022 passed by Judge Small Cause, Bulandshahr and judgment and decree dated 04.11.2024 passed by Additional District Judge, Bulandshahr.
3. Learned counsel for the petitioner submits that learned SCC Court while deciding the SCC No.41 of 2017 has framed five points of determination and first point of determination was as to whether plaintiff/respondent is the owner or landlord of the shop in dispute or not?
4. Learned counsel for the petitioner submits that petitioner is only aggrieved with the issue no.1 and submits that para-13 of the written statement, he has taken specific ground that petitioner is the owner of the shop in question and in light of Section 23 of the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as ' Act'), it is required on the part of the learned Judge to return the suit in case dispute of title is raised. Hence, the impugned order is bad and liable to the set aside.
5. Per contra, Mr. S.B. Singh, learned counsel for the plaintiff/respondent submits that in support of contention, so raised, by the petitioner/defendant in para-13 of the written statement, no evidence has been produced except the oral averments. He also pointed out that this fact has also been admitted by the petitioner/defendant that 10 Gaj land was purchased by him upon the revenue ticket, but it is admitted that same is not on record and even the year of sale is also not known to him. He next submits that Court has repeatedly held that while rejecting the claim under Section 23 of the Act, it is required on the part of the Court to record prima facie satisfaction about the land-lordship of tenant, so claimed. In support of his contention, relied upon the judgment of this Court in the case of Ashok Kumar Gumbar and Another vs. Waqf Khudaband Tala Mausuma passed in SCC Revision No.68 of 2019.
6. Learned counsel for the respondent has also pointed out that it is undisputed between the parties that the name of plaintiff/respondent has been recorded in the municipal record and in light of the judgment of the Hon'ble Apex Court in the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in 2003 0 Supreme (SC) 994 without having any valid document tenant can not have right over the property in dispute.
7. Being confronted by the Court, learned counsel for the petitioner could not demonstrate a single document or evidence in support of averment made in para-13 of the written statement filed in SCC Suit No.41 of 2017.
8. I have considered rival submissions advanced by learned counsels for parties and perused the records as well as judgments relied upon by counsel for the respondent.
9. In the present dispute para-13 of the written statement filed by the petitioner/defendant has a vital role, which is being quoted herein below:-
"13- ?? ?? ???? ?????? 1027 ? ???? ?????? 1028, 1023 / 1 ??? 1026 ?? ??????? ??? ???? ???? ?? ???? ???? ?????? 740 ??? ???? ??? ??? ??? ??? ???? ?????? 1028 ??? ???? ?? ??????? ???? ?? ?????? ????? ?? ?? ???? ?????? 1027 ??? ?? ??????? ?? ?? ??????? ??????? ?????? ????? ?????? ?? ?????? ???? ???? ?? ??? ??? ??????? ????????? ???? ???? ??????? ?? 80/- ????? ????? ?? ??????? ????? ???? ?? ?? ???? ??????? ?? ????? ??? ???? ?????? ???????? ?? ?? ????????????? ??????? ?? ??? ??????? ???????? ?????? ??? ????? ???? ??????? ???? ???? ?? ????????????? ??????? ???? ?? ?? ?? ?? ??????? ???????? ????????? ????????? ?? ????? ?? ???? ???"
10. Undisputedly, except the pleadings in para-13 of the written statement, there is nothing on record to show that the petitioner is the owner of the shop in question, coupled with this fact that it is admitted by petitioner that he could not produce alleged revenue ticket. This Court in the matter of Ashok Kumar Gumbar (supra) has clearly held that while returning the suit in Section 23 of the Act, prima facie satisfaction of Court is required. In lack of evidence, it is not possible for the Court to return the plaint along with sufficient findings.
11. It is also undisputed between the parties that name of plaintiff/respondent is recorded as landlord in the municipal records and in lack of any valid document, in light of judgment of Hon'ble Apex Court in the case of R.V.E. Venkatachala Gounder (supra), petitioner/defendant cannot be treated landlord.
12. Therefore, in absence of evidence and settled provision of law, Court has rightly not returned the suit and decided the issue no.1 in favour of the plaintiff/respondent.
13. Under such facts and circumstances of the case, there is no illegality or infirmity in the impugned orders.
14. The petition lacks merit and is accordingly dismissed.
Order Date :- 1.4.2025
Amit
