SHRI PANNA LAL JAIN Vs. SHRI SUNDER LAL

JUDGEMENT

(1.) One Shrimati Ganga Devi was the owner of the premises No. 4311, Gali Bhairon Wali, Nai Sarak, Delhi. Smt. Ganga Devi died and the petitioner applied for probate of the will stated to have been left behind by her. It was alleged that the petitioner was the adopted son of Smt. Ganga Devi.

(2.) A probate was granted in respect of the will by the District Judge on 15th July, 1974. Prior to the grant of the probate the petitioner had filed a suit before the Judge small Cause Court, Delhi being Suit No. 541 of 1972 for the recovery of rent from the respondent-tenant. In the said suit the respondent had raised an objection, inter alia, to the effect that the petitioner was not his landlord. It appears that after the probate was granted, a copy of the same was produced before Judge, Small Causes Court. On the said copy being produced the respondent-tenant admitted the claim of the petitioner. By an order dated 26th August, 1974 the Court passed a decree against the defendant for the amount of Rs. 312/- being the arrears of rent for the period Chait Sudi 11 Sambat 2027 to Chait Sudi Gyaras Sambat 2029.

(3.) The respondent did not pay rent in respect of the period of Chait Sudi 12 Sambat 2029 to Mangsar Sudi 11 Sambat 2031. The petitioner filed the represent suit No. 84 of 1975 in the Court of Judge, Small Cause Court, Delhi for the sum of Rs. 447/-. The defendant filed written statement. One of the contentions raised was that the petitioner was not the owner of the suit premises and nor was be the landlord. It was further contended that as a question of title was involved, the Small Cause Court had no jurisdiction to try the suit. The petitioner produced and filed in court certified copies of the pleadings and the order in earlier suit No. 541 of 1972. Besides this a copy of the declaratory decree dated 20th September, 1975 passed by the Court of Shri Dinesh Dayal, Sub-Judge 1st Class, Delhi in respect of the property in dispute was also filed. By order dated 26th November, 1975 the Judge, Small Causes Court held that an intricate question of title was involved in the case and he accordingly ordered that the suit be returned to the plaintiff-petitioner for presentation before the Senior-Sub-Judge for assigning to a competent civil court for decision under Section 23 of the Provinceial Small Causes Court Act. In arriving at the said decision the trial court referred to the judgment of Shri P.K. Jain, Additional Judge, Small Causes Court delivered in a similar suit filed by the petitioner against another tenant one Shri Ram Kishan.