RADHEY SHYAM Vs. DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) This is a petition under Article 226 of the Con stitution of India. A Suit No. 263 of 1977 was filed by opposite party Nos. 3 to 9 in the Court of Judge, Small Causes, Allahabad, for ejectment of the petitioner with a relief that a decree for eviction be passed against the petitioner from premises No. 65/76, Mahamana Malivya Nagar Allahabad. A preliminary objection was filed by the petitioner to the effect that the Judge, Small Causes Court has no jurisdiction to try the suit. This objection was dismissed by the Judge, Small Causes Court, by order dated 1st February, 1980. The petitioner, thereafter, filed a revision under Section 25 of the Provincial Small Causes Court Act before the District Judge, Allahabad, against the order dated 1st February, 1980. The revision was also dismissed by the District Judge, Allahabad, by Judgment dated 5th July, 1980, holding that the suit was cognizable by the Judge, Small Causes Court, Allahabad. Aggrieved by the decision dated 4th July, 1980, the petitioner has filed the present petition. Learned counsel for the petitioner has urged that the suit was not cognizable by the Judge, Small Causes Court and the view taken by the Courts below is manifestly erroneous. I have heard the learned counsels for the parties. The suit had been filed on the allegations that the plaintiff opposite party Nos. 3 to 9 are the owners and landlords of a vacant land. The vacant land had been let out to the petitioner to erect the permanent structure on the said land. The petitioner did not pay the rent of the land and, as such ejectment was sought from the land on the basis of the default committed by the petitioner. It was further alleged that the petitioner had sublet different portions of the land to other persons who have been impleaded as opposite party Nos. 10 to 14 in this petition. The property in respect of which ejectment was sought is described at the bottom of the plaint as under: 'land over which possession is sought for and on which building No. 65/76, Malviya Nagar, Allahabad, bounded in the. . . . . . . . . " In fact, the suit was filed for ejectment of the petitioner from the land in dispute and also, consequently, for possession of the property which had been constructed by the petitioner on the land in dispute. Section 15 (1) of the Provincial Small Causes Court Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of the Court of Small Causes. Article (4) of the Second Schedule, as amended by this State, reads as under: " (4 ). A suit for the possession of immovable property or for the reco very of an interest in such property, but not including a suit by a lesser for the eviction of a le see from a building after the determina tion of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. " From a reading of Article (4), it is clear that a suit for possession of immovable property or for the recovery of an interest in such property has been excepted and, as such, it is not cognizable by the Judge, Small Causes Court. The only suit cognizable would be a suit by a lessor for eviction of a lessee from the building after the determination of the lease. There fore, under Article (4), only such suits are cognizable by the Judge, Small Causes Court where the building is the subject matter of the lease and there is a determination of the lease of the said building. In the instant case, the allegations in the plaint are that the land had been let out and not the build ing. It has not been alleged that the petitioner is a lessee of the building. In fact, it is the case of the plaintiff in the suit that the building had been constructed by the petitioner with the permission of the plaintiff. It, there-fore, cannot be held that the present suit is a suit by the lessor for eviction of a lessee from a building. In fact, it would be a suit for possession of the immovable property which would not lie in the Court of Judge, Small Causes. Learned counsel for the opposite parties has relied upon Section 29-A of U. P. Act No. 13 of 1972, which gives the protection to the tenant of land on which a permanent structure has been erected by the tenant with the con sent of the landlord. In my opinion, this does not assist the opposite parties at all. Section 29-A just confers certain protections to the lessee of a land where permanent structure has been constructed with the permission of the landlord. This plea can be taken by the petitioner in a regular suit filed before the proper Court. This section does not have any effect on the forum in which the suit shall lie. This section is for the purpose of protecting the eviction of a tenant where land has been let out and, thereafter, permanent structure has been constructed with the consent of the landlord. The sub mission therefore, made by the learned counsel for the petitioner is well founded. The view taken by the Courts below is manifestly erroneous. In the result, the petition is allowed. The orders dated 1st February, 1980, passed by the Judge, Small Causes Court. Allahabad, and 4th July, 1980, passed by the District Judge, Allahabad, are quashed. The plaint of Suit No. 263 of 1977 shall be returned to the plaintiff opposite party Nos. 3 to 9 for presentation before the "proper Court. In the circumstances of the case, the parties are directed to bear their own costs. .