ABDUL GHANI Vs. ABDUL MALIK

JUDGEMENT

(1.) THIS writ petition has been filed by the tenant to quash the order dated 20.7.1989 (Annexure -4) passed by Additional District Judge, Bahraich in Abdul Malik v. Abdul Ghani, SCC Revision No. 3 of 1989. whereby the decree for eviction and arrears of rent has been passed. The plaintiff -opposite party Nos. 1 and 4 others filed a suit for eviction of petitioner from disputed house alleging that his father had been the owner in possession of House No. 786, which was taken on rent by the petitioner @ Rs. 50/ - per month, after the death of the father his five heirs including Abdul Malik, (the opposite party), become the owner and landlord. Rent having become due against tenants since 1.3.1982, a notice of demand and termination of tenancy was sent on 23.1.1985. Inspite of that neither arrears were paid nor the premises was vacated.

(2.) THE suit was contested by the petitioner inter alia on the ground that the house belongs to the defendants and therefore, a question of payment of rent does not arise. Since the dispute with regard to the title of the property was involved therefore, it should be tried by a regular Civil Court.

(3.) THE revision (SCC No. 3/1989) was preferred by the plaintiffs challenging the finding on issue No. 6 that the plaintiff was not entitled for any relief of eviction for letting out without allotment. On the other hand the tenant argued that the plaint should have been returned as the right of the plaintiffs and the relief claimed, depended on the proof or disproof of title of an immovable property which such a Small Cause Court could not finally determine. Learned Revisional Court had held that it is not necessary that every such case should be returned by the JSCC for presentation before the Regular Court. On the point of unauthorised occupation of the tenant, it was held on the basis of law laid down in Smt. Ram Sakhi v. Rama Kant,, 1998 ALJ 989 :, 1988 (2) ARC 164 that even in the absence of allotment of order, the relationship of lessee and lessor subsists and therefore, suit for eviction of the tenant is cognizable by JSCC. Accordingly, the decree for eviction has also been passed.