DIDO RAM Vs. IST A D J

JUDGEMENT

(1.) Original owner landlord Raman Lal alias Kishan Chand since deceased and survived by respondent Nos. 3 to 7 filed a suit for eviction against petitioner which is pending in the form of Original Suit No. 284 of 1978, Rarnan Lal v. Dido Ram, before regular civil court, i.e., Munsif, Bisauli. In the plaint it was alleged that defendant petitioner was tenant of the eastern portion and he had encroached upon the western portion. Relief of dispossession was sought from both the portions. It appears that during the pendency of the suit the western portion was vacated and its possession was delivered to the plaintiff. Thereafter an objection was raised that after vacation of the encroached portion defendant remained in occupation of tenanted portion only and suit for eviction of tenant was maintainable only before J.S.C.C. and not before regular civil court hence suit must be dismissed. The said plea was rejected by the trial court/Murisif Bisauli, district Budaun on 20.3.1987. Against the said order Civil Revision No. 46 of 1987 was filed by the petitioner. Revision was dismissed on 9.9.1988 hence this writ petition.

(2.) Learned counsel for the petitioner has cited Balbir Singh v. Smt. Kalawati, AIR1976 All 434 , to contend that the suit was maintainable before J.S.C.C. This aspect has been considered in para-6 of the said authority. In the said case suit was filed before J.S.C.C. and in the plaint it was stated that kothari shown by letter W in the map annexed with the plaint had unauthorizedly been occupied by the tenant, however, in case he treated himself to be tenant of the said kothari also then he must be evicted therefrom also. In the instant case when the suit was filed, it was cognizable by regular civil court. In the plaint it was not stated that if defendant treated himself, to be tenant of the western portion also and Court found the said allegation to be correct then defendant should be evicted from western portion also. Clear cut case of the plaintiff was that defendant was in unauthorized occupation of western portion. In view of this the suit was quite competent before regular civil court. Under Section 17, C.P.C. it is provided as under :

(3.) Even if the aforesaid Section does not apply ipso facto to the suits where jurisdiction to decide the suit in respect of part of the property is vested in regular civil court and jurisdiction to decide the suit in respect of the other part of the property is vested in J.S.C.C. still the principle underlying the said section will be applicable to such types of suits.