P C GUPTA Vs. JITENDRA NATH AND

JUDGEMENT

(1.) THIS is a plaintiffs' revision application under Section 115, C.P.C. against the order dated August 9, 1975 passed by the learned District Judge, Dehradun. The facts giving rise to this revision are that the plaintiff revisionists filed a suit in the Court of Munsif, Dehradun for ejectment of the defendant opposite party No. 1 and for the recovery of arrears of rent and mesne profits. Later on when the Civil Laws (Amendment) Act, 1973 came into force it was transferred to the Court of the II Additional Civil Judge on the Small Cause Court side. The defendant No. 1 filed his written statement raising a number of pleas including that the plaintiffs are not the owners of the suit property and he is not a tenant and not liable to ejectment. On July 10, 4975 the learned Judge, Small Cause Court framed certain issues including whether the defendant No. 1 is tenant of the plaintiffs' property in suit. The learned counsel for the defendant pressed that issue regarding plaintiffs' title to the property be also framed. The learned Judge, Small Cause Court rejected this prayer on the ground that the suit is by a landlord for eviction of a tenant and for the recovery of rent and in such a suit it is not at all necessary to frame an issue of title. The defendant No. 1 filed a revision under Section 25 of the Small Cause Courts Act and the learned District Judge held that the suit was filed on the regular side on the basis of title and there is no express allegation in the-plaint that the defendant is a tenant, that the defendant has denied the title of the plaintiffs and the learned trial court should have framed an issue on plaintiffs' title also. The revision application was allowed and the case was transferred to the regular side of the Additional Civil Judge and he was directed to proceed with the trial after framing an issue on the plaintiffs' title. The plaintiffs have now come up to this Court against this order. I have heard the learned counsel for both sides and have given my anxious consideration to the whole matter. Under Section 23 of the Provincial Small Cause Courts Act when the right of a plaintiff and the relief claimed by him depend upon proof or disproof of a title to immovable property or other title which such court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title. It shows that a Small Cause Court is competent to decide a question of title, but then it should finally determine the same and not in a cursory manner. It is not always convenient for a Small Cause Court Judge to decide an intricate question of title and the object of the section is to transfer cases in which the Judge is satisfied that the question of title is so intricate that it should not be decided summarily and then it should return the plaint for presentation to the proper Court. Under this section it is not necessary that there must be a dispute of title to immovable property between the plaintiff and the defendant each setting up title in himself before the question of returning the plaint arises. Under it the inquiry is limited to the right of the plaintiff and to the relief claimed by him which has got to be considered. There are no words which would justify the inference that the plaintiff and the defendant should be rival claimants Moola v. Chiman Lal A.I.R. 1935 All. 148. The object of this section is to relieve the Small Cause Court from going into the complicated questions of title Hara Mohan v. Sudhansu A.I.R. 1926 Cal. 83. Before returning a plaint under this section the Small Cause Court should consider whether the suit really involves a question of title. Where a defendant tenant does not claim ownership, in himself but sets up a title in a third party, the question at issue is one of tenancy and not of title Dhani v. Maiku A.I.R. 1925 Oudh 687. Where in a suit cognizable by a Small Cause Court question of title is incidentally raised it is not thereby ousted of its jurisdiction and it has the power to determine such a question for the purposes of deciding the suit Hira Lal v. Mohd. Sharat 14 I.C. 23 Oudh. It is only when the question of title to immovable property are directly or mainly involved that the suits will not be cognizable by the Small Cause Courts. The reason for this view is not much far to seek. A suit for ejectment of a tenant and for the recovery of rent arises from a contract of tenancy. In such a suit the relevant point for consideration is whether the relationship of Landlord and Tenant subsists between the parties. The question of title is not at all relevant because person may not be the owner of the property and yet be competent to let out on rent to another. He may be the licensee of the owner or a tenant or even a trespasser. But it is not open to the person who takes the accommodation from him under an agreement of tenancy to deny the relationship of Landlord and Tenant, have in exceptional circumstances such as fraud M. L. Pandey v. Haji Allahuddin 1966 A.L.J. 285. The suit will fall if the tenancy is not established and if this is established then the tenant would be estopped from disputing the title of the landlord Smt. Hirabai v. Jiwanlal Palode A.I.R. 1955 Nag. 234, and Harendra Nath v. State A.I.R. 1967 Assam Nagaland 55. In the case of Saghir Ahmad v. Smt. Hashmat-unnisa 1951 A.W.R. (H.C.) 24, it has been held that where a person claiming to be the landlord is not the original lessor but is one who claim under a derivative title from him and the lessee without repudiating his character as tenant states that the original lessors' title is really vested in another person or where he puts the claimant to proof of his title or where the merely requires further information bona fide before he pays rent to anybody, there is no disclaimer or denial of title. As will be just discussed the defendant in the instant case has simply denied the title of the plaintiff without specifically stating in whom it vests or who is his landlord. In the proceedings under Section 3 of U.P. Act III of 1947 he had admitted the plaintiffs as his landlords and himself as their tenant. Therefore, he cannot be said to be seriously repudiating his status as a tenant. He is only putting the plaintiffs to the proof of their title. Section 23 does not lay down that the Small Cause Court has got no jurisdiction to determine the question of title to immovable property. It simply gives that court an option to send a case to a Court having jurisdiction to determine the question probably on the ground of convenience Ram Dayal Sonar v. Sukh Manaal Kalwar A.I.R. 1937 All. 676. It is, therefore, clear that if the question of title arises incidentally and is not the sole contested matter in the suit, the jurisdiction of the Small Cause Court would not be ousted otherwise it would be a very easy thing for the defendant to set up a question of title with a view to oust the jurisdiction and driving the plaintiff to another tribunal Rajendra v. Nandamal A.I.R. 1931 Cal. 1001. In Bansraj v. Kaushal Kishore A.I.R. 1973 All. 99, Hari Swarup, J. observed: "A right of possession on termination of tenancy comes by virtue of Section 108(q) of the T.P. Act. If a plaintiff seeks to enforce that right. It would be a suit between a landlord and a tenant and the plaintiff will have to establish the jural relationship of landlord and tenant". I am, therefore, in judgment that the inquiry is limited to the right of the plaintiff and the relief claimed by him and it is the right of the plaintiff and the relief claimed by him which have got to be considered. A question of title to immovable property can no doubt very well be decided by the Small Cause Court provided it arises only incidentally. Section 23 gives the Courts discretion in cases in which the right of the plaintiff depends upon proof or disproof of title to immovable property or other title which the Court cannot finally determine, to return the plaint. Whether this discretion has been properly exercised or not is matter to be determined upon the facts of each case. In the instant case the learned lower revisional court was wrong in holding that the suit was on the basis of title and was filed in the regular Court for that reason. It also erred in holding that the plaintiff no where specifically alleged that the defendant No.1 is his tenant. A perusal of the plaint shows that the plaintiffs have clearly alleged themselves to be the owners [landlords of the premises in suit. They have also alleged that they along with defendant Nos. 2 and 3 constituted a joint Hindu family with their father. On June 5, 1966 a partition took place in their family and the property in suit fell in their share. They have also clearly alleged that the defendant No. 1 was a tenant in a portion of this property. They have further alleged that they required it for their own use and moved an application under Section 3 of the U.P. Act III of 1947 for permission to file a suit for ejectment of defendant No. 1. They got the requisite permission and then filed that suit. In his written statement the defendant simply put the plaintiffs to the proof of their derivative title and did not set up title in some one else or himself. No voluminous documentary evidence is to be discussed in this connection. The defendant cannot be said to have denied his status as a tenant bona -fide because in the proceedings under Section 3 of U.P. Act III of 1947 he had admitted the plaintiffs as his landlords and himself as their tenant. Unless relationship of Landlord and tenant had existed between them Section 3 could not come into play and permission could not be accorded. What value is to be attached to that admission will be considered at appropriate stage but at present it cannot be denied that if the Small Cause Court Judge considered that the question of title was only incidentally involved and denial of his status as a tenant by defendant No. 1 was not bona fide it was not bound to return the plaint for presentation to the ordinary courts Shanker v. Prabhu Dayal A.I.R. 1934 All. 695. THIS suit was filed on the regular side because till then the Civil Laws Amendment Act had not come into force. The learned trial court, therefore, rightly exercised discretion by refusing to return the plaint for presentation to the regular side and the learned District Judge should not have interfered with it in revision. There can be no manner of doubt that though the duty to frame issues under the Code of Civil Procedure is cast on the court but an unnecessary or irrelevant issue does not become necessary or relevant merely because parties are desirous of having it decided. It is the courts responsibility to frame issues which are relevant M. L. Pandey v. Haji Allahuddin (Supra). The learned counsel for the opposite party has placed considerable reliance on the case of Sarjoo Prasad v. Second Additional District Judge, Kanpur and others A.I.R. 1975 All. 12, to show that the moment the question of title is raised the Small Cause Court is bound to transfer the suit to the regular side. I have carefully gone through this case and in my judgment it does not lay down any such absolute proposition of law. The relevant observation is: "Suits between landlords and tenants after determination of lease are not expected to raise any question of title." Even if a question of title is raised, the suit is liable to be transferred back to the regular civil court in view of Section 23 of the Small Cause Courts Act." The aforesaid observation clearly goes to show that if question of title incidentally arises, the Small Cause Court is itself competent to decide it. If intricate question of title is involved which cannot be decided in a cursory manner, the plaint should be returned for presentation to the proper court. The reason is obvious. In every suit for eviction the option lies with the plaintiff whether he would like to proceed on the basis of contract of tenancy or on the basis of title. If no elect to proceed on the basis of contract of tenancy, the suit will be tried by the Small Cause Court and the court-fees payable will be on 12 months rent. In such a suit the simple issue will be whether the relationship of landlord and tenant exists. While deciding the question whether the plaintiff is a landlord the question of title can be incidentally gone into. If the plaintiff elect to proceed on the basis of title the plaint will be returned for presentation to the proper court where he will obviously be required to pay ad valorem court-fees. In the instant case the plaintiffs made it clear on the date of issues that they went to proceed on the basis of contract of tenancy. The learned counsel for the defendant was asked to give a statement under Order X, Rule 2, C.P.C. regarding the defendant's status but he refused to do so on the ground that he could not be examined under Order X, Rule 2, C.P.C. in a suit of Small Cause Court nature. Whether the defendant is bona fide raising the plea of title or not can be inferred from it. I am, therefore, of the view that in the circumstances of this case it was not all necessary to frame an issue on plaintiff's title or to return the plaint for presentation to the proper court. There is one more flaw in the order passed by the learned District Judge. Instead of directing that the plaint should be returned for presentation to the proper court, he passed an order transferred the suit to the court of the Additional Civil Judge on the regular side. THIS order purported to be under Section 24, C.P.C. and not under Section 23 of the Small Cause Courts Act. Sub-section (4) of Section 24, C.P.C. lays down that the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall from purposes of such suit, be deemed to be a Court of Small Causes. Therefore no useful purposes can be served by the order passed by the learned District Judge because even if the suit is transferred from Small Cause Court to the regular side, it will be tried as a Small Cause Court suit. For all these reasons the order passed by the learned District Judge is liable to be set aside. The revision is allowed and the order passed by the learned District Judge is set aside. The order passed by the learned Judge, Small Causes Court is restored. Costs, on parties.