LAXMI DEVI Vs. VIII ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) BY means of the present writ petition, the quashing of the order dated April 27, 1995 passed in SCC Revision No.58 of 1991: Mansha Deviji and another Vs. Smt. Laxmi Devi and others by the VIIIth Additional District Judge has been sought for. One Ram Prasad Mathur, the predecessor in interest of the petitioner was the owner in possession of the disputed house who had executed sale deed and lease deeds. A SCC Suit No.13 of 1989 was filed by Mansha Deviji and others for ejectment against the petitioners from the house in dispute described in the plaint, and for recovery of arrears of rent and mesne profit etc.. The plaintiffs claimed that they are owners of the house in dispute by means of a sale deed executed by Ram Prasad Mathur. Shri Ram Prasad Mathur, predecessor in interest of the petitioners after the execution of the sale deed became the tenant of the house in question on a monthly rent of Rs.350/-. It was stated that the defendants in the suit are heirs of Ram Prasad Mathur and they are in arrears of rent since 1st of July, 1975. In the said suit an application purporting to be under section 23 of Provincial Small Cause Courts Act was filed by the defendants being paper No.28 C on the ground that the plaint be returned for presentation to regular court as question of title is involved in the suit. The Judge, Small Cause Court by the order dated 1st of April, 1991 ordered the return of plaint for presentation to the proper court to decide the question of title and other issues between the parties. The said order in revision at the instance of the plaintiff-respondents has been set aside by the impugned order. The court below has held that the suit be decided on merits after taking the evidence of the parties. Challenging the said order, the present writ petition has been filed. Shri A.D. Saunders, learned counsel for the petitioners, submits that an intricate question of title is involved which cannot be decided by a court exercising the power of Small Causes, the plaint should be returned for presentation before the proper court. He submits that house in dispute originally belonged to Shri Ram Prasad Mathur. He executed three documents all on 25th July, 1967. BY one document executed by him house in dispute has been sold by Ram Prasad Mathur in favour of Ram Kumar Shukla and Smt. Maya Devi Pandey for Rs.24,000/-. BY means of the second document an agreement was executed by the vendees namely Ram Kumar Shukla and Smt. Maya Devi Pandey for reconveyance of the house in dispute on receiving Rs.24,000/- within a period of three years. The third deed is contract of tenancy for a sum of Rs.350/- per month executed by Ram Prasad Mathur. He further submits that the combined effect of these three documents is that a mortgage by conditional sale was executed by the executant namely Ram Prasad Mathur in favour of Ram Kumar Shukla and Smt. Maya Devi Pandey. Another suit being suit No.295 of 1979 for redemption of the said mortgage is pending decision before the trial court and is ripe up for hearing and is likely to be heard and decided shortly. A second suit registered as O.S. No.1512 of 1982 for declaration that the alleged Will dated 21st of June, 1976 is forged and fictitious document, is also pending before the Civil Court. The sum and substance of the argument of the learned counsel for the petitioners is that in view of the pendency of these two suits, the trial judge was right in returning the plaint for presentation before the regular court and the revisional court committed illegality in passing the impugned order. Shri Dhruva Narayana, learned counsel for the respondents, on the other hand, does not dispute the pendency of aforementioned suits. However, he submits that the question of title can be gone into by the Judge, Small Cause Courts Act if the same is involved incidentally. He submits that in view of proviso to section 58(c) of the Transfer of Property Act, the deed executed by Shri Ram Prasad Mathur is a sale deed and it cannot be deemed to be a mortgage as the condition of repurchase is embodied in separate document. For a mortgage by conditional sale, in view of proviso, the condition of repurchase be embodied in the document which effects or purports to effect the sale. In any case, execution of rent deed is admitted between the parties and the suit is based on rent agreement and as such, the relationship of landlord and tenant between the parties is established. Considered the respective submissions of the learned counsel for the parties and perused the record. There appears to be no dispute that the property in dispute originally belonged to Shri Ram Prasad Mathur. It is also not in dispute between the parties that he executed three separate documents simultaneously on a single date including the contract of tenancy. The nature of the said documents executed by Ram Prasad Mathur is the subject matter of dispute in suit No.295 of 1979 which is already ripe up for hearing and 22nd of April, 2009 was the date fixed therein for final hearing. It would not be appropriate for this Court to say any thing in this regard. But to say that the plaint should be returned for presentation before a regular court is a different matter. Although in a suit of Small Causes nature, question of title of immovable property cannot be adjudicated upon. But the Judge, Small Causes Court while hearing and deciding a suit filed on the basis of contract of tenancy may examine the question of title if it is involved incidentally. Apart from the above, the suit as presently framed is based on the contract of tenancy. It is for the plaintiffs to prove the said contract of tenancy to succeed in the suit. The revisional court is right in observing that the question of title if so raised can be decided incidentally. The fate of the suit is ultimately dependent on the establishment of the relationship of the landlord and tenant between the parties. This being so, the revisional court has not committed any error in holding that the suit as framed is cognizable and triable as a suit of small cause nature. I find no merit in the submission of the learned counsel for the petitioners. It shall be open to the parties concerned to place on record if so advised the judgment of the civil court delivered in the Suit No.295 of 1979. The writ petition lacks merit and is therefore, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only). The Judge Small Cause Courts will do the good by deciding the suit expeditiously on preferential basis preferably within a period of eight months from the date of production of certified copy of this order.