ASGARALI ROSHANALLI Vs. KAYUMALLI IBRAHIMJI

JUDGEMENT

(1.) THIS revision application is filed against the order passed in Small Cause Civil Suit No. 80 of 1952 by the Civil Judge, Senior Division, at Godhra, in the exercise of his Small Cause Jurisdiction dismissing the plaintiffs suit for a decree for rent due for the period between the 25-3-1952 to 24-5-1952 in respect of certain premises occupied by the defendant. The plaint-tiffs claimed that the defendant was their tenant in respect of the premises. The defendant inter alia denied the relationship of landlord and tenant between the plaintiffs and himself. The learned trial Judge held on a consideration of the evidence that there was no relationship of landlord -and tenant between the plaintiffs and the defendant, in arriving at the conclusion as to the relationship between the parties the learned trial Judge considered the question, whether the property did really belong to the plaintiffs or it was the property of the plaintiffs' father who had been adjudicated insolvent. The learned trial Judge observed in the course of his judgment that on a consideration of the evidence it appeared to him that the property belonged to Roshanalli, father of the plaintiffs and that 'there was no privity of con tract between the defendant and the present plaintiffs, but that it was between Roshanalli and the defendant'. On the view taken by him the learned trial Judge dismissed the plaintiffs' suit. Against the decree passed by the trial Court the plaintiffs have coma to this Court in revision.

(2.) NOW the Question decided by the learned trial Judge is a pure question of fact, and in exercise of its jurisdiction under Section 25, Provincial Small Cause Courts Act, 9 of 1887, this Court cannot interfere with the conclusion of the learned trial Judge.

(3.) MR. Section M. Shah who appears on behalf of the petitioner has contended that the learned trial Judge has no jurisdiction to embark upon an enquiry as to title even in deciding the question whether there was a contractual relation of landlord and tenant between the plaintiffs and the defendant; and in support of that contention Mr. Shah has referred me to a judgment of this Court reported in - 'hari Bai v. Nathubhai Prabhubhai', AIR 1939 Bom 353 (A ). In that case it was held that in a suit to recover possession of land on the expiration of a lease, which was maintainable in the Court of Small Causes only by reason of the amendments made to the Provincial Small Cause Courts Act, 9 of 1887 by the Provincial Small Cause Courts (Bombay Amendment) Act 6 of 1930, could not be tried by the Court of Small Causes when IS was sought to be resisted by the defendant on the ground that the lease which was relied upon by the plaintiffs was a hollow one. Mr. Shah says that the principle of that case applies to the facts of the present case, and the learned Judge in the Court below had therefore no jurisdiction to proceed with the hearing of the suit once the defendant raised a contention as to the title of the plaintiffs.