WILFRED LOVETTE Vs. GANESH S O HEMRAJ KARMARKAR

JUDGEMENT

(1.) This revision application under section 25 of the Provincial Small Cause Courts Act, 1887, challenging the judgment and decree of ejectment and arrears of rent and mesne profits passed by the learned Additional Judge, Small Causes Court, Nagpur on 25-3-1985 in Civil Suit No. 592 of 1981, against the applicant-defendant Wilfred Lovette, raises an important question as to whether Small Causes Court loses jurisdiction in an ejectment suit, as soon as the defence is raised in the written statement under section 53-A of the Transfer of Property Act, 1882, contending inter alia that the defendant is in possession of the suit premises in part performance of a contract for sale of the suit property by virtue of an agreement in writing executed by the owner, and that the plaintiff being a transferrer of the suit property by a sale-deed from the owner is debarred from enforcing against the transferor-defendant under section 53-A of the Transfer of Property Act any right in respect of the property of which the defendant-transferee has taken or continued in possession.

(2.) Incidentally, it has also to be considered whether a Division Bench ruling of this Court in (Prabhakar Atmaram Kale v. Bharat Santaji More and another) reported in 1983 Mh.L.J. 426, holding inter alia that the effect of Explanation VIII to section 11 of the Civil Procedure Code is that the finding of the Rent Controller under Clause 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, holding existence of relationship of landlord and tenant between the parties, is res judicata in a Civil Suit filed by the landlord and that the defendant cannot seek to have the same question adjudicated in the Civil Court, need re-consideration and a reference to a larger Bench.

(3.) The facts giving rise to this litigation may be stated thus. The applicant-defendant was a tenant of the non-applicant plaintiffs vendor. He had occupied two blocks on the first floor of Municipal House No. 44 situated in Ward No. 60, New Colony, Naya Basti, Nagpur, The non-applicant plaintiff purchased the entire House No. 44 from the original landlord of the applicant -defendant by virtue of sale-deed dated 7-2-1979 (Exhibit 52 copy). According to the non-applicant plaintiff, the applicant-defendant was his tenant occupying two blocks on the first floor of the house on a monthly rent of Rs. 55/-, the tenancy commencing from the first day of each English calendar month. The plaintiff obtained permission of the Rent Controller to determine the tenancy of the defendant in Revenue Case No. 494/A-71(2/1978-79) vide his order dated 16-2-1981 and determined the tenency of the defendant in respect of the suit premises with effect from 31st March, 1981 by serving him with a quit notice dated 19-2-1981 received by the defendant on 14-3-1981. The defendant did not comply with the notice and did not vacate the suit premises.