LEKHRAJ DIDDI Vs. SAWAN SINGH

JUDGEMENT

(1.) THIS revision and two others, namely, Civil Revisions Nos. 203 and 204 of 1970, come before us on a reference made by Bhave, J. who has doubted the correctness of two earlier decisions of this Court. Before referring to the precise points in controversy, it is necessary to recall the facts of the case in the words of bhave, J. himself:

(2.) WE have heard the learned counsel at some length on the question raised in these revisions and we do not think that Sk. Rashid v. Hussain Bakash, AIR 1943 nag 265 and Purushottamdas v. Gulabchand, Civil Revision No. 679 of 1966, decided on the 30th August 1967 require reconsideration for the reason that they do not lay down the correct law. In this case, the earlier Suit, No. 9-A of 1969, was filed by Lekhraj Diddi. The reliefs claimed in that suit relate only to the sale deed dated December 6, 1963. No relief has been claimed in respect of the alleged contract of tenancy. Indeed, there is in the plaint no reference to that contract of tenancy and all that is said is that interest "was to be paid in the disguise of rent". It is obvious that the question whether or not there was a contract of tenancy is not directly and substantially in issue in this suit and, as we would show in the sequel, that is the only controversial question directly and substantially in issue in the subsequent suit, No. 16-A of 1969, filed by Sawan Singh for ejectment and arrears of rent. In these circumstances, Section 10 of the Civil Procedure Code has no application and the Additional District Judge, Jabalpur, rightly declined to stay the subsequently instituted suit. This revision, No. 168 of 1970, therefore, fails.

(3.) IN Civil Suit No. 16-A of 1969 subsequently filed for ejectment and arrears of rent, Lekhraj Diddi denied the contract of tenancy and pleaded inter alia that the sale deed dated December 6, 1963 was a nominal document, that the transaction was one of loan and the amount of Rs. 400/- payable every month was really interest on the loan of Rupees 40,000/- advanced on the occasion. It is well settled that, in a suit for ejectment and arrears of rent, the basis of the claim is the contract of tenancy. That being so, when, as in this case, the suit is between the original parties to that contract and there has been no transfer of title of the lessor, the question of title of the landlord is outside the scope of the suit. So, in munnalal v. Balchand, 1961 MPLJ 221 the Division Bench stated: