DILIP KUMAR ROY Vs. SANATAN TEWARI

JUDGEMENT

(1.) This Rule is directed against Order dated 17th January, 1979 passed under Section 38 of the Presidency Small Causes Courts Act by the Full Bench, Small Causes Court, Calcutta in Title Suit No. 2673 of 1974 setting aside the judgment passed by the learned Judge, 6th Bench of the said Court. It appears that the petitioners instituted a suit being Suit No. 2673 of 1974 of the 6th Bench of the Calcutta Small Causes Court against the opposite parties for recovery of arrears of rent in respect of premises No.19E, Shib Sankar Mullick Lane, Calcutta. The plaintiff-petitioners contended that the opposite parties were thika tenants and defaulted in payment of rent since Baisakh 1375 B.S. and the suit was filed for realization of the rent from Agrahayan 1378 B.S. upto Jaistha 1381 B.S. because the other arrears had become barred by limitation at the time of institution of the suit. It appears that in the written statement filed in the said suit by the defendants there was an averment to the effect that the property in question was required to be registered under the Land Registration Act and as no such registration was effected, the landlord was precluded from realizing rents under Section 78 of the Land Registration Act.

(2.) It appears that initially the suit was instituted against the opposite party No. 1 but subsequently the opposite party No. 2 was also impleaded as a party defendant and the trial court on consideration of the facts and circumstances of the case came to the finding that it was the opposite party No. 1 who alone was the tenant and as such the decree for rent as prayed for by the plaintiff petitioners was passed by the learned Judge, Small Causes Court, Calcutta. Against the said decree passed by the learned Judge, Small Causes Court, Calcutta, an application under section 38 of the Presidency Small Causes Courts Act for a new trial was made and on the said application, a Special Bench commonly known as Full Bench was constituted and against the adjudication made by the Full Bench the instant revisional application has been made by the plaintiff petitioners. It appears that the judgment of the trial court was set aside by the impugned order passed by the Full Bench on a finding that since there was a dispute that the plaintiff landlords were not entitled to recover arrears of rents for not registering the property under Section 78 of the Land Registration Act, such question was required to be decided by the learned trial Judge after giving the parties proper opportunity of being heard. It may be stated in this connection that before the Full Bench, an information slip issued by the Office of the Calcutta Collectorate was filed on behalf of the plaintiffs and it appears from the said information slip that the property in question was within Sutanati area of the then City of Calcutta and at the relevant time the property was not required to be registered under Section 78 of the Land Registration Act. The learned Full Bench was of the view that the said information slip could not be held to be a conclusive proof of the fact that the property in question was in the Sutanati area and was not required to be registered. The Full Bench was of the view that opportunities should be given to the parties to adduce proper evidence to establish as to whether the disputed property was within an area wherein registration under section 78 of the Land Registration Act was necessary and whether such registration was made or not. The learned Full Bench after setting aside the judgment of the trial court sent the matter back on remand before the trial Court for adjudication in the light of the observation made in the said judgment of the Full Bench.

(3.) Mr. Ghosal learned Counsel appearing for the plaintiff petitioners contended before me that the Full Bench acted illegally and beyond its jurisdiction in setting aside the judgment passed by the trial court when a finding of fact was made by the trial court on consideration of the materials on record. Mr. Ghosal contended that the powers to be exercised by a Full Bench under Section 38 of the Presidency Small Causes Courts Act are not the powers of an appellate authority but the powers to be exercised under Section 38 are powers similar to revisional powers under Section 115 of the Code of Civil Procedure. Mr. Ghosal also contended that although there was averment in the written statement that the landlords were not entitled to realise rents for not getting the properties registered under the Land Registration Act, no evidence was led by the tenant who clearly admitted in evidence in the trial that the plaintiffs were his landlords and he was a tenant in respect of the property in question. Mr. Ghosal contended that if a person admits some one to be his landlord, then the liability to pay rent to such landlord is there on such admission and if a party wants to avoid such liability for some special reasons, it is for such party to lead evidence in support of his claim that though a tenant, he is not required to pay rent as claimed by the landlord. Mr. Ghosal contended that the learned Full Bench, on an utter misconception of the facts and circumstances of the case, misplaced the onus on the plaintiffs and on such misconception of the onus of proof by the plaintiffs, held that the allegation that the property in question was required to be registered under the Land Registration Act is got to be proved and as proper and sufficient materials were not placed before the Court to substantiate the respective claims of the parties, there should be a fresh trial by the learned Judge after giving the parties opportunities to adduce evidences in that regard. Mr. Ghosal submitted that pleading is no evidence and none of the defendants gave any evidence whatsoever to the effect that the property in question was within an area where registration under Section 78 of the Land Registration Act was necessary. When admittedly the plaintiffs were the landlords in respect of the disputed premises and the defendants admitted that they were tenants under the plaintiffs, no onus lay on the plaintiffs to prove that the property was not required to be registered because it was outside the area wherein such registration under section 78 was necessary at the relevant time. Mr. Ghosal further submitted that in any event information slip issued by the Calcutta Collectorate showing that the property in question was not required to be registered at the relevant point of time should have been considered by the learned Full Bench and the learned Full Bench was wrong in not relying on the said information slip which according to Mr. Ghosal must be held to be a certified copy of a public document.