VISHNU SARAN Vs. SHRIMATI LILAWATI DEVI

JUDGEMENT

(1.) This litigation relates to the estate left by Munshi Shivdev Saran who died sometime in 1937. Vishnu Saran describing himself as the adopted son of Shivdev Saran filed the present suit for recovery of Rs. 350 as arrears of rent of a certain shop situate at Kaisthwara Rewari town from Gurdial Mal defendant from 1st April, 1945 to 1st April, 1948 at the rate of Rs. 10 P.M. on the allegation that the shop in dispute was leased to Grudial Mal by his adoptive father and that he as an adopted son is entitled to realise the rent. In the alternative he claims this amount as compensation for use and occupation. Gurdial Mal in his reply to the suit denied the plaintiff being the adopted son of Shivdev Saran and also denied his right to file the suit. He further stated that Shivdev Saran had left a widow Mst. Lilawati who has been realising rent from him at the rate of Rs. 2 P.M. On these pleadings Mst. Lilawati was impleaded who also denied the plaintiff's adoption and his right to any property left by her husband. On the pleadings the trial Court framed six issues and the first issue reads-

(2.) The suit was tried by the Senior Sub Judge Gurgaon and considerable amount of oral and documentary evidence was produced by the parties in respect of their respective claims. The trial Court held that the plaintiff was validly adopted according to the custom which governed the parties and granted a decree for Rs. 10 against the tenant Gurdial Mal alone with proportionate costs and ordered that the remaining costs will be paid by Lilawati to the plaintiff. Gurdial Mal did not appeal against this decree but Lilawati filed an appeal against this decree under section 96, Civil Procedure Code, in the Court of the District Judge Gurgaon at Hissar. The appellate Court came to the conclusion that proper issues had not been framed and they were vague and the parties' attention was not directed to the real points involved in the case. He pointed out that there was no plea of custom and yet adoption had been held valid on the basis of custom. The appellate Court therefore refrained from giving any finding on the points decided by the trial Court under issue No. 1. The District Judge however held that admittedly both the plaintiff and the widow are in possession of portions of the property left by the deceased and the tenant had attorned to Lilawati after the death of her husband in 1937 and had been paying rent to her. Therefore the plaintiff was not entitled to any relief in the suit and on these findings dismissed the suit leaving the parties to bear their own costs. It is against this decision of the District Judge that the plaintiff has filed the present second appeal.

(3.) Shri P.C. Pandit the learned counsel for Lilawati has raised a preliminary objection to this appeal and that is that as the suit was for the recovery of Rs. 350 as arrears of rent of a shop and was of the nature cognizable by Court of Small Causes and as the value of the subject-matter of the suit was less than Rs. 500 second appeal is barred by section 102 of the Code of Civil Procedure. This is undoubtedly so and was frankly conceded by Shri Tek Chand the opposing counsel. Shri Tek Chand, however, prayed that this second appeal may be treated as a revision under section 115, Civil Procedure Code, and in the circumstances I, in exercise of my discretion, treated and heard the case as a revision.