PETITIONER:
BUDHU MAL ETC.,
Vs.
RESPONDENT:
MAHABlR PRASAD & ORS., ETC.
DATE OF JUDGMENT05/08/1988
BENCH:
OJHA, N.D. (J)
BENCH:
OJHA, N.D. (J)
PATHAK, R.S. (CJ)
SHARMA, L.M. (J)
CITATION:
1988 AIR 1772 1988 SCR Supl. (2) 238
1988 SCC (4) 194 JT 1988 (3) 281
1988 SCALE (2)294
ACT:
Provincial Small Cause Courts Act- Section 23 of-
Landlord- Tenant dispute- Determination of title to property
let out- Whether landlord can unilaterally cancel a deed
giving to another party benefits arising out of property let
out whether section 23 is attracted in the case.
HEADNOTE:
These appeals were preferred by tenants against the
judgment of the High Court in civil revisions.
Respondent Mahabir Prasad had executed a registered deed
dated 8th December, 1966 with regard to premises in
question, giving the benefits arising out of the said
properties to his grandsons and their mother Smt. Sulochana
Devi. He informed the tenants to make payment of rent to
Smt. Sulochana Devi in terms of the said deed. Later,
Mahabir Prasad executed a registered deed of cancellation
dated 3rd November, 1970, cancelling the aforesaid deed
dated 8th December, 1966 and debarring the grandsons and
their mother from the right to realise rent and informed the
tenants about the said deed of cancellation.
Subsequently, Mahabir Prasad instituted suits in the
Court of the Judge, Small Causes against the appellant-
tenants for recovery of arrears of rent and their eviction
on the ground that in spite of their being informed of the
deed of cancellation, they had not paid rent to him. The
appellants contended that the deed dated 8th December, 1966,
could not be unilaterally cancelled by Mahabir Prasad, and
the rent claimed by him had already been paid by them to
Smt. Sulochana Devi. The title of Mahabir Prasad to realise
rent was disputed by the appellants who had contended that
the suit involving a question of title was not cognizable by
a Court of Small Causes. The Judge, Small Causes, decreed
the suits. The appellants filed revisions before the
District Judge who dismissed the same. Further revisions
filed by the appellants in the High Court were also
dismissed. The appellants moved this Court for relief by
special leave against the Judgments of the High Court.
PG NO 238
PG NO 239
Allowing the appeals, the Court,
HELD: The provisions of section 23 of the Provincial
Small Cause Courts Act (the Act) were clearly attracted in
these cases and the plaints in the cases ought to have been
returned for presentation to a Court having jurisdiction to
determine the title. It is true that Section 23 does not
make it obligatory on the Court of Small Causes to
invariably return the plaint once a question of title is
raised by the tenant, and that in a suit instituted by the
landlord against his tenant on the basis of contract of
tenancy, a question of title could also incidentally be gone
into and that any finding recorded by a Judge, Small Causes,
in this behalf could not be res judicata in a suit based on
title, but it cannot be gainsaid that in enacting section 23
the Legislature must have had in contemplation some cases in
which the discretion to return the plaint ought to be
exercised in order to do complete justice between the
parties. On facts, these are cases in which~ in order to do'
complete justice between the parties the plaints ought to
have been returned for presentation to a court having
jurisdiction to determine the title so that none of the
parties was prejudiced. [242E, H, 243A-C, F]
Judgments and decrees of the courts below were set aside
and the Judge, Small Causes was directed to return the
plaints of the cases for presentation to the appropriate
Court as contemplated by section 23 of the Act. [243F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1271 and
1272 of 1978.
From the Judgment and Order dated 18.4.1978 of the
Allahabad High Court in Civil Revision Nos. 161 and 163 of
1975.
G.L. Sanghi, K.B. Rohtagi and Praveen Jain for the
Appellants. Satish Chandra Aggarwal, S.K. Dhingra, Pramod
Swarup, S.K. Mehta and Aman Vachhar for the Respondents.
The Judgment of the Court was delivered by
OJHA, J. These appeals by special leave have been
preferred by tenants of certain premises against the
judgment of the Allahabad High Court dismissing their civil
revisions.
The facts in a nutshell necessary for the decision of
these appeals are that one Mahabir Prasad had let out the
PG NO 240
premises in question to the appellants. It appears that on
28th November, 1966 Sukmal Chand alias Lalloo, son of
Mahabir Prasad was murdered leaving Smt. Sulochna Devi as
his widow and two sons Sanjeev Kumar alias Teetu aged 1-1/2
years and Rajeev Kumar alias Cookoo aged 3 years. Mahabir
Prasad on 8th December, 1966 executed a registered deed
with regard to certain properties including the premises in
question which he described as his own by using the words
“out of my property”. The nature of the deed would appear
from the following recital contained therein:
“I give the benefits arising out of the above-said
property to my grand sons Rajeev Kumar alias Cookoo aged 3
years, and Sanjeev Kumar alias Teetu aged 1-1/2 years S/o
Sukmal Chand and Guardian Smt. Sulochna Devi mother of the
children, residents of Town Sardhana. Therefore Smt.
Sulochna Devi will be able to maintain herself and her born
and unborn children from the rent realized from the above-
said three shops and she will use the house as her residence
and with her I and my wife Sunheri Devi will live throughout
life. Smt. Sulochna Devi will neither be able to transfer
these shops and house nor to mortgage them by borrowing
money. She will have the right to maintain her children only
with the benefit arising from them. I will neither interfere
with her right nor transfer the ownership of this property.
Hence this Parivarik Vayawastha Patra i.e. family settlement
has been scribed. dated 8 December. 1966.”
It further appears that after executing the said deed
Mahabir Prasad informed the tenants concerned to make
payment of rent to Smt. Sulochna Devi in terms of the
aforesaid deed and the tenants started paying rent
accordingly. Mahabir Prasad, however, subsequently executed
a deed of cancellation dated 3rd November, 1970. This deed
too was registered and Mahabir Prasad thereby purported to
cancel the deed dated t3th December, 1966 for reasons stated
therein. In this deed Mahabir Prasad inter alia stated that
by the deed dated 8th December, 1966 written in favour of
Sanjeev Kumar alias Teetu and Rajeev Kumar alias Cookoo,
guardian Smt. Sulochna Devi mother had been given the right
to realise rent and that the deed of cancellation “debarred
them from the right to realising the rent”. The tenants
were informed about the deed of cancellation also.
PG NO 241
Subsequently suits were instituted by Mahabir Prasad
against the appellants for recovery of arrears of rent etc.
and their eviction from the premises in their tenancy on the
ground that notwithstanding being informed of the deed of
cancellation they had not paid rent to him and were in
arrears. One of the pleas raised in defence by the
appellants was that the deed dated 8th December, 1966 could
not be unilaterally cancelled by Mahabir Prasad by the
subsequent deed dated 3rd November, 1970 and that the rent
claimed by Mahabir Prasad to be in arrears had already been
paid by them to Smt. Sulochna Devi. In other words, title of
Mahabir Prasad to realise rent from the appellants was
disputed by them. Smt. Sulochna Devi was also arrayed as a
defendant in these suits. She seems to have filed a written
statement acknowleding receipt of rent claimed by Mahabir
Prasad as arrears from the appellants.
The pleas raised by. the appellants in their defence did
not find favour with the Judge, Small Causes in whose court
the suits were filed and consequently the suits were
decreed. The appellants filed revisions before the District
Judge and on these revisions being dismissed the appellants
filed further revisions before the High Court which too were
dismissed. It is against these judgments of the High Court
that these appeals have been preferred. With regard to the
deed dated 8th December, 1966 it has been held that by the
said deed only a permission bad been granted by Mahabir
Prasad to Smt. Sulochna Devi to realise rent and to maintain
herself and her two children and that it did not amount to a
transfer of immovable property in favour of Smt. Sulochna
Devi. It has further been held that in this view of the
matter Mahabir Prasad was competent to revoke the permission
granted to Smt. Sulochna Devi. The other plea that the suit
involved a question of title and consequently was not
cognizable by a court of small causes also did not, as a
consequence of the aforesaid finding, find favour with the
courts below.
It has been urged by learned counsel for the appellants
that by the deed dated 8th December, 1966 the right to rent
and not only the right to realise the rent was transferred
and this right was described in the deed by saying “I give
the benefits arising out of the abovesaid property”.
According to learned counsel benefits arising out of
immovable property themselves partook the nature of
immovable property and the said deed having been acted upon,
it was not open to Mahabir Prasad to unilaterally cancel the
benefits conferred on Smt. Sulochna Devi and her sons, by
the subsequent deed.
PG NO 242
Learned counsel appearing for the landlord on the other
hand urged that the courts below have rightly interpreted
the deed dated 3th December, 1966 to be one which only
granted the permission to realise rent and the plea raised
by the tenants did not involve any question of title.
Having heard learned counsel for the parties we are of
the opinion that on the facts of the instant case the
provisions of Section 23 of the Provincial Small Cause
Courts Act (hereinafter referred to as the Act) are clearly
attracted and the plaints of these cases ought to have been
returned for presentation to a court having jurisdiction to
determine the title. Section 23 reads as hereunder:
“23. Return of plaints in suits involving questions of
title :
(1) Notwithstanding anything in the foregoing portion of
this Act, when the right of a plaintiff and the relief
claimed by him in a Court of Small Causes depend upon the
proof or disproof of a title to immovable property or other
title which such a Court cannot finally determine, the Court
may at any stage of the proceedings return the plaint to be
presented to a Court having jurisdiction to determine the
title.
(2) When a Court returns a plaint under sub-section (1),
it shall comply with the provisions of the second paragraph
of section 57 of the Code of Civil Procedure ( 14 of 1982)
and make such order with respect to costs as it deems just
and the Court shall, for the purposes of the Indian
Limitation Act, 1877 (15 of 1877) be deemed to have been
unable to entertain the suit by reason of a cause of a
nature like to that of defect of jurisdiction.
With regard to the applicability of Section 23 aforesaid
the High Court has taken the view that the said section gave
a discretion to a court to return or not to return the
plaint where a question of title is raised and did not debar
it from deciding the suit. If in a particular case the
Judge, Small Causes did not exercise his discretion to
return the plaint the said discretion could not be
interfered with in a civil revision.
It is true that Section 23 does not make it obligatory
on the court of small causes to invariably return the plaint
once a question of title is raised by the tenant. It is also
PG NO 243
true that in a suit instituted by the landlord against his
tenant on the basis of contract of tenancy, a question of
title could also incidentally be gone into and that any
finding recorded by a Judge, Small Causes in this behalf
could not be res judicata in a suit based on title. It
cannot, however, be gainsaid that in enacting Section 23 the
Legislature must have had in contemplation some cases in
which the discretion to return the plaint ought to be
exercised in order to do complete justice between the
parties. On the facts of the instant cases we feel that
these are such cases in which in order to do complete
justice between the parties the plaints ought to have been
returned for presentation to a court having jurisdiction to
determine the title. In case the plea set up by the
appellants that by the deed dated 8th December, 1966 the
benefit arising out of immovable property which itself
constituted immovable property was transferred and in
pursuance of the information conveyed in this behalf by
Mahabir Prasad to them the appellants started paying rent to
Smt. Sulochna Devi and that the said deed could not be
unilaterally cancelled, is accepted, it is likely not only
to affect the title of Mahabir Prasad to realise rent from
the appellants but will also have the effect of snapping
even the relationship of landlord and tenant. between
Mahabir Prasad ‘and the appellants which could not he
revived by the subsequent unilateral cancellation by Mahabir
Prasad of the said deed dated 8th December, 1966. In that
event it may not he possible to treat the suits filed by
Mahabir Prasad against the appellants to be suits between
landlord and tenant simpliciter based on contract of tenancy
in which an issue of title was incidentally raised. If the
suits cannot be construed to be one between landlord and
tenant they would not be cognizable by a court of small
causes and it is for these reasons that we are of the
opinion that these are such cases where the plaints ought to
have been returned for presentation to appropriate court so
that none of the parties was prejudiced.
In the result. both these appeals are allowed and the
judgments and decrees of the courts below are set aside and
the Judge, Small Causes is directed to return the plaints of
these two cases for presentation to the appropriate court as
contemplated by Section 23 of the Act. The amount of rent
which may have been deposited by the appellants in any of
the courts below in these suits shall, however. not be
refunded to the appellants and shall be disbursed in
accordance with the decision of the appropriate civil court.
In case the dispute about title is settled by the parties
amicably, the aforesaid amount of rent can be disbursed in
pursuance of such amicable settlement also. We further
direct that the tenant-appellants shall, till the dispute
PG NO 244
about title is decided or settled, deposit rent of the
premises in their tenancy regularly as contemplated by sub-
section (2) of Section 30 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1977. In the
circumstances of the case, the parties shall bear their own
costs throughout.
S.L.
Appeals allowed.