ORDER
R.C. Lahoti , J.
1. The defendants in a Small Cause suit have come up in revision aggrieved by an order of the trial Court rejecting their application Under Order 7, Rule 11, Civil Procedure Code.
2. The plaintiff/non-petitioners have filed a simple suit for recovery of rent in arrrears for a period of eighteen and half months between 13-1-1986 and 27-7-1987 alleging that the defendants were the tenant of one Leelabai who had alienated the suit property to the plaintiffs under a registe Red deed of sale dated 13-1-1986. One of the pleas raised in the written statement filed by the defendant/petitioners was that Lilabai had entered into a contract for sale of the suit property in favour of one Babula) on 12-9-1985 and had also delivered possession of the property to said Babulal in part performance of the contract. The defendants further pleaded that since 12-9-1985 they were holding the premises as tenants of Babulal, who had also filed a suit for specific performance of the contract in his favour and the plaintiffs having purchased the property with notice of contract in favour of Babulal, they did not acquire any title in the suit property. In the background of these pleadings the defendants claimed that the Small Cause Court did not have jurisdiction to try the suit and the plaint was liable to be returned for presentation to a proper Court having jurisdiction to try the question of title.
3. Having heard the learned counsel for the parties I am of the opinion that the revision deserved to be dismissed. Section 23(1) of Provincial Small Cause Courts Act, 1887, on which strong reliance has been placed by Shri Ramji Sharma, learned counsel for the petitioner, reads as under : –
“23. Return of plaints in suits involving questions of title. –
(1) Notwithstanding anything in the foregoing portion on 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.’
This provision came up for examination before the High Court of Allahabad in Jagannath Prasad v. District Judge, Allahabad and Ors., AIR 1987 All. 317. It was held :-
“Under Section 23(1) of the Central Act, 19 of 1887 a discretion has been conferred on the Court to return the plaint if it is satisfied that a question of title is involved in the suit which it cannot finally determine. It is only in such a situation that it is open to the “Court of Judge, Small Causes to exercise a discretion whether to return the plaint or not. A mere allegation in the written statement that the title vests in a defendant in a suit filed for ejectment and arrears of rent, is by itself not sufficient to establish that the question of title is involved in a suit. Only after evidence has been produced and the Court is of the opinion that a question of title is involved in the suit, which the Court of Judge, Small Causes cannot finally determine, it is open to the Court to return the plaint. Mere filing of the written statement does not entitle the defendant petitioner to move an application for return of the plaint to the proper Court.”
I find myself in respectful agreement with the above said view.
4. The Apex Court decision in Budhu Mal v. Mahabir Prasad and Ors., AIR 1987 SC 1772 relied on by the learned counsel for the petitioners themselves, has laid down the law as under : –
“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 in a suit for eviction. Also 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 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.”
The suit has been finally adjudicated upon by the Small Causes Court. In the peculiar facts of that case their Lordships were of the opinion that there was a question of title raised in the case which could not have been adjudicated upon by the Small Cause Court, and, therefore, the plaint was liable to be returned for presentation to an appropriate Court as contemplated by Section 23 of the Act. On facts Budhu Mals case is clearly distinguishable.
5. Two authorities of the High Court of Madhya Pradesh relied on by the learned counsel for the non-petitioners may be noticed. In Gulla v. Paramlal, 1958 MPLJ SN 123, it has been held that “merely because the question of title was raised by the defence, not between themselves and the plaintiff but between themselves and a third person who was not a party to the suit, Section 23 cannot be invoked by them. Had it been the defendant and the plaintiff, Section 23 could be invoked.” In S. K. Roy v. Dhansiram, 1969 MPLJ SN 20 also this Court held that “when a defendant does not claim ownership in himself but sets up title in a third party, no question of title is involved so as to deprive the Small Cause Court of its jurisdiction to try the suit.”
6. In the present case, the written statement as construed gives an indication that the defendants do admit to be tenants in the suit accommodation having been so inducted by Smt. Leelabai, they, however, challenged the sale in favour of plaintiff/non-petitioners mainly by alleging that it was in defiance of a contract for sale in favour of some one else. The defendants/petitioners did not certainly plead a title in themselves. The plea raised in the written statement is not such which entails denial of jurisdiction to Small Cause Court by virtue of Section 23 of the Act. For the present the Small Cause Court does have a jurisdiction to try the suit. If the premises are held by the defendants/petitioners as tenants of Smt. Lilabai and Lilabai has legally transferred her title, to the plaintiff/non-petitioners under a registered deed of sale, by virtue of Section 109 of the Transfer of Property Act, 1882, the petitioners would become the tenants of the non-petitioners by operation of law without regard to the fact whether they had attorned or not in favour of the non-petitioners. It is a different question if having tried the suit, ultimately the Small Cause Court arrives at a finding that some such question of title has been raised in the suit which it cannot finally determine, it may exercise its discretion at that stage in returning plaint for presentation to a proper Court.
7. For the foregoing reasons the revision is found to be without any merit. It is accordingly dismissed, but without any order as to costs. Parties through their respective counsel are directed to appear before the trial Court on 1-5-1990, before which date the office shall see that the record reaches back there alone with a copy of this order.