Khatoon Begum and others vs Addl.District Judge, Court No.7, Moradabad and others

Rakesh Tiwari, J.

Heard Sri Nasiruzzaman, Counsel for the petitioner, Sri H.O.K. Srivastava appearing for caveator respondent and perused the record.

Facts of the case in nutshell are that predecessor of respondent No. 2 to 8, Abdul Basil instituted S.C.C. Suit No. 141 of 1985 against Hidaytullah and Massan alias Mushir Khan (predecessor of the petitioners) in the Court of Judge Small Causes, Moradabad for arrears of rent and ejectment. It was claimed that rent was due with effect from 23.9.1983 which was not paid despite service of notice of demand, hence the tenancy was terminated. Defence of the defendants in that suit was that there was no relationship of landlord and tenant between the parties. According to them, owner of the disputed house was Mohd. Naseen and others and in one part of the property, the petitioners were the tenant. Mohd. Naseen had filed Suit No. 137 of 1982 with the allegations that entire property was under the tenancy of one Hidayatullah which was decided in terms of compromise dated 31.1.1985 and in pursuance of the compromise the suit was decreed and possession of the share of Hidayatullah was given to Mohd. Naseen, who executed an agreement to sell on 31.1.1985 in favour of Smt. Khatoon Begumthe petitioner in this case and also handed over vacant possession to her.

The Judge, Small Causes Court by judgment and order dated 30.5.1988 decided only issue No. 1 in favour of defendantpetitioner Smt. Khtoon Begum and others. Aggrieved by the aforesaid judgment, a revision was filed by the ancestors of respondent No. 2 to 8 which was decided vide judgment and order dated 12.2.1990 against the petitioner. The revisional order dated 12.2.1990 was challenged by predecessor of the petitionerSri Mushir Khan alias Massan in Writ Petition No. 13530 of 1990 which was dismissed by judgment and order dated 9.7.1999 remanding the matter to JSCC, Moradabad as it was pleaded that petitioner is the owner and question of title/owner involved in the suit incidently requires to be decided in SCC suit. In this regard, a plea was also taken that the suit was barred by section 23 of the Provincial Small Causes Courts Act, 1887 and a preliminary issue was framed whether the Court of Small Causes has no jurisdiction to try the suit. This question was decided by JSCC as issue No. 1 giving rise to the litigation as aforesaid.

The High Court in aforesaid writ petition No. 13530 of 1990, while remanding the matter observed thus:

"Without having evidence of the parties on record, no such order in the present case should have been passed by the Trial Court merely on the basis of the pleadings of the parties. Since section 23 of the Act permits return of the plaint at any stage of the proceedings, it will always be open for the Court concerned to exercise powers under section 23 of the Act if it finds that the question of title on the basis of the evidence adduced can not be answered in a summary way and an elaborate enquiry is required for determining the question of title which can only be held by a Competent Court having jurisdiction to determine the same."

On pleading of the parties, the following issues were framed:

The Court decided issued No. 1 and 3 holding that plaint was returned to the petitioner for presentation before the proper Court as was required under section 23 of Provincial Small Causes Courts Act, 1887 for determination of the issue regarding title. After the matter had been remand by the High Court, the parries have only addressed themselves to the question of landlord and tenant. Thus, it is apparent from the decision of issue No. 1 that the petitioner neither filed any suit regarding title of the property in dispute nor on remand contested the question of title in SCC suit No. 141 of 1985.

Issue No. 2 was decided holding that the petitioner was a defaulter. So far as issue No. 4 is concerned, it was held that notice given to the petitioner determining her tenancy was valid and lastly the Court held that there existed relationship of landlord and tenant between the parties.

In SCC revision No. 13 of 2009 also, the Revisional Court has confirmed the findings recorded in the judgment and decree dated 28.3.2009 passed by JSCC in SCC suit No. 141/1885, Abdul Basil v. Hidaytullah and others.

Contention of the Counsel for petitioner before this Court is that petitioner Smt. Khatoon is owner of the house in dispute and the Courts below have wrongly decided the question of ownership while deciding the question of relationship of landlord and tenant between the parties as in view of section 23 of Provincial Small Causes Courts Act, 1887, JSCC had no jurisdiction to entertain the suit. No other point has been argued.

Learned Counsel for the respondent submits that Courts below have decided the question as an incidental question and there is no lack of jurisdiction in the Court below while addressing the question of relationship of landlord and tenant particularly in view of the fact that petitioner had incidentally denied the relationship of landlord and tenant with respondent.

After hearing Counsel for the parties and on perusal of record, it is noticed that initially JSCC had returned the plaint to the petitioner in view of section 23 of Provincial Small Causes Courts Act, 1887, for presentation before the proper Court for determination of title of the property. Aggrieved the petitioner had filed writ petition No. 13530/1990, then issue No. 1 was again decided against him. It was on direction of the Court that proceedings before the JSCC in suit No. 141 of 1985 proceeded wherein aforesaid five issues have been framed. A perusal of the issues shows that none of the issues relate to determination of the ownership. These issues were framed by the Court on basis of pleadings of the parties. It is also noted in the order that as no suit was filed regarding the title nor it was directly in issue, the Court had jurisdiction to entertain the matter.

In view of the fact that though the petitioner had denied title of the respondent but had not instituted any suit or got the question of title adjudicated before the Competent Court, there is no illegality or infirmity in the impugned orders holding that in the facts and circumstances of the case relationship of landlord and tenant existed between the parties as properly had been redeemed. The possession of the petitioner was therefore as a tenant and not owner in the facts and circumstances of the case.

The writ petition is accordingly dismissed. No order as to costs.