Ram Kishore vs IInd Additional District Judge,Mirzapur & Ors.

S.U. Khan, J.

Chhotey Lal, original respondent No. 2 since deceased and survived by legal representatives filed S.C.C. Suit No. 15 of 1986 before J.S.C.C./Additional Civil Judge, Mirzapur against petitioner Ram Kishore for his eviction claiming therein that Ram Kishore was his tenant at the rate of Rs. 100/ per month in a portion of the house and in the remaining portion Chhotey Lal was residing. Petitioner filed written statement pleading therein that he was son of plaintiff Chhotey Lal and that Chhotey Lal had contacted second marriage and under the influence of his second wife Shanti Devi he had given notice to him and filed the suit for eviction. Petitioner out rightly denied relationship of the landlord and tenant in between Chhotey Lal and him.

In the suit, petitioner filed an application under Section 23 of Provincial Small Cause Courts Act for return of plaint for filing before regular Civil Court as intricate question of title was involved. The said application was rejected on 3091991. Ultimately, Trial Court held that Ram Kishore was son of Chhotey Lal, and through judgment and decree dated 3171995 dismissed the suit. The Trial Court also held that Ram Kishore was not the tenant. Trial Court further held that in case Ram Kishore was the tenant then the suit was not maintainable in view of Full Bench authority of Allahabad High Court in Nootan Kumar v. A.D.J., 1993 (22) ALR 437 (FB). Against judgment and decree passed by Trial Court Chhotey Lal filed S.C.C. Revision No. 3 of 1995.

Revisional Court/II A.D.J., Mirzapur held that it could not interfere in the finding of the Trial Court that there was no relationship of landlord and tenant in between Chhotey Lal and Ram Kishore. However, the Revisional Court held that the Trial Court/JSCC had no jurisdiction to hold that Ram Kishore was son of Chhotey Lal as it was beyond its purview.

Revisional Court further held that petitioner was licensee of Chhotey Lal, hence by virtue of paragraphs 107, 108 and 109 of the aforesaid Full Bench authority of the Allahabad High Court (Nootan Kumar) suit could be decreed for eviction of the licensee by JSCC. Revisional Court i.e. IIAdditional District Judge, Mirzapur through judgment and order dated 168 2000 allowed the revision and decreed the suit for eviction and recovery of damages for use and occupation at the rate of Rs. 100 per month from 171986 till the date of the suit. Pendente lite and future damages were also awarded. The said judgment and order of the Revisional Court is under challenge in this writ petition.

During pendency of writ petition, Chhotey Lal respondent No. 2 died and his widow Shanti Devi and eight sons and daughters applied for impleadment through application filed on 2972002. Petitioner also filed substitution application for impleading the same persons on 1742003.

Both the applications i.e. substitution application and impleadment application were allowed by me on 1742003 through orders passed on substitution application dated 1742003.

In the aforesaid Full Bench authority of Nootan Kumar it was no where held that suit for eviction against licensee is maintainable before JSCC. Revisional Court wrongly held that in paras 107 to 109 of the aforesaid Full Bench authority it was held that suit for eviction against licensee was maintainable before JSCC. However, the aforesaid Full Bench authority of Nootan Kumar of Allahabad High Court has been overruled by Supreme Court in Nootan Kumar v. A.D.J., 2002 (49) ALR 251 (SC).

After holding that relationship of landlord and tenant was not established in between Chhotey Lal and Ram Kishore, the suit filed before J.S.C.C. was liable to be dismissed. However, the question of title cannot finally be decided by J.S.C.C. Such a question can only incidentally be decided by the J.S.C.C. and the said decision is subject to the findings of a regular Civil Court vide Shamim Akhtar v. Iqbal Ahmad, 2001(1) JCLR 370 (SC) : AIR 2001 (SC) 1. The question whether petitioner is son of Chhotey Lal or not is related with the question of title.

Accordingly writ petition is allowed. Judgment and order passed by the Revisional Court is set aside. Judgment and decree passed by the Trial Court is restored. However, it is clarified that legal representatives of respondent No. 2 are at liberty to file regular suit before regular Civil Court for ejectment of the petitioner or for partition and possession. The question whether petitioner is son of Chhotey Lal or not shall be decided in the regular civil suit (original suit) on the basis of evidence brought on record therein without being influenced by the finding of the Trial Court or the Revisional Court recorded in the judgments which were challenged in the instant writ petition.