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PETITIONER: SHAMIM AKHTAR

       Vs.

RESPONDENT: IQBAL AHMAD & ANR.

DATE OF JUDGMENT:       18/10/2000

BENCH: D.P.Mohapatro, M.B.Shah

JUDGMENT:

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     D.P.MOHAPATRA,J.

     Leave  granted.   The controversy raised in this  case relates  to  eviction  of  the   tenant  from  the  premises described  as House No.CK 48/200, Mohalla Harsha,  Varanasi. The  appellant claiming to be the landlady of the said house filed a petition under section 20 of the Uttar Pradesh Urban Buildings  (Regulation  of Letting, Rent and Eviction)  Act, 1972(hereinafter  referred to as ’the Act’), for eviction of respondent  No.1-tenant from the house.  The proceeding  was registered as suit No.457/80 in the Court of the Addl.Judge, Small  Causes Court at Varanasi.  In the petition,  eviction of  the  tenant was sought on the ground that he had  denied the  title  of the landlady and had defaulted in payment  of rent.  The appellant also sought recovery of arrears of rent from  18.10.1979 to 11.11.1980.  Tracing her interest in the house  in  question the appellant stated that the house  was initially  owned by Fakia Bibi @ Fatti Bibi who made a  gift (hiba)  of  the  property  to her  sole  surviving  daughter Khairunnisa  Bibi @ Kunno Bibi who was then living with her. Fakia  Bibi’s son Mohd.  Ibrahim was permanently residing at Calcutta  and  her other children had died by  then.   After making  the said gift in favour of her daughter, Fakia  Bibi went  to  Calcutta  and  stayed with her  son  Mohd  Ibrahim leaving  behind  her husband Shaikh Jumman and her  daughter Khairunnisa  Bibi  at Varanasi.  Fakia Bibi died in 1949  at Calcutta.   Khairunnisa  Bibi who was the sole owner of  the suit  premises  allowed her father Shaikh Jumman to run  his business on the premises in question.  Shaikh Jumman died on 26th  August, 1953.  Khairunnisa Bibi after her marriage was residing   in  District  Jaunpur.    She  had  inducted  the respondent Iqbal Ahmad as a tenant in 1960 in the suit-house on  rent at the rate of Rs.15/- which was later enhanced  to Rs.25/-  per  month.   During the subsistence  of  the  said tenancy  Khairunnisa Bibi gifted the suit property in favour of   the   appellant  Smt.   Shamim   Akhtar  who   is   the daughter-in-law  of  her (Khairunnisa) deceased  sister,  in 1979,  by  a  registered  deed  of  gift  and  directed  the respondent  to  pay  the  rent current and  arrears  to  the appellant.   However, the respondent-tenant did not pay  any rent  to the appellant.  Thereafter the appellant served the notice  dated  10.10.1980 on the respondent terminating  his tenancy  and asking him to deliver vacant possession of  the premises  and also to pay the arrear rent.  Respondent  no.1

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in  reply  to  the notice admitted that Fakia Bibi  was  the original  owner of the property.  According to him in  1947, immediately  after  partition, Fakia Bibi had made  an  oral gift  to  Mohd.  Ibrahim son of Mohd.  Ishaq of  Lahangpura, Aurangabad,  Varanasi,  and thereafter left for Pakistan  in December, 1947.  She died there.  The respondent stated that he  had  been  paying rent to the said Mohd.   Ibrahim.   He denied Khairunnisa Bibi ’s title to the property and clearly refused  to  accept  her as landlady of  the  suit-house  in question.  Thereafter the appellant filed the suit No.457/80 for  eviction on the grounds noted earlier.  In the meantime the  name of the appellant Shamim Akhtar had been mutated in the  municipal records in place of the original owner of the property.   After receipt of summons in the suit  respondent No.1  approached  the  District  Relief  and  Rehabilitation Officer-cum-Officer-in-charge  of  Enemy  Property  claiming that  the  suit property was enemy property.  A  notice  was served  on  the  appellants on the complaint lodged  by  the respondent  no.  1 and the appellant filed her reply to  the said notice.  After holding an investigation and hearing the parties,   the  Custodian,  Enemy   Property,  came  to  the conclusion  that there was no enemy interest involved in the suit-  house  and accordingly discharged the notice  by  the order dated 26.6.1981.  The order having not been challenged attained  finality.   Respondent  no.1   filed  his  written statement  in the suit denying the appellant’s title to  the suit-house  and also denied the relationship of landlord and tenant between them.  He raised the contention that the suit filed  by  the appellant was barred in view of section 8  of the Enemy Property Act, 1968.  Subsequently, respondent No.1 sought  an  amendment of the written statement to  introduce paragraph  29-A  in which a plea was raised that  since  the real  owner  of the suit property had migrated to  Dhaka  in 1947  the property in question had become evacuee  property. On  14th October, 1982 respondent No.1 filed an  application before  the Trial Court for deciding the objection regarding maintainability  of  the  suit in the Court in view  of  the provisions  in the Evacuee Property Act, 1950 and the  Enemy Property  Act,  1968 as a preliminary issue.  By  the  order dated  14.10.1982  the Trial Court held that under the  U.P. Rent  Act  the denial of title of landlord by the tenant  is itself  a ground for eviction of the tenant;  in such a case the court was competent to go into the question of the title incidentally  and, therefore, it had jurisdiction to try the suit.   Again the respondent No.1 filed an application under section 23 of the Provincial Small Cause Courts Act, 1887 to decide  the  question of title as a preliminary issue.   The Trial  Court  again rejected the objection vide order  dated 5.4.1991.   Yet another application was filed by  respondent No.1  under section 23 of the Small Causes Court Act with  a similar  prayer which met with similar result.   Ultimately, the  suit was decreed by the Trial Court by the judgment and order  dated 26.4.1993, holding inter alia, that Fakia  Bibi had  gifted the suit house to her daughter Khairunnisa  Bibi and  not  to  the stranger Ibrahim, S/o.  Ishahaq  and  that Khairunnisa  Bibi had let out the house to respondent  No.1. The  Trial  Court  accepted the case of the  appellant  that Khairunnisa  Bibi  had gifted the house in question  to  the appellant  by  the registered deed of gift.  The Court  also accepted  the case of the appellant that respondent No.1 was liable to be evicted on the ground of denial of the title of the  landlady and default in payment of rent.  Aggrieved  by the order dated 26.4.1993 respondent No.1 filed the revision petition,   C.R.R.No.112/93,  before   the  District  Judge, Varanasi  under  section 25 of the Small Causes  Court  Act.

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During  pendency  of the revision petition before the  Fifth Additional   District  Judge,   Varanasi.   the  officer-in- charge,  Enemy Property moved an application to be impleaded as  respondent  in  the case, which was  allowed.   The  Vth Additional District Judge, Varanasi by order dated 20.8.1997 set aside the judgment/order of the Trial Court and remanded the  case to it for deciding the suit afresh in the light of the  directions contained in the judgment and in  accordance with  law.   From  the discussions in the said  judgment  it appears that the revisional court took note of the fact that the District Magistrate, Varanasi had sent two letters - one to  the  effect that a notice was sent to the  plaintiff  to file  written  statement and the other requesting the  Small Causes  Court  to  consider  that  fact  while  passing  the judgment.   The revisional court observed that the  question of  suit property being enemy property and its  consequences are  to be taken up and decided first, and also took note of the  objections  raised on behalf of the  appellant  against accepting  the  letters  sent by  the  District  Magistrate, Varanasi  and  the papers filed by the State Counsel  before it.   The court felt that the issues raised before it  could not  be decided in the revisional proceeding and, therefore, the  court had no option but to remand the case back to  the Trial  Court  to  give  an opportunity  of  hearing  to  the Custodian  and  decide  it  afresh.   The  revisional  court specifically  mentioned that it has not made any  discussion on  the  merits of the case because the finding of the  fact has  to  be given by the Trial Court after  considering  the entire  evidence and after giving opportunity of hearing  to the  Custodian  of  Enemy  Property.   The  Trial  Court  in compliance  of  the directions of the revisional court  sent notice  to  the  Custodian of Evacuee Property who  in  turn appeared  through the State Counsel (DGC).  The Trial  Court by its order dated 24.10.1997 held that the Custodian of the Evacuee Property cannot be made a party in the suit.  By the order  dated  8.9.1998 the Trial Court exercising the  power under  section 23 of the Small Cause Courts Act returned the plaint  with the direction to the plaintiff(appellant)  that she  may file a declaratory suit before competent Court  for declaration  of her title to the property in question.   The appellant  filed revision No.51 of 1998 before the  District Judge,  Varanasi assailing the said order which was disposed of  by the VIth Additional District Judge, Varanasi by order dated  28.7.1999, in which the revisional court allowed  the revision  and  decreed  the  suit filed  by  the  appellant. Respondent No.1 filed Civil Misc.  Writ Petition No.33669/99 before  the Allahabad High Court assailing the order of  the revisional  court.  A single Judge of the High Court by  the judgment  and  order dated 12.8.1999 quashed the  revisional order dated 28.7.1999 of the VIth Additional District Judge, Varanasi   and  the  order  dated   8.9.98  passed  by   the Addl.Judge,  Small Causes Court and remanded the case to the Trial  Court for fresh decision.  The said Judgment/order is under  challenge  in  this appeal.  From the resume  of  the facts  of the case stated in the foregoing paragraphs it  is clear  that  the proceedings initiated by the  landlady  for eviction of the tenant has been pending in the courts over a period  of  nearly  two decades.  On perusal of  the  orders passed  by  the  lower courts and the judgment of  the  High Court we find that time has been devoted to consideration of the  objection  against maintainability of the suit  in  the Small  Causes  Court.  The basic fact which appears to  have been  lost  sight  of in the smoke-screen created  over  the jurisdictional  issue  is that the petition was filed  under section  20  of  the  Act by the plaintiff  claiming  to  be

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landlady of the house in question against the respondent who undisputedly  was  a  tenant  in   occupation  of  the  said premises.   As noted earlier respondent No.1 has all through denied  that  the plaintiff- appellant had any title  to  or interest in the suit property and also denied that there was any  relationship  of landlord and tenant between them.   He had  also  pleaded the case that one Mohd.  Ibrahim was  his landlord  and he had been paying rent for the suit house  to him.   In  the  facts  and circumstances of  the  case,  the question  to  be  determined  was whether the  case  of  the plaintiff  that  she was the landlady of the respondent  and she  was  entitled to a decree of eviction in her favour  on the  grounds  of  denial of her title by the later  and  non payment  of  rent  by  him.  The learned  single  Judge  has observed  in  the judgment under challenge and in  our  view rightly, the question of title to the suit property could be gone  into  incidentally  while  deciding the  case  of  the plaintiff  seeking  a decree of eviction.  The  question  of title  to  the property was not to be finally determined  in the  proceeding instituted under the Act.  If this  position is  kept  in  mind  it  becomes  clear  that  the  issue  of maintainability  of the suit in the Small Causes Court loses its  relevance and consequentially, the objections raised on the  basis  of the provisions of the Evacuee  Property  Act, 1950  and the Enemy Property Act, 1968 which were introduced subsequently  by the respondent lose their significance  for the  purpose  of disposal of the proceeding.  Our  attention has not been drawn to any material on record to show that in any   duly   constituted  proceeding   under  any   of   the aforementioned Acts the competent authority has declared the suit  property  to  be  either  evacuee  property  or  enemy property.   From the discussions in the orders passed by the lower courts it also appears that an attempt was made by the tenant   to  initiate  a   proceeding  before  the  District Magistrate,  Varanasi-cum-Custodian of Enemy Property  which ultimately  did  not succeed.  It appears to us  that  these questions were belatedly introduced in the proceeding by the tenant  with  a view to prolong the proceedings so  that  he could  continue in possession of the premises for as long  a period as possible.  To an extent his attempt appear to have succeeded resulting in repeated remands of the proceeding to the Trial Court for disposal of the question of jurisdiction as  a  preliminary  issue or for determining merits  of  the case.   It  is unfortunate that the learned single Judge  of the  High Court could not analyse the case properly to reach at  the core question which, as stated earlier, was  whether the  plaintiff was entitled to a decree of eviction  against the  tenant.  The Trial Court in the facts and circumstances of  the  case clearly erred in returning the plaint  to  the plaintiff-appellant  under  Section 23 of the  Small  Causes Court  Act.  Section 23(1) provides that when the right of a plaintiff  and the relief claimed by him in a court of small cause  depends  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.   The  power vested  under sub-section (1) in the Court is discretionary. It  is  to be exercised only when the relief claimed by  the plaintiff  in  the proceeding before the Small Causes  Court depends  upon  the  proof  or disproof of  a  title  to  the immovable  property and the relief sought cannot be  granted without determination of the question.  In the present case, as  noted  earlier,  the  plaintiff  filed  a  petition  for eviction  under  Section 20(2)(f) alleging that she was  the

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landlady  of the house and she had inducted respondent  no.1 as  tenant  of the premises.  The question was whether  that case  was to be accepted or not.  Indeed the Trial Court, at the  first  instance,  had  accepted  the  plaintiff’s  case holding,  inter  alia,  that she had got the property  by  a registered  deed  of gift from Smt.Khairunnisa Bibi  who  in turn  had been gifted the property by her mother Fakia  Bibi who,  indisputedly  was the original owner of the  property. The  question  of title of the plaintiff to the  suit  house could  be  considered  by  the Small  Causes  Court  in  the proceedings   as   an   incidental    question   and   final determination of the title could be left for decision of the competent  Court.   In such circumstances, it could  not  be said  that for the purpose of granting the relief claimed by the  plaintiff  it  was absolutely necessary for  the  Small Causes Court to determine finally the title to the property. The  tenant-respondent by merely denying the relationship of landlord  and tenant between himself and the plaintiff could not  avoid  the eviction proceeding under the  Rent  Control Act.   That  is neither the language nor the purpose of  the provisions  in Section 23(1) of the Small Causes Court  Act. On  perusal  of  the  records and on  consideration  of  the admitted  facts  and  the findings of fact recorded  by  the Trial  Court it is our considered view that the learned VIth Additional  District  Judge,  Varanasi  rightly  passed  the judgment/order  dated  28.7.1999  decreeing   the  suit  for eviction  filed by the appellant and the High Court erred in quashing  the  said order in exercise of jurisdiction  under Article  226 of the Constitution of India.  The direction of the High Court for remand of the case to the Trial Court for fresh  disposal, in our view, is unnecessary in view of  the finding  recorded  by  the Trial Court which  had  not  been disturbed  on  merits  by  the revisional  court,  that  the appellant  was  the  owner  of the suit house  and  she  had inducted  the respondent No.1 as a tenant in the house.  The respondent-tenant  having  denied the title of the  landlady was  liable to be evicted under section 20(2)(f) of the Act. This  Court  ordinarily does not interfere with an order  of remand   passed  by  High  Court   but  in  the  facts   and circumstances  of  the  present case we feel that  a  simple proceeding  for  eviction  of  the tenant  under  the  Uttar Pradesh  Urban  Building  (Regulation of Letting,  Rent  and Eviction)   Act,   1972,  which  is   to  be   disposed   of expeditiously  has dragged on for nearly two decades.  It is time  that  the  proceeding is concluded.   Accordingly  the appeal  is  allowed.  The judgment of the High  Court  under challenge  is  set aside and the judgment/order of the  VIth Additional  District  Judge, Varanasi in Revision  No.51  of 1998  is  confirmed.   The suit No.457/80  is  decreed  with costs.  Hearing fee is assessed at Rs.10,000/-.