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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

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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

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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

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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

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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.