Mal, Vs. Mahablr Prasad & Ors  INSC 207 (5 August 1988)
Ojha, N.D. (J) Ojha, N.D. (J) Pathak, R.S. (Cj) Sharma, L.M.
1988 AIR 1772 1988 SCR Supl. (2) 238 1988 SCC (4) 194 JT 1988 (3) 281 1988
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.
appeals were preferred by tenants against the judgment of the High Court in
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.
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.
238 PG NO 239 Allowing the appeals, the Court,
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.
APPELLATE JURISDICTION: Civil Appeal Nos. 1271 and 1272 of 1978.
the Judgment and Order dated 18.4.1978 of the Allahabad High Court in Civil
Revision Nos. 161 and 163 of 1975.
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.
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.
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:
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 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.
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.
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.
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.
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".
to learned counsel benefits arising out of 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.
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.
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:
Return of plaints in suits involving questions of title :
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.
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.
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.
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 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.
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.
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.