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Shah Noor v. Smt. Zaibun Nisha And Others - WRIT - A No. 24355 of 2006 [2006] RD-AH 17406 (9 October 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J

Heard counsel for the petitioner and Sri P.K. Jain, counsel for the respondents.

The property, in dispute, namely, House no. 5/6 Habibabad Sarai Rehman, District Aligarh, was purchased by Smt. Shakina Begum one of the wives of late Shamshudding from Sri Bhoore Khan by means of a registered sale deed dated 28.12.1961. Late Sri Shamsuddin also entered in contract of second marriage with one Smt. Asgari Begum.

It is claimed that Smt. Shakina Begum was issue-less and was being looked after by Sri Allah Bux alias Munna, son of her sister. She orally gifted and handed over the possession of the aforesaid house no. 5/6 Habibabad Sarai to him on 27.2.1988 in ''Aam Jalsa'.

It is alleged that Sri Allah Bux thereafter sold the aforesaid house by means of registered sale deed dated 2.3.1993 in favour of the petitioners- Sri Shah Noor son of Sri Khuda Bux and Smt. Noor Jahan Begum wife of Sri Shah Noor in vacant condition after getting it vacated from the tenant Sri Nazim Alia on 30.7.1991. It is also stated that after purchasing the house, the petitioners have reconstructed the house into a three storied residential building and are living therein.

It is alleged that Smt. Zaibun Nisha, Smt Shamshun Nisha- respondent nos. 1 and 2 together with their deceased mother Smt. Asgari Begum ( who died during the pendency of the suit) filed S.C.C. Suit no. 16 of 1992-Smt. Asgari Begum and others V. Nazim Ali on 20.1.1992 before the Judge Small Causes Court, Aligarh for recovery of rent and ejectment.

Sri Nazim Ali, who was tenant of the disputed accommodation contested the suit by filing written statement stating therein that he did not have any concern with the disputed accommodation after 30.7.1991 as he had already delivered vacant possession of accommodation under him to the landlord Sri Allah Bux alias Munna on 30.7.1991.

It is contended by counsel for the petitioners that the petitioners being owner and landlord in possession of the disputed house, were necessary party but the respondents, with a mala fide intention, did not implead them in the suit filed by them and hence only impleaded erstwhile tenant of Sri Allah Bux, Sri Nazim Ali who had already vacated the accommodation on 30.7.1991.  The petitioners on coming to know about the suit, moved impleadment application dated 31.8.1998 under Order 1 Rule 10 read with Section 151 of the Code of civil Procedure which was allowed by order  dated 4.9.2000 passed by the Additional Judge, Small Causes Court directing the respondents to take necessary steps within 15 days for impleadment of the petitioners as defendants in the suit.

Aggrieved by the aforesaid order dated 4.9.2000 allowing the impleadment application of the petitioners, the respondents preferred Revision No. 70 of 2000 Smt. Zaibun Nisha and another Vs. Nazim Ali and others before the District Judge, Aligarh.

By the impugned order and judgment dated 3.4.2006, the revision has been allowed and the order dated 4.9.2000 passed by the Additional Judge, Small Causes  Court, Aligarh has been set aside which is impugned in the writ petition.

The Counsel for the petitioner urged that the impugned order dated 3.4.2006 is illegal and cannot be sustained in law on the ground that the revisional Court has misdirected itself in holding that the petitioners are not necessary parties.  It is submitted that since they have purchased the house, they are necessary parties and if the respondents want to challenge the title of the petitioners, they may file a regular suit before the competent Court in this regard but in case of relief of rent and eviction sought in the J.S.C.C suit on alleged tenant in the building of the petitioners, the petitioners are necessary parties and in any case, without proving their title, any right as landlord, the respondents can neither seek any relief nor it can be granted to them.

Counsel for the respondents submits that under Section 23 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as ''the Act') whenever a relief is claimed by the plaintiff in respect of title in a Court of Small Causes it is dependant upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine and the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. He states that in the present case, the question of title was to be determined in the suit, hence it was incumbent on the part of the Judge Small Causes Court to have returned the plaint for presentation before the Court having jurisdiction to determine title.  Section 23 of the Act is as under :-

"23. Return of plainits 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."

It is apparent from the perusal of Section 23 of the Act that plaint is to be returned by the Judge, Small Causes Court for presentation before the Court having jurisdiction to determine title only where the relief claimed is in respect of determination of title to the immovable property.

Admittedly, the suit filed by the respondents was in respect of payment of arrears of rent, damages and ejectment as is apparent from the plaint and the reliefs claimed by the -espondents in the suit as under :-

"a) That by a decree of eviction in favour of the plaintiffs and against the defendant, the defendant be evicted from the accommodation as detailed and described in the foot of the plaint and the plaintiff be put in actual and physical possession thereof after total dispossession of the defendant there from.

(b) That a decree for recovery of Rs.1456/- be passed in favour of the plaintiffs against the defendant.

(c) That a decree for recovery of damages for use and occupation @ Rs.50/- per month and water tax @ Rs.3.50P per month, pendente lite and future, be passed in favour of the plaintiffs and against the defendant on payment of additional Court fees in execution side.

(d)   That the costs of the suit be also awarded to the plaintiffs against the defendant.

(e)   That any other relief which may be deemed suitable and proper in the opinion of the Court may also be granted to the plaintiffs against the defendant."

It is evident from the perusal of the plaint, appended as Annexure 1 to the writ petition that it is not a suit for title but regarding a decree for recovery of arrears of rent and eviction.

Admittedly also, the disputed house was purchased by Smt. Shakina Begum in her own right alleged to have been gifted to Sri Allah Bux by her.  From the record it appears that Sri Nazim Ali, the tenant in the aforesaid house had vacated the same on 30.7.1991 and had handed over its vacant possession to Sri Allah Bux, who later on sold the house by registered sale deed dated 2.3.1993 to the petitioners. Thus, after vacation of the house by Sri Nazim ali and subsequent sale by Sri Allah Bux, the petitioners cannot claim to have any right, title or interest in the said house.  If the petitioners desire to claim right, title or interest, they have to file their own independent suit regarding title and ownership and prove the same before the competent court.

I am supported in my aforesaid view by the decision rendered by Hon'ble the Apex Court in J.J.Lal Pvt. Ltd. and others V. Mr. Murali and another- (2002)3 SCC-98, wherein the Hon'ble Supreme Court observed in paragraphs 27 and 28 as under :-

" These applications are filed by Muncipal Corporation of Chennai seeking its impleadment in the proceedings alleging that the two premises Doors nos. 244 and 264, the subject matter of litigation in these proceedings are owned by it and, therefore, it needs to be impleaded as a party in these appeals.

Both the sets of applications raise such controversies as are beyond the scope of these proceedings. This is a simple landlord-tenant suit. The relationship of the Municipal Corporation with the respondents and their  mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between Hemlata Mohan and the respondents cannot be decided in these proceedings.  The impleadment of any of the two applicants would change the complexion of litigation and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor is their presence necessary to enable the Court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein. Each of the two applicants is free to establish its own claims and title, whatever it may be, in any independent proceedings before a competent forum. The applications for impleadment are dismissed."

For the reasons stated above, the writ petition fails and is dismissed. The parties shall bear their own costs.

Dated 9.10.2006


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