ShamsuddIn and anr. Vs. Hemraj Pandey and ors. - Court Judgment

Excerpt:
- indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammadorderumeshwar pandey, j.1. heard learned counsel for the parties.2. this petition challenges the order dated 5.12.05 passed by the appellate court whereby the petitioner's application for recasting the issues framed at the trial stage has been rejected.3. a suit for declaration of title and restoration of possession was filed before the regular civil court in which in certain paragraphs of the plaint it was pleaded that the defendant no. 1 was inducted as a tenant on the disputed premises and he defaulted in payment of rent. subsequently, the defendant petitioner also denied the title of the plaintiff respondent in the property and thus arose an occasion for filing the suit. the respondent-plaintiff also sought relief for recovery of arrears of rent from the petitioner-defendant. during.....

Judgment:
ORDER

Umeshwar Pandey, J.

1. Heard learned Counsel for the parties.

2. This petition challenges the order dated 5.12.05 passed by the Appellate Court whereby the petitioner's application for recasting the issues framed at the trial stage has been rejected.

3. A suit for declaration of title and restoration of possession was filed before the regular Civil Court in which in certain paragraphs of the plaint it was pleaded that the defendant No. 1 was inducted as a tenant on the disputed premises and he defaulted in payment of rent. Subsequently, the defendant petitioner also denied the title of the plaintiff respondent in the property and thus arose an occasion for filing the suit. The respondent-plaintiff also sought relief for recovery of arrears of rent from the petitioner-defendant. During the pendency of the suit, on filing of the written statement by the defendant, it was disclosed that the property in question had been transferred through registered sale deed by defendant No. 1 in favour of the respondent Nos. 2 & 3. The suit was tried as a regular suit regular suit and it was decreed and the appeal under Section 96 of C.P.C. was preferred before the District Judge, which is still pending disposal.

4. In that appeal an application was moved by the petitioners for re casting the issues about the existence of relationship of landlord and tenant between the parties and also for framing issues about the perfection of tenant-petitioners' title over the property by virtue of adverse possession. The Appellate Court had rejected application holding that, in such a regular suit for declaration of title between the parties, no issue regarding existence of relationship of landlord and tenant between them is required to be framed and the question involved in the suit is only that of title.

5. The learned Counsel appearing for the petitioners contends that by virtue of Sections 15, 16 and Article 14 of Schedule (II) of the Provincial Small Causes Court Act, the suit, being squarely a suit for eviction of a tenant from the premises in question after the determination of tenancy it is cognizable only by the Judge, Small Causes Court and it could not have been entertained legally as a regular suit by a regular Civil Court. Thus, on the strength of the argument learned Counsel has tried to stress before the Court that recasting of issues was necessarily required by the Trial Court to decide the question as to whether the relationship of landlord-tenant existed between the parties, as pleaded in the plaint itself, and also in order to resolve this point if this suit was at all cognizable by regular Civil Court.

6. I do not agree with the interpretation of the aforesaid Section 15, 16 and Article 14 of Schedule II of Provincial of Small Causes Courts Act as advanced by the learned Counsel. This is a suit involving the question of declaration of title over the property in suit where both the parties have subsequently disputed the title of each other.

7. If the petitioners-defendant specially has set up case of their ownership of the property even by virtue of perfecting their title by way of adverse possession, in such a situation with clear-cut pleadings coming from both the parties regarding the dispute of title over the properties, the suit is definitely cognizable by a regular Civil Court. The Full Bench decision of this Court in Manzurul Haq and another v. Hakim Mohsin All : AIR1970All604 has been cited by the learned Counsel for the respondents and it has been submitted that the jurisdiction of a Court of Small Causes is preferential and not exclusive as per, the provisions contained in Sections 15 and 16 of the Provincial Small Causes Court Act. It is quite obvious that the law is settled on this point because the Court of Small Causes has no jurisdiction to settle the dispute of title over the property when the same has been raised in a suit even of Small Causes nature. When such dispute of title arises at a subsequent stage of filing a suit, it is transferred to the regular Civil Court and not kept pending in the Court of Small Causes. Here from the very inception of filing of the pleadings of the parties it was more than obvious that the suit involving the declaration of title has rightly been entertained by the regular Civil Court and has been decided, as such, as a regular civil suit. Therefore, the existence of a dispute between the parties about the relationship of landlord-tenant is not an important point for determination and adjudication in the suit itself, and as such the appellate Court has rightly rejected such request of the petitioner. The impunged order cannot be said to be erroneous in any respect and accordingly not to be interfered in this petition.

8. The petition, having no force, is hereby dismissed.