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Asgarali Roshanalli and anr. Vs. Kayumalli Ibrahimji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1570 of 1953
Judge
Reported inAIR1956Bom236
ActsProvincial Small Cause Courts Act, 1887 - Sections 15 and 25; Provincial Small Cause Courts Bombay (Amendment) Act, 1930; Transfer of Property Act, 1882 - Sections 111
AppellantAsgarali Roshanalli and anr.
RespondentKayumalli Ibrahimji
Appellant AdvocateS.M. Shah and ;V.T. Gambhirwalla, Advs.
Respondent AdvocateD.V. Patel, Adv.
Excerpt:
a) it was adjudged that, in exercise of its jurisdiction under section 25 of the provincial small cause courts act, 1887, the high court cannot interfere with the conclusion of the trail court o a pure question of fact ; b) it was adjudged that in a suit for rent, the court under the provincial small cause courts act, 1887,in deciding whether there was a contractual relationship of the landlord and tenant between the parties, could embark upon an enquiry as to the title - - the present case falls precisely within the prlnciple laid down in the judgment of the full bench in the above case......denied the relationship of landlord and tenant between the plaintiffs and himself. the learned trial judge held on a consideration of the evidence that there was no relationship of landlord -and tenant between the plaintiffs and the defendant, in arriving at the conclusion as to the relationship between the parties the learned trial judge considered the question, whether the property did really belong to the plaintiffs or it was the property of the plaintiffs' father who had been adjudicated insolvent.the learned trial judge observed in the course of his judgment that on a consideration of the evidence it appeared to him that the property belonged to roshanalli, father of the plaintiffs and that 'there was no privity of con tract between the defendant and the present plaintiffs, but.....
Judgment:

1. This revision application is filed against the order passed in Small Cause Civil Suit No. 80 of 1952 by the Civil Judge, Senior Division, at Godhra, in the exercise of his Small Cause Jurisdiction dismissing the plaintiffs suit for a decree for rent due for the period between the 25-3-1952 to 24-5-1952 in respect of certain premises occupied by the defendant. The plaint-tiffs claimed that the defendant was their tenant in respect of the premises.

The defendant inter alia denied the relationship of landlord and tenant between the plaintiffs and himself. The learned trial Judge held on a consideration of the evidence that there was no relationship of landlord -and tenant between the plaintiffs and the defendant, in arriving at the conclusion as to the relationship between the parties the learned trial Judge considered the question, whether the property did really belong to the plaintiffs or it was the property of the plaintiffs' father who had been adjudicated insolvent.

The learned trial Judge observed in the course of his judgment that on a consideration of the evidence it appeared to him that the property belonged to Roshanalli, father of the plaintiffs and that 'there was no privity of con tract between the defendant and the present plaintiffs, but that it was between Roshanalli and the defendant'. On the view taken by him the learned trial Judge dismissed the plaintiffs' suit. Against the decree passed by the trial Court the plaintiffs have coma to this Court in revision.

2. Now the Question decided by the learned trial Judge is a pure question of fact, and in exercise of its jurisdiction under Section 25, Provincial Small Cause Courts Act, 9 of 1887, this Court cannot interfere with the conclusion of the learned trial Judge.

3. Mr. Section M. Shah who appears on behalf of the petitioner has contended that the learned trial Judge has no jurisdiction to embark upon an enquiry as to title even in deciding the question whether there was a contractual relation of landlord and tenant between the plaintiffs and the defendant; and in support of that contention Mr. Shah has referred me to a judgment of this Court reported in - 'Hari Bai v. Nathubhai Prabhubhai' AIR 1939 Bom 353 (A).

In that case it was held that in a suit to recover possession of land on the expiration of a lease, which was maintainable in the Court of Small Causes only by reason of the amendments made to the Provincial Small Cause Courts Act, 9 of 1887 by the Provincial Small Cause Courts (Bombay Amendment) Act 6 of 1930, could not be tried by the Court of Small Causes when IS was sought to be resisted by the defendant on the ground that the lease which was relied upon by the plaintiffs was a hollow one.

Mr. Shah says that the principle of that case applies to the facts of the present case, and the learned Judge in the Court below had therefore no jurisdiction to proceed with the hearing of the suit once the defendant raised a contention as to the title of the plaintiffs.

4. I am unable to agree with that contention. The case in -- 'Hari Bai v. Nathubhai Prabhubhai (A)', was expressly decided on the meaning of the expression 'substantial issue' which was found in the Provincial Small Cause Courts (Bombay Amendment) Act 6 of 1930. Prior to the amendment of the Provincial Small Cause Courts Act of 1887 by the Bombay Act 6 of 1930 suits In ejectment by landlords against tenants Were not cognizable by the Courts of Small' Causes.

But by Bombay Act 6 of 1930. an amendment was made to schedule II Clause (4) of the Provincial Small Cause Courts Act, 1887. and the Courts of Small Causes were empowered to entertain suits in ejectment where the property has been let under a lease made by a written instrument and the Court of Small Causes was competent to entertain suits for the rent of the property and the only substantial issue arising for decision was as to whether the lease has been determined by efflux of time limited thereby or has been determined by a notice in accordance with Clause (h) Of Section 111, T. P. Act, 1882.

In 'Hari Bai's case (A)' the Court took the view following an earlier judgment of this Court in -- 'Jivkore Bai v. Himatlal Girdharlal', AIR 1936 Bom 98 (B), that if an issue was raised by the defendant, which was a substantial issue the lease had been determined by efflux of time limited thereby or has been determined by a notice in accordance with Clause (h) of Section 111, T. P. Act, the Court of Small Causes had no jurisdiction to proceed with the hearing of the suit.

5. In the present case the suit is for recovery of the debt due as a result of the contractual obligation; and the principle of 'Hari Bai's case (A)' can have no application to the facts of the present case.

6. In -- 'Puttangowda v. Nilkanth' 37 Bom 675 (C), a Pull Bench of this Court took tile view that a Court of Small Causes is entitled to decide even questions of title relating to immove-able property provided the suit in form does not ask for a relief. relating to title to immoveable property, but for payment of a sum of money. The present case falls precisely within the prlnciple laid down in the judgment of the Full Bench in the above case.

7. The rule is therefore discharged with costs.

8. Rule discharged.


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