1. These three civil revision applications are being disposed by a common judgment as the question which is one of jurisdiction, is common in all these matters. These are the three revisions by the original defendants (tenants) in occupation of the different tenanted premises of the same building which previously belonged to one Ramji.
2. The non-applicant (plaintiff) claimed to have purchased the entire house from said Ramji by registered sale deed dated June 28, 1976 and he filed the three suits against present petitioners for ejectment and arrears of rent.
3. The contention raised by these three petitioners, as defendants in the three suits, was that they had entered into a contract to purchase this building with their previous landlord Ramji which was prior to the sale deed dated June 28, 1976. They had, in fact, sent notice to the present non-applicant apprising him of their previous agreement and had warned him not to enter into any transaction with Ramji. They further contended that their possession after their agreement was in part performance of their contract and that they instituted Civil Suit No. 54 of 1977 against their vendor Ramji and also the present non-applicant, and the same is pending in the Court of the Civil Judge, Senior Division, Nagpur. Subsequent to the institution of that suit, the . present non-applicant filed the present suits against these applicants claiming ejectment and arrears of rent. These suits should have been stayed by the Small Causes Court and, at any rate, the Small Causes Court could not proceed to decide these suits when substantial question of title was involved.
4. The trial Court having negatived the contentions of these petitioners, these revision petitions have been filed.
5. It is not disputed that each of these petitioners had deposited Rs. 48 in Court as rent in the previous suits that were instituted, but they were deposited under protest. The Small Causes Court in its judgment made the following observations:
From the above discussions it is clear that the sale of the suit house in favour of the plaintiff is admitted and so also the payment of rent under protest is admitted. Therefore, it is clear that the plaintiff is the owner of the house by purchase and the defendant became the tenant by depositing rent in the previous suit though it may be under protest-I hold that the plaintiff is the owner of the house by purchase of the house and the defendant is the tenant by paying rent.
6. The trial Court also referred to the two decisions namely, (1) Sri Ram Pasricha v. Jagannath : 1SCR395 , and (2) R.C. Hiremath v. Krishnappa : AIR1978Kant13 . These decisions, in my opinion, have no application as they only lay down well-known proposition that a tenant is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. In the Karnataka case (cit. supra), it was observed that a tenant, who does not deny the title of the previous landlord, cannot question the title of the purchaser of the same premises from the previous landlord.
7. Shri S.D. Deshpande, the learned Counsel for the petitioners rightly submitted that in the present suits the defendants in fact had also denied the title of their previous landlord after they had entered into the agreement of purchase and which was sought to be enforced by the said civil suit. In fact, there was no attainment of tenancy between the present plaintiff and these defendants and the deposit of Rs. 48 in the earlier suits by each of these defendants which was made admittedly under protest, could not establish any relationship of landlord and tenant.
8. Shri S.D. Deshpande relying upon Bai Jivakore Laxminarayan v. Himmatlal : AIR1936Bom98 and Bai Hari v. Nathulal AIR Bom 353 : (1938) 41 Bom. L.R. 755, submitted that the Small Cause Court had no jurisdiction to try the suits under the Provincial Small Cause Courts Act.
9. Shri N.K. Deshpande, the learned Counsel for the non-applicant relying upon Asgarali v. Kayumalli : AIR1956Bom236 , submitted that the Court of Small Causes is entitled to decide even questions of title. I find that that was a suit only for arrears of rent and the defendant had denied the relationship of landlord and tenant. The Small Causes Court held the said relationship as not proved and further held that the property in fact belonged to the plaintiff's father Roshanali and that no privity of contract existed between the plaintiff and the defendant and, therefore, dismissed the suit. In revision application, this Court relying upon a Full Bench decision in Puttangowda v. Nilkanth : (1913)15BOMLR773 , no doubt observed that the Court of Small Causes is entitled to decide even questions of title relating to immovable property, provided the suit in form does not ask for a relief relating to the title of immovable property but for payment of a sum of money. This ruling relied upon by Shri N.K Deshpande in fact has no application here. These are the suits for ejectment and arrears of rent and what is substantially involved for consideration is whether the plaintiff is or is not a bona fide purchaser for value without notice of the agreement of purchase by these tenants. When the original landlord Ramji and the present plaintiff are the defendants in civil suit No. 54 of 1977 filed by the present petitioners in the Court of Civil Judge, Senior Division, Nagpur for specific performance of their contract, then in deciding the claim for ejectment and arrears of rent it cannot be said that the question of title only incidentally is required to be decided. In fact the Small Causes Court, as can be seen from what is extracted above from its judgment, has actually proceeded to decide the question of title of the plaintiff. In fact the proper course for the trial Court was to stay these suits till the suit of the present petitioners for specific performance of the contract was decided. The Small Causes Court thus had no jurisdiction to decide these suits which involved substantially the question of title of the plaintiff. The plaints, therefore, shall be returned to the plaintiff for presentation to the proper Court.
10. These revisions, therefore, are allowed and the decrees passed by the trial Court are hereby set aside. Costs as incurred in both the Courts.