1. This is a defendant's application in revision against a decree passed against him by a Judge of the Small Cause Court at Agra. The plaintiff brought a suit for the recovery of a sum of Rs. 45 against the defendant on the allegation that the said sum was due for arrears of rent for seven months; the rent was claimed at the rate of Rs. 10 a month for two months and Rs. 5 a month for five months. It was said that the plaintiff was the owner of two shops which the defendant had taken on rent, but about the end of March 1933 one of the shops was sold at an auction and purchased by a third party and thus the defendant was liable to pay the rent of only one of the shops after the auction-sale. The defence was that only one month's rent was due and the defendant thus admitted the liability to the extent of Rs. 10. He went on to say that for the last six months the shops were in the ownership of a third person who had purchased them at an auction-sale and the rent had been regularly paid to this third person. It was then said that as the title of the plaintiff to the shops was denied, the plaint should have been returned for presentation to a Court, having jurisdiction to determine the title.
2. The Court below has held that the plaintiff was entitled to the rent of both the shops for one month and one of the shops for five months and on this calculation it has given a decree to the plaintiff for Rs. 35. It is contended in revision by the defendant that a question of title was raised in the suit and if the Small Cause Court Judge intended to decide that question he should have decided it not in a summary manner, but after having asked the parties to produce all relevant evidence on the question and to have considered them thoroughly The learned Judge in the present case observes : 'I, as a Small Cause Court, need not go deep into the question.' This shows that the learned Judge decided the question of title in a summary manner. Under Section 23, Provincial Small Cause Courts Act, when the right of a plaintiff and the relief claimed by him depends 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. This shows that a Small Cause Court is competent to decide a question of title, but then he should finally determine the same and not in a cursory manner as it has done in the present case. It is not always convenient for a Small Cause Court Judge to decide an intricate question of title and the object of the above provision is to meet cases in which the Judge is satisfied that the question of title is so intricate that it should not be decided summarily and then it should return the plaint for presentation to a proper Court. In Hira Lal v. Mohammad Sharafat Ullah (1912) 14 I.C. 2, the Additional Judicial Commissioner of Oudh held that:
where in a suit brought in a Small Cause Court, the defendant raises a question of title, it is expedient or the Court to return the plaint for presentation to a Court competent to decide such a question.
3. In the present case the question of title depended upon a consideration of a number of documents. The plea of the defendant was that the two shops had been mortgaged to a stranger who in execution of his mortgage decree had purchased the shops at an auction-sale. It was necessary to consider the boundaries contained in the mortgage-deed, the decree, the sale certificate and the dakhalnama. Admittedly in the present case the learned Judge says that he need not go deep into the question and he has considered only the sale certificate in favour of the stranger and in a summary manner held that as the dakhalnama clashes with the sale certificate, the former document is not worth any reliance. This was therefore a case in which the question of title ought to have been decided by a competent Court other than the Small Cause Court.
4. It was contended by learned Counsel for the opposite party that the learned Judge of the Court below was competent to decide the question of title and as a matter of fact decided the same after considering the evidence on the record. I do not agree with this contention in view specially of the statement made by the learned Judge himself that he does not propose to go deep into the question. It was brought to my notice that several important documents like the mortgage-deed, the decree in the mortgage suit, the dakhalnama and the Sarkhait in favour of the stranger have not been considered and discussed by the Court below.
5. It was then contended by the opposite party that there must be a dispute of title to immovable property between the plaintiff and the defendant, each setting up title in himself before the question of returning the plaint for presentation to the proper Court arises. In this connexion reliance was placed on Dhani Ram v. Maikoo Lal 1925 Oudh. 687, Labhu Ram v. Mool Chand 1921 Lah. 91, Chandrabhaga Bai v. Bakaram 1926 Nag. 276 and Mohammad Ilyas v. Hari Ram 1926 All. 344. The definite basis of all these decisions mentioned above, except the Oudh case was that the defendant was estopped from pleading the right of a third party by reason of Section 116, Evidence Act, which says that during the continuance of a tenancy a tenant of immovable property shall not be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property. In all these cases the tenant wanted to deny the title of the plaintiff at the time when the tenancy was created and it was obvious that under Section 116, Evidence Act, he could not be permitted to do so. This was also the basis of the decision in the Oudh case, but Dalai, J.C., went on to observe that:
the question at issue was one of tenancy and not of title and that the defendant did not say that ho was the owner of the promises, fie claimed ownership for a third person and that was no question of title between the parties.
6. With great respect I am unable to agree with this interpretation of Section 23, Provincial Small Cause Courts Act. The words used therein arc:
When the right of a plaintiff and the relief claimed by him in a Court of Small Causes depended upon the proof or disproof of a title to immovable property.
7. The inquiry therefore is limited to the right of the plaintiff and to the relief claimed by him and it is the right of the plaintiff and the relief claimed by him which has got to be considered. There arc no words which would justify the inference that the plaintiff and the defendant should be rival claimants to the immovable property. It was finally contended by the opposite party that the claim of the plaintiff to the extent of Rs. 10 was practically admitted by the defendant and so far there was no controversy and no question of title was to be investigated. But it is not possible to split the relief claimed by the plaintiff which was for the recovery of a larger sum of money and in that larger connexion the question of title intervened.
8. The result is that I allow this application, set aside the decree of the Court below and order that the record be returned to the Small Cause Court Judge with a direction to him to return the plaint to be presented to a Court having jurisdiction to determine the title. The applicant is entitled to his costs in this Court. The costs of the Court of first instance will be borne by the parties.