Prakash Krishna, J.
1. Defendant No. 2 Ram Deo in S.C.C. Suit No. 7 of 1984, Ram Naresh v. Ram Shankar Gupta and Anr. has filed the present revision against the judgment and order dated 21st September, 1985, passed by 1st Additional District Judge, rejecting the contention of defendant No. 2, i.e., the present applicant to transfer the suit for trial on regular side and also rejected the application filed under Section 10 read with Section 151. C.P.C. to stay further proceedings of the suit till the decision of the earlier instituted Suit Nos. 70 of 1978 and 79 of 1984.
2. Plaintiff/opposite party instituted S.C.C. Suit No. 7 of 1984 on the pleas inter alia that Plot No. 372 area .7 decimal situate in village Sikridi Buzurg, P.O. Sikri Ganj, Tappa Parsi. Tehsil Bansgaon, district Gorakhpur is abadi on the spot and the same is the bhumidhari of the plaintiff and his brother. In the said plot the present applicant has half share and the remaining half belongs to the plaintiff and his brother Ram Swarup. On November 2, 1968, a compromise took place In between the plaintiff and Ram Deo (the applicant) in Suit No. 197 of 1961 in respect of the disputed plot as well other plots, it was agreed upon to divide the disputed property half and half. The said compromise formed part of the decree in Suit No. 197 of 1961. The parties thereafter raised constructions over their respective piece of land and the plaintiff constructed a house shown by red colour in the map at the foot of the plaint and let it out to defendant No. 1 on monthly rent of Rs. 225. Thus, the plaintiff is the owner and landlord of the disputed property of which defendant No. 1 is the tenant. Defendant No. 1 has sub-let the house in question to defendant No. 2. Provisions of U.P. Act No. 13 of 1972 are not applicable in view of the fact that the disputed property is beyond the territorial limit of the local authority. Defendant No. 1 in spite of service of notice dated 21.2.1984 failed to clear arrears of rent for the period November, 1982, onwards hence the suit.
3. The suit is being contested by the present appellant (defendant No. 2) by denying the plaint allegations. He has pleaded that the plaintiff and his brother have got construction over-plot No. 353 over an area of 9 decimal, whereas defendant No. 2 constructed disputed house over plot No. 373 on an area of 7 decimal and the said construction is standing for the last ten years and during consolidation operations the name of defendant No. 2 was recorded by the consolidation authorities. A compromise was arrived at before the Assistant Consolidation Officer in between the parties and an area of 5 decimal which was recorded in the name of defendant was chak out and given to other persons of the village. It was also pleaded that the constructions raised by defendant/applicant are existing on his own land with which the plaintiff has nothing to do. Defendant No. 2 after raising construction let out one shop to defendant No. 1 on monthly rent of Rs. 175 and defendant No. 1 has colluded with the plaintiff. The plea that the plaint should be returned for presentation to civil court as intricate question of title involved was also raised. It was also pleaded that the present plaintiff has already filed Suit No. 70 of 1978 pending before the Court of Munsif, Bansgaon and Anr. Suit No. 79 of 1984 pending before the Civil Judge IInd, Gorakhpur. These suits are in respect of disputed constructions and disputed land, therefore, it was pleaded that further proceedings in S.C.C. Suit No. 7 of 1984 giving rise to the present revision, being subsequently instituted suit, be stayed under Section 10 read with Section 151, C.P.C.
4. Before the trial court by way of preliminary issue it was pleaded that the plaint of the suit should be returned for presentation before the civil court as provided for under Section 23 of the Provincial Small Causes Court Act and the proceedings in the present suit be stayed under Section 10, C.P.C. The said pleas were not found favour with the trial court and consequently the impugned order was passed.
5. Sri Swaraj Prakash, advocate, learned Counsel for the applicant submitted that in view of the judgment of the Apex Court in the case of Buddhu Mal v. Mahabir Prasad and Ors. AIR 1988 SC 1722, the trial court committed illegality . in not exercising its discretion to return the plaint for presentation before the civil court to do justice between the parties.
6. It may be noted here that the above revision is pending decision in this Court for the last about 20 years. The further proceedings in S.C.C. Suit No. 7 of 1984 was stayed by this Court by order dated November 4, 1985. The said stay order is still continuing. In the meantime the present applicant Ram Deo expired and his heirs have been ordered to be substituted by me by order dated 28.4.2006, when the revision was listed and heard finally as there was no objection by other side. Learned Counsel for the opposite party preferred not to appear to contest the substitution application by filing counter-affidavit or to oppose the revision at the time of its hearing.
7. A pedigree has been given by the present plaintiff in Suit No. 79 of 1984, Ram Deo v. Ram Naresh. In para 1 of the plaint the said pedigree shows that Narayan had two sons, plaintiff Ram Naresh is descendent of one son, while Ram Deo, according to the plaintiff is bhanja of Kudai who was descendent of another brother Buddhoo.
8. Plaintiff Ram Naresh has filed Suit No. 70 of 1978 against Ram Deo for mandatory injunction directing the defendant to remove the offended constructions raised by him in Plot No. 373 and restraining him permanently not to interfere in his possession over the land described by letters A.B.C.D. in the foot of the plaint. The present plaintiff has also filed another Suit No. 79 of 1984 against Ram Deo and Ors. claiming injunction in respect of house described by letters Ka, Kha, Ga, Ghha, restraining the defendant from interfering in the peaceful possession of the plaintiff over the said house. The suit has been filed on the allegations that the plaintiff is owner in possession of plot No. 373. In this suit also the compromise arrived at earlier in between the parties in Suit No. 197 of 1961 Ram Naresh v. Ram Deo, has been pleaded.
9. The aforesaid suits are being contested by the present applicant denying the plaint allegations and on similar pleas as those pleaded in S.C.C. Suit No. 7 of 1984.
10. The court below rejected the contention that the plaint of S.C.C. suit be returned under Section 23 of the Provincial Small Cause Courts Act of the defendant/applicant, on the ground that the present suit is based on the contract of tenancy and such suit is triable by Small Causes Court.
11. The main thrust of the argument of the learned Counsel for the applicant is that in view of Section 23 of Small Causes Courts Act, 1887, a Judge Small Causes Court has no jurisdiction to decide the question of title raised by the tenant. To appreciate the aforesaid contention it is apt to reproduce Section 23 of the aforesaid Act which reads as follows:
23. Return of plaints 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 finality determine, the Court may at any stage of the proceeding return the plaint to be presented to a Court having jurisdiction to determine the title.
(2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure (14 of 1982) and make such order with respect to costs as it deems just and the Court shall, for the purpose of the Indian Limitation Act, 1877 (15 of 1877) be deemed to have been unable to entertain the suit by reason of a cause of nature like to that of defect of jurisdiction.
12. The Supreme Court has interpreted the aforesaid provision in Buddhu Mal v. Mahabir Prasad and Ors. : AIR1988SC1772 . The relevant portion of the aforesaid judgment is reproduced below:
It is true that Section 23 does not, make it obligatory on the court of small causes to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties.
13. Recently in another judgment the Apex Court again considered the aforesaid Section 23 in the case of Shamim Akhtar v. Iqbal Ahmad and Anr. 2001 (1) AWC 54 (SC). In this case it has been held that the jurisdiction under Section 23(1) of the aforesaid Act is discretionary, it is to be exercised only when the relief claimed by the plaintiff in the proceedings before the Small Causes Court depends upon the proof or disproof of the title to the immovable property and the relief sought cannot be granted without determination of the question. In the case in hand it may be noted that the plaintiff has instituted a suit on the ground of default in payment of rent and subletting and that the provisions of U.P. Act No. 13 of 1972 are not applicable. The trial court still has to decide the aforesaid questions and it has to arrive at the conclusion as to whether the agreement or contract of tenancy as pleaded by the plaintiff is proved or not. The Judge, Small Causes Court is competent to decide the question of title incidentally as held in the aforesaid judgments by the Apex-Court. However, the decision on the question of title shall be subject to final decision by the civil court in a suit to be tried on regular side. Learned Counsel for the applicant was not in a position to state as to what happened to the two suits being Suit Nos. 70 of 1978 and 79 of 1984. By passage of time these suits must have been decided by now. Since the revision has been pending in this Court for the last about 20 years it is not appropriate to stay proceedings any further of S.C.C. suit or order the return of the plaint.
14. In view of Section 23 of the Act the J.S.C.C. court shall proceed to decide the suit in accordance with law and also the question of title incidentally, if raised by the parties concerned. However, the decision on the question of title shall be subject to final decision by civil court.
15. In view of above, there is no merit in the revision. The revision is dismissed. No order as to costs.