1. Heard Sri S.K. Kalia, Senior Advocate, assisted by Sri Shanker Singh, for the petitioner and Sri Subhash Vidyarthi, for respondents-3 to 7.
2. The writ petition has been filed for quashing the orders of Judge, Small Cause Court (respondent-2) dated 28.05.2014, rejecting the application (191-C) dated 18.09.2013, application (198-C) dated 15.01.2014 under Section 23 of Provincial Small Causes Court Act, 1887, and application (205-C) dated 10.04.2014, for referring the issue for deciding the nature of the rented accommodation, under Section 331-A of U.P. Zamindari Abolition and Land Reforms Act, 1950 to Assistant Collector, filed by the petitioner, in SCC Suit No. 7 of 2003 and District Judge (respondent-1) dated 18.07.2014, dismissing the revision of the petitioner and enhancing mesne profit and directing the trial court to proceed in the suit on day to day basis and decide it within two months.
3. Shanti Devi and others (respondents-3 to 7) (hereinafter referred to as the plaintiffs) filed a suit (registered as SCC Suit No. 7 of 2003), for ejectment of the petitioner from the premises described in paragraph-2 of the plaint and for mesne profit at the rate of Rs. 1500/- per day. It has been stated in the plaint that Ram Lal and Munna Lal (now represented by the plaintiffs) were owner and landlord of the premises, situated over plots 63 and 64 of village Sahjani, tahsil and district Unnao, which consists of factory building, bungalow, godown, quarters, well and open vacant land of the area 2-1/2 bigha. Previous owners let out the premises to Smt. Gomati Devi (the defendant) through lease deed dated 18.12.1970 (registered on 22.12.1970) on the monthly rent of Rs. 1200/-. The lease was initially for a period up to 30.09.1980, with a clause of renewal for a further period up to September 1990 with the consent of the parties on same rent. Although, terms of the lease came to an end on 30.09.1990 but the defendant is continuing in possession of the premises in dispute with the consent of the plaintiffs. The defendant is not paying rent and is defaulter since November, 1997. The plaintiffs gave a registered notice to the defendant on 16.09.2003 asking her to give arrears of rent and vacate the premises in dispute but she through her reply dated 26.09.2003, denied the title of the plaintiffs and refused to give arrears of rent and vacate the premises. As such the suit was filed.
4. The petitioner filed her written statement on 25.11.2004 and contested the suit. It has been stated by the petitioner that apart from plaintiffs, daughters of Ram Lal and Munni Lal had also inherited buildings of the premises in dispute and they did not join as the plaintiffs in the suit and the suit is liable to be dismissed for non-joinder of necessary parties. Rent had been paid time to time to the plaintiffs through bank drafts up to month of October, 2003. Provisions of U.P. Act No. XIII of 1972 are applicable on the premises in dispute and the defendant in compliance of Section 20 (4) of U.P. Act No. XIII of 1972 deposited entire amount claimed in the suit. After taking the premises in dispute on rent, the defendant had invested huge amount in it. Even on the allegations of the plaintiffs that the premises in dispute was let out for factory purposes, the suit under the provisions of Provincial Small Causes Court Act, 1887 is not maintainable and the suit is liable to be dismissed under Order VII Rule 11 C.P.C. The defendant admitted execution of the agreement dated 18.12.1970 and stated that according to the terms of the lease deed six months prior notice was required to be given. After service of the notice dated 16.09.2003, the plaintiffs accepted rent of October, 2003 as such notice shall be deemed to have been waived. The suit has been mala fide filed to harass the defendant. Written Statement was amended and paragraph-18-A was added in it claiming her title over the premises in dispute.
5. The petitioner moved an application dated 01.12.2004 for dismissing the suit under Order VII Rule 11 C.P.C. as it was not maintainable in view of Section 15 of Provincial Small Causes Court Act, 1887. That application was rejected by Trial Court by order dated 18.03.2005 and revision filed by the petitioner was dismissed on 12.04.2005. The petitioner filed Writ Petition No. 2597 (M/S) of 2005, in which initially interim order dated 02.05.2005 was granted. Later on it was dismissed in default on 05.08.2013. The petitioner filed an application dated 05.09.2013 for recall of the order, which is still pending.
6. The petitioner then filed the application (191-C) dated 18.09.2013 and reply application (198-C) dated 15.01.2014 under Section 23 of Provincial Small Causes Court Act, 1887, stating therein that as in paragraph-18-A of written statement it has been stated that the petitioner has filed a suit under Section 229-B of U.P. Act No. 1 of 1951 for declaring her as bhumidhar of the premises in dispute, which is pending as such intricate question of title between the parties was involved in the suit and it may be dismissed under Section 23 of Provincial Small Causes Court Act, 1887. The petitioner also filed an application (205-C) dated 10.04.2014, for referring the issue relating to the nature of land of the rented accommodation, for decision to Assistant Collector under Section 331-A of U.P. Act No. 1 of 1951. The plaintiffs filed their objections (196-C and 199-C) to the aforesaid applications, stating therein that in the suit filed by the petitioner under Section 229-B, they had raised issue relating to maintainability of the suit before revenue court and against the order of Assistant Collector, they filed Revision No. 4 of 2010-11, before Board of Revenue, U.P., in which further proceeding of the suit has been stayed by order dated 17.02.2011 as such on this ground application under Section 23 was not maintainable. Construction have already been raised over the land in dispute prior to 1970 as such no declaration under Section 143 of U.P. Act No. 1 of 1951 is required. The defendant, who admitted the tenancy, has no right to deny the title of the plaintiffs. The petitioner has already raised such objection, which has been rejected by the trial court by order dated 15.12.2006 holding that as loan has been taken before 1970, mortgaging the premises in dispute as such in view of Section 143 (3) of U.P. Act No. 1 of 1951, provisions of U.P. Act No. 1 of 1951 would not apply over it.
7. These applications were heard by Judge Small Causes Court, who by order dated 28.05.2014 held that under Section 23 of Provincial Small Causes Court Act, 1887, issue relating to title cannot be decided in the suit. The applications have been made mala fide only to delay the proceedings of the suit. On these findings the applications were rejected. The petitioner filed a revision (registered as SCC Revision No. 7 of 2014) from the aforesaid order. District Judge, by order dated 18.07.2014, held that lease agreement dated 16.12.1970 is admitted to the petitioner, under which the premises in dispute was let out to the petitioner for industrial purposes. In view of Section 116 of Evidence Act, 1872, the petitioner is estopped from denying title of landlord. Prior to 1970, loan was taken by previous owners, mortgaging the premises in dispute as such in view of Section 143 (3) of U.P. Act No. 1 of 1951, premises in dispute shall not be governed by the provisions of U.P. Act No.1 of 1951. Supreme Court in N.R. Guzzar Vs. Telsibai, AIR 1997 SC 404 has held that provisions of Section 165 of U.P. Act No. 1 of 1951 will not be applicable, where building has been let out. Previous order of Judge, Small Causes Court dated 15.12.2006 will operate as res-judicata. Suit is maintainable before Judge, Small Causes Court. Order of Judge, Small Causes Court does not suffer from any illegality. Relying upon the judgments of Supreme Court in Atmaram Properties Ltd. Vs. Federal Motors, (2005) 1 SCC 705 and Anderson Right Vs. Amarnath Rai, (2005) 6) SCCC 489, mesne profit has been enhanced to 25% more than claimed in the suit. On these finding revision was dismissed. However, mesne profit has been enhanced and Judge, Small Causes Court was directed to proceed with day to day hearing of the suit and decide it within two months. Hence this writ petition was filed.
8. The counsel for the petitioner submitted that the premises in dispute situated on plot 63 and 64, of village Sahjani, tahsil and district Unnao which is recorded as bhumidhari holdings in the revenue record. Apart from constructed area, it includes 2 1/2 bigha agricultural land. Thus major portion of the premises in dispute is agricultural land. By raising construction over small portion, nature of the land is not changed and it remained bhumidhari land, so long as it is not declared as non-agricultural land under Section 143 of U.P. Act No. 1 of 1951. Section 156 of U.P. Act No. 1 of 1951 imposes a restriction on letting of bhumidhari land. Consequences of violation of Section 156 is given under Section 165, of U.P. Act No. 1 of 1951, in which lessee has been conferred 'bhumidhar with non transferable right'. The petitioner has become 'bhumidhar with non-transferable right' of the premises in dispute under Section 165. As such intricate question of title is involved in the suit. Judge, Small Causes Court has no jurisdiction to decide the title and suit is liable to be dismissed under Section 23 of Provincial Small Causes Court Act, 1887. In view of provisions of Section 331, jurisdiction of other courts is specifically barred, in relation to the title dispute of agricultural land. Section 331-A provides that wherever issue relating to nature of the land recorded as agricultural land in revenue record arises before any Court, issue has to be referred to Assistant Collector for decision if such application has been filed by the petitioner. Judge, Small Causes Court has not applied his mind and has rejected the application (191-C) dated 18.09.2013, under Section 23 of Provincial Small Causes Court Act, 1887, and application (205-C) dated 10.04.2014, under Section 331-A of U.P. Act No. 1 of 1951 without assigning any reason. District Judge, while dismissing the revision has no jurisdiction to pass any further order, enhancing mesne profit and directing for day to day hearing. Loan taken by previous owners on 08.07.1964 has already been paid. The provisions of Section 143 (3) of U.P. Act No. 1 of 1951 was added in 1978 as such it has no application. He relied upon the judgment of this Court in Ala Uddin Vs.Hamid Khan, AIR 1971 All 348, Dina Nath Verma Vs. Gokaran, 2003 ((94) RD 323, Veer Bal Singh Vs. State of U.P., 2009 (108) RD 124 and Satgur Dayal Vs. IV Addl. District Judge, 2013 (4) ALJ 595, in which it has been held that so long as declaration under Section 143 of U.P. Act No.1 of 1951 is not made, nature of bhumidhari land will not be changed.
9. In reply to the aforesaid arguments, the counsel for the respondents submitted that under Section 142 of U.P. Act No. 1 of 1951, a bhumidhar has right to use his holding for any purpose. Previous owners had already constructed factory building over the disputed land and surrounded it by a boundary wall. The factory premises was let out to the petitioner through lease deed dated 16.10.1970 for industrial purposes. The petitioner admitted the lease deed dated 18.12.1970, in the written statement. In view of Section 116 of Evidence Act, 1872, the petitioner is estopped from challenging the title of the plaintiffs. Purpose of letting was industrial and not agriculture as such neither provisions of Section 156 is attracted nor any right accrued to the petitioner under Section 165 of U.P. Act No. 1 of 1951 as held by this Court in Ajaz Carprets (M/S) Vs. M/S Birla International Pvt. Ltd. 2013 AllCJ 2041. Suit has been filed on the basis of landlord tenant relation as such it is maintainable before Judge, Small Causes Court. Earlier also the petitioner has raised this issue, which has been rejected by Judge, Small Causes Court by order dated 15.12.2006. Subsequent applications raising same issues are barred by res-judicata as held by Supreme Court in Barkat Ali Vs. Badri Narain, 2009 (1) ARC 109 (SC).
10.I have considered the arguments of the counsel for the parties and examined the record. The question as to whether intricate issue relating to title is involved in this suit and the plaint is liable to be returned under Section 23 of Provincial Small Causes Court Act, 1887. Relevant provisions of Provincial Small Causes Court Act, 1887 are quoted below:-
15. Cognizance of suits by Courts of Small Causes.--(1) A Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.
(3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order.
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 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.
11. In Uttar Pradesh a suit for arrears of rent and ejectment of tenant up to the valuation of Rs. 50,000/- is cognizable by Judge Small Causes Court. Supreme Court in Natraj Studios (P) Ltd. v. Navrang Studios, AIR 1981 SC 537, held that exclusive jurisdiction is given to the Court of Small Causes and jurisdiction is denied to other courts to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises. Jurisdictional facts have necessarily to be decided by the court where the jurisdictional question falls to be decided, and the question may fall for decision before the court of exclusive jurisdiction or before the court of ordinary jurisdiction. A person claiming to be a landlord may sue his alleged tenant for possession of a building. In such a suit, the defendant may deny the tenancy but the denial by the defendant will not oust the jurisdiction of Court of Small Causes. If ultimately the court finds that the defendant is not a tenant the suit will fail for that reason. The defendant's plea will not straight away oust the jurisdiction of the ordinary civil court but if ultimately the plea of the defendant is accepted, the suit must fail on that ground. So the question whether there is relationship of landlord and tenant between the parties or such other jurisdictional questions may have to be determined by the court where it falls for determination -- be it the Court of Small Causes or the ordinary civil court.
12. Supreme Court again in Budhu Mal v. Mahabir Prasad, AIR 1988 SC 1772 has held 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. 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. In Transmarine Corpn. v. Zensar Technologies Ltd., (2009) 10 SCC 750, it has been held that in a suit for eviction in which relationship between the parties has been admitted, it would not be open for the tenant to deny the title of the appellant landlords.
13. Rule of estoppel has been provided under Section 116 of Evidence Act, 1872, which is quoted below:-
116. Estoppel of tenant; and of licensee of person in possession.--No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
14. Supreme Court in Rita Lal v. Raj Kumar Singh, AIR 2002 SC 3341, held that the rule of estoppel between landlord and tenant enacted in Section 116 of the Evidence Act has three main features: (i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. Same view has been taken in Payal Vison Ltd. Vs. Radhika Chaudhary, (2012) 11 SCC 405. and by this Court in Ajaz Carpets (M/S) Vs. M/S Birla International Pvt. Ltd. 2013 All C J 2041.
15. In this case, the petitioner in her written statement has admitted lease deed dated 18.12.1970, by which premises in dispute was let out to her. Thus in view of aforesaid proposition of law, she is estopped from denying title of landlord so long as she does not surrender the possession of the premises in dispute to the plaintiffs. On raising the plea of title, Judge Small Causes Court is not obliged to return the plaint under Section 23 of Provincial Small Causes Court Act, 1887. In view of the admission of the petitioner relating to tenancy, the application under Section 23 was not maintainable and has been rightly rejected.
16. Now the question arises about the application of the petitioner under Section 331-A of U.P. Act No. 1 of 1951. Relevant provisions are quoted below:-
Section 142.- Right of a bhumidhar to the exclusive possession of all land in his holding - (1) A bhumidhar with transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is a bhumidhar and to use it for any purpose whatsoever.
Section 143.- Use of a holding for industrial or residential purposes - [(1) Where [bhumidhar with transferable rights], uses his holding in part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.
(1A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding, the Assistant Collector in-charge of the sub-division may in the manner prescribed demarcate such part for the purposes of such declaration.
(2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this Chapter (other than this section) shall cease to apply to the [bhumidhar with transferable rights], with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.
[(2\3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter other than this section shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject].
Section 156.-Letting of Land - [(1) No bhumidhar, or asami shall let for any period whatsoever any land comprised in his holding except -
(a) in the cases provided for in section 157, or
(b) to a recognized educational institution for a purpose connected with instruction in agriculture, horticulture or animal husbandry.] (2) In this Chapter the word "Lease" and its cognate expressions have the meaning assigned to them in the Transfer of Property Act, 1882 (IV of 1982).
Section 165.- Effects of lease in contravention of section 157. - [Where a bhumidhar has let out his holding or any part thereof in contravention of the provisions of section 156 or section 157] the lessee will, notwithstanding anything contained in any law or contract or document of lease, become and be deemed to be -
(a) where the total area of the land held by him together with the land held by his family, including the land, if any, let out to him or any member of his family, does not exceed twelve and a half acres, [bhumidhar with non-transferable rights] thereof, and],
(b) where the total area as aforesaid exceeds [twelve and half acres,] a purchaser thereof and the provisions of sections 154 and 163 shall mutatis mutandis apply.
Section 331 (1).- Cognizance of suits, etc. under this Act. (1) - Except as provided by or under this Act, no court other than a court mentioned in column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof [ or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application].
[Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII, shall not apply to such holding or part thereof.] [Explanation - If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.] Section 331-A.- Procedure when plea of land being used for agricultural purpose is raised in any suit. - (1) If in any suit, relating to land held by a bhumidhar instituted in any court, the question arises or is raised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistance Collector in-charge of the sub-division for a decision of that issue only:
Provided that where the suit has been instituted in the court of Assistant Collector in-charge of the sub-division, it shall proceed to decide the question in accordance with the provisions of section 143 or 144, as the case may be.
(2) The Assistant Collector in-charge of the sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under section 143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue.
(3) The court shall then proceed to decide the suit accepting the finding of the Assistant Collector in-charge of the sub-division on the issue referred to it.
(4) The finding of the Assistant Collector in-charge of the sub-division on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the court which referred the issue.
17. Under Section 142 of the U.P. Act No. 1 of 1951, a bhumidhar is given right to use his holding for any purpose. Ram Lal and Munna Lal constructed a factory premises over plots 63 and 64 of village Sahjani, tahsil and district Unnao, which consists of factory building, bungalow, godown, quarters, well and open vacant land of the area 2-1/2 bigha, prior to 1970 and let out the factory premises to the petitioner for the purposes of establishing a factory of Iron Casting. Thus factory premises was let out for the industrial purposes and not the bhumidhari land for agricultural purpose. Similar matter came for consideration before Constitution Bench of Supreme Court in Nalanikant Ramadas Gujjar v. Tulasibai, AIR 1997 SC 404, in which it has been held that the lease had been granted to the Binny Company for installing ginning and processing machines and admittedly a building was constructed in which ginning and processing machines were installed and godown was also constructed. Once a piece of land which was agricultural in nature is put to non-agricultural use, it shall be covered by the definition of ''premises' under Section 5(8) of the Bombay Rent Act. It need not be impressed that clause (a) of Section 5(8) excludes from the definition of ''premises' "any land not being used for agricultural purposes". The words not being used are significant. It can be said that the framers of the Act for applying the provisions of the said Act in the definition of ''premises' indicated that the crucial date shall be the date when the right conferred under the Act is sought to be exercised.
18. Similar issue arose before Supreme Court in which building and land together were let out and later on tenant began to claim right under the land law in K. Bhagirathi G. Shenoy v. K.P. Ballakuraya, AIR 1999 SC 2143, in which it has been held that a reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice in olden days for residential buildings to have sprawling areas as adjuncts to such buildings. That practice could well have been followed by the parties in the lease deed which is the subject-matter of the case. For the aforesaid reasons we take the view that the lease was of the building with the landed area meant as appurtenant thereto. Its corollary is that the lease is exempted from Chapter II of the Act and the consequence is that the respondent cannot claim any right under Section 72-B of the Act and the application filed by the tenant under Section 72-B of the Act was dismissed.
19. Thus in view of the aforesaid discussions, it is held that tenancy of the petitioner was for industrial purpose. Land lying in the factory premises partakes the nature of non-agricultural land and there was no tenancy for agricultural purpose. The petitioner is estopped from raising plea contrary to the lease deed. Suit for ejectment of tenant from industrial premises does not fall in any entry of Schedule II of U.P. Act No. 1 of 1951 and the suit is not barred under Section 331 of this Act. In view of the estoppel operating against the petitioner, issue relating to nature of the land is not required to be referred to Assistant Collector under Section 331-A. The Courts below have not committed any illegality in rejecting the application under Section 331-A of U.P. Act No. 1 of 1951. Similar application was filed by the petitioner was rejected by Judge, Small Causes Court by order dated 15.12.2006. Subsequent applications raising same issues are barred by res-judicata as held by Supreme Court in Barkat Ali Vs. Badri Narain, 2009 (1) ARC 109 (SC). Contention of the counsel for the petitioner that loan taken on 08.07.1964 and was already paid, while the provisions of Section 143 (3) of U.P. Act No. 1 of 1951 was added in 1978 as such provisions of Section 143 (3) is not applicable, cannot be accepted as Section 143 (3) covers loan taken prior to commencement of Act.
20. However, later part of the judgment of revisional court is illegal. Supreme Court in Rhone Poulenc (India) Ltd. Vs. State of U.P., AIR 2000 SC 3182, has held that while dismissing the Court has no jurisdiction to pass any further order. However, it shall be open for the trial court to act according to the judgments of Supreme Court in Atmaram Properties Ltd. Vs. Federal Motors, (2005) 1 SCC 705 and Anderson Right Vs. Amarnath Rai, (2005) 6) SCCC 489.
21. In view of the aforesaid discussions, the writ petition partly succeeds and is partly allowed. The order of District Judge dated 18.07.2014, enhancing mesne profit is set aside. Other part of the judgment is upheld.
Order Date :- 8.8.2014 mt