TMI Blog2010 (10) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter called the Act 1972). Nirmal Jeet Singh Hoon, (hereinafter referred to as 'petitioner'), was defendant No. 3 in the above-mentioned case which was Suit for ejectment and arrears of rent filed by the respondents/plaintiffs. The case of the plaintiffs/respondents was that defendant No. 1, namely, Shri Ram Prasad (dead-nothing on record to show as to whether his legal heirs had been substituted) and defendant No. 2, namely, M/s United Hotels Pvt. Ltd., had illegally sub-let the suit property to the petitioner; and defendants had also refused to pay the amount due as rent and they should, therefore, be evicted from the suit property. (B) Smt. Sarvari Khatoon, Plaintiff No. 4 in Small Cause Case No. 41 of 1974 died durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, it was held that petitioner was not a sub-tenant in possession of the property and defendant Nos. 1 and 2 were in exclusive possession of the premises. (E) The High Court of Uttarakhand at Nainital vide judgment and order dated 23.7.2009 dismissed the Revision Petition filed by the petitioner and upheld the decree of the Small Cause court. The High Court confined its judgment to the questions of arrears of rent and sub-letting. The High Court held that the trial court had jurisdiction to entertain the suit; notice was served on all the parties in accordance with the provisions of Section 106 of the TP Act. The High Court also agreed with the findings of the trial court with respect to the questions relating to the arrears of rent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the advocates who had dealt with the case relating to the suit property at an early stage and have been elevated to the Bench of the High Court. He kept his case limited to the issue of the transfer of the suit property prior to the institution of the Suit and his only submission is that such a big fraud has been committed in this case, that it requires a thorough investigation against the judge who has decided this case. In spite of several questions put to him by us, wherein he has been asked as under what circumstances he was concerned with the property, he could not point out any document whatsoever, to show that he had been in lawful possession of the property, nor could he explain under what circumstances he could get the possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare in the property in favour of plaintiff No. 1. The plaintiffs are admittedly being the co-owner of the property, it is immaterial if the other co-owners have transferred their share in their favour or not. In any case, the defendants cannot be said to be the aggrieved person even if it is presumed that the said sale deed or gift deed were executed by imposters. The real such lady could come and claim the relief and question the said transfer, but nobody else has a right to question the same. Even otherwise the adjudication whether the sale deed or gift deed executed by them is without any right or title, cannot be tried by the court of Small Cause and this can only be investigated by a competent court or original civil jurisdiction that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Section 23 of the Act, 1887, this Court in Budhu Mal v. Mahabir Prasad and Ors. AIR 1998 SC 1772, held as under: 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 Cause 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. (Emphasis added) 8. Procedure adopted in trial of the case before the Small Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petition itself. 11. Paragraph 24 of the impugned judgment dated 23.7.2009 makes it evident that the dispute was only regarding the arrears of rent and eviction. The case of the tenants had been limited to the extent that they had not committed any default in payment of rent and no arrears had been due. Further, the validity of the notice under Section 106 of TP Act was challenged and the District Judge, Dehradun, the Small Cause Court had no jurisdiction to entertain the suit and no other point was urged though in the revision petition large number of grounds had been taken. It is settled legal proposition that court is supposed to respond only to the issue agitated before it and in case at the time of hearing the issue was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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