- (1.)THIS Revision is preferred by the defendants against the judgment and order dated 12-9-2001 passed by the 7th Addl. District Judge, Nagpur, decreeing the respondent's suit for recovery of possession.
(2.)THE respondent obtained permission for terminating the tenancy of the revision applicants under Clause 13 (3) (ii) of the C. P. and Berar Rent Control Order, 1949. The permission proceedings were contested upto the Supreme Court. The order granting permission to terminate the tenancy of the revision applicants was upheld. Thereupon, the respondent issued a notice for termination of the tenancy on 16. 2. 1988. Since it was not complied with, the respondent filed Civil Suit No. 2401 of 1989 under Section 26 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "act" ).
(3.)THE only question raised on behalf of the applicants is whether the suit was tenable against the applicant No. 2 Nandulal who was described as a trespasser claiming through the tenant under Section 26 of the Act. According to the learned counsel for the applicants, it is not. The learned counsel submits that the respondent has described the applicant No. 2 Nandulal as a trespasser and, therefore, the suit not being one between a landlord and tenant was not tenable against him under Section 26 of the Act. Section 26 reads as follows:-
"26. (1) Notwithstanding anything contained elsewhere in this Act, but subject to the provisions of Sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. (2) Nothing contained in Sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1949 or the Maharashtra Housing and Area Development Act, 1976, or any other law for the time being in force, apply. "
On a plain reading of the provisions, it is clear the Small Causes Court had jurisdiction to entertain the present suit for recovery of possession of the immovable property in question between the respondent and the applicant No. 1, because the relationship between the two was one of landlord and tenant. The question is whether the suit is also tenable against a trespasser who claims through a tenant also or, is it necessary for a landlord to file a separate suit in a separate forum against such trespassers. According to the learned counsel for the applicants, it is necessary to file a separate suit and the suit is not tenable against a trespasser claiming through the tenant. There is no dispute that the applicant No. 2 who is described as a trespasser in the present case claims through the applicant No. 1, the original tenant.