- (1.) C.A. No.629 of 2004 This appeal has been preferred against the judgment and order dated 6.9.2002, passed by the High Court of Allahabad in CMWP No.25785 of 2002, by way of which, the High Court has dismissed the writ petition of the appellants, affirming the judgment and decree of the Small Causes Court dated 20.4.2001, which stood affirmed by the Revisional Court, vide judgment and decree dated 13.5.2002. Civil Appeal No.630 of 2004 has been filed against the judgment and order dated 25.2.2003, in Review Application No.206905 of 2002 of the High Court of Judicature at Allahabad, dismissing the review petition. In the aforesaid judgments, the courts below have held, that the relationship of a landlord and tenant did not exist between respondent nos.1 and 2 and the appellants.
(2.) Facts and circumstances giving rise to this appeal are that: A. The dispute pertains to the ownership of shop no.53/11 (old number) corresponding to its new number, i.e. 53/8, Nayayaganj, Kanpur Nagar. Janki Bibi (Ist) daughter of Har Dayal, was married to one Durga Prasad, son of Dina Nath. Radhey Shyam was the adopted son of Durga Prasad, whose son Shyam Sunder was married to Janki Bibi (2nd). Shyam Sunder died in the year 1914. Thus, Radhey Shyam created a life interest in the property in favour of Janki Bibi (2nd), by way of an oral Will, which further provided that she would have the right to adopt a son only with the consent of Mohan Lal, the grand son of Har Dayal. Gopi Krishan, the great grand son of Mohan Lal, claims to have been adopted by Janki Bibi (2nd), with the consent of Mohan Lal, and as regards the same, a registered document was also prepared. B. Gopi Krishan filed a Regular Suit No.45 of 1956 against Smt. Janki Bibi (2nd) in the Court of the Civil Judge, Mohanlal Ganj in Lucknow, seeking the relief of declaration, stating that Janki Bibi was only a life estate holder in respect of the properties shown in Schedule 'A', and that further, she was not entitled to receive any compensation or rehabilitation grant bonds with respect to the village Nawai Perg, Jhalotar Ajgain, Tehsil Hasangunj, District Unnao. He stated all this, while claiming himself to be her adopted son. C. Janki Bibi (2nd) contested the suit, denying the aforesaid adoption. However, the suit was decreed vide judgment and decree dated 23.4.1958, holding that while Smt. Janki Bibi (2nd) was in fact the life estate holder of Radhey Shyam's property, she was also entitled to receive the said compensation, in respect of the property in question herein. D. The suit shop was under the tenancy of one Shri Badri Vishal. However, Janki Bibi (2nd) transferred the same in favour of the appellant's mother Smt. Ram Kumari, wife of Shri Badri Vishal, vide registered sale deed dated 7.5.1974. The said tenant, Shri Badri Vishal died on 23.1.1986, and the tenancy was hence inherited by the appellants. They thus, continued to pay rent to the vendee Smt. Ram Kumari. Smt. Janki Bibi (2nd) died on 27.2.1996. E. Respondent no.1 Gopi Krishan, filed SCC Suit No.77 of 1989 on 21.2.1989, alleging that the appellants had defaulted in making the payment of rent, and that a sum of Rs.2,768.62 was outstanding against them, as rent payable between the time period 17.2.1986 to 13.8.1988, and also damages for the period 14.8.1988 to 21.2.1989, amongst other amounts due. During the pendency of the suit, Shri Gopi Krishan respondent no.1, sold the said suit property to Smt. Vidyawati Rathaur respondent no.2, vide registered sale deed dated 3.8.1989. In view thereof, respondent no.2 got herself impleaded as plaintiff no.2 in Suit No.77 of 1989. F. The appellants contested the suit on various grounds, claiming themselves to be the owners of the property on the basis of a sale deed. Smt. Vidyawati Rathaur respondent no.2, also filed Suit No.792 of 1995 before the Civil Court, Kanpur, seeking permanent injunction, restraining the appellants from causing any addition(s) or alteration(s) in the shop in dispute. The said suit is still pending. G. The Small Causes Court, Kanpur, dismissed Suit No.77 of 1989 vide judgment and decree dated 10.5.1999, holding that no relationship of landlord and tenant existed between respondent nos.1 and 2 and the appellants. However, the said judgment and decree was set aside by the Revisional Court, vide judgment and decree dated 8.3.2000, and the case was remanded to the Judge, Small Causes Court for deciding the same afresh. H. After such remand, the suit was decreed vide judgment and decree dated 20.4.2001, holding that the suit property had been acquired by Gopi Krishan Agrawal, plaintiff/respondent, by virtue of the judgment in Suit No.45 of 1956, which was decided on 23.4.1958, and that the relationship of a landlord and tenant, could in fact be deemed to have been created between the parties. The appellants/defendants had hence, been in default of payment of rent. I. Aggrieved, the appellants filed Revision No.57 of 2001 before the learned District Judge, Kanpur, which was dismissed vide judgment and order dated 13.5.2002. The said judgment and order has been affirmed by the High Court, dismissing the writ petition vide judgment and order dated 6.9.2002. J. Aggrieved, the appellants preferred a review petition, which has also been dismissed by the impugned judgment and order dated 25.2.2003. Hence, this appeal.
(3.) Shri D.K. Garg, learned counsel appearing for the appellants, has submitted that the Small Causes Court has no jurisdiction/ competence, to determine the issue of title over the property, and that all the courts below have erred, as they have adjudicated upon the issue of title. Such a course is not permissible in collateral proceedings, as the issue of title can be adjudicated upon, only by the Civil Court. Moreover, the judgment and order dated 23.4.1958 could not be given effect, in view of the provisions of Section 14(2) of the Hindu Succession Act, 1956 (hereinafter referred to as the 'Act, 1956'). Therefore, the appeal deserves to be allowed.;