- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 6-2-1992 rejecting application of the petitioner filed under Section 23 of Provincial Small Causes Court Act (in short as the Act') for returning the plaint and for dismissing the suit as it raises the question of title, and the order dated 8-9-1995 passed by respondent No. 1 dismissing the revision of the petitioner against aforesaid order.
(2.) FACTS of the case in brief are that Smt. Radhika Devi-respondent No. 3 filed Suit No. 20 of 1986 in the Court of Judge Small Causes Court, Kanpur, against Chhedi Lal for recovery of arrears of rent, ejectment and damages on the allegations that he was tenant of the plaintiff at monthly rent of Rs. 35/- She sent notice dated 1st March, 1983, 20-4-1985 and 12-6-1985 as well as 26-11-1985 demanding the arrears of rent and terminating the tenancy. The defendant did not comply with the notice. The defendant- respondent No. 4 filed written statement and it was stated that Jagannath Prasad was owner of the property and he had been paying rent to him. The petitioner filed application for impleadment under Order 1, Rule 10 of Civil Procedure Code for his impleadment as party. He stated that he was owner of the property in question and he has been realising the rent from the defendant and other tenants. His application was allowed and the petitioner was impleaded as one of the defendant in the suit. Subsequently the petitioner filed written statement. In the written statement, he alleged that the property in dispute belonged to Ram Sukh father of plaintiff-respondent No. 3. She was only daughter of her father. Her father had no son. Her father adopted the petitioner in the year 1845 and after death of her father the petitioner is co-owner of the property to the extent of half of share. Plaintiff filed objection and denied that the petitioner is adopted son of her father. The petitioner filed application on 24-7-1991 under Section 23 of the Act for return of the plaint on the allegation that the suit involves question of title. According to him, as co-owner of the property on the basis of adoption and unless that question is decided, the suit filed by the plaintiff-respondent cannot be decreed as against the tenant. This application was rejected by the trial court on 6-2-1992. The trial court took the view that the suit has been filed on the basis of contract of tenancy and that can be examined by the Judge, Small Causes Court. Petitioner filed revision against this order and respondent No. 1 has dismissed the revision by order dated 8-9-1995. The petitioner has challenged these orders in the instant writ petition.
(3.) LEARNED counsel for the petitioner has urged that main question involved in the suit is as to whether the petitioner is co-owner of the property in question by father of the plaintiff-respondent. This controversy cannot be decided by the Judge Small Causes Court. The petitioner has further filed Suit No. 282 of 1989, Jagannath v. Smt. Radhika Devi which is pending in the court of 1st Additional Civil Judge, Kanpur and issue regarding ownership is involved in the said suit.;