A.N.Varma, J. - (1.) THIS petition has been filed by the plaintiff in a suit for eviction filed by the respondent No. 3 Zahid Husain who has died during the pendency of this petition and is represented by his heirs. The suit has had a chequered history. The issue relating to the jurisdiction of the right court which is competent to try the same has consumed in the process nearly 13 years, the parties litigating on that issue time and again. The suit was initially filed in the Court of the learned Judge Small Causes, Moradabad. A written statement was filed by the defendant pleading, inter alia, that the Small Cause Court has no jurisdiction to try the suit inasmuch as the suit has been filed by a lessor of an open piece of land for eviction of the defendant as the lessee. Such a suit, it was contended, was triable on the regular side. This plea was, after contest by the plaintiff, answered against him and in favour of the defendant by an order dated July 8, 1978 passed by the learned Judge Small Cause Court, Moradabad. The learned Judge held that the lease in question was not a lease of an accommodation or building but of an open piece of land only and, consequently, the U.P. Civil Laws (Amendment) Act, 1972 which came into force with effect from September 20, 1972 authorising the small cause courts to try a suit for possession by a lessor for the eviction of a lessee from a building after determination of the lease, was not attracted in the present case. He accordingly directed the return of the plaint for presentation to the court having jurisdiction. It is significant to mention here that inspite of the fact that the learned Judge noticed that certain tin shed and kothri, etc. had been constructed over the disputed land according to the plaint itself and the further fact that the relief in respect of those structures had been claimed it was held that the lease was in respect of an open piece of land notwithstanding the fact that the constructions had been subsequently raised over the same.
(2.) THE petitioner who was the plaintiff in the suit submitted to this order and took back the plaint and, after deleting the first relief, which was for possession over an open piece of land over part of which the aforesaid structures stood, presented the same before the learned Munsif. The defendant again raised the plea of jurisdiction and contended that in view of the deletion of the first relief the suit was triable by the learned Judge Small Cause court and not by the learned Munsif. This plea was upheld by the learned Munsif who directed the return of the plaint for presentation before the Small Cause Court and the order passed by the learned Munsif was affirmed in appeal by the learned Second Additional District Judge, Moradabad. The plaintiff has, by means of this petition, assailed the validity of the last two orders as well as an order passed upon review by the plaintiff passed by the learned second Additional District Judge on January 13, 1981. For the petitioner it is contended that on an interpretation of the plaint the trial court had on the earlier occasion arrived at a very categorical finding that construction of the tin shed and kothri in the year 1971 notwithstanding the lease was at all material times in respect of an open land and not any building or accommodation. The deletion of the first relief from the plaint did not make any material difference to the issue as regards the court competent to try the suit. The said decision, it was urged, operated as res judicata against the plea raised by the petitioner that the learned Munsif has no jurisdiction to try the suit. In support, learned counsel placed reliance upon two decisions of this Court in Sarv Daman Singh and others vs. Deputy Director of Consolidation, Jaunpur and others : 1986 ALJ 1302 and Bhawani Prasad and others vs. Board of Revenue, U.P. Allahabad and others : 1985 ALJ 176.
(3.) FOR the respondent, it was contended that the impugned orders do not suffer from any error of jurisdiction or law. They have rightly arrived at the conclusion that on a true and proper construction of the plaint, the suit was triable by the Small Cause Court and not by the learned Munsif.;