S.U.Khan, J. - (1.) -Heard Shri Arvind Srivastava, learned counsel for the petitioners and Shri S. P. Pandey, learned counsel for the contesting respondents.
(2.) THIS is plaintiffs' writ petition. Original petitioners claiming themselves to be owners-landlords of the house in dispute, filed suit for eviction against original respondents No. 1 to 8 claiming that most of the defendants were their tenants and some of the defendants were sub-tenants inducted by the tenants. The defendants who were alleged by the plaintiffs to be main tenants filed written statement claiming that they were not the tenants, plaintiffs were not the owners or landlords and that the defendants who were alleged to be the main tenants were owners through the adverse possession over the site of the house in dispute and the house had been constructed by them or their ancestors. They also pleaded and asserted that complicated question of title was involved hence plaintiffs have filed suit before regular civil court and in case plaint should be returned to be filed before regular civil court under Section 23 of Provincial Small Causes Court Act. The suit was filed before Judge, Small Causes Court, Azamgarh in the form of S.C.C. Suit No. 8 of 1981. Against some interim orders matter was carried in revision and ultimately it was directed that the trial court should decide the issue regarding return of plaint alongwith other issues while deciding the suit finally. Ultimately J.S.C.C./Civil Judge/IInd Additional Chief Judicial Magistrate, Azamgarh through judgment, decree and order dated 27.11.1991 held that the matter involved question of title hence suit was not cognizable by J.S.C.C. Plaint was directed to be returned to the plaintiff for filing it before regular civil court. Against order dated 27.11.1991, S.C.C. Revision No. 1 of 1992 was filed. IInd Additional District Judge, Azamgarh through judgment and order dated 20.7.1992 dismissed the revision hence this writ petition. Plaintiffs are descendants of one Raghubir Prasad who had a brother by the name of Mahaveer Prasad. Mahaveer Prasad had a son by the name of Ram Lakhan. Complete pedigree is given in the judgment of this Court dated 30.6.1980 given in Second Appeal No. 3246 of 1975. The said judgment was filed before the trial court and its copy is Annexure-4 to this writ petition. In the suit giving rise to the aforesaid second appeal (O.S. No. 35 of 1958), there were 14 defendants. Defendant Nos. 1 to 13 belonged to the branch of Raghubir Prasad. Defendant No. 14 was Diwakar Dixit predecessor-in-interest of the defendants in the suit giving rise to the instant writ petition who were alleged to be main tenants by the plaintiffs-petitioners. In the suit of 1958 two houses were in dispute. Both the houses initially belonged to Baldeo Prasad father of Raghubir Prasad and Mahabir Prasad. The share of Mahabir Prasad in the two houses was auctioned in proceedings under Encumbered Estates Act in 1943. The suit of 1958 had been filed by auction purchaser for possession. During pendency of suit of 1958 Diwakar Dixit died and was substituted by his two sons and widow who were main defendants in the suit of 1981 giving rise to the instant writ petition and who are respondents No. 1, 2 and 3 in the instant writ petition. In the suit of 1958 defendants No. 1 to 13, i.e., descendants of Raghubir Prasad contended that Diwakar Dixit defendant No. 14 in the said suit was their tenant. One of the sons of Diwakar Dixit filed written statement stating that his father was tenant of defendants 1 to 13 and used to pay rent to them and after his death also rent was being paid to defendants No. 1 to 13.
(3.) SUIT of 1958 had been decreed by the trial court and appeal was also dismissed. However, second appeal was allowed on the ground that suit was barred by time as plaintiffs' auction purchaser were never in possession. For recording the said finding reliance was specifically placed upon the fact that tenant Diwakar Dixit was paying rent to the descendants of Raghubir Prasad who were defendants No. 1 to 13 in the said suit. Relevant finding of the second appeal's judgment are quoted below : "No convincing evidence of the realisation of rent of their share (plaintiffs' share) is on the record on the other hand one of the sons of Diwakar Dixit original tenant, gave out that the rent was being paid to the defendants and not to the plaintiffs. House No. 1 is admittedly in possession of tenant and the plaintiff could not be in actual possession of the same." Both the courts below brushed aside the judgment of the second appeal on the ground that the second appeal was allowed only on the ground of limitation and question of tenancy was neither relevant nor decided by the said judgment.;