Prakash Krishna, J. - (1.) BY means of the present petition, the petitioner who claims himself as landlord of House No. C/123/435 Purdilpur (North of Jubilee Inter College, Gorakhpur) has sought the quashing of the orders dated 27.10.1999 and 3.8.2001 whereby and whereunder the Courts below have or dered the return of plaint of S.C.C. Suit No. 335 of 1994 for presentation before the Court of competent jurisdiction.
(2.) THE facts of the case may be noticed in brief. THE petitioner claims that the house in dispute originally belongs to Akhileshwari Narain Chandra, Kamleshwari Narain Chandra and Durgeshwari Narian Chandra all sons of late Jagdish Narain Chandra. THE petitioner was a tenant on the first floor of the said house. Late Kishan Prasad Chaudhary alias Chaudhary Kishan Prasad father of the contesting respondent Nos. 1 to 4 was the tenant on the ground floor of the accommodation on monthly rent of Rs. 125/-. S.C.C. Suit No. 17 of 1985 was instituted for recovery of arrears of rent and ejectment against the father of the contesting respondent Nos. 1 to 4. A compromise was arrived at in between the landlord and the tenant on 29.4.1986 and on the basis of the said compromise, the entire arrears of rent were paid and the suit for ejectment was dismissed. THEreafter, on 23.3.1994, the petitioner purchased the said house from the erstwhile owners and landlords for a sum of Rs. 2, 50, 000/-. THE petitioner-instituted S.C.C. Suit No. 27 of 1995 against the respondent Nos. 1 to 5 herein, on the allegations that the respondent Nos. 1 to 4 sons of late Kishan Prasad Chaudhary (who has died) had sublet the disputed accommodation to respondent No. 5 and they have failed to pay the rent inspite of demand and information that the house in question has been purchased by the plaintiff-pe titioner. In the said suit, an application purported to be under section 23 of Provincial Small Causes Courts Act was filed by Rajesh Kumar Singh (respondent No. 2) on the allegation that the question of title is involved. He stated that he was already filed a title Suit No. 255 of 1994 in the Court of Civil Judge (Senior Division) Gorakhpur which was decreed ex parte on 17.1.1995 and the said ex parte decree has been set aside but the matter is still pending. In the said suit, the cancellation of the sale deed in favour of the petitioner has been sought for. Since there is a dispute of title in between the petitioner namely Dr. Bans Bahadur Singh and Rajesh Kumar Singh (respondent No. 2), no final order be passed in J.S.C.C. suit. An objection was filed that evi dence has already been recorded in the J.S.C.C. suit and there is no bona fide dispute of title in between the parties. THE Trial Court by its judgment and or der dated 27.10.1999 ordered the return of plaint as provided for under section 23 of the Provincial Small Causes Courts Act as there is a dispute of title in be tween the parties. THE said order having been confirmed in Civil Revision No. 22 of 1999 on 3.8.2001 by the Court below, the present writ petition has been filed. Learned Counsel for the petitioner submits that there is no bona fide dispute of title in between the parties. Till date the sale deed executed by the erstwhile owners and landlords of the property in question in favour of the pe titioner still subsists. The question of title is not at all involved in the present case. The father of the contesting respondent No. 2 was held to be the tenant in the earlier litigation with the erstwhile owners of the property in question. The petitioner having purchased the property from the erstwhile owners, has stood in the shoes of the landlords and as such, the suit is liable to be proceeded with before the Court of Judge, Small Causes. List has been revised. None is present on behalf of the contesting re spondent.
(3.) CONSIDERED the aforesaid submission of the learned Counsel for the pe titioner. A bare perusal o'f the impugned order of the Revisional Court would show that it was influenced by the mere fact that a title Suit No. 335 of 1994 has been filed by Rajesh Kumar Singh against the present petitioner claiming his title in the property in question. In the said suit cancellation of sale deed standing in favour of the petitioner has been prayed for. On these facts, the Revisional Court opined that in such circumstances, it cannot be said that the question of title has been raised incidentally. According to it, the civil suit was instituted earlier in point of time and the said suit will be decided after taking the evidence of the parties. In my considered view, the said approach of the Rervisional Court is faulty. The fact remains that the sale deed in respect of the disputed accommodation in favour of the petitioner has not yet been ad judged void or voidable nor it is cancelled. The petitioner has purchased the property from the persons who were admittedly the owners and landlords of the property in question. Incidentally, it may be noticed that in the applica tion filed by the respondent No. 2, for the return of the plaint, he has not stated as to on what ground he is challenging the registered sale deed dated 23.3.1994 standing in favour of the petitioner. A copy of the plaint of Suit No. 335 of 1994 has been annexed as Annexure-1 to the writ petition. It has been pleaded therein that the property in dispute was given to him on payment of Rs. 20.000/- but no sale deed was executed. Reliance has been placed on a document dated 8.6.1973 evidencing the delivery of possession to him. A bare perusal of the plaint would show that there is no registered document of transfer of own ership of the disputed accommodation in favour of the plaintiff namely Rajesh Kumar Singh. Rajendra Kumar Singh has not pleaded that he has inherited the property being legal their or representative of the deceased owner. In this view of the matter, prima fade there is no legal document presently in favour of the respondent No. 2 to show that he has become owner of the property in question after the death of original owner. On the other hand, there is a regis tered document in favour of the petitioner. The petitioner, as per the said regis tered sale deed, has parted with a sum Rs. 2, 25, 000/-.;