Judgment

P.B.SAWANT, J.

(1) LEAVE granted.

(2) THE appellant claimed to be the owner of Gher (property in dispute) in the town of Shameili and in that capacity, according to him, he had let out the property to one Habib as long ago as in 1966. He had filed suit g No. 591 of 1966 against Habib for recovery of rent and the suit was decreed. According to the appellant, Habib sublet the property to one Banda. In 1974, the appellant filed a suit for eviction of both Habib and the sub-tenant Banda in the court of Small Causes. This suit was decreed against both Habib and Banda.

(3) THEREAFTER, Banda, filed an application for setting aside the said decree. His application was dismissed. The revision filed by him before the Additional District Judge was also dismissed on 26/09/1977. Thus, according to the appellant, the eviction decree against both Habib and Banda became final on that date.

(4) HOWEVER, Banda filed the present suit on the basis of his title as the owner of the property which has given rise to the present appeal. In the suit, he claimed two reliefs, viz., that the decree passed by the Small Cause court in Suit No. 45 of 1974 was a nullity, and an injunction restraining the defendant in the suit, namely, Rameshwar Dayal, the present appellant, from dispossessing him of the property. The trial court dismissed the suit on 7/05/1979 by recording a finding that plaintiff Banda was not the owner but it was the appellant before us, viz. Rameshwar Dayal who was its owner. In support of its conclusion, the trial court relied on a registered rent deed dated 7/12/1956 under which the present appellant had let out the property in dispute to some other tenant, earlier.

(5) THE judgment of the trial court was set aside in appeal by the Civil Judge, District Muzaffarnagar by his decision dated 13/12/1985 the effect of which was to decree the suit filed by the respondent Banda. The second appeal filed by the appellant was dismissed by the High court by the impugned order.

(6) TWO contentions were raised before us by Shri Shanti Bhushan, the learned counsel appearing for the appellant. The first was that the decree passed by a court of competent jurisdiction could not be declared as not binding on a person who was a party to the suit, and the second was that the view taken by the lower appellate court that the judgment of the Small Cause court did not operate as res judicata between the parties because the Small Cause court had no jurisdiction to decide the title to the suit property, is erroneous in law.

(7) IN support of his contentions, Shri Shanti Bhushan relied upon Mohammed Fasi v. Abdul Qyayum; Alimuddin v. Mohammad Ishak; Ata Mohammad v. Ghera; Nongthombam Mani Singh v. Payam Chand Mohan Singh; labhu Ram v. Mool Chand; Ganga Prasad v. Nandu Ram and Qaisari Begum (Smt) v. Munney which is a decision of the Allahabad High court.

(8) AS against the aforesaid decisions, the learned counsel Shri P.P. Rao appearing for the respondent has relied upon two decisions, viz., Gangabai v. Chhabubai and Richpal Singh v. Dalip.

(9) IN order to appreciate the rival contentions, it is first necessary to reproduce Section 23 of the Provincial Small Cause court Act (hereinafter referred to as the Act).

"23. Return of plaints in suits involving questions of title. (1 Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title. (2 When a court returns a plaint under Ss. (1, it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure and make such order with respect to costs as it d