IMPORTANT POINT
Suit involving title dispute of property cannot be decided by Small Causes Court.

Sudhir Agarwal, J.—This writ petition has been filed though titled under Article 226 of the Constitution of India but, in fact is under Article 227 assailing order dated 09.10.1991 passed by VIII Additional District Judge, Varanasi in Civil Revision No. 164 of 1989, whereby it has set aside. Trial Court’s order dated 4.5.1987 and directed it to decide suit itself within two months, after hearing the parties as it is a summary case.

2. The facts in brief giving rise to the present dispute are as under:—

3. The plaintiff-respondent No. 2 filed suit No. 67 of 1978 in the Court of Khafifa Judge, Varanasi (Small Causes Court) impleading the petitioner as sole defendant. The relief sought in the aforesaid suit is for eviction of the petitioner-defendant from the property in dispute and for decree of rent amounting to Rs. 290/- from September, 1974 to January, 1976 and Rs. 300/-towards notice period.

4. The property shown at the bottom of plaint is house No. CK 43/86 Mohalla Govindpura (Chhatta Tale), Varanasi. The plaintiff had stated that one Saraswati Bai was the owner of house Nos. CK 43/85 and CK 43/86 who installed a deity (Sri Thakur Ji Maharaj). The aforesaid property was made waqf to the deity “Sri Thakur Ji Maharaj” . She also deposited Rs. 10,000/-with Maharaja Banaras. It was provided that with the regular income of the house and interest to be earned from the money deposited, Seva Pooja of Sri Thakur Ji Maharaj shall be managed permanently for which the then Maharaja Banaras was appointed a sole trustee and manager. She also later on executed a Will on 10.4.1901 whereafter she died. The Will got registered after her death by one Rameshwari on 2.9.1901. Later on a Trust namely ‘Saraswati Bai Trust’ was established in the name of late Saraswati Bai and management of property as well as Seva Pooja of Sri Thakur Ji Maharaj continued to be observed as per her instructions. The said management and realization of rent etc. continued under the instructions of Maharaja Banaras through managing committee constituted by him or himself. The petitioner-defendant was residing in the property in dispute. The said house in fact was rented to her husband Murahoo Rai who was posted at Varanasi and after his death, petitioner-defendant and her children continued to reside thereat. The initial rent of the house was Rs. 8 per month, which later on was increased to Rs. 10 per month. After the death of husband, petitioner stopped payment of rent and filed Suit No. 141 of 1975 Radhey Shyam and others vs. Thakur Ji Maharaj, wherein she claimed to be the owner of the house in question. The aforesaid suit was filed in the Court of Civil Judge, Varanasi Radhey Shyam son of late Murahoo Rai was plaintiff No. 1 and Smt. Bhagmani Devi, defendant-petitioner was impleaded as plaintiff No. 2, (copy of the aforesaid plaint is on record as Annexure No. 4 to this writ petition). Later on aforesaid suit was withdrawn on 27.11.1981 with leave to file fresh suit. Another Original Suit No. 37 of 1983 was filed which was pending when this writ petition was filed. Notice terminating tenancy was issued which was replied by her denying right of the noticee, hence the aforesaid suit No. 67 of 1978 was filed.

5. Contesting the suit, petitioner-defendant filed her written statement (Annexure No. 2 to the writ petition) wherein she denied her status as tenant and contended that she is the owner of property in dispute. She denied installation of any deity by late Saraswati Bai at the house in question and establishment of Trust. She also denied ownership of property in question by late Saraswati Bai. She said that her husband was an Income-tax Officer and used to remain posted at different places. He owned house in question and after his death, the same is owned by petitioner, her children and other heirs. She denied to have executed any rent receipt in lieu of the rent paid by her to the plaintiff-respondent No. 2.

6. The trial Court vide order dated 4.1.1982 fram