Allahabad High Court

1. Heard Shri Jag Prasad Yadav, learned counsel for the petitioner and Shri Aman Ahmad, learned counsel appearing under the authority of Shri Shamshad Ahmad Khan, learned counsel for the respondents on caveat.

2. By means of the instant petition, the petitioner assails the order dated 04.01.2001 passed in S.C.C. Suit No.129/1993, which was decreed against the petitioner, which was further carried in a S.C.C. Revision which also came to be dismissed by means of the order dated 12.08.2025.

3. The submission of the learned counsel for the petitioner is in three fold. (i) The notice which was issued to the petitioner/tenant was in respect of House No.372/57 clearly indicating that the tenancy comprised of one temporary shop covered with Khaprail on the outer Chabutra of the house in question, whereas, the suit which was filed by the private-respondents, included not only the temporary shop, but another shop inside the house which was also made the subject matter of the suit. Thus, the contention is that there is a difference in the accommodation shown under the tenancy of the petitioner in the notice and the suit and this discrepancy could not be reconciled and therefore, the decision rendered by the S.C.C. Court is bad. 2 A227 No. 6390 of 2025 (ii) It is also urged that the private-respondents claimed rights in the properties on the basis of a sale-deed, executed by Shri Girdhari Lal in favour of the private-respondents. It is stated that Shri Girdhari Lal was not the owner of the property, rather the property belonged to one Shri Durga Prasad Shukla. It was also the case of the petitioner that he was the tenant of Shri Durga Prasad Shukla and in such circumstances where there was no relationship of landlord and tenant between the plaintiffs and defendant, the suit could not have been decreed. Alternatively, there was a dispute in the title and in such circumstances, the proceedings should have been referred under Section 23 of the Provincial Small Causes Courts Act, 1987 (in short, 'the Act of 1887') before the regular Court and having ignored this aspect, the suit was wrongly decreed. (iii) The petitioner-tenant during pendency of the revision, in execution proceedings, was put out of possession since

07.04.2018 and the execution took place both in respect of the shop which was said to be on the Chabutra and one which was shown inside the house which also could not have been done. Accordingly, the two judgments and decrees passed by the S.C.C. Court as well as the revisional Court are patently erroneous.

4. Learned counsel for the private-respondents, on the other hand, submits that the private-respondents had purchased the property from Shri Girdhari Lal. The private-respondents, who were the plaintiffs before the trial Court after putting the petitioner to notice and terminating his tenancy validly instituted the S.C.C. Suit. The defence, which was raised by the petitioner was duly noticed both by the trial Court as well as the revisional Court and it was found that the petitioner was in arrears of rent and his tenancy being validly terminated and these two facts being essentially a question of fact coupled with the fact that the petitioner did not dispute his status of a tenant and having failed to establish any tenancy rights between the petitioner and Shri Durga Prasad Shukla, hence, the Court recorded categorical findings against the petitioner which has attained finality and in such circumstances, the two orders do 3 A227 No. 6390 of 2025 not require any interference.

5. The Court has heard learned counsel for the parties and also perused the material on record.

6. Insofar as the first submission advanced by the learned counsel for the petitioner is concerned, the purpose of notice terminating the tenancy is only in respect of the fact that the petitioner is put to notice regarding the demand for arrears and also in terms of the protection granted by the State Rent Act as well as provided in Transfer of Property Act, 1882, which stipulates that the tenancy needs to be terminated before instituting the suit, hence, a mere discrepancy insofar as the shops are concerned, do not impact the maintainability of the suit for the reason that even in the notice as well as in the plaint, the house number indicated is 372/57 and not one or two shops. Nothing could be demonstrated by the learned counsel for the petitioner as to how this fact of two shops was proved by the defendant in his evidence.

7. The plea raised by the petitioner regarding the relationship of landlord and tenant between the petitioner and Shri Durga Prasad Shukla, was a plea which had to be established by the petitioner, who could not lead any cogent evidence to indicate the aforesaid fact except for filing of the sale- deed. However, this aspect has been taken note of both by the revisional Court as well as the trial Court on the basis of evidence led by the parties and the findings having been returned concurrently.

8. This Court does not find that there is perversity especially when the learned counsel for the petitioner could not demonstrate any evidence led by the petitioner to establish that there was some right of tenancy created between the petitioner and Shri Durga Prasad Shukla. Merely taking a plea of Section 23 of the Act of 1987 does not mandate that the S.C.C. Court is divested of its jurisdiction and it must refer the matter to the regular Court rather unless the S.C.C. Court finds that a complicated issue of title is involved which requires adjudication only then the reference can be made to refer the parties to get their rights adjudicated in a to the regular suit as provided under Section 23 of the Act of 1887 and this plea is not made out in the instant case. [See : Jugeshwar Prasad v. 4 A227 No. 6390 of 2025 Hanuman Prasad, 2025 SCC OnLine All 2949].

8. In this view of the matter, merely because the petitioner had raised a plea under Section 23 of the Act of 1887 without any cogent and substantiating his plea with the evidence on record, it does not come to the aid of the petitioner.

9. Considering the third submission of the learned counsel for the petitioner, it is an admitted fact that the petitioner has been evicted from the property under the execution proceedings on 07.04.2018, even though the revision may have been pending, but the fact remains that once execution proceeding had been initiated, it was always open for the petitioner to have sought a relief before the revisional Court, but there is nothing to indicate as such. There is nothing on record to indicate that during the execution proceedings, the petitioner had filed his objections under Section 47 CPC which have been decided either way.

10. Be that as it may, had the petitioner filed those objections and they were decided against him, even then he could have assailed the order further, but in case if no such objections were filed, then the petitioner has already missed the boat and what he cannot do directly, cannot be done indirectly either.

11. In the aforesaid circumstances, it cannot be said that once the decree has been executed, the petitioner who could have raised objections before the Executing Court at the appropriate time, having failed to do so, now he cannot raise this issue especially when the two Courts have returned concurrent findings against him which could not be shown to be perverse.

12. In the overall facts and circumstances, this Court is of the clear opinion that there is no palpable error which may persuade this Court to entertain the petition.

13. For all the aforesaid reasons, the petition is misconceived and is accordingly dismissed. October 31, 2025 Rakesh/- (Jaspreet Singh,J.)

1. Heard Shri Jag Prasad Yadav, learned counsel for the petitioner and Shri Aman Ahmad, learned counsel appearing under the authority of Shri Shamshad Ahmad Khan, learned counsel for the respondents on caveat.

2. By means of the instant petition, the petitioner assails the order dated 04.01.2001 passed in S.C.C. Suit No.129/1993, which was decreed against the petitioner, which was further carried in a S.C.C. Revision which also came to be dismissed by means of the order dated 12.08.2025.

3. The submission of the learned counsel for the petitioner is in three fold. (i) The notice which was issued to the petitioner/tenant was in respect of House No.372/57 clearly indicating that the tenancy comprised of one temporary shop covered with Khaprail on the outer Chabutra of the house in question, whereas, the suit which was filed by the private-respondents, included not only the temporary shop, but another shop inside the house which was also made the subject matter of the suit. Thus, the contention is that there is a difference in the accommodation shown under the tenancy of the petitioner in the notice and the suit and this discrepancy could not be reconciled and therefore, the decision rendered by the S.C.C. Court is bad. 2 A227 No. 6390 of 2025 (ii) It is also urged that the private-respondents claimed rights in the properties on the basis of a sale-deed, executed by Shri Girdhari Lal in favour of the private-respondents. It is stated that Shri Girdhari Lal was not the owner of the property, rather the property belonged to one Shri Durga Prasad Shukla. It was also the case of the petitioner that he was the tenant of Shri Durga Prasad Shukla and in such circumstances where there was no relationship of landlord and tenant between the plaintiffs and defendant, the suit could not have been decreed. Alternatively, there was a dispute in the title and in such circumstances, the proceedings should have been referred under Section 23 of the Provincial Small Causes Courts Act, 1987 (in short, 'the Act of 1887') before the regular Court and having ignored this aspect, the suit was wrongly decreed. (iii) The petitioner-tenant during pendency of the revision, in execution proceedings, was put out of possession since

07.04.2018 and the execution took place both in respect of the shop which was said to be on the Chabutra and one which was shown inside the house which also could not have been done. Accordingly, the two judgments and decrees passed by the S.C.C. Court as well as the revisional Court are patently erroneous.

4. Learned counsel for the private-respondents, on the other hand, submits that the private-respondents had purchased the property from Shri Girdhari Lal. The private-respondents, who were the plaintiffs before the trial Court after putting the petitioner to notice and terminating his tenancy validly instituted the S.C.C. Suit. The defence, which was raised by the petitioner was duly noticed both by the trial Court as well as the revisional Court and it was found that the petitioner was in arrears of rent and his tenancy being validly terminated and these two facts being essentially a question of fact coupled with the fact that the petitioner did not dispute his status of a tenant and having failed to establish any tenancy rights between the petitioner and Shri Durga Prasad Shukla, hence, the Court recorded categorical findings against the petitioner which has attained finality and in such circumstances, the two orders do 3 A227 No. 6390 of 2025 not require any interference.

5. The Court has heard learned counsel for the parties and also perused the material on record.

6. Insofar as the first submission advanced by the learned counsel for the petitioner is concerned, the purpose of notice terminating the tenancy is only in respect of the fact that the petitioner is put to notice regarding the demand for arrears and also in terms of the protection granted by the State Rent Act as well as provided in Transfer of Property Act, 1882, which stipulates that the tenancy needs to be terminated before instituting the suit, hence, a mere discrepancy insofar as the shops are concerned, do not impact the maintainability of the suit for the reason that even in the notice as well as in the plaint, the house number indicated is 372/57 and not one or two shops. Nothing could be demonstrated by the learned counsel for the petitioner as to how this fact of two shops was proved by the defendant in his evidence.

7. The plea raised by the petitioner regarding the relationship of landlord and tenant between the petitioner and Shri Durga Prasad Shukla, was a plea which had to be established by the petitioner, who could not lead any cogent evidence to indicate the aforesaid fact except for filing of the sale- deed. However, this aspect has been taken note of both by the revisional Court as well as the trial Court on the basis of evidence led by the parties and the findings having been returned concurrently.

8. This Court does not find that there is perversity especially when the learned counsel for the petitioner could not demonstrate any evidence led by the petitioner to establish that there was some right of tenancy created between the petitioner and Shri Durga Prasad Shukla. Merely taking a plea of Section 23 of the Act of 1987 does not mandate that the S.C.C. Court is divested of its jurisdiction and it must refer the matter to the regular Court rather unless the S.C.C. Court finds that a complicated issue of title is involved which requires adjudication only then the reference can be made to refer the parties to get their rights adjudicated in a to the regular suit as provided under Section 23 of the Act of 1887 and this plea is not made out in the instant case. [See : Jugeshwar Prasad v. 4 A227 No. 6390 of 2025 Hanuman Prasad, 2025 SCC OnLine All 2949].

8. In this view of the matter, merely because the petitioner had raised a plea under Section 23 of the Act of 1887 without any cogent and substantiating his plea with the evidence on record, it does not come to the aid of the petitioner.

9. Considering the third submission of the learned counsel for the petitioner, it is an admitted fact that the petitioner has been evicted from the property under the execution proceedings on 07.04.2018, even though the revision may have been pending, but the fact remains that once execution proceeding had been initiated, it was always open for the petitioner to have sought a relief before the revisional Court, but there is nothing to indicate as such. There is nothing on record to indicate that during the execution proceedings, the petitioner had filed his objections under Section 47 CPC which have been decided either way.

10. Be that as it may, had the petitioner filed those objections and they were decided against him, even then he could have assailed the order further, but in case if no such objections were filed, then the petitioner has already missed the boat and what he cannot do directly, cannot be done indirectly either.

11. In the aforesaid circumstances, it cannot be said that once the decree has been executed, the petitioner who could have raised objections before the Executing Court at the appropriate time, having failed to do so, now he cannot raise this issue especially when the two Courts have returned concurrent findings against him which could not be shown to be perverse.

12. In the overall facts and circumstances, this Court is of the clear opinion that there is no palpable error which may persuade this Court to entertain the petition.

13. For all the aforesaid reasons, the petition is misconceived and is accordingly dismissed. October 31, 2025 Rakesh/- (Jaspreet Singh,J.)