JUDGMENT J.C. Gupta, J.
1. By means of this writ petition, the petitioner has challenged the order dated 4.11.1996 passed by the Judge, Small Causes Courts, respondent No. 2 whereby the application moved on behalf of the petitioner under Section 23 of the Small Causes Court Act to return the plaint for presentation before appropriate Court has been rejected. The petitioner has further prayed for quashing the order dated 6.10.1997 passed by the revisional court whereby the revision preferred against the order of the trial court has been dismissed.
2. The suit for rent and ejectment filed by respondent Nos. 3 to 6 against respondent Nos. 7 to 13 and the petition is pending in the Court of Judge Small Causes. As per the plaint allegation, one Gabbu Lal, the predecessor-in-interest of respondent Nos. 7 to 13 was tenant in the accommodation In question at the rate of Rs. 25.25p. The accommodation was previously owned by Ganesh Sugar Mills, Anand Nagar, district Gorakhpur (now district Maharajganj) and the same was purchased by respondent Nos. 3 to 6 by a registered sale deed dated 25.5.1975 and thereafter Gabbu Lal became tenant of the purchasers. Gabbu Lal died in the year 1974 and thereafter his legal representatives defendant Nos. 1 to 7 (respondent Nos. 7 to 13 of the present writ petition) permanently shifted to State of Bihar inducting defendant No. 8 (the present petitioner) as a sub-tenant in the property in question, without the consent of the plaintiffs. The decree for eviction has been claimed on the grounds of default in payment of rent and subletting. The petitioner filed written statement denying the plaint allegations and according to him there existed no relationship of landlord and tenant between the plaintiffs and defendant Nos. 1 to 7 and the present petitioner has been in occupation of the accommodation in question since before the death of Gabbu Lal and he has perfected his title by adverse possession. It appears that after when the parties adduced evidence and the case was fixed before the trial Court for arguments, an application paper No. 123C was moved on behalf of the petitioner stating that since he has perfected his title by adverse possession, the instant suit is not cognizable on Small Causes Court side and it be returned under Section 23 of the Act for presentation before appropriate Court. This application was rejected by the trial court by the order dated 4.11.1996 and the revision preferred against the said order has also been dismissed by respondent No. 1 by the impugned order dated 6.10.1997.
3. Since counter and rejoinder-affidavits have been exchanged, this writ petition is disposed of finally by this judgment.
4. Sri Pankaj Mithal, learned counsel for the petitioner argued that when the petitioner has pleaded that he has perfected his title by adverse possession and it has also been held earlier in Suit No. 1088 of 1980 that the petitioner's occupation in the premises in question was not as a tenant, the present suit was not cognizable by Judge Small Causes Court as the question of title is directly involved therein and, therefore, the Courts below have committed a manifest error of taw in rejecting the petitioner's application for returning the suit for presentation before the appropriate Court. It was further argued that even assuming the petitioner to be a trespasser, the suit under Section 20 U. P. Act No XIII of 1972 was not maintainable as under the said provision, suit can only be instituted by a landlord against a tenant. In support of his argument, learned counsel placed reliance on the decision in the case of Venkatesh Thimmaiah Gurjalkar v. S. S. Hawaldar. JT 1997 (8) SC 528.
5. On the other hand, Sri Sanjay Misra. learned counsel for the respondent Nos. 3 to 7 argued that as per the plaint allegation the present petitioner has been impleaded in the suit as a sub-tenant of the legal representatives of the deceased tenant. It was contended that the primary question for consideration before the trial court is whether Gabbu Lal was tenant of the erstwhile owner of the property in question and after the transfer of the same in favour of the plaintiff, he became tenant of the plaintiffs. The trial court is further required to go into the plaint allegation that whether legal representatives of the deceased tenant have sub-let the tenanted accommodation to defendant No. 8 or the occupation of the said defendant is on behalf of the legal representatives of the deceased tenant and while determining these Issues, it is within the power of the Small Causes Court to go into the question of title incidentaly.
6. There can be no dispute that on Small Causes Court side, only a suit for rent and ejectment by a lessor against a lessee after determination of lease is maintainable and all other suits for recovery of possession based on title would lie to civil court on regular side. In the present case, however, plaintiffs have come with the allegation that Gabbu Lal was the original tenant of the previous owner of the property and after the transfer of title in their favour, they became landlords of Gabbu Lal and after the death of Gabbu Lal, his legal representatives became tenants. The further case of the plaintiffs is that the legal representatives of Gabbu Lal permanently shifted to State of Bihar leaving the building in question in occupation of defendant No. 3 as sub-tenant. If the plaintiffs succeed in proving their allegations, the petitioner would not have any independent rights as against the landlords and where decree for eviction in the suit is sought against the tenant-in-chief, the sub-tenant can also be added as a party so that there may not be any objection to the execution of decree against him also if the same is ultimately passed. If the plaintiffs fail to prove that there existed a relationship of landlord and tenant between them and Gabbu Lal or that the occupation of the present petitioner in the accommodation in question is only that of subtenant or on behalf of the legal representatives of the deceased Gabbu Lal. the suit may fail.
7. A perusal of Section 23 of the Small Causes Courts Act. 1887, makes it clear that in order to attract the same, the Court in which the suit has been filed if comes to the conclusion that the relief claimed by the plaintiffs in the suit depends upon proof or disproof of title to the immovable property involved in the suit which such Court cannot finally determine, it may at any stage of the proceedings return the plaint to be presented before an appropriate Court having jurisdiction to determine the title because the proceedings before the Small Causes Court are of summary nature while for determining the question of title an elaborate inquiry is required which can only be had by the competent court having jurisdiction to determine the said question. In Abdul Kafom v. Abdid Majid and another, 1992 (1) ARC 453, it has been held that where, however, the question of granting relief of ejectment in favour of the plaintiff against the defendant depends upon the existence of proof of relationship of landlord and tenant and not on the proof or disproof of title to the property in dispute, the plaint should not be returned under Section 23 of the Small Causes Courts Act. It cannot be said or held that the Court of Small Causes has no jurisdiction at all to go into the question of title and this proposition has been settled beyond controversy by a series of judicial pronouncements wherein it has been held that Judge. Small Causes Court has the power to go into such a question inctdentaly for determining the real issue before it. In this connection, a reference may be made to the case of Rakesh Kumar. Bulandshahr v. VIth Addl. District Judge, Bulandshahr and others. Civil Misc. Writ Petition No. 22390 of 1991, decided on 7.4. 1 998.
8. In the present case also, relief of grant of decree for eviction as per the case of the plaintiffs will depend upon proof or disproof of relationship of landlord and tenant between Gabbu Lal and the plaintiffs and as against defendant No. 3. the grant of relief would depend upon proof or disproof of the fact whether the petitioner's occupation in the accommodation in question has been In the capacity of sub-tenant or on behalf of the legal representatives of the deceased tenant Gabbu Lal. If the plaintiffs fail to prove these facts, their suit may fail. While deciding the aforesaid issues, it is open for the Court of Small Causes to Inquire into the question Incidentally whether the petitioner has perfected his title on the basis of adverse possession. If his occupation is found to be on behalf of the legal representatives of the deceased, in that event there can be no question of perfection of title by adverse possession as no tenant or sub-tenant can claim adverse possession against his landlord, in the facts are circumstances of the case, it was not obligatory or essential for the trial court to have returned the plaint for presentation before the appropriate court. Therefore, the view taken by the Courts below does not require any Interference.
9. Since the matter has already become quite old. the trial court is directed to decide finally the suit on merits, within a period of one month from the date a certified copy of this order is produced before it.
10. For the reasons stated above, this writ petition is dismissed. Interim order, if any is vacated. In the circumstances of the case the parties are directed to bear their own costs.