The Small Causes Court has the power to go into the question of title incidentally for determining the real issue before it, including in a suit for rent and ejectment where the defendant claims to have perfected his title by adverse possession.

( 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 petitioners 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 petitioners 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 fo