( 1 ) THIS is a plaintiffs appeal against the judgment and order of the learned 1st Additional Civil judge, Agra, dated the 29th of October 1959, setting aside the judgment and decree of the trial court and remanding the case to that Court for a fresh trial in the light of the observations made in his judgment.

( 2 ) THE facts giving rise to this appeal, stated briefly, are as follows:

( 3 ) THE appellant instituted a suit against the respondents, in the Court of Judge Small Cause, for the recovery of Rs. 680/- as arrears of rent from them on the allegations that they were his tenants, in respect of a portion of the premises described in the plaint, on a monthly rental of Rs. 15/-, the tenancy starting from Badi 8 of each Hindi calendar month and terminating on Badi 7 of the following month. The respondents paid rent upto Katik Badi 7 Sambat 2007 but the rent for the subsequent period was not paid despite several demands. Hence the suit for recovery of Rs. 675/- as rent from Kartik Badi 8, Sambat 2008 to Asarh Badi 7 Sambat 2011 (i. e. 19-3-1952 to 23-6-1954) and Rs. 5/- as costs of the notice.

( 4 ) THE respondents contested the suit. Respondents 1 and 3 filed one written statement and respondents 2 and 4 filed another. According to the former there was no relationship of landlord and tenant between the parties and the appellant was owner of only a moiety share in the house in dispute. About 30 years back the said respondents were brought to the said house, and out of love and affection, were allowed to stay there free of costs and charges. They never paid any rent nor was any rent recoverable from them. Finally, they pleaded that the sun was bad for non-joinder of necessary parties.

( 5 ) THE case of respondents Nos. 2 and 4 was that they were in possession of the second storey of the house in suit for more than 25 years and had never paid any rent for it; that the relationship of landlord and tenants did not exist between the parties; that the appellant was not the sole owner of the house in question and that the suit was barred by time.

( 6 ) AS stated before, the suit was originally filed In the Court of the Judge Small Cause. During its pendency there, the parties made a prayer to that Court that the plaint be returned for presentation to the proper Court, and on the same being allowed, the plaint was filed in the Court of the Munsif. The respondents filed their written statements there in which one of the pleas taken by them was that the suit as such was cognisable by the Court of Judge Small Cause.

( 7 ) ON the pleadings of the parties, the learned Munsif framed the necessary issues. He first tried the issue about jurisdiction and held that he had jurisdiction to try the suit. Thereafter he tried the other issues, and holding in favour of the appellant, so far as respondents 1 and 3 were concerned, he decreed the suit against them, but dismissed it against respondents 2 and 4. Against that decree, two cross- appeals were fifed in the lower appellate Court One of them was by the present appellant and it was against that part of the decree whereby the trial Court dismissed his suit against respondents 2 and 4. The other appeal was filed by respondents 1 and 3 against whom the appellants suit had been decreed. The lower appellate Court dismissed the appeal of the appellant and allowed that of respondents 1 and 3 and remanded the case to the trial court with directions, inter alia, that it shall dispose of it, after ordering the appellant to amend his plaint by basing his suit on title also, and by impleading Durga Prasad as a defendant Hence this appeal.

( 8 ) A number of grounds have been taken in support of this appeal, but the main ground on which it is liable to succeed centres round the correct interpretation of Section 23 of the Provincial small Cause Courts Act hereinafter called the Act. In order therefore, to appreciate the contention of the learned counsel for the appellant, it will be convenient