Sudhir Agarwal, J.:—

1. Heard Sri Dhruv Narayan, Senior Advocate, assisted by Sri R.C.Singh, for the petitioner. None has put in appearance on behalf of respondents though names of Sri Alok Ranjan Mishra and Sri R.N.Upadhyaya, Advocates have been shown in the cause list.

2. Firstly, it is contended that there was a serious title dispute between the parties and therefore, by virtue of Section 23 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887"), plaint ought to have been returned by Trial Court. In summary proceedings, title dispute could not have been determined. Secondly, it is contended that at no point of time petitioner paid rent to the plaintiff-respondent and hence there existed no relationship of tenant and landlord hence also the impugned orders are liable to be set aside. Reliance is placed on Smt. Sughra Begum Vs. Additional District Judge XIIth, Lucknow and others, 1999(1) ARC 582; Iqbal Ahmad Vs. VIth Addl. District Judge, Varanasi and others, 2000(1) ARC 142; Harnam Singh Vs. District Judge, Lalitpur and others, 2000(2) ARC 515; and Munshi Khan Vs. District Judge, Ghaziabad and others, 2002(2) ARC 393.

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

4. This dispute relates to House No.85, Sohbatiabagh, Allahabad City (hereinafter referred to as "disputed building"). A suit was filed by Brahm Swarup Tiwari (now deceased and substituted by legal heirs) i.e. S.C.C. Suit No.423 of 1980 claiming himself to be owner and landlord of disputed building. He alleged that Late Suraj Bali Tiwari was owner of disputed building. He died on 21st October, 1979. Before his death, a Will was executed in favour of Brahm Swarup Tiwari (respondent no.1 now deceased), on 15.10.1979, by virtue whereof he became owner of disputed building after the death of Suraj Bali Tiwari. It was also alleged that there was no other legal heir of Suraj Bali Tiwari. He (Suraj Bali Tiwari) was the real uncle of plaintiff-respondent no.1 hence also disputed building was succeeded by him.

5. The plaintiff (respondent no.1) alleged that petitioner Sangam Lal Yadav was a tenant in the disputed building and having committed default in payment of rent from May, 1972 despite demand vide notice dated 12.2.1980 whereby his tenancy was also stood terminated. A decree for ejectment and recovery of arrears of rent and damage pendentelite were prayed.

6. The petitioner-defendant contested the suit alleging that plaintiff- respondent no.1 had no right to seek ejectment of petitioner-defendant. The petitioner claimed that after the death of late Suraj Bali Tiwari, he himself has become owner of disputed property. He claims to be residing in the disputed house as owner (landlord) alleging that Suraj Bali having no heir, had executed a Will on 22.5.1974 in his favour and after his death, petitioner-defendant has succeeded disputed property in the capacity of owner.

7. The Trial Court vide judgment dated 21st August, 1985 decreed the suit for ejectment and arrears of rent and damages. It has found that entry of petitioner-defendant in the disputed building as a tenant is admitted by him. However, he has subsequently claimed right of retention in the building as owner after the death of Suraj Bali Tiwari. His claim is founded on the wish deed dated 22.5.1974 which is admittedly an unregistered document but the same was not proved before Trial Court in accordance with law. For various reasons also, as discussed in the Trial Court's judgement, it has disbelieved the aforesaid document. The petitioner thereafter came in revision i.e. S.C.R. No.412 of 1985 which came to be heard by Vth Addl. District Judge, Allahabad who has dismissed the same vide judgment dated 16.3.1990.

8. Sri Dhruv Narain, learned Senior Advocate referring to the rival claim set up between the two parties contended that there was a real title dispute between the parties and therefore, small cause suit was not triable by virtue of Section 23 of Provincial Sm

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