Saeed-Uz-Zaman Siddiqi, J.—

By means of this writ petition, petitioners have sought for a writ in the nature of certiorari, quashing the order dated 26.10.1998, passed by the learned Judge, Small Causes Court / Civil Judge (J.D.), Bahraich, contained as Annexure No.1 and judgment and order dated 16.12.2003, passed by First Additional District Judge, Bahraich, contained as Annexure No.10, to the writ petition.

2. Heard learned counsel for both the parties and gone through the records.

3. The admitted facts between the parties are that the petitioners are tenants of the disputed premises. The opposite party no.3, claiming himself to be landlord filed a small cause case for eviction and recovery of rent and damages for use and occupation before the learned Trial Court. Opposite party no.2 filed written statement and challenged the ownership of opposite party no.3, who was plaintiff before the Judge, Small Causes Court. Replication was also filed by opposite party no.3. The suit was filed on 2.9.1992. Written statement was filed by the petitioners on 21.10.1993. The replication was filed on 22.3.1994, against which the defendants / petitioners filed another application on 22.08.1996. On the same date, the petitioners moved application before the learned Judge, Small Causes Court under Section 23 of the Provincial Small Cause Courts Act, 1887, for returning the plaint on the ground that intricate question of ownership is involved in this case, which was numbered as Paper No.116-C. It was rejected vide order dated 26.10.1998. The petitioners filed S.C.C. Revision No.21 of 1998, which was also dismissed vide judgment and order dated 16.12.2003. Aggrieved by both the orders, petitioners have knocked the door of this Court.

4. Admittedly, the petitioners are tenants of the disputed shop. They are raising issue of ownership on the ground that Nazar Mohammad was the owner of the disputed premises who executed will on 25.05.1968 in favour of his widow who along with her five sons and one daughter sold it. In the said sale deed all the heirs of Nazar Mohammad were not party. The petitioners have raised a plea that since Smt. Sughra Bano widow of Nazar Mohammad was heir and under Islamic law a will cannot be executed in favour of an heir. The will was void. It is undisputed that a muslim can bequeath his property up to the extent of one third but if the said will is in favour of an heir all the other co-heirs must consent to it. In either case, through sale deeds the opposite party no.3 became owner. His ownership can be challenged by the heirs of Nazar Mohammad. That may be a question of title involved as amongst the heirs of Nazar Mohammad, but such dispute cannot entitle the tenant to raise it in a small cause case and plead that it is an intricate question of title, upon which the plaint should be returned for presentation to the proper court. This misconception of law and creation of the ground of a mischievious tenant to prolong the possession in the disputed premises. Section 23 of the Small Cause Courts Act, 1887 is reproduced as under:-

"Return of plaints in suits involving question of title-(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Cases depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

(2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure (14 of 1882) and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877 (15 of 1877), be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction."

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