Hon’ble Sudhir Agarwal, J.—Heard Sri S.K.Verma, Senior Advocate, assisted by Sri G.R.S. Pal, Advocate, for the petitioners and Sri Y.S. Saxena, Advocate, for the respondents.

2. This is tenants’ writ petition, who are facing eviction from a residential accommodation situated at Sadar Bazar, Dataganj, Badaun having lost small cause suit for eviction in both the Courts below.

3. One of the basic question sought to be raised by learned counsel for petitioners is that there was a title dispute and, therefore, plaint ought to have been returned under Section 23 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “Act, 1887”) but the Courts below in proceeding to decide small cause suit have erred in law and the impugned judgments, thus are wholly without jurisdiction. It is also said that suit is barred by time, power of attorney in favour of plaintiff was defective and the suit was not maintainable.

4. S.C.C. Suit No. 4 of 1994 was instituted on behalf of 14 plaintiffs through power of attorney holder Ram Bharosey Lal Gupta, son of Sri Niranjan Lal, who was also one of the plaintiffs being plaintiff No. 1, against petitioners alleging that disputed house was let out to defendants’ father Jamuna Prasad on monthly rent of Rs. 3.75. After the death of Jamuna Prasad, tenancy rights devolved upon his legal heirs including petitioners. The house in dispute was initially owned by one Buddh Sen and Smt. Champa Devi, who sold it vide sale-deed dated 23.10.1964 to plaintiff No. 1. A Suit No. 501 of 1968 was instituted by plaintiff No. 1 against Sri Jamuna Prasad seeking his eviction but it was dismissed by Trial Court on the ground of defective notice. In the earlier suit, from the pleadings of tenant, it had come on pleadings that house was initially owned initially by Ram Chandra and Buddha Sen, two real brothers and after their death, there was a partition among legal heirs. Smt. Champa Devi executed sale-deed in favour of plaintiff No. 1. Alleging that tenant had not paid rent since 23.10.1964 after determining tenancy, suit for eviction was filed.

5. It was contested by petitioners-tenants. In the written statement, it was pleaded that plaintiffs have no right to institute suit for eviction. The plaintiffs are not owner. Champa Devi was never owner of the suit property. The defendants never had status of tenant and there was no relationship of landlord and tenant at any point of time in respect of suit property. The defendants claimed themselves owner of property on the ground that the same was purchased from Smt. Kalawati on 22.12.1976, though, she was not the sole owner of property. The defendants possession of disputed property was in their capacity as owner. The dismissal of suit No. 501/68 would operate as res judicata and plaintiffs have no right to institute suit for eviction.

6. There are some other pleadings, which I propose to deal as and when it would be necessary.

7. The Trial Court formulated following two issues:

^^1- D;k oknhx.k fookfnr lEifRr ds Lokeh o yS.MykWMZ gSA

2- D;k nkok oknhx.k vof/k ckf/kr gSA**

English Translation by Court

1. Whether plaintiffs are owner and landlord of property in dispute?

3. Whether suit of plaintiffs is time barred?”

8. While dealing with issue No. 1, Trial Court found that ownership rights are being claimed by defendant-tenants on the basis of an unregistered sale-deed. The Trial Court also found that initially house belong to one Sohan Lal and after his death, Buddh Sen and Ram Chandra became owner of the said house. After death of Buddh Sen, her wife Smt. Champa executed a sale-deed of house in question, which came to her share in partition, to plaintiff No. 1, vide a registered sale-deed dated 23.10.1976 while defendants claim that through an unregistered sale-deed dated 22.12.1976, Smt. Kalawati sold disputed house to defendant-tenants for a consideration of Rs. 50/- only.

9. The Trial Court found that in the judgment of suit No. 501 of 1968, it was notice