JUDGMENT Deoki Nandan, J. - This is a plaintiff's first appeal from an order of the court of Vth Additional District Judge, Deoria, allowing the defendants' appeal from the decree of the court of Ist Addl. Musif, Deoria, and remanding the suit for retrial by the said Munsif as a court of small causes, and in case the Munsif did not have the powers of a Judge, Small Cause Court having jurisdiction in the matter. 2. The plaintiffs claim in the suit was that the defendants were tenants from month to month on payment of Rs. 25/- per month, of the house in suit, of which he was the owner; that a notice dated 18th Sept. 1969, terminating the tenancy was served that this notice was received by the 3rd defendant on 29th Sept. 1969, but the other defendants had refused to receive it; and that the defendants not having vacated the house, hence the suit for ejectment and recovery of Rs. 125/- as arrears of rent. 3. The defendants pleaded that they were grandsons of the plaintiffs sister and on the death of their father, some 25 or 26 years ago, their grandmother, i.e. the plaintiffs sister, had brought them to the plaintiffs place and the house in suit was built with her funds. The plaintiff was in the position of their guardian. He became dishonest and wrongfully claimed the house to be his. They were not tenants of the plaintiff in any part of portion of the house in suit. By amendment, a plea was added that the defendants had taken a portion of the plaintiffs house, adjacent to the house in suit on payment of Rs. 25/- per month as rent. They were tenants of that portion but not of the house in suit. Other technical pleas were also raised and it was even claimed that the plaintiff(?) had been in adverse possession of the house in suit for over 25 years and had prescribed a title to it as such. 4. As many as 11 issues were framed by the trial court. Other technical pleas were also raised and it was even claimed that the plaintiff(?) had been in adverse possession of the house in suit for over 25 years and had prescribed a title to it as such. 4. As many as 11 issues were framed by the trial court. Issue No. 1 raised the question whether the plaintiff or the defendants are the owners of the house in suit; issue No. 2, the question whether the defendants are the tenants of the house in suit; issue No. 8, the question "whether this court has no jurisdiction to try the suit under U.P. Act No. 13 of 1972;" and issue No. 11 the question "whether this suit is not maintainable under the said Act." 5. On issues Nos. 1 and 2, the trial court held that the plaintiff is the owner of the house in suit and the defendants are not its owner, but, there was no relationship of landlord and tenant-between them. With regard to issues Nos. 8 and 11, it may be here observed that the suit was instituted in the year 1969 in the court of Munsif, Deoria, which undoubtedly had the jurisdiction to try the suit at that time. The U.P. Act No. 13 of 1972 came into force while the suit was still pending in the trial court in the court of the Ist Addl. Munsif, Deoria to be precise. The written statement was allowed to be amended thereafter and four fresh issues Nos. 8 to 11 were framed. Although it was claimed that the court had no jurisdiction to try the suit under the U.P. Act No. 13 of 1972, which was the point raised by issue No. 8, it appears that an argument was raised at the trial that the suit could not be tried by the court of Munsif in view of the amendments made to the Provincial Small Cause Courts Act, 1887, by the U.P. Civil Laws (Amendment) Act, 1972, which made a suit for eviction of a tenant from a building after the termination of the tenancy, a suit of a small cause nature and triable by a Judge, Small Cause Court in accordance with and under the Provisions of the Provincial Small Cause Act. S. 9 of the U.P. Civil Laws (Amendment) Act, 1972, provided that: "any suit instituted before the date of commencement of this Act in any court other than a court of Small Causes or a Court of Civil Judge or a Munsif, exercising jurisdiction of a Judge of a Court of Small Causes and pending in the Court immediately before the said Act, not being a suit in which the recording of the oral evidence for any party has commenced or concluded before the said date shall upon the conferment of jurisdiction or enhanced pecuniary jurisdiction on a civil Judge, Munsif. District Judge or Additional District Judge or on a Court of Small Causes under the said provision stand transferred to such court and shall be decided by that Court." On an interpretation of this provision, a learned single Judge of this court had held in K.K. Saxena v. S.N. Misra, 1975 All LR 360; that it did not apply to those suits which were not pending in the court in which they were originally instituted but were pending in another court to which they might have been transferred before the Act came into force (20th Sept. 1972). Following this decision, the trial court held on issues Nos. 8 and 11 that since the suit had been transferred from the court in which it had been instituted to another court, it had jurisdiction to try the suit and the suit was maintainable. 6. In view of its decision that the plaintiff is the owner of the house in suit, the trial court decreed the suit for possession by eviction of the defendants but in view of its finding that there was no relationship of landlord and the tenant, it dismissed the claim for recovery of arrears of rent. 7. On appeal by the defendants the only question raised and decided by the lower appellate court was that of the jurisdiction of the trial court to hear and decide the suit in its ordinary original jurisdiction as a civil court. It may be here observed that it was the defendants contention that the plaintiff was not the owner of the house in suit and that they were not his tenants therein, but were in possession as owners in their own right. It was this plea of the defendants which had given rise to the issue Nos. 1 and 2 above. It may be here observed that it was the defendants contention that the plaintiff was not the owner of the house in suit and that they were not his tenants therein, but were in possession as owners in their own right. It was this plea of the defendants which had given rise to the issue Nos. 1 and 2 above. But on appeal, the defendants contended that the suit being one between landlord and tenant, the Munsif's court had no jurisdiction to hear and decide it in exercise of its ordinary original jurisdiction. According to the defendants, only a could of Small Causes could hear and decide the suit after the coming into force of U.P. Civil Laws (Amendment) Act of 1972, inasmuch as the recording of evidence had not commenced before the date of the commencement of the Act. This plea found favour with the lower appellate court and holding that the jurisdiction to try the suit was determinable with reference to the plaint allegations, the Munsif's court had no jurisdiction, in exercise of its ordinary, original jurisdiction as a civil court, to hear and decide the suit. The learned Judge of the lower appellate court overcame the effect of the aforesaid ruling of this Court in K.K. Saxena's case, 1975 All LR 360 (Supra) by referring to the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)(Amendment) Act, 1976 (U.P. Act No. 28 of 1976) which had come into force on 5th July, 1976, and provided by S. 26(6) thereof, that the Provisions of S. 9 of U.P. Civil Laws (Amendment) Act, 1972, shall apply and shall be deemed always to have applied and relation to suits of the nature referred to therein which before the commencement of that Act had been transferred to a competent court and were pending immediately before the date of commencement of that Act in such transferee court as they apply in relation to suits which were pending in the court in which they were institute. Inasmuch as the trial court had not decided the suit by the 5th July 1976, the proviso to the above provision did not apply. 8. Inasmuch as the trial court had not decided the suit by the 5th July 1976, the proviso to the above provision did not apply. 8. There is no difficulty in endorsing the finding of the lower appellate court that on the plaint allegations the suit became triable by a Court of Small Causes on the commencement of the U.P. Civil Laws (Amendment) Act, 1972, and should have been transferred to the Court of Small Causes of competent jurisdiction. 9. The total valuation of the suit was only Rs. 425/- and on the exposition of the law contained in Kailash Chand v. Lalta Pd., 1975 All LR 639 : AIR 1976 All. 232 ; by a learned single Judge of this Court, the suit stood transferred to the Small Cause side of the court of Munsif where it was pending on the issue of the notification No. 526, dated 25th Oct., inasmuch as there was no regular Small Cause Court at Deoria. But being bound by the ruling of this court in K.K. Saxena's case (1975 All L R 360)(supra) the Learned Munsif held that the suit was triable in the ordinary original jurisdiction of his court as a civil court, probably in ignorance of the provision made by sub-sec. (6) of S. 26 of the U.P. Act No. 28 of 1976 which had come into force on the 5th July 1976, only a few days before the judgment of the learned Munsif which is dated the 22nd Sept. 1976. There was the further difficulty in applying the provisions of sub-sec. (6) of S. 26 of the U.P. Act No. 28 of 1976 to the present case on its facts inasmuch as, while recording of the evidence had commenced on 24th Oct., 1972 the suit was not decided until the 22nd Sept. 1976, and even some evidence appears to have been recorded on 26th and 27th July, 1976. And, one cannot be oblivious of the fact that the defendants had denied the plaintiffs title and claimed to have been in adverse and proprietary possession over the house in suit. 1976, and even some evidence appears to have been recorded on 26th and 27th July, 1976. And, one cannot be oblivious of the fact that the defendants had denied the plaintiffs title and claimed to have been in adverse and proprietary possession over the house in suit. If the suit had been instituted in a Small Cause Court or if it were deemed to have been transferred to the Small Cause side of the Munsif's court where it was pending trial, the Small Cause court would have been faced with the question whether it ought to return the plaint under S. 23 of the Provincial Small Cause Courts Act, 1887, in view of the defendants denial of the plaintiff's title to the house in suit, and also of the existence of the relationship of landlord and tenant between them, and instead the assertion of adverse proprietary possession over the house in suit. They question of title that was raised by the defendants was not merely incidental to the question whether the relationship of landlord and tenant existed between the parties. The plaint of the suit was in such a situation fit to be returned by a small cause court for presentation to the court of competent jurisdiction as a civil court, which meant in the present case a transfer of the suit by the Munsif from the Small Cause side of his court to its regular side as a civil court. 10. These aspects of the matter have however not been adverted to or considered by the lower appellate court. Further, the lower appellate court appears to have been oblivious of the provisions of R. 7 of O. VI, Civil P.C. If the learned Addl. District Judge had adverted to these facts and had considered the matter in this light he would not have passed the order which he had. The order is in effect wholly futile for entertaining the suit on the Small Cause side of his court all that the learned Munsif would be required to do is to direct that the suit be transferred back to the regular side of his court in view of the question of title raised by the defendants. The suit has already been tried by the Learned Munsif on the regular side. The suit has already been tried by the Learned Munsif on the regular side. The findings of that court on the merits have not been scrutinised by the lower appellate court and the point raised by the cross-objection has also not been adjudicated upon the grounds of appeal show that the findings of the Learned Munsif were challenged on merits by the defendants. None of them have been gone into by the learned Judge. 11. Confronted with this position, the Learned counsel for the defendant-respondent urged before me that if the appeal is allowed, the decision of the Mujnsif's Court on the question of title would become res judicata and the defendant-appellants will be precluded from raising it again in a regular suit in a civil court for declaration of their title. I do not think that the defendant-respondents can justifiably raise this contention, Firstly, the decision of the Learned Munsif on merits cannot be said to have yet become final inasmuch as the appeal and the cross-objection before the lower appellate court will have to be remanded for consideration o n merits; and, secondly, the question of title having been raised by the defendants, they cannot blame the court for deciding it, simply because it has been decided against them. 12. In the result, the appeal succeeds and is allowed with costs. The judgment and order under appeal are set aside and the Civil Appeal No. 396 of 1976 of the Court of the District Judge, Deoria, between Shankar Lal and another (defendant-appellant) and Mahabir Pd. and another (respondent) and the cross-objection filed therein by Mahabir Pd., the plaintiff shall stand restored to their original number and be heard and decided on the merits in accordance with law, by the court of the District Judge, Deoria, or any other court of competent jurisdiction to whom they may be assigned by the District Judge.