ORDER K. Narayan, J. - Plaintiff O.P. No. 2 here namely Wahid Ali brought Suit no. 186 of 84 before the Judge Small Cause Gorakhpur wherein the present petitioner raised a plea that Wahid Ali was not his landlord and desired that the plaint should be returned for presentation to proper court under section 23 of the Provincial Small Causes Court Act. The matter was considered by the Judge Small Causes and by his order dated. 6.7.85. He give a finding that section 23 of the Small Causes Court Act would not bar his jurisdiction and there was no occasion for return of the plaint for presentation to proper court. Mubarak Ali, the present petitioner, went up in revision, which was dismissed by the IVth Additional District Judge, Gorakhpur by his order dated. 15.10.85. He has now moved this petition in the writ jurisdiction desiring an order in the nature of .certiorari quashing the orders of the two courts below. 2. Wahid Ali, respondent no.1, here died during the pendency of the petition, and his legal heirs have been brought on record. 3. Though it may not be necessary but may I mention that there is a long history of litigation between the parties. For-merely Wahid Ali and his son Juncd Beg had brought a suit for eviction of the tenant Mubarak Ali with the contention that though the title deeds were in the name of Juned Beg the house was owned by Wahid Ali as the transaction of ownership was Benami, and both of them were plaintiffs in that case. The question of title and relationship of landlord and tenant was considered by the Judge Small Causes as well as in the Court of revision , but this court need not go into the details thereof. Ultimately order passed in those proceedings were admittedly set aside in the writ jurisdiction on the ground of comparative need. The question of title was not touched in the writ petition. 4. Now Wahid Ali alone had brought proceedings for eviction. The contention raised by the defendant Mubarak Ali was that in view of the findings arrived at in the earlier case, Wahid Ali could not be his landlord and it was in the light of those findings that he had raised a plea under section 23 of the Provincial Small Causes Court Act. 5. The contention raised by the defendant Mubarak Ali was that in view of the findings arrived at in the earlier case, Wahid Ali could not be his landlord and it was in the light of those findings that he had raised a plea under section 23 of the Provincial Small Causes Court Act. 5. The first argument before me in this case is with reference to the provisions of Benami Transaction (Prohibition) Act, 1988. It was urged that in view of the decision in the case of Mithilesh Kumari v. Prem Behari Khare, AIR 1989 SC 1247 the Act was retrospective in nature and therefore,the plea of Benami could not be entertained . That was a case where nature of the suit was for a declaration that certain properties were held by the defendant on behalf of the plaintiff and the Act came into operation during the pendency of die appeal. That is a different situation. In fact, the provisions of Benami Transaction Prohibition Act themselves would not be available to the defendant of this case. A perusal of the Act would show that it bars the Benami transaction and section 3 of the Act would naturally for future, and prospective in nature. Section 4 of the Act prohibits right of the so-called real owner from the ostensible owner and thus in effect might bar a suit for a declaration for Benami transaction. In the instant case, there is no dispute between the real owner and so-called ostensible owner and in the earlier case Wahid Ali and his son Juned Beg had come together with the assertion that the property was owned by Wahid Ali though the document of title was in the name of Juned Beg. This argument, therefore, has no bearing upon the facts of the present case. 6. The next question to be considered could be as to whether judge small causes was justified or not in refusing to return the plaint for this aspect, it will suffice to say that the authority given by section 23 of the Provincial Small Causes Court Act is a discretionary one. It neither takes away the jurisdiction of the small causes court to deal with a case nor it confers a jurisdiction upon him. The section is in the nature of an exception which is governed by the conclusion and convenience of the judge small causes. It neither takes away the jurisdiction of the small causes court to deal with a case nor it confers a jurisdiction upon him. The section is in the nature of an exception which is governed by the conclusion and convenience of the judge small causes. Ordinarily a suit cognisable by the court of small causes cannot be taken up by a regular court and an exception has been created by section 23 of the form that if the court of small causes considered that the issue of title is involved and that the issue cannot be decided by it finally, the plaint may be returned and thereafter the suit becomes cognisable by a Regular court, as an exception to the general rule. It is all a matter of convenience and this convenience will naturally depend upon the weight of the issue involved. The language of section 23 of the said Act is very clear in this behalf. The section is invited for an application when the right of the plaintiff and the relief claimed by him in a court of small causes is found dependent on the proof or dis-proof of a title to an immovable property and the Small Causes Court cannot finally determine the same, it is only then that the court gets its discretion whether to proceed with it further or return the plaint to be presented before the court having jurisdiction to determine the title. In order to apply this discretion, earlier ingredients have to be there and the court should come to a conclusion that it cannot finally determine the title. Emphasis is on the word "finally". In the instant case, the question of title of the plaintiff is not to be decided finally and what is more material to be decided would be the relationship of landlord and tenant between the plaintiff and the defendant and thereafter right of the plaintiffs or particular plaintiff to bring the suit. The question of title of one or the other, the father or the son, is not in dispute between them and as between the plaintiff and the defendant, it is only incidental question as a fact relevant to the possibility of agreement of tenancy with one or the other. In the circumstances there is no occasion for any interference with the order passed by the court of Small Causes in the writ jurisdiction. In the circumstances there is no occasion for any interference with the order passed by the court of Small Causes in the writ jurisdiction. Consequently this petition should fail. 7. In the result, the petition is dismissed but there will be no order as to costs.