JUDGMENT : R.B. Mehrotra, J. One Shri Kishori Lal who is the father of the Petitioner Sri Shiv Prasad, was the owner in possession of several properties, including house No. 30/38, situate at Saral Khu dabad, Allahabad. The case of the Petitioner, Sri Shiv Prasad is that Lallu Lal, who is the brother of the Petitioner, got his shares separated during the life time of Sri Kishori Lal in the year 1960 and received his full share and also executed a registered relinquishment deed on 1-9-1971, clearly stating that since he has received his total share and is in exclusive possession of the same, he is left with no right or interest in the remaining property, belonging to his father, namely, Sri Kishori Lal, wherein the mother and the brothers of the aforesaid Lallu Lal have got their shares. The further case of the Petitioner is that thereafter late Sri Kishori Lal, father of the Petitioner and aforesaid Lallu Lal, executed a registered Will dated 2-4-73, stating that he had already given property to Lallu Lal (Respondent No. 3) who is left with no interest in the remaining property, including house No. 30/38 Sarai Khuldabad, Allahabad. As such, after the death of the executor of the Will, namely, Sri Kishori Lal, Lallu Lal will have no connection or right over the property belonging to the executor. In the Will, it was further stipulated that one of the shops in house No. 30/38 Sarai Khuldabad, Allahabad (shop in dispute), bequeathed in the share of Petitioner, Lallu Lal Respondent No. 3 shall stay in the capacity of the tenant on monthly rent of Rs. 15/- per month. The Will further stipulated that in case Sri Lallu Lal remains in arrears of rent for a year, he shall be liable to be evicted after due notice and legal proceedings. 2. In the aforesaid background, three suits were filed between the parties Suit No. 154/80 was filed Ramesh Chandra and Ors. sons of Lallu, Lal challenging the Will and the relinquishment deed, referred to earlier. 3. Suit No. 3 of 1982 was filed by the Respondent Lallu Lal himself, challenging the Will, alleged to be executed by Shri Kishori Lal, referred to above. 4. sons of Lallu, Lal challenging the Will and the relinquishment deed, referred to earlier. 3. Suit No. 3 of 1982 was filed by the Respondent Lallu Lal himself, challenging the Will, alleged to be executed by Shri Kishori Lal, referred to above. 4. Suit No. 124 of 1983 was filed by the Petitioner as small causes suit for eviction of Respondent No. 3 on the ground that Respondent is the tenant of the shop in dispute and has not paid the rent, as stipulated in the Will. As such, Respondent No. 3 is liable to be evicted from the shop in dispute and is also liable to pay, arrears of rent for the period respondent has not paid rent to the Petitioner-Plaintiff. 5. Suit No. 124 of 1983 was contested by the Respondent No. 3 namely Sri Lallu Lal inter-alia on the ground that the alleged Will has not been executed by late Sri Kishori Lal, that no surrender deed has been executed by the defendant Sri Lallu Lal and that the Plaintiffs are illegally trying to dispossess the defendant from the portion of the property in house No. 30/38, which is in possession of the defendant Lallu Lal suit no 3/82 has already been filed by the defendant Lallu Lal against the Plaintiff and other legal heirs of late Kishori Lal for declaration of his title over the house No. 30/38, Sarai Khuldabad, Allahabad, in which the shop in dispute exists. Para-32 of the written statement specially pleaded, as under: 32. That in the aforesaid case the question of title is definitely involved from the pleading of the parties and case of the Plaintiff is depended upon the proof or disproof of his title, and u/s 20 of U.P. Act 13 of 1972 inquiry is limited only to the right of the Plaintiff and to the relief claimed as such under the facts and circumstances of the case present suit may be returned to the presentation in regular court as provided by Section 28 of Provincial Small Causes Courts Act. 6. 6. On the aforesaid objection having been taken by Respondent Sri Lallu Lal, the Petitioner moved a transfer application before the court of District Judge, Allahabad, wherein the Petitioner contended that since the defendant has filed written statement denying the title of the Plaintiff and since prior to the filing of the present suit i.e. suit No. 124 of 1983, Ramesh Chandra s/o Lallu Lal filed a suit No. 154 of 1980 for the portion of the house in suit against Shiv Prasad and others. Another suit No. 3 of 1982 was filed by Lallu Lal against the Petitioner Shiv Prasad and others for declaration of title over the house in dispute and since both the suits namely suit No. 154 of 1980 and suit No. 3 of 1982 have been consolidated and since in all the three suits namely suit No. 154 of 80, suit No. 3 of 1982 and suit No. 124 of 1983, the subject matter of the suit property are the same and since Lallu Lal has denied the title of the Plaintiff in suit No. 124 of 1983, it is expedient in the ends of justice that suit No. 124 of 1983, pending in the court of Judge, Small Causes Court, be transferred to the Court of Additional Civil Judge, Allahabad, so that all the three cases may be decided at a time. The aforesaid transfer application was allowed by the District Judge, vide his order dated 7-2-85 and suit No. 124 of 1983 as transferred from the court of Judge, Small Causes to the Court of Additional Civil Judge, Allahabad, where suit nos. 154 of 1980 and suit No. 3 of 1982 were pending on the regular side. 7. Thereafter, all the aforesaid three suits were consolidated in the court of Additional Civil Judge, Allahabad and common evidence was taken in all the three suits The thee suits were decided by a common judgment dated 13-5-86 by the IIIrd Additional Civil Judge, Allahabad. It was held in the aforesaid judgment that the Will was executed by Kishori Lal and the same was acted upon by the parties but the court held that Lallu Lal was not the tenant of Shiv Prasad. As such Shiv Prasad was not entitled to recovery any rent from the aforesaid Lallu Lai. It was held in the aforesaid judgment that the Will was executed by Kishori Lal and the same was acted upon by the parties but the court held that Lallu Lal was not the tenant of Shiv Prasad. As such Shiv Prasad was not entitled to recovery any rent from the aforesaid Lallu Lai. The court, however, held that since the Will was a genuine document and was acted upon by the parties and since in accordance with Will Lallu Lal is liable to be evicted from the premises m dispute, there is no justification in not decreeing the suit of Shiv Prasad so far eviction of Sri Lallu Lal is concerned. Accordingly, suit No. 124 of 1983 was partly decreed for eviction of Lallu Lai. An objection was raised on behalf of Lallu Lal that in Small Causes suit Lallu Lal cannot be evicted, unless the relationship of landlord and tenant is proved between the Plaintiff and the defendant This contention was also repelled by the trial court. The trial court held as under: But I am unable to agree with the contention of learned Counsel for defendant Lallu Lal that Lallu Lal is not liable to be evicted in this JSCC suit, Lallu Lal in his W.S. has taken a plea that this suit should be tried on original side as an important question of ownership is involved. This JSCC suit has been tried alongwith O.S. No. 154 of 1980 and O.S. No. 3 of 1982 with the consent of the parties. The evidence by the parties has been considered meticulously and at length, I see no reason to return the case for filing in original side. Apart from the aforesaid consideration, I am of the view that Late Kishori Lal has willed that Lallu Lal shall have right to occupy the portion specified in the Will as tenant and he could be evicted only for default in making the payment of rent stipulated in the Will. Shiv Prasad has got the property in terms of the will he is bound by the condition imposed upon him in respect of the property. Thus Shiv Prasad has no way out but to sue Lallu Lal for eviction treating him to be a tenant. Shiv Prasad has got the property in terms of the will he is bound by the condition imposed upon him in respect of the property. Thus Shiv Prasad has no way out but to sue Lallu Lal for eviction treating him to be a tenant. Lallu Lal seems to be a most obstinate and ill reasoned man- He could not take the benefit of his father, compass ion who inspite of all disliking towards him provided him with accommodation for residence as well as for the shop on nominal rent of Rs. 15/- and Rs. 10/- per month, A man of Lallu Lal typs deserve all condemnation who is an woe to himself his descendant, ascendant and collaterals. The suit of Shiv Prasad is fit to be decreed for eviction of Lallu Lal as Lallu Lal has failed to pay the rent for stipulated period of time required for his eviction in the will of late Sri Kishori Lal 8. Aggrieved by the aforesaid judgment, the Respondent No. 3 filed a revision in the court of District Judge, Allahabad. The Ist Additional District Judge, Allahabad vide his judgment dated 22-4 88, allowed the revision and held: Since the relationship of Landlord and tenant does not exist between the parties and since the Plaintiff opposite party is not entitled to recover any rent from the defendant/revisionist. The learned JSCC should have dismissed the suit and the learned trial court has erred and has committed illegality in passing the decree for eviction of the defendant/revisionist in this SCC suit- Under these circumstances, I have no option but to allow the revision and to set aside the order partly decreeding the SCC suit No. 124 of 1983. 9. The Ist Additional District Judge, while allowing the revision, held that the finding of the learned trial court, to the effect that the relationship of landlord and tenant does not exist between the parties and that the Plaintiff opposite party is not entitled for any rent from the defendant-revisionist, has become final between the parties, since the Petitioner Plaintiff has not challenged the said finding of the trial court. The revisional court has taken a view that since suit No. 124 of 1983 was a suit on small causes side and since in the aforesaid suit relationship of landlord and tenant between the Plaintiff and defendant has not been established, the suit for eviction of Lallu Lal could not have been decreed on any other ground by the small causes Court. 10. Aggrieved by the order of the First Additional District Judge, dated 22-4-88, the Petitioner Shiv Prasad has filed the present writ petition, under Article 226/227 of the Constitution of India. 11. Shri Yogesh, learned Counsel for the Petitioner, has challenged the correctness of the impugned order on the following grounds. 1. Suit No. 124 of 1983 was transferred by the District Judge in exercise of its powers u/s 24(5) of CPC from Small Causes side to a regular side and suit No. 124 of 1983 was consolidated and tried by a regular court alongwith two regular suits as a regular suit itself. The defendant having never objected to the aforesaid procedure and having acquiesced to the said procedure, cannot be permitted to contend that the suit was tried as a small causes case by the trial court. 2. Since the suit was tried and heard as a regular suit, the trial court was within its right to decree the suit of the Plaintiff on the ground that on the basis of the will, which was found to be genuine and acted upon between the parties, the defendant is liable to be evicted. 3. In any case, the suit of the Plaintiff could not have been dismissed by the revisional, court, even if the revisional court was of the view that the suit was a small causes suit and was to be tried as a small causes case. At best, the plaint could have been returned u/s 23 of the Provincial Small Causes Court Act to be presented before the regular court. 12. Sri G.N. Verina appearing for the defendant-Respondent argued that a small causes suit can never be transferred as a suit on the regular side and small causes suit will always remain a small causes case, even though transferred from one court to another court. 12. Sri G.N. Verina appearing for the defendant-Respondent argued that a small causes suit can never be transferred as a suit on the regular side and small causes suit will always remain a small causes case, even though transferred from one court to another court. The suit might have been tried alongwith regular suits but the nature of small causes suit cannot change by ordering transfer of suit from one court to another court- Sri G.N. Verma contended that the only way for converting a small causes suit is that the plaint should be returned u/s 23 of the Provincial Small Causes Court Act and thereafter presented before a regular court after making necessary amendment in the plaint. Sri Verma contended that u/s 24(4) of the CPC it is mandated that "the court trying any suit transferred or withdrawn tinder this section from a court of small causes, shall for the purposes of such suit will deem to be a court of small causes " 13. Section 24 of CPC gives power, of transfer and withdrawal, to the District Court as well for the High Court. Section 24(4), as reproduced above, provided that any suit transferred or withdrawn from the court of Small causes, shall for the purposes of the said suit, be deemed to be a court of small causes. 14. In 1976 CPC has been amended and a new clause has been added in Section 24, which is as under: 24(5). A suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it. 15. Before Section 24(5) was brought on the statute Book, the law with regard to a transfer of Small Causes suit was settled that a small causes suit will be treated to be a small causes suit even in the transferee court in all circumstances. 16. Sri G.N. Verma, has relied upon the following decision in support of his contention: (1) In Bisheshwar Prasad Gautam v. Dr. R.K. Agarwal 1976 AWC 603 , a full bench of this Court held: It cannot be gainsaid that the present suit became small causes in nature after the coming into force of Civil Laws Amendment Act, 1972. 16. Sri G.N. Verma, has relied upon the following decision in support of his contention: (1) In Bisheshwar Prasad Gautam v. Dr. R.K. Agarwal 1976 AWC 603 , a full bench of this Court held: It cannot be gainsaid that the present suit became small causes in nature after the coming into force of Civil Laws Amendment Act, 1972. It is true that was triable by the Small Causes Court and was liable to be transferred to it from the regular side, but nontheless it continued to retain its nature, namely, small causes. In that event Section 102 which applies to suits of the nature of small causes but which are tried on the regular side, is fully applicable. Under it no second appeal lies. The present second appeal is clearly incompetent. (2) In Sardar Husain v. VIII Additional District Judge Bareilly. 1986 AWC 297 a single Judge of this Court held: It is worth notice also in this connection that subsequent to the return of the plaint there was no amendment sought or brought at the bearing so far as the plaint is concerned; the suit continues to remain based upon the alleged relationship of the landlord and the tenant though the defendants disputed as well as the title asserted by the Plaintiffs. The decree passed is on the footing of the relationship of landlord and the tenant asserted by the Respondents being according to the trial court, not made out. Since the return of the plaint u/s 23 does not make any difference so far as the true nature of the suit is concerned, there may be no denying that Section 96(4) of the Code will apply and that accordingly the first appeal will not lie except on a question of law. (3) In Omar Salay Mohammad Sait v. Commissioner of Income Tax Madras AIR 1955 Mad. 620 , a full bench of Madras High Court held: We find it impossible to agree with the learned Judge in the opinion expressed by him in view of Sub-section (4) of Section 24, Code of Civil Procedure. (3) In Omar Salay Mohammad Sait v. Commissioner of Income Tax Madras AIR 1955 Mad. 620 , a full bench of Madras High Court held: We find it impossible to agree with the learned Judge in the opinion expressed by him in view of Sub-section (4) of Section 24, Code of Civil Procedure. When a small cause suit is transferred to a court which as in the present case, does not have jurisdiction to try it as a small cause, even if the trial is proceeded with along with an original suit, still the court which tries it shall be deemed to be a court of small causes for the purpose of the transferred suit alone. That being so, if it is a court of small causes then the decree passed by it cannot be a decree in an original suit. 17. Out of the three decisions relied upon by Sri G.N. Verma only the Madras decision is of relevance on, the present controversy. In the decision of the full bench of this Court in case of Bisheshwar Prasad Gautam (supra) the full bench took the view that since the case was not transferred from small causes side to the regular side, (therefore, second appeal will not lie. It has no bearing on the present controversy. Where the case has been transferred from Judge, Small Causes Court to a regular court and has been consolidated and decided alongwith two regular suits In the case of Sardar Hussain (supra), after taking the return of the plaint the plaint was not amended and was presented in the same form. The court took the view that the nature of suit has not changed. In Madras decision, of course, the full bench of Madras High Court took a view that in view of Section 24(4) of CPC even if the case is transferred from one court to another court, the nature of the suit will remain that of a small causes. Another decision, which has been relied upon by Sri G.N. Verma, is in the case of Bhagwati Pandey v. Badri Pandey AIR 1931 SC 574. Another decision, which has been relied upon by Sri G.N. Verma, is in the case of Bhagwati Pandey v. Badri Pandey AIR 1931 SC 574. The court has taken a view that if the case is transferred or withdrawn u/s 24 of CPC from a court of small causes, then u/s 24(4) of Code of Civil Procedure, the court to which it is transferred for the trial, shall for the purposes of such suit, be deemed to be a court of Small Causes and would dispose of the suit, as a court of Small Causes. This case also relates to a situation, where Section 24(5) of CPC was not in existence Section 24(5) is an added provision under which the court has been conferred power to transfer a case from a court having no jurisdiction to a court having jurisdiction to try the suit. No such power was earlier vested in the court, transferring the case from one court to another court. Earlier the mandate of Section 24 was that in all cases, where Small Causes suit is transferred to another court, the suit will be tried as a small causes case. The only remedy for curing the defect was by taking back the plaint u/s 23 of the Small Causes Court Act and after amending the plaint, filing the same in a regular court. Section 24(5) was not brought on the statute book. There was no power in the Court for transferring a small causes suit on the regular side. This power, for the first time, has been conferred by Section 24(5) of Code of Civil Procedure. u/s 24(5), in appropriate case, the District Judge or the High Court has now been conferred with power to transfer a case from a court having no jurisdiction to a court having jurisdiction. This wide power will also cover a contingency where a small causes suit can be transferred to a regular side. 18. Order 4-A has been added by State Amendment in the Code of Civil Procedure, which is as under: Order IV-A 1. This wide power will also cover a contingency where a small causes suit can be transferred to a regular side. 18. Order 4-A has been added by State Amendment in the Code of Civil Procedure, which is as under: Order IV-A 1. Consolidation of suits and proceedings when two or more suits or proceedings are pending in the same court, and the court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, whereupon all such suits and proceedings may be decided upon the evidence in all or any such suits or proceedings. Added vide U.P. Act No. 57 of 1976, Section 5. 19. This order contemplates that when two or more suits or proceedings are pending in the same court and the court feels necessary in the interest of justice that a joint trial should be held, all such suits can be decided on the basis of evidence in one suit. Suit No. 3 of 1982 and suit No. 154 of 1980 were regular suits and were pending in the court of Ist Additional Civil Judge. Suit in question i.e. suit No. 124 of 1983 was transferred to the same court. The Ist Additional Civil Judge thereafter consolidated the three suits. Under order IV-A of Code of Civil Procedure, the same court means the court having the same jurisdiction. The court of Ist Additional Civil Judge was trying other two suits on the regular side and was a court of regular jurisdiction. The present suit was consolidated alongwith the two regular suits on the basis that the suit has been transferred on the regular side. 20. The defendant never objected to the procedure adopted for the trial of suit on the regular side. The parties led evidence fully knowing that the question of title is involved in suit No. 124 of 1983. The suit was transferred from Small Causes court to regular side only on the basis that question of title was involved. The order transferring the aforesaid suit No. 124 of 1983 clearly stated that since the question of title is involved, the suit is being transferred from the court of small causes to the court of let Additional Civil Judge, where two regular suits are pending on the same subject matter. The order transferring the aforesaid suit No. 124 of 1983 clearly stated that since the question of title is involved, the suit is being transferred from the court of small causes to the court of let Additional Civil Judge, where two regular suits are pending on the same subject matter. All these facts early show that the parties went to trial with a clear understanding that suit No. 124 of 1983 is being tried as a regular suit. 21. In Smt. Pushpa Sharma Vs. Gopal Lal Rawat, AIR 1986 Raj 187 , a full bench of Rajasthan High Court held: 16. Our answer there to the questions referred is: (1) In a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set forth u/s 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, a decree for possession can be granted in favour of the Plaintiff on the basis of his title. (2) When any issue is framed on the basis of allegation of title of the Plaintiff and the defendant asserts his own title and denies the Plaintiffs' title and both the parties lead evidence without raising any objection question of prejudice caused to the defendant may be seen if decree for possession is to be granted on proof of title of the Plaintiff. 17. It is however, made clear that, as a general rule where a suit is filed on the basis of tenancy and relationship of landlord and tenant then such suit should not be decided on the basis of tenancy alone, and it should not be converted into a title suit. However, in a given case, as the present one where, the defendant herself sets up a title adverse to the Plaintiff and/or does not raise an objection in framing an issue on the basis of title and leads evidence with full knowledge and the trial court gives an adverse finding on such issue against the defendant, then the defendant cannot be permitted to advance the plea in the Appellate Court or Revisional Court that no decree for possession can be granted in such a case. It would be a different matter where the trial court may suffer from inherent lack of jurisdiction not falling within the purview of Section 21, CPC or the defendant may make it out a clear case of prejudice with no fault or laches or acquiescence on his part. Such case may be rare, but it would be left to the discretion of the Court and in such rare case the Court may refuse to grant any decree for possession. 22. In the present case also, the question of title was clearly raised by the defendants themselves. On the basis of the aforesaid question of title having been raised by the defendant, the Plaintiff applied for the transfer for the case from the court of Small causes to a court on regular side, where two regular suits were pending in respect of the same subject matter. All the three suits were consolidated and decided by a common judgment. The defendant never raised any objection, regarding suit No. 124 of 1983, being tried as a regular suit. The trial court specifically rejected the defendants objection that a suit cannot be decreed on the basis of the Will since the suit is of small causes nature. The trial court held that the suit was transferred and tried as a regular suit and no prejudice has been caused to the defendant by such trial. In view of finding of the trial court, the suit of the Plaintiff was decreed for eviction of defendant No. 3 as a regular suit. The defendant cannot be permitted to take up a plea that since the suit was tried as a small causes suit, the Additional Civil Judge has no jurisdiction to pass the decree on the basis of title. The revisional court in the impugned order has dismissed the Plaintiff's suit only on the ground that the Small Causes Court has no jurisdiction to decree the suit on the basis of the title. The revisional Court has taken up the matter, as if, the suit was decreed by the Small Causes court. The Petitioner-Plaintiff did raise am objection before the revisional court that the revision is not maintainable in law. The Petitioner has filed his objection before the revisional court as R.A. 2, wherein in para 5 of his objection, the Petitioner has contended that the revision as such is not maintainable. The Petitioner-Plaintiff did raise am objection before the revisional court that the revision is not maintainable in law. The Petitioner has filed his objection before the revisional court as R.A. 2, wherein in para 5 of his objection, the Petitioner has contended that the revision as such is not maintainable. The said objection has not been looked into, as the revisional court was of the opinion that the suit on the original side has been tried and decided by the Small Causes court. The assumption of the revisional court is not based on any material, whatsoever. On the contrary, the materials on record show that the suit in question was tried on the regular side by a regular court and against the decree only first appeal could have been filed and the revision, as such, was not maintainable. 23. Sri Yogesh Agrawal has also tried to contended in this Court that the finding of the trial court, that the relationship of landlord and tenant did not exist between the Plaintiff Petitioner and defendant Respondent, is also vitiated in law. This argument is not available to Sri Yogesh Agarwal, who has acquiesced to the aforesaid decree of the trial court, wherein it has been held that relationship of landlord and tenant has not been proved between Shiv Prasad and defendant Lallu Lal and on the basis of the aforesaid findings, the trial court dismissed the Plaintiff' suit, claiming rent from defendant Lallu Lal, said finding and decree having become final between the parties, it is not open to the Plaintiff to now contend before this Court that the relationship of landlord and tenant existed between the Plaintiff and the defendant Lallu Lal. However, in view of my decision that the suit No. 124 of 1983 was transferred on the regular side and was consolidated and tried as a regular court and in any case, no prejudice having been caused to the defendant, the defendant cannot be permitted to agitate the question that the suit was tried on the Small Causes side. The decree passed by the trial court in suit No. 124 of 1983 was a decree of a regular court and a regular appeal could have been filed against the said judgment and decree. The revision filed by the defendant Respondent was not maintainable in law. The decree passed by the trial court in suit No. 124 of 1983 was a decree of a regular court and a regular appeal could have been filed against the said judgment and decree. The revision filed by the defendant Respondent was not maintainable in law. As such, the judgment of the Ist Additional District Judge, dated 22-4-88 allowing the revision of the Defendant-Respondent, is liable to be set aside and the same is accordingly quashed. However, since the defendant Respondent pursued the remedy in a wrong court, it will be open to the defendant Respondent to file appeal against the judgment and decree passed by the trial court along with an appropriate application for condoning the delay in filing the appeal. 24. The writ petition is accordingly allowed. 25. The parties will bear their own costs.