JUDGMENT Honble S.U. Khan, J.—Heard Shri Arvind Srivastava, learned counsel for the petitioners and Shri S.P. Pandey, learned counsel for the contesting respondents. 2. This is plaintiffs’ writ petition. Original petitioners claiming themselves to be owners-landlords of the house in dispute, filed suit for eviction against original Respondents 1 to 8 claiming that most of the defendants were their tenants and some of the defendants were sub-tenants inducted by the tenants. The defendants who were alleged by the plaintiffs to be main tenants filed written statement claiming that they were not the tenants, plaintiffs were not the owners or landlords and that the defendants who were alleged to be the main tenants were owners through the adverse possession over the site of the house in dispute and the house had been constructed by them or their ancestors. They also pleaded and asserted that complicated question of title was involved, hence, plaintiffs have filed suit before regular civil Court and in case plaint should be returned to be filed before regular civil Court under Section 23 of Provincial Small Causes Court Act. The suit was filed before Judge Small Causes Court, Azamgarh in the form of SCC suit No. 8 of 1981. Against some interim orders matter was carried in revision and ultimately it was directed that the trial Court should decide the issue regarding return of plaint alongwith other issues while deciding the suit finally. Ultimately JSCC/Civil Judge/IInd Additional Chief Judicial Magistrate, Azamgarh through judgment, decree and order dated 27.11.1991 held that the matter involved question of title hence suit was not cognizable by JSCC. Plaint was directed to be returned to the plaintiff for filing it before regular civil Court. Against order dated 27.11.1991 SCC revision No. 1 of 1992 was filed. lInd Additional District Judge, Azamgarh through judgment and order dated 20.7.1992 dismissed the revision hence this writ petition. 3. Plaintiffs are descendants of one Raghubir Prasad who had a brother by the name of Mahaveer Prasad. Mahaveer Prasad had a son by the name of Ram Lakhan. Complete pedigree is given in the judgment of this Court dated 30.6.1980 given in Second Appeal No. 3246 of 1975. The said judgment was filed before the trial Court and its copy is Annexure-4 to this writ petition. In the suit giving rise to the aforesaid second (O.S. No. 35 of 1958), there were 14 defendants. Complete pedigree is given in the judgment of this Court dated 30.6.1980 given in Second Appeal No. 3246 of 1975. The said judgment was filed before the trial Court and its copy is Annexure-4 to this writ petition. In the suit giving rise to the aforesaid second (O.S. No. 35 of 1958), there were 14 defendants. Defendant Nos.1 to 13 belonged to the branch of Raghubir Prasad. Defendant No. 14 was Diwakar Dixit predecessor-in-interest of the defendants in the suit giving rise to the instant writ petition who were alleged to be main tenants by the plaintiffs-petitioners. In the suit of 1958 two house were in dispute. Both the house initially belonged to Baldeo Prasad father of Raghubir Prasad and Mahabir Prasad. The share of Mahabir Prasad in the two houses was auctioned in proceedings under Encumbered Estates Act in 1943. The suit of 1958 had been filed by auction purchaser for possession. During pendency of suit of 1958 Diwakar Dixit died and was substituted by his two sons and widow who were main defendants in the suit of 1981 giving rise to the instant writ petition and who are Respondents 1, 2 and 3 in the instant writ petition. 4. In the suit of 1958 defendants 1 to 13 i.e. descendants of Raghubir Prasad contended that Diwakar Dixit defendant No. 14 in the said suit was their tenant. One of the sons of Diwakar Dixit filed written statement stating that his father was tenant of defendants 1 to 13 and used to pay rent to them and after his death also rent was being paid to defendants 1 to 13. 5. Suit of 1958 had been decreed by the trial Court and appeal was also dismissed. However, Second appeal was allowed on the ground that suit was barred by time as plaintiffs’ auction purchaser were never in possession. For recording the said finding reliance was specifically placed upon the fact that tenant Diwakar Dixit was paying rent to the descendants of Raghubir Prasad who were defendants 1 to 13 in the said suit. However, Second appeal was allowed on the ground that suit was barred by time as plaintiffs’ auction purchaser were never in possession. For recording the said finding reliance was specifically placed upon the fact that tenant Diwakar Dixit was paying rent to the descendants of Raghubir Prasad who were defendants 1 to 13 in the said suit. Relevant finding of the Second appeal’s judgment are quoted below : “No convincing evidence of the realisation of rent of their share (plaintiffs’ share) is on the record on the other hand one of the sons of Diwakar Dixit original tenant, gave out that the rent was being paid to the defendants and not to the plaintiffs. House No. 1 is admittedly in possession of tenant and the plaintiff could not be in actual possession of the same.” 6. Both the Courts below brushed aside the judgment of the second appeal on the ground that the second appeal was allowed only on the ground of limita-tion and question of tenancy was neither relevant nor decided by the said judgment. 7. In my opinion these findings of the Courts below are utterly erroneous and based on wrong interpretation of judgment of second appeal as is evident from the above quoted portion of judgment of the Second appeal. The finding was very much relevant and it was consciously recorded and ultimate judgment was mainly based upon the said finding or atleast on the said finding and some other findings. Moreover, one of the sons Diwakar Dixit clearly admitted in the written statement filed in the said suit (of 1958) that Diwakar Dixit and after his death his heirs were tenants of descendants of Raghubir Prasad. The relationship of landlord and tenant in between descendants of Raghubir Prasad and Diwakar Dixit was firstly admitted in the suit of 1958 by Diwakar Dixit and his heirs after his death and secondly a categorical finding was recorded by the second appellate Court to that effect which was one of the basis of the ultimate judgment in the second appeal. 8. 8. The defence taken in the written statement filed by defendants-respondents 1 to 3 the descendants of Diwakar Dixit in the suit of 1981 giving rise to the instant writ petition was that a kacha house was given to them by Ram Lakhan Prasad son of Raghubir Prasad more than 50 years before and the kacha house later on fell down and Diwakar Dixit constructed now house on the said site. In view of their stand in the earlier litigation defendants respondents 1 to 3 were estopped from asserting that they were not the tenants of descendants of Raghubir Prasad. Moreover, in the judgment of the second appeal it was clearly held that Diwakar Dixit and after his death his heirs respondents/defendants 1 to 3 were tenants of descendants of Raghubir Prasad. 9. Lower revisional Court held that house was constructed by Diwakar Dixit hence ejectment suit was not maintainable. This finding is also erroneous in law. If a house is let out and the same falls down and thereafter a new house is constructed on the site by the tenant, he remains tenant and does not become owner. By maximum while passing eviction decree the tenant may be permitted to remove the super structure. 10. In view of this it was not at all necessary for the Courts below to look into other evidence. 11. Accordingly, I am of the opinion that judgment and orders passed by the Courts below are erroneous in law in view of admission of respondents 1 to 3 in the suit of 1958 and the findings of this Court given in the judgment of second appeal dated 30.6.1980. It is clearly proved that descendants of Raghubir Prasad i.e. plaintiffs petitioner are owners-landlords and Diwakar Dixit and after his death his heirs i.e. defendants-respondents 1 to 3 are tenants of the accommodation in dispute. 12. Accordingly writ petition is allowed. Both the impugned orders are set aside. Suit is restored. Trial Court is directed to decide other issues. As the suit is of 1981 hence trial Court must make all efforts to decide the suit within six months from the date on which certified copy of this judgment is filed before it. Both the parties are directed to appear before the trial Court alongwith certified copy of this judgment on 4.11.2008. ————