JUDGMENT Hon’ble Shishir Kumar, J.—Heard Sri Santosh Kumar Mishra learned counsel for the petitioner and Ms. Rama Goel appearing for the respondent. 2. The present writ petition has been filed for quashing the orders dated 23.9.2008 and 7.1.2008 passed by Judge Small Causes Courts, Bareilly (Annexure 7 and 5 respectively to the writ petition). 3. A suit has been filed by the respondent Waqf against the petitioner for ejectment and arrears of rent before the Judge Small Causes Court on the ground of default. The Judge, Small Causes Court, vide its order dated 7.1.2008 allowed the application and directed that petitioner will handover the possession of the premises in dispute. Petitioner aggrieved by the aforesaid order filed a revision. That revision too has been dismissed by order dated 23.9.2008, confirming the order passed by Judge Small Causes Court Act. 4. Hence the present writ petition. 5. Learned counsel for the petitioner submits that in view of lease deed executed in favour of petitioner the suit filed by respondent itself was not maintainable before the Judge, Small Causes Court. Admittedly the open roof was leased out and with the permission of landlord petitioner had constructed the accommodation. Therefore, if the suit is filed before the proper Court, meaning thereby before a Civil Court it will be maintainable but it is not maintainable before the Judge, Small Causes Court for arrears of rent and ejectment. 6. Learned counsel for the petitioner relied upon a judgment of this Court reported in 1981 ARC 693, Radhey Shyam v. District Judge, Allahabad and others. Reliance has been placed upon paras 7 and 8 of the judgment, which are quoted below : “7. In fact, the suit was filed for ejectment of the petitioner from the land in dispute and also, consequently, for possession of the property which had been constructed by the petitioner on the land in dispute. Section 15 (1) of the Provincial Small Causes Court Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of the Court of Small Causes. Section 15 (1) of the Provincial Small Causes Court Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of the Court of Small Causes. Article (4) of the Second Schedule, as amended by this State, reads as under : “(4) A suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.” “8. From a reading of Article (4), it is clear that a suit for possession of immovable property or for the recovery of an interest in such property has been excepted and, as such, it is not cognizable by the Judge, Small Causes Court. The only suit cognizable would be a suit by a lessor for eviction of a lessee from the building after the determination of the lease. Therefore, under Article (4), only such suits are cognizabe by the Judge, Small Causes Court where the building is the subject matter of the lease and there is a determination of the lease of the said building. In the instant case, the allegations in the plaint are that the land had been let out and not the building. It has not been alleged that the petitioner is a lessee of the building. In fact, it is the case of the plaintiff in the suit that the building had been constructed by the petitioner with the permission of the plaintiff. It, therefore, cannot be held that the present suit is a suit by the lessor for eviction of a lessee from a building. In fact, it would be a suit for possession of the immovable property which would not lie in the Court of Judge, Small Causes.” 7. However, reliance has been placed upon a judgment of this Court reported in 2008 (72) ALR 19, Meghnath v. XIth A.D.J., Varanasi and others and another judgment of the Apex Court reported in 2000 (40) ALR 213, Kamla Devi v. Laxmi Devi. However, reliance has been placed upon a judgment of this Court reported in 2008 (72) ALR 19, Meghnath v. XIth A.D.J., Varanasi and others and another judgment of the Apex Court reported in 2000 (40) ALR 213, Kamla Devi v. Laxmi Devi. Taking support of the judgments, learned counsel for the petitioner submits that this Court has held that in view of Section 15 (1) and Article (4), if open land has been let out to the defendant, the suit before the Judge Small Causes Court will not be maintainable in spite of the fact that some accommodation has been constructed upon such open land. 8. On the other hand, learned counsel for the respondent submits that in an earlier suit filed by the respondent, the petitioner himself has admitted the fact that he is not a tenant of open land, he is the tenant of accommodation and now in this proceeding petitioner is denying the admission made in the earlier suit. Further submission has been made that lease was granted to petitioner for a period of ten years and that has already expired in the year 1995 and petitioner without extension of any lease in his favour is occupying the said premises without paying any rent. Therefore, the suit filed before the Judge, Small Causes Court itself is maintainable. 9. After considering the submissions made on behalf of petitioner the judgment cited by learned counsel for the petitioner will not be applicable in the present case because in this case admittedly after taking the lease some portion has been made by the petitioner though with the permission of the landlord. There was a condition in the deed that he will pay the rent. The Apex Court’s judgment will not be applicable in the present case as in that case the subject matter in dispute was the vacant plot. In such circumstances the Court has held that it will not come within the jurisdiction of Rent Act. Further it has to be seen regarding the conduct of petitioner that he is paying only Rs. 20/- as rent and in the earlier suit he has made an admission that he is not the occupant of vacant land but the accommodation is a constructed house. In such situation whether at this stage now petitioner can claim the benefit that he is the occupant of land only. 20/- as rent and in the earlier suit he has made an admission that he is not the occupant of vacant land but the accommodation is a constructed house. In such situation whether at this stage now petitioner can claim the benefit that he is the occupant of land only. In order to appreciate the submissions of the learned counsel it will be convenient to have a look at the relevant statutory provisions. Section 15 of the Provincial Small Causes Courts Act defines the jurisdiction of Courts of Small Causes and it provides that a Court of Small Causes shall not take cognizance of a suit specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes. The issue for determination therefore, is whether the present suit is one by a lessor for the eviction of a lessee from the building after the determination of his lease. The relationship of lessor and lessee being admitted to the parties and finding of the Court below being that the lease in question has been determined by the lessor it is obvious that the issue would turn wholly on the answer to the question whether the suit is one for eviction from a building. This finds support from a judgment of this Court reported in 1990 (16) ALR 601, M/s. Kedar Nath Baijnath and others v. Sri Ram Chandraji Sri Janki, Sri Lakshman Ji Virajman Mandir and others. 10. Further in R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352 , the principle of approbate and reprobate has been considered. The Apex Court has held that law does not permit a person to both approbate and reprobate. No party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage”. 11. Thus, in the present case also the tenant has admitted this fact in another suit that he is the tenant of accommodation then whether subsequently in the present suit he can say that he was given open land. 12. In view of aforesaid fact, I find no justification for interference. 11. Thus, in the present case also the tenant has admitted this fact in another suit that he is the tenant of accommodation then whether subsequently in the present suit he can say that he was given open land. 12. In view of aforesaid fact, I find no justification for interference. The writ petition is devoid of merit and is hereby dismissed. 13. No order as to costs. ———