JUDGMENT Hon’ble Shishir Kumar, J.—Heard Syed Wajid Ali, learned counsel for the petitioner and Sri Salil Kumar Rai, holding brief of Sri B.K. Tripathi, learned counsel appearing for the respondent. 2. The present writ petition has been filed for quashing the orders dated 28.5.09 passed by Additional District & Sessions Judge, Court No. 3, Gorakhpur in S.C.C Revision No. 1 of 2008, Annexure No. 4 and order dated 18.12.2007 passed by Judge, Small Causes Court, Gorakhpur in S.C.C Suit No. 29 of 2005, filed as Annexure No. 3 to the writ petition. 3. The facts emerged in the writ petition are, that the respondents filed a suit before the Judge, Small Causes Court, as suit No. 29 of 2005 against the petitioner for ejectment and arrears of rent amounting to Rs. 3000/-. The petitioner filed a written statement denying the ownership of the respondents on the ground that the property belongs to one Ram Das Gupta and after his death, his wife became landlady of the premises in question and during her lifetime, Smt. Sudhan Devi and her son Srinath used to take the rent from the petitioner. A Will was executed on 21.2.1993 in her favour by husband, Sri Ram Das Gupta and subsequently, Smt. Sudhan Devi has also executed a Will dated 12.10.1996 in favour of her son, Srinath regarding the house in dispute. The rent was being paid to him. Subsequently, when he refused to take his rent, it was being deposited in the Court under Section 30 of the U.P. Urban Building ( Regulation of Letting Rent & Eviction) Act, 1972 (hereinafter referred to as Act No. 13 of 1972). 4. The trial Court without considering this issue, was pleased to decree a suit vide its judgment and order dated 18.12.2007. The revision filed by the petitioner has also been dismissed vide its order dated 28.5.2009. 5. Sri Wajid Ali, learned counsel appearing for petitioner submitted that as the specific plea was raised before the Courts below that the respondents are not the landlords and title has been denied. Therefore, in view of the provision of Section 23 of the Judge, Small Causes Court Act, the suit ought to have been transferred by the Courts below to the Court of having its competent jurisdiction. 6. Therefore, in view of the provision of Section 23 of the Judge, Small Causes Court Act, the suit ought to have been transferred by the Courts below to the Court of having its competent jurisdiction. 6. In view of the Will Deed executed by the mother of the respondent, the respondent was not a landlord, therefore, he has no right to institute the same. The reliance placed upon the judgment of the Apex Court reported in 1988, AWC 1057, Budhu Mal v. Mahabir Prasad and others, and placed reliance in paragraph No. 10 of the said judgment which is reproduced below : “It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against the tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been return for presentation to a Court having jurisdiction to determine the title. In case, the plea set up by a appellants that by the deed dated 8th December, 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt. Sulochna Devi and that the said deed could not be unilaterally cancelled, is accepted, it is likely not only to affect the title of Mahabir Prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant, between Mahabir Prasad and the appellants which could not be revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated 8th December, 1966. In that event it may not be possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simplicitor based on contract of tenancy in which an issue of title was incidentally raised. If the suits cannot be construed to be one between landlord and tenant they would not be cognizable by a Court of small causes and it is for these reasons that we are of the opinion that these are appropriate Court so that none of the parties was prejudiced.” 7. Further reliance has been placed upon a judgment by this Court reported in 1998 (3) AWC 1616, Banke Bihari v. Surya Narain alias Munnoo, placed reliance in paragraph No. 13 of the said judgment, which is being reproduced below : “I was then urged that even assuming that registration of the document was required, it can still be admissible in evidence for a collateral purpose. I do not find any force in this submission either. It has been held in the case of Ratan Lal v. Hari Shankar, AIR 1980 All 180 , that collateral purpose referred to under Section 49 of the Registration Act has a limited scope and meaning. The term would not permit the party to establish that the deed created or declared or assigned or limited or extinguished a right to immovable property. Therefore, a family arrangement needed to be registered and an unregistered one could not be used even to prove that there was a partition and oral evidence regarding partition on the basis of such document could not be led as it was barred by Section 91 of the Evidence Act. Learned counsel for the appellant has, however, placed reliance upon the observations made by the Supreme Court in the case of Kale (supra), wherein it was observed that even if the family arrangement was not registered it could be used for collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement. So far as the observation is concerned, it was made in the facts of the said case where the antecedent family arrangement which had been orally arrived at between the parties had been acted upon for several years. So far as the observation is concerned, it was made in the facts of the said case where the antecedent family arrangement which had been orally arrived at between the parties had been acted upon for several years. The petition was filed before the Assistant Commissioner that the dispute between the parties has been settled amicably between the members of the family and it no longer required determination and, therefore, mutation be affected in accordance with that since the petition itself did not create or declare any rights in the immovable property, it was not hit by Section 17(1)(b) of the Registration Act and was not compulsorily registerable. It is in that background that observations were made in the said case. As this Court has already held that by the document of family arrangement some right in immovable property has been created and some right has been extinguished, the term ‘collateral purposes’ would not permit the party to establish any of these facts from the deed. There is, therefore, no substance in this submission of the learned counsel as well.” 8. Further reliance has been placed upon a judgment of the Court reported in 2003, AWC 1195, Pratap Singh v. IX Additional District Judge, Fatehpur and others. 9. Placed upon these judgments, the learned counsel for the petitioner submits that in view of the plea taken by the petitioner that Will was executed by the mother in favour of her two sons and the respondent was executed from the property in question, therefore, he cannot became the landlord and owner of the property. Therefore, once the title of respondent landlord was denied, the Courts below was obliged to return the plaint to the competent Court. The document submitted by the petitioner was to be considered because once the Will has been executed and that has to be taken into consideration for collateral purposes. 10. Further from the allegation made in the plaint, there is no averments that in partition between the parties was acted upon, therefore, the finding recorded by the Courts below is based on evidence and is erroneous. 11. I have considered the submissions made on behalf of parties and perused the record. 12. 10. Further from the allegation made in the plaint, there is no averments that in partition between the parties was acted upon, therefore, the finding recorded by the Courts below is based on evidence and is erroneous. 11. I have considered the submissions made on behalf of parties and perused the record. 12. In paragraph No. 9 of the application filed before the Judge, Small Causes Court for arrears of rent and ejectment, it has clearly been stated that there was a partition between the parties and they are in possession of their respective shares. The property in dispute has come in the possession of the respondent landlord, therefore, being a landlord, he has filed a suit. This fact has been intimated by a notice dated 18.9.2000. The Judge, Small Causes Court as well as the Revisional Court has recorded a finding on issue No. 7 that the house in dispute after the partition, has come in the share of the respondents and as such, there is a relationship of landlord and tenant. Further, finding has been recorded that the execution of the Will has not been proved. If such document has not been acted upon, then the question for consideration is whether the Courts below was obliged to take into consideration the said document. As regards, the document of the family partition has been placed before the Court. 13. The Revisional Court has also after considering the submission and the documents filed in support of the petitioner, has recorded a finding that there is a relationship of landlord and tenant, and therefore, there is no occasion to transfer the suit under Section 23 of the Judge Small Causes Court Act. 14. Further in the Buddhu Mal (supra), the Apex Court while considering the issue and question regarding transfer of the plaint to the competent Court under Section 23 of the Act, in case, there is a denial by the tenant that a person who had filed suit for ejectment and arrears of rent, is not landlord. It does not make obligatory on the part of the Court to invariably return the plaint. Once a question of title is raised by the tenant, the Court has to see that whether there is a relationship of landlord tenant are not and whether the Judge, Small Causes Court is having jurisdiction to decide the same. It does not make obligatory on the part of the Court to invariably return the plaint. Once a question of title is raised by the tenant, the Court has to see that whether there is a relationship of landlord tenant are not and whether the Judge, Small Causes Court is having jurisdiction to decide the same. The power under Section 23 of the Act has to be exercised not in a casual manner. It has to be executed judicially after coming to confirm opinion that suit is not triable by the Court. In 2006 (62) ALR 583, this Court has held that return of plaint, power of Court of Judge, Small Causes Court, not to be exercised in a mechanical manner. Court is not bound to return the plaint merely because the tenant has raised a dispute with regard to title under Section 23 of the Judge, Small Causes Court Act. It is a discretionary power to be exercised by the Court. In Budhu Mal v. Ramphal, 1991 ALJ 1065, Apex Court has held that return of plaint is not obligatory on the Court if it involves question of title, however, in some cases discretion to return of plaint ought to be exercised to do complete justice between the parties. 15. Section 23 of the Judge, Small Causes Court Act gives the power “ to return the plaint” for being presented before the Court having jurisdiction to determine the title in the event if it is specified that when the right of the plaintiff and the relief claimed by him depending upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine. 16. The powers so vested under Section 23 of 1887 Act is not to be exercised in a mechanical manner and the Judge, Small Causes Court is not bound to return the plaint merely because the tenant has raised the dispute with regard to the title. The word used is title depending upon proof or disproof with regard to the immovable property. The Judge, Small Causes Court can very well examine, as to whether, there is a real dispute with regard to the title which it cannot decide either incidentally or prima facie and only then it may return the plaint while exercising the powers under Section 23 of 1887 Act. 17. The Judge, Small Causes Court can very well examine, as to whether, there is a real dispute with regard to the title which it cannot decide either incidentally or prima facie and only then it may return the plaint while exercising the powers under Section 23 of 1887 Act. 17. In Shamim Akhtar v. Iqbal Ahmad and another, 2000 (42) ALR 171, the Court has held that Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in the Court of Small Causes depends upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. Power so vested is discretionary, it has to be exercised only when the relief claimed by the plaintiff in a proceeding before the Court depends upon the proof or disproof. 18. In the present case, the petitioner has challenged the alleged Will which was alleged to be executed by the mother of the respondent without any proof to this effect whether it was acted upon or not. 19. In the opinion of the Court, petitioner being a tenant, cannot deny the title of the landlord only on the basis of an alleged Will that too executed by the mother of the respondent, though it has been denied that Will was never acted upon by the respondents. As regard, the finding recorded that admittedly, the petitioner has not paid the rent on the first date of hearing and he was in arrears and has not deposited the same on the immediately within a period of one month from the date of notice. In such circumstances, the Court below has passed an order holding that the petitioner was defaulter and as such, is liable for ejectment. 20. In view of the aforesaid fact, in my opinion, the findings recorded by the Courts below are finding of fact, no interference is required by this Court while exercising the power under Article 226 of the Constitution of India. The writ petition is devoid of merit and is hereby dismissed. No order as to cost. 21. 20. In view of the aforesaid fact, in my opinion, the findings recorded by the Courts below are finding of fact, no interference is required by this Court while exercising the power under Article 226 of the Constitution of India. The writ petition is devoid of merit and is hereby dismissed. No order as to cost. 21. In the last, Sri Wajid Ali, learned counsel appearing for the petitioner submitted that some reasonable time be granted to the petitioner to vacate the premises. Petitioner is granted three months’ time to vacate the said shop subject to condition that he will file an affidavit before the Judge, Small Causes Court in the shape of undertaking within a period of two weeks from today that he will vacate the premises in dispute within a period of three months from today and will not induct any third person and hand over peaceful possession immediately on or before the three months. If, such an undertaking is given, the Judge, Small Causes Court will grant three months’ time to vacate the said premises. It is also made clear that arrears, if any, payable month to month shall also payable to the landlord. ————