JUDGMENT Hon’ble Prakash Krishna, J.—The present writ petition was earlier filed as Second Appeal No. 726 of 1993, under Section 100 C.P.C. before this Court against the judgment and decree dated 22nd April, 1992 passed by Additional Civil Judge, Mathura in Civil Appeal No. 41 of 1991 which arose out of Original Suit No. 370 of 1982. Subsequently, on 12th October, 1993, the appellant requested the Court to convert the aforesaid second appeal into a writ petition. The prayer was accepted by the order dated 12th October, 1993. It was then registered as Writ Petition No. 8169 of 2000. 2. Original Suit No. 370 of 1982 was instituted by Shri Sridhar Prasad, (who died during pendency of the suit and was substituted by heirs who are respondents herein) against the defendant-petitioner for recovery of Rs. 915 towards arrears of rent and ejectment from house in dispute on the allegations that the defendant was tenant on monthly rent of Rs. 25. He is in arrears of rent since 1st July, 1977 to March, 1982. The tenancy was determined by serving a notice dated 8th April, 1982 under Section 106 Transfer of Property Act served on 14th August, 1982. It was further pleaded that inspite of service and receipt of notice, the defendant-tenant has refused to pay the rent. He has denied relationship of landlord and tenant between the parties. The suit was contested by the defendant by denying the relationship of landlord and tenant between the parties. It was pleaded that he never took the house in question on rent nor he ever paid any rent. It was further pleaded that neither the defendant nor his ancestor took the property in dispute on rent from the plaintiff or his ancestor and as such there is no question of default in payment of rent. In the alternative, it was pleaded that if the petitioner is held as tenant then, his tenancy is on monthly rent of Rs. 25 and he is entitled to invoke the benefit of Section 20(4) of the U.P. Act No. 13 of 1972. The validity of the notice determining the tenancy was disputed. In the alternative, it was pleaded that if the petitioner is held as tenant then, his tenancy is on monthly rent of Rs. 25 and he is entitled to invoke the benefit of Section 20(4) of the U.P. Act No. 13 of 1972. The validity of the notice determining the tenancy was disputed. Pleas that other heirs of Nanag Ram have not been impleaded and as such the suit is bad for non-joinder of necessary parties, it is also barred by time, the suit should have been filed on the Judge Small Causes Court side and not on the regular side of the Court, were raised. 3. On the pleadings of the parties, as many as 13 issues were struck. Issue Nos. 1 and 2 relating to the ownership of the property in dispute as also as to whether the relationship of landlord and tenant existed between the parties were decided together against the plaintiff. The trial Court by the judgment and decree found that the defendant has perfected his title by adverse possession and the plaintiff and his ancestor have lost their right, title or interest in the disputed property. Thus, the aforesaid issues were decided in favour of the defendant. Under Issue No. 3, it was held that the plaintiff has no right to maintain the suit. Under Issue No. 4, in view of the findings under Issue Nos. 1 and 2, it was held that question of invoking the benefit of Section 20(4) of the U.P. Act No. 13 of 1972 by the defendant does not arise. The notice determining the tenancy under Issue No. 5 was held to be valid. Similarly, it was found under Issue No. 6 that the suit is not bad for non-joinder of the necessary parties. Issue No. 7 relating to the jurisdiction of the trial Court to entertain the suit was not pressed by the defendant and it was decided accordingly. Under Issue No. 9, it was held that the suit is barred by limitation. Issue Nos. 10 and 12 were decided in favour of the plaintiff. Issue No. 11 was decided in favour of the defendant. The suit was dismissed by the judgment and decree dated 28th February, 1991 by the trial Court. 4. The matter was carried in appeal filed under Section 96 of C.P.C. before the Court below. Issue Nos. 10 and 12 were decided in favour of the plaintiff. Issue No. 11 was decided in favour of the defendant. The suit was dismissed by the judgment and decree dated 28th February, 1991 by the trial Court. 4. The matter was carried in appeal filed under Section 96 of C.P.C. before the Court below. First Appellate Court re-examined the matter and reversed the judgment and decree of the trial Court by the impugned judgment. It decreed the suit for recovery of arrears of rent and ejectment by holding that the plaintiff is the owner and landlord of the property in dispute and the defendant has not perfected title by adverse possession. The other findings of the trial Court on these relevant issues have been reversed. It has been found that there was rent note between the parties. The said rent note is paper No. 23-Ka and is dated 10th June, 1928. Under the said rent note, Nanag Ram S/o Girvar (father of the petitioner) took the property in dispute on rent at the rate of Rs. 10 per month for a period of one year. In para-33 of the judgment, the Appellate Court reached to the conclusion that there is relationship of landlord and tenant between the parties. The notice determining the tenancy has been held to be valid in para-34. It was held in para-35 that the rent was enhanced subsequently from time to time. The defendant was held to be defaulter in payment of rent since 1st July, 1977. A decree, after setting aside the decree of the trial Court, for recovery of Rs. 915 towards rent and damages etc. has been passed by the impugned order. 5. Challenging the aforesaid judgment and decree, the present writ petition has been filed. 6. Learned counsel for the petitioner has raised one and only one point in support of the writ petition. He urged that against the judgment and decree of the trial Court, appeal under Section 96 of the C.P.C. was not maintainable as the Provincial Small Cause Courts Act as amended in State of U.P., a suit for recovery of arrears of rent and ejectment against the defendant is cognizable by Court of Small Causes and judgment and decree passed by such Court is revisable under Section 25 of the aforesaid Act. Strong reliance was placed upon a decision of this Court in Laxmi Kant Upadhyay v. Dev Narayan Mishra, 2002 ALJ 159. 7. In reply, Shri M.K. Gupta, learned counsel appearing on behalf of the plaintiff-landlord submits that on a plaint reading of Section 96 of the C.P.C., the appeal was rightly filed before the Court below and as such, the present writ petition is not maintainable. Elaborating the argument, it was submitted that in any view of the matter, there is no error either of law or fact in the judgment impugned in the present writ petition. It was submitted that every judgment and decree passed by the Civil Court is appealable under Section 96 of the C.P.C. and that the present suit was a title suit wherein the adjudicate of title of the property in dispute was involved. 8. Considered the respective submissions of the learned counsel for the parties and perused the record. 9. At the very outset, it may be pointed out that the learned counsel for the petitioner has confined his argument to only one point as noted above. Pointedly, on a query put by the Court, learned counsel for the petitioner in no uncertain terms stated that besides the above point, he is not challenging the judgment and decree of the Court below on its merit. 10. Thus, the only point mooted in the present proceedings is whether the judgment and decree passed by the trial Court on the facts of the present case is appealable under Section 96 of the C.P.C. or is revisable under Section 25 of the Provincial Small Cause Courts Act. 11. Sub-sections (2) and (3) of Section 15 of the original provisions of Provincial Small Cause Courts Act, 1887, has been substituted by sub-section (2) by U.P. State amendment, which reads as follows : “Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in this sub-section to five thousand rupees shall be construed as a reference to twenty five thousand rupees.” 12. The above quoted provision provides that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease etc. shall be cognizable by a Court of Small Causes. This does not present any difficulty. However, in such suits, between the lessor and lessee, contract of tenancy between the parties, is basis for providing jurisdiction to Court of Small Causes. Section 23 of the said Act provides that notwithstanding anything contained in earlier provisions of the Court, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the prove or disprove of a title of immovable property or other title which such Court cannot finally determine, the Court may pass order ordering return of the plaint to be presented to a Court having jurisdiction to determine the title. To put it differently, even in a suit between lessor and lessee if question of title of immovable property is involved, Judge Small Causes is not competent to decide the said question and only course left open to it is to return the plaint to be presented before Civil Court. 13. Having said so, it is desirable to have a look to the pleadings of the parties. The property in dispute was purchased on 23rd April, 1910 by Shiv Lal, predecessor in interest of the plaintiff-landlord. Shiv Lal on 10th June, 1928 let out the property in dispute to Nanag Ram father of the petitioner. After Shiv Lal, there was a partition in the family and house in dispute fell in the share of Chaudhary Nand Lal, predecessor in interest of the plaintiff. The defendant came out with the case that he has perfected title to the house in question by way of adverse possession. Issue No. 1 was framed by the trial Court with regard to the plaintiff’s ownership to the disputed property. Meaning thereby, the parties were at issue with regard to the title of the disputed property. The suit proceeded accordingly. Logically, it follows that the question of title of the disputed property was involved before the trial Court and the said question was not only involved but has also been adjudicated upon in the light of the evidence of the respective parties. The suit proceeded accordingly. Logically, it follows that the question of title of the disputed property was involved before the trial Court and the said question was not only involved but has also been adjudicated upon in the light of the evidence of the respective parties. Such suits where intricate question of title is involved would not be within parameter of the jurisdiction of Small Cause Courts in view of Section 15(2) as amended in the State of U.P. read with Section 23 of the said Act. The suit was filed and rightly so, on the regular side of Civil Court and was tried as such. Noticeably, precisely a plea that the suit should be filed before the Court of Small Causes was urged by the defendant and specific issue being Issue No. 7 was framed. The said issue was not pressed by the defendant as per noting in the order-sheet dated 6th December, 1989, mentioned in the judgment of the trial Court. 14. Point of jurisdiction was raised earlier in the trial and was given up subsequently by the defendant. Meaning thereby, he agreed that the suit should be heard and tried as a regular suit and as such he is estopped to say anything otherwise. Principle of estoppel and acquiescence is fully attracted. 15. Besides the above, plea of adverse possession which also relates to question of title was put forward by the defendant. Specific issue, issue No. 9 was framed by the trial Court. Under said issue, the trial Court held that the defendant is in occupation of the disputed property for more than 12 years and has not paid any rent after the year 1932, the defendant has acquired title by adverse possession. On merits, the said finding has been rightly set aside in appeal but fact remains that the question of title was put to issue by the defendant-tenant and has been decided by the Courts below. The point which I am trying to bring home is that it was registered as regular civil suit and was tried as regular civil suit and was decreed as regular civil suit involving title to immovable property. It is not correct to say that it was a suit for small causes nature. It may be noted that ordinarily suit between the landlord and tenant based on contract of tenancy would be cognizable by the Courts of Small Cause. It is not correct to say that it was a suit for small causes nature. It may be noted that ordinarily suit between the landlord and tenant based on contract of tenancy would be cognizable by the Courts of Small Cause. The other kind of suits for ejectment treating the defendant as tenant involving the question of title of immovable property as the present one, such suits are not cognizable by Judge Small Causes Court and are regular suits and therefore the judgment and decree passed therein would be appealable under Section 96 of the C.P.C. 16. At this juncture, it would be useful to notice a Full Bench Decision of this Court in Manzural Haq v. Hakim Mohsin Ali, 1970 ALJ 670, wherein it has been held that the Court of Small Causes is the Court of preferential jurisdiction and not of exclusive jurisdiction. This is crux of the matter. In the case on hand, the suit was tried as a regular suit and rightly so. It was not tried and rightly so as Small Causes suit as title of the property in dispute was questioned seriously by the defendant. Now the defendant cannot be permitted to take turn around and to fall back on the contract of tenancy by divorcing the plea relating to title which was put in issue by him earlier. 17. The sheet anchor of the argument put forward by the learned counsel for the petitioner is a decision of this Court in Laxmi Kant Upadhyay (supra). It is desirable to notice the facts of the case therein. Reading of precedent would show that it was a simple suit for eviction from shop and for recovery of arrears of rent, which was decreed. The suit was registered as regular suit. It was urged that the suit was of small causes nature, against the judgment and decree of the trial Court, appeal under Section 96 of the C.P.C. would not lie. Plea was found favour with the Court. Para-16 from the judgment which has been relied upon is reproduced below : “After carefully considering the case law cited above, I am of the view that the suit no doubt is a suit of the nature of small causes suit. It can also not be disputed as it was filed, registered and tried as regular suit. Para-16 from the judgment which has been relied upon is reproduced below : “After carefully considering the case law cited above, I am of the view that the suit no doubt is a suit of the nature of small causes suit. It can also not be disputed as it was filed, registered and tried as regular suit. However, even then it will not lose its character and will remain a suit of the nature of the small causes. Therefore, no appeal under Section 96, C.P.C., is maintainable.” (Emphasis supplied) 18. The decision rendered in the above precedent was given in a different factual background and is therefore, distinguishable. That was a case where suit of small causes nature was registered and tried as a regular suit. In this background, it was held that the judgment and decree is not appealable under Section 96 of the C.P.C. Herein the factual matrix is quite different. The suit giving rise to the present writ petition was not in the nature of small causes suit. Nature of the suit is as that of a regular suit and was tried as regular suit. Besides the above, relied upon decision will not be available to the defendant for the reason that no such objection appears to have been taken up before the Court below i.e. Appellate Court. 19. In addition to above, it may be noted that a writ Court is not bound to issue a writ in every case as discretion vests to refuse to issue a writ in appropriate cases where substantial justice has been done to the parties. Unless there is miscarriage of justice to the petitioner, writ should not be issued. Rent-deed has been found to be established and the plea of adverse possession put by the defendant has been negatived. There is no challenge to these findings. It follows that the plaintiff is a lawful owner of the property in dispute and is entitled to get it vacated by ejecting the tenant i.e. defendant, in accordance with law. The proceedings for eviction of defendant were taken out by him through a duly constituted suit before appropriate forum. The defendant-tenant has no defence on merits and now wants to defeat the plaintiff’s right by taking technical plea, which is akin to procedure irregularity. The proceedings for eviction of defendant were taken out by him through a duly constituted suit before appropriate forum. The defendant-tenant has no defence on merits and now wants to defeat the plaintiff’s right by taking technical plea, which is akin to procedure irregularity. Even if, it is held that the appeal is not maintainable, no useful purpose is going to be served as the revision would also lie before the same forum which heard the appeal. There is no change of forum and it is a matter in the realm of giving cause title to a petition. 20. Viewed as above, there is no merit in the submissions of the learned counsel for the petitioner that the judgment and decree passed by the trial Court was not appealable but was revisable though before the same forum. The writ petition lacks merit. 21. The defendant-tenant is granted time to vacate the disputed accommodation upto 30th April, 2012 subject to the following conditions: (1) The defendant-tenant shall deposit the entire arrears of rents and damages for use and occupation after adjusting the amount, if any, already deposited for the period upto 30th April, 2012 within a period of one month from today before trial Court. (2) Within the aforesaid period, the defendant-tenant shall file an undertaking on affidavit before the trial Court that he will vacate the disputed accommodation on or before 30th April, 2012 and will hand over its peaceful vacant possession to the plaintiff landlord without creating any third party interest. 22. In case of default in compliance of any of the conditions stipulated above, the time granted shall stand vacated automatically. 23. The writ petition is, therefore, dismissed with cost of Rs. 10,000 payable by the petitioner to the contesting-respondents within a period of one months. ——————