JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri S.K.Verma, Senior Advocate, assisted by Sri G.R.S. Pal, Advocate, for the petitioners and Sri Y.S. Saxena, Advocate, for the respondents. 2. This is tenants’ writ petition, who are facing eviction from a residential accommodation situated at Sadar Bazar, Dataganj, Badaun having lost small cause suit for eviction in both the Courts below. 3. One of the basic question sought to be raised by learned counsel for petitioners is that there was a title dispute and, therefore, plaint ought to have been returned under Section 23 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “Act, 1887”) but the Courts below in proceeding to decide small cause suit have erred in law and the impugned judgments, thus are wholly without jurisdiction. It is also said that suit is barred by time, power of attorney in favour of plaintiff was defective and the suit was not maintainable. 4. S.C.C. Suit No. 4 of 1994 was instituted on behalf of 14 plaintiffs through power of attorney holder Ram Bharosey Lal Gupta, son of Sri Niranjan Lal, who was also one of the plaintiffs being plaintiff No. 1, against petitioners alleging that disputed house was let out to defendants’ father Jamuna Prasad on monthly rent of Rs. 3.75. After the death of Jamuna Prasad, tenancy rights devolved upon his legal heirs including petitioners. The house in dispute was initially owned by one Buddh Sen and Smt. Champa Devi, who sold it vide sale-deed dated 23.10.1964 to plaintiff No. 1. A Suit No. 501 of 1968 was instituted by plaintiff No. 1 against Sri Jamuna Prasad seeking his eviction but it was dismissed by Trial Court on the ground of defective notice. In the earlier suit, from the pleadings of tenant, it had come on pleadings that house was initially owned initially by Ram Chandra and Buddha Sen, two real brothers and after their death, there was a partition among legal heirs. Smt. Champa Devi executed sale-deed in favour of plaintiff No. 1. Alleging that tenant had not paid rent since 23.10.1964 after determining tenancy, suit for eviction was filed. 5. It was contested by petitioners-tenants. In the written statement, it was pleaded that plaintiffs have no right to institute suit for eviction. The plaintiffs are not owner. Champa Devi was never owner of the suit property. Alleging that tenant had not paid rent since 23.10.1964 after determining tenancy, suit for eviction was filed. 5. It was contested by petitioners-tenants. In the written statement, it was pleaded that plaintiffs have no right to institute suit for eviction. The plaintiffs are not owner. Champa Devi was never owner of the suit property. The defendants never had status of tenant and there was no relationship of landlord and tenant at any point of time in respect of suit property. The defendants claimed themselves owner of property on the ground that the same was purchased from Smt. Kalawati on 22.12.1976, though, she was not the sole owner of property. The defendants possession of disputed property was in their capacity as owner. The dismissal of suit No. 501/68 would operate as res judicata and plaintiffs have no right to institute suit for eviction. 6. There are some other pleadings, which I propose to deal as and when it would be necessary. 7. The Trial Court formulated following two issues: ^^1- D;k oknhx.k fookfnr lEifRr ds Lokeh o yS.MykWMZ gSA 2- D;k nkok oknhx.k vof/k ckf/kr gSA** English Translation by Court 1. Whether plaintiffs are owner and landlord of property in dispute? 3. Whether suit of plaintiffs is time barred?” 8. While dealing with issue No. 1, Trial Court found that ownership rights are being claimed by defendant-tenants on the basis of an unregistered sale-deed. The Trial Court also found that initially house belong to one Sohan Lal and after his death, Buddh Sen and Ram Chandra became owner of the said house. After death of Buddh Sen, her wife Smt. Champa executed a sale-deed of house in question, which came to her share in partition, to plaintiff No. 1, vide a registered sale-deed dated 23.10.1976 while defendants claim that through an unregistered sale-deed dated 22.12.1976, Smt. Kalawati sold disputed house to defendant-tenants for a consideration of Rs. 50/- only. 9. The Trial Court found that in the judgment of suit No. 501 of 1968, it was noticed that between Ram Chandra and Buddh Sen, there was no partition in respect to disputed house. The said fact was reiterated in Appellate Court’s judgment dated 1.4.1976 in Civil Appeal No. 76 of 1974. 50/- only. 9. The Trial Court found that in the judgment of suit No. 501 of 1968, it was noticed that between Ram Chandra and Buddh Sen, there was no partition in respect to disputed house. The said fact was reiterated in Appellate Court’s judgment dated 1.4.1976 in Civil Appeal No. 76 of 1974. It thus held that registered sale-deed dated 23.10.1976 executed by Champa Devi, widow of Buddh Sen would be valid only to the extent of share of Smt. Champa Devi and not beyond that. In view thereof, plaintiff No. 1 was a co-owner of disputed accommodation and it was open to a co-owner to institute suit for eviction against tenants. 10. So far as sale-deed set up by defendant-tenants is concerned, the Court found that under Section 17(1)(b) of Indian Registration Act, 1908 (hereinafter referred to as “Act, 1908”) read with Section 54 of Transfer of Property Act, 1882 (hereinafter referred to as “Act, 1882”) the sale-deed in question, which is said to have been executed on 22.12.1976 should have been a registered document hence it is nullity and inadmissible in evidence. With regard to default in payment of rent, it found that there was a default and accordingly decreed the suit. The Revisional Court has also found judgment of Trial Court, in accordance with law, and has declined to interfere therewith. 11. It is no doubt true that defendant-tenants have raised question of title in respect of disputed property but the sole document on which defendants founded their case was unregistered and nullity, therefore, inadmissible in evidence. Hence their claim apparently was shallow. 12. With regard to question whether document ought to have been registered or not, learned counsel for the petitioner placed reliance on a single judge’s judgment in Budhi Ram v. IInd Additional District Judge, Sultanpur and others, 1994(1) ARC 76. 13. There are certain amendments in Act, 1908 by U.P. Legislature by U.P. Act No. 57 of 1979 and thereafter, by the Parliament, by Central Act 48 of 2001 but since the documents in question is said to have been executed on 22.12.1976, therefore, statute, as it was applicable on that date, has to be considered. 14. Section 17(1) of Act, 1908 provides for documents, registration whereof is compulsory. In 1976, Section 17 (1) of Act, 1908 reads as under: “17. 14. Section 17(1) of Act, 1908 provides for documents, registration whereof is compulsory. In 1976, Section 17 (1) of Act, 1908 reads as under: “17. Documents of which registration is compulsory.—(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866(XX of 1866), or the Indian Registration Act, 1871 (VII of 1871, or the Indian Registration Act, 1877(III of 1877), or this Act came or comes into force, namely : (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property; (c) non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property.” 15. Sub-section 2 of Section 17 is also relevant but this Court exclude amendment made therein subsequently including U.P. Act 57 of 1976, which came into force on 1.1.1977. Sub-section 2 of Section 17 is also relevant but this Court exclude amendment made therein subsequently including U.P. Act 57 of 1976, which came into force on 1.1.1977. Section 17(2) as it stood in 1976 i.e. on 22.12.1976 reads as under: “(2) Nothing in clauses (b) and (c) of sub-section (1) applies to - (i) any composition deed; or (ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such Company; or (v) any document other than contract for sale not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or (vii) any grant of immovable property by Government; or (viii) any instrument of partition made by a Revenue-Officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (XXVI of 1871), or the Land Improvement Loans Act, 1883 (XIX of 1883); or (x) any order granting a loan under the Agriculturists, Loans Act, 1884 (XII of 1884); or instrument for securing the repayment of a loan made under that Act; or (x-a) any order made under the Charitable Endowments Act, 1890, (VI of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.” Then comes Section 54 of Act, 1882, which reads as under: 16. Section 49 of Act, 1908 as it stood in December, 1976 read as under: “Section 49. Effect of non-registration of documents required to be registered.—No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) or of any other law for the time being in force, to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power or create any right or relationship, or (c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of part-performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument.” 17. The transfer of immoveable property is governed by Act, 1882 and provides the way in which an immoveable property can be transferred. Section 54 says that transfer of immoveable can be made either by registered instrument or by delivery of property of a value less than Rs. 100/-. No other mode is prescribed in the section. It is not stated therein that if a document is written so as to transfer immoveable property worth below Rs. 100/-, it shall not require registration. On the contrary, if it is worth less than Rs. 100/- and transfer is not proposed by an instrument reduced in writing, by mere delivery of property such transfer is permissible but where it is reduced in writing, it must be a registered instrument. Moreover, there is no exclusion with regard to requirement of registration of aforesaid document under Section 17 of Act, 1908. The documents, which are excluded from the requirement of registration, does not include transfer of immoveable property by sale irrespective of amount of consideration. Even otherwise, Section 17 of Act, 1908 nowhere provides, if a registration of a document is provided under any statute, that would not be necessary by virtue of Section 17 of Act, 1908. Section 17 of Registration Act nowhere has overriding effect as such over Section 54 therefore, both these provisions have to be read together. Even otherwise, Section 17 of Act, 1908 nowhere provides, if a registration of a document is provided under any statute, that would not be necessary by virtue of Section 17 of Act, 1908. Section 17 of Registration Act nowhere has overriding effect as such over Section 54 therefore, both these provisions have to be read together. That being so, I am clearly fortified from the view taken by this Court in Budhi Ram (supra) that sale of property, if made through an instrument in writing then it shall not result in transfer of property, even if worth of property is less than Rs. 100/-, since registration of document is necessary by virtue of Section 54 of Act, 1882. In such a case, I do not find any provision which may come to help a party who is staking his claim on the basis of an unregistered instrument. I am, therefore, clearly in agreement with the view taken by Court below that sale-deed dated 22.12.1976, being an unregistered document, was a nullity and did not result in conferring any rights upon defendant-tenants i.e. petitioners with regard to suit property. 18. Now comes the question, whether there was a title dispute of such a nature which would have rendered Small Cause Court incompetent to proceed with suit in question and whether it was incumbent up it to return the plaint under Section 23 of Act, 1887. Section 23 of Act, 1887 reads as under: “23. Return of plaints in suits involving questions of title.—(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend 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. (2) When a Court returns a plaint under sub-section(1), it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.” 19. A bare reading of the provision shows that it gives an option to the Court to return the plaint to be presented to a Court having jurisdiction to determine title but before that it has to be satisfied that right of the plaintiff and the relief claimed by him depend upon the proof or disproof of a title to immoveable property. 20. Section 23 of Act, 1887, therefore, does not oust jurisdiction of Small Cause Court to decide the question of title outright. It has been repeatedly held that question of title cannot be finally decided in a small cause suit, but it can be decided incidentally for the purpose of deciding the main issue, in a case, which otherwise is within the jurisdiction of the Small Cause Court. 21. Section 23 of Act, 1887 has been construed by a three judge judgment of Apex Court in Budhu Mal v. Mahabir Prasad and others, AIR 1988 SC 1772 and the Court said: “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 his 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. In 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 exercised in order to do complete justice between the parties. In 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 exercised in order to do complete justice between the parties. On the facts of 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 returned for presentation to a Court having jurisdiction to determine the title.” 22. The Court has further said, if the suit cannot be construed to be one between landlord and tenant, that would not be cognizable by Court of Small Causes. 23. Again in Shamim Akhtar v. Iqbal Ahmed, AIR 2001 SC 1 , the Apex Court said that the Small Cause Court is entitled to decide question of title only incidentally and for the purposes of a suit in between alleged landlord and alleged tenant, but such decision is subject to the decision of the regular Civil Court. 24. To the same effect is the decision of this Court in Sheel Chand v. IInd A.D.J., Jhansi, 2006 (1) ARC 359 . 25. The above authorities clearly show that a mere dispute of title raised, would not oust the jurisdiction of Small Cause Court in proceeding to decide a suit, filed before it, and it is not bound to return the plaint on mere raising of such a dispute. Section 23 clearly says; only when the Court comes to the conclusion that it cannot decide the right of plaintiff and relief claimed by him since that would depend upon the proof or disproof of a title to immovable property, it may return the plaint and not otherwise. 26. In the present case plaintiff-landlord claim their rights founded on a registered instrument while the petitioner-defendants contested the matter relying on an unregistered document which was ex facie illegal. Hence there was no substantial dispute of title. It cannot be said that plaint ought to have been returned by Trial Court and the suit was incompetent. This question is also answered against petitioners. 27. In the result, I do not find any merit in the writ petition and in my view, both the Courts below have decided the matter correctly and in accordance with law. There is no error apparent on the face of record so as to warrant interference. 28. This question is also answered against petitioners. 27. In the result, I do not find any merit in the writ petition and in my view, both the Courts below have decided the matter correctly and in accordance with law. There is no error apparent on the face of record so as to warrant interference. 28. No other argument has been advanced. 29. The writ petition, therefore, dismissed without there being any order as to costs. —————