# Jugeshwar Prasad Revisionist v. Hanuman Prasad Opp. Party

- **Citation:** (2025) 5 ILRA 1767
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-14
- **Case number:** Civil Revision No. 80 of 2011
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jugeshwar-prasad-revisionist-v-hanuman-prasad-opp-party-53345
- **Pages:** 17

## Headnote

Civil Law -The Provincial Small Cause
Court Act 1887-Section 23 & 25---The
Court of Small Causes is not denuded from
considering
the
issue
of
title
which
incidentally arises in a suit before it. While
considering an application under section 23
PSCC, the SCC court is not obligated to
mechanically refer the suit to be decided by
a regular court. In all cases where the issue
of title is raised, the Court is required to
consider the case and only if it finds that
intricate questions of title are involved can it
refer and return the plaint to be presented
before
the
regular
court.
The
power
conferred under section 23 is discretionary in
nature but even discretion which is to be
exercised, should be within the four corners
of law--- A suit for arrears of rent and
ejectment is seen on the parameters of
subsistence of relationship between the
parties as that of landlord and tenant. The
question of title is never to be decided by
the SCC Court and in case if it is incidentally
raised by a party then the Court is
competent to decide the same, prima facie,
for the purposes of adjudicating a SCC Suit
and in any case any such incidental finding is
always subject to the decision of a suit filed
and decided by regular courts.

Petition dismissed. (E-15)

List of the cases referred-:

## Text

_Characters 0–39,998 of 57,719. This is a partial read: ask again with offset=39998 for what follows._

5 All. Jugeshwar Prasad Vs. Hanuman Prasad
1767
18. Consequently, while allowing
the review application in part to the
extent of earlier omission to answer
question No. (e), now having been
answered in favour of the respondents,
there would be no change in the final
decision rendered by this Court, i.e.,
dismissal of Second Appeal No. 2565 of
1984 shall remain intact.

19. Since, despite dismissal of
Second Appeal in December 2024, the
execution proceedings have not been
concluded for about five months, may be
on account of pendency of this review
application without there being any interim
order and, considering the fact that the suit
was instituted 43 years ago in the year
1982,
it
is
directed
that
execution
proceedings will be finalized by the court
concerned
positively
on
or
before
15.07.2025 and without issuing any further
notices to any party, as both sides have
hotly contested the Second Appeal as well
as this review application by referring to
execution proceedings too and have full
knowledge
of
the
same
and
due
representation therein.
----------
(2025) 5 ILRA 1767
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.05.2025

BEFORE

THE HON'BLE JASPREET SINGH, J.

Civil Revision No. 80 of 2011

Jugeshwar Prasad ...Revisionist
Versus
Hanuman Prasad ...Opp. Party

Counsel for the Revisionist:
Aftab Ahmad, Aftab Ahmad

Counsel for the Opp. Party:
Shyam Mohan, Ankit Mishra, Mohammad
Raza Khan , Mohd. Ali

Civil Law -The Provincial Small Cause
Court Act 1887-Section 23 & 25---The
Court of Small Causes is not denuded from
considering
the
issue
of
title
which
incidentally arises in a suit before it. While
considering an application under section 23
PSCC, the SCC court is not obligated to
mechanically refer the suit to be decided by
a regular court. In all cases where the issue
of title is raised, the Court is required to
consider the case and only if it finds that
intricate questions of title are involved can it
refer and return the plaint to be presented
before
the
regular
court.
The
power
conferred under section 23 is discretionary in
nature but even discretion which is to be
exercised, should be within the four corners
of law--- A suit for arrears of rent and
ejectment is seen on the parameters of
subsistence of relationship between the
parties as that of landlord and tenant. The
question of title is never to be decided by
the SCC Court and in case if it is incidentally
raised by a party then the Court is
competent to decide the same, prima facie,
for the purposes of adjudicating a SCC Suit
and in any case any such incidental finding is
always subject to the decision of a suit filed
and decided by regular courts.

Petition dismissed. (E-15)

List of the cases referred-:

1. 2019 (12) ADJ 281 (LB), Zubair Ahmad Khan
Vs Court of Judge, Small Causes Court/A.D.J.,
Court No.4, Lakhimpur Kheri and other

2. Shamim Akhtar Vs Iqbal Ahmad & anr.2000
(2) ARC S C page 770

3. Budhu Mal Vs Mahabir Prasad & ors. AIR
1987 SC page 1772

4. Smt. Munni Devi & ors. Vs Xth Addl. District &
Sessions Judge, Agara & ors. 1990 (16) ALR
page 555,
1768 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Sahid Ahmed & ors. Vs Additional District
Judge III, Saharanpur & ors. 2002 (2) ARC page
303

6. Sangam Lal Yadav Vs Brahm Swarup Tiwari
2012 ACJ 2376

7. Fazalur Rehman Vs Gopal Sahu 2016 SCC
OnLine Allahabad 2643

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri Yusuf Saifi, learned
counsel appearing under the authority of
Shri Aftab Ahmad learned counsel for the
revisionist and Shri Shyam Mohan learned
counsel for the respondent.

2. The instant SCC revision has
been preferred by the revisionist-defendant
against the order dated 26.07.2011 passed
by the Additional District Judge, Court
No.2, Balrampur (acting as Judge Small
Causes) in SCC Suit No.3/2001/1995
whereby an application under Section 23 of
the Provincial Small Cause Court Act 1887
(hereinafter referred to as PSCC) moved by
the revisionist bearing paper No.170 Ga
was rejected.

3. In order to appreciate the
controversy
involved
in
the
instant
revision, brief facts are being noticed
hereinafter.

4. Smt. Sampata Devi, the original
plaintiff
instituted
SCC
Suit
No.3/2001/1995 against the revisionist
namely Jugeshwar Prasad. It was stated in
the plaint that Smt. Sampata Devi was the
owner landlord of house No.135, situate in
Puraniya Talab, District Balrampur. The
property had been let out to the defendant
Jugeshwar Prasad on a monthly rent of
Rs.750/-. Since the defendant defaulted in
the payment of rent since June 1995, hence
a
composite
notice
for
demand
an
ejectment under Section 106 of the
Transfer of Property Act was issued by
Smt. Sampata Devi through counsel dated
02.07.1995. Since the defendant did not
comply with the notice, hence the SCC suit
seeking a decree of arrears of rent and
ejectment as well as damages for wrongful
use an occupation was filed by Smt.
Sampata Devi.

5. Jugeshwar Prasad, the original
defendant filed his written statement and
contested the suit on the ground that the
property in question was ancestral. It
belonged to Mahadev, who is the father of
the defendant-revisionist and husband of
Smt. Sampata Devi. It was stated that after
the death of Mahadev, the property being
ancestral the defendant himself had a right
in the property alongwith his two other
brothers, namely, Bhagwan Prasad and
Hanuman Prasad. It was also urged that
there was no relationship of land-lord and
tenant between the plaintiff and the
defendant and this was also made known to
the plaintiff when the defendant sent its
reply dated 06.08.1995 in reply to the
notice dated 02.07.1995 issued by the
plaintiff under Section 106 of the Transfer
of Property Act.

6. During pendency of the suit
several subsequent events took place as a
consequence amendment were made in the
plaint and in reply thereto, the defendant
filed an additional written statement in
response to the amended plea.

7. One important stage in the suit
arrived when the original plaintiff, namely,
Smt. Sampata Devi expired, upon her
death, the other brother of the defendant,
namely, Hanuman Prasad claimed right of
5 All. Jugeshwar Prasad Vs. Hanuman Prasad
1769
substitution in place of Smt. Sampata Devi
on the basis of a Will said to have been
executed by Smt. Sampata Devi on
30.11.1979 in his favour which was
brought on record and marked as exhibit-26
Ka. This matter came to be contested as
another person, namely, Santosh Chandra
Gupta (son of the original defendant,
namely, Jugeshwar Prasad) who also
claimed right on the property stating that Smt.
Sampata (grand mother of Santosh Chandra
Gupta) had executed an unregistered Will
dated 03.11.1996 in his favour. The trial court
found that Hanuman Prasad was claiming on
the basis of registered Will and it found
favour with the trial court and his name
was substituted. This came to be challenged
by Santosh Chandra Gupta in a revision
preferred before this Court bearing no.264
of 2003 and the same came to be disposed
of by means of order dated 17.09.2007 with
a direction to the trial court to decide the
contesting claims of Hanuman Prasad
(uncle of Santosh Chandra Gupta) and
Santosh
Chandra
Gupta
himself.
In
pursuance of the directions of the High
Court, the trial court also permitted the
parties to lead evidence on their respective
Will and thereafter the matter was again
decided and it was found that in place of
Smt. Sampata the name of Hanuman Prasad
be incorporated.

8. At this point of time, the said
order of substitution was not challenged
by Santosh Chandra Gupta and the matter
proceeded. However, since the matter
was being delayed hence Hanuman
Prasad thereafter preferred a petition
under Article 227 of the Constitution of
India bearing No.3794 (M/S) of 2011
which came to be disposed of vide order
dated 07.07.2011 directing the trial court
to decide the SCC suit preferably within a
period of six months.
9. At this stage the original
defendant Jugeshwar Prasad filed an
application bearing paper no.Ga 170
under section 23 of the Provincial Small
Cause Court Act 1887 stating therein that
the instant SCC suit involved intricate
questions of both title and possession and
in such circumstances the SCC suit was
liable to be referred to be presented
before the regular court for deciding the
issue of title.

10. This was contested by the plaintiff
of the suit by filing his objections bearing
paper no.171 Ga. It was stated in the
objections that there was no question of title
involved; inasmuch as there were clear
admission on behalf of the defendant that the
property belonged to Smt. Sampata Devi and
upon her death the property devolved on
Hanuman Prasad on the basis of her Will and
he has also been substituted in place of Smt.
Sampata Devi hence only to delay the
proceedings and overcome the direction given
by the High Court for deciding the suit within
a period of six months, the said application has
been moved which deserves to be rejected.

11. The trial court after hearing the
parties by means of order dated 26.07.2011
dismissed the application and the order of
dismissal has been challenged in this
revision before this Court. The record also
indicates that a Co-ordinate Bench of this
Court by means of order dated 25.08.2011
had
stayed
the
operation
and
implementation
of
the
order
dated
26.07.2011.

12. In the aforesaid backdrop, the
counsel for the revisionist has assailed the
impugned order on the premise that the trial
court incorrectly rejected the application
under Section 23 of PSCC. It was urged
that there were complicated question of
1770 INDIAN LAW REPORTS ALLAHABAD SERIES
title involved in the suit which has not been
taken note of, accordingly, the order
impugned is bad.

13. It was further urged by the
counsel for the revisionist that the property
was ancestral in nature which came in the
hands of Mahadev the father of the
defendant Jugeshwar Prasad and husband
of Smt. Sampata. It was urged that the
property had been mortgaged which was
redeemed by eldest son of Mahadev on
behalf of the other brothers that included
Hanuman Prasad as well as Jugeshwar
Prasad. Reference was made to several
documents indicating that there was clear
dispute of title and neither the facts relating
to the earlier litigation was mentioned,
hence by ignoring the material the trial
court has rejected the application which is
not in sound exercise of jurisdiction.

14. It has been urged that the trial
court had committed an error in saying that
the issue stood concluded by admission of
the
revisionist
which
was
incorrect;
inasmuch as it was a case of misreading of
pleadings and statement and it did not
amount to any admission. It was also urged
that the reliance placed by the trial court on
the ownership certificate, issued by the
municipal authority, could not be taken to
be the basis nor any such certificate could
confer title on Smt. Sampata.

15. It was further urged that even
though the plaintiff/respondent had filed
municipal receipts regarding payment of
tax but that also could not be take as a
document of title. The tax receipts at best
were only for fiscal purposes and that did
not confer any title nor could be important
for proving the title, hence the entire
premise upon which the trial court had
passed the order dated 26.07.2011 was
erroneous and patently bad hence deserves
to be set aside after allowing the SCC
revision.

16.
Learned
counsel
for
the
revisionist has relied upon the decisions of
this Court in Smt. Sughra Begum Vs.
Additional District Judge XIIth, Lucknow
and others 1999 (1) A.R.C., page 582,
2005 (3) ARC, page 599 Ram Kishore Vs.
IInd Additional District Judge, Mirzapur
and others and Munshi Khan Vs. District
Judge Ghaziabad & others, 2002 (2) ARC,
page 393.

17. In so far as the decisions cited
by the counsel for the revisionist is
concerned, they have been passed on the
facts of the said case which are quite
different from the case in hand especially
the material which has been brought
forward, hence the said decisions do not
come to the rescue of the revisionist.

18. Shri Shyam Mohan, learned
counsel for the respondent has submitted
that the application preferred by the
revisionist under Section 23 PSCC was
apparently malafide. The suit was instituted
in the year 1995 and it was being contested
hotly. The matter had already come up
before the High Court on an earlier
occasion where the son of the defendant
had contested the substitution application
moved by the respondent, upon the death of
Smt. Sampata.

19. It was further pointed out that
after the matter was remitted by the High
Court, did the application bearing no.Ga
170 was moved, by the defendant only with
the intention to delay the proceedings.
More than ten years have lapsed when the
said application was moved and prior
thereto the defendant never ever disputed
5 All. Jugeshwar Prasad Vs. Hanuman Prasad
1771
the title of Smt. Sampata or raised any such
objection.

20. It was further urged that the
plaintiff had filed certain documents to
indicate that earlier in the year 1979 a suit
for recovery of money was filed by M/S
Shanti Cloth House against the revisionist
and in the said suit the defendant had
admitted that he was a tenant of the
premises in question and that the premises
belonged to Smt. Sampata. In the said suit,
evidence was led wherein Jugeshwar
Prasad who was the defendant gave his
statement and admitted that the property in
question to belonged to Smt. Sampata Devi
and he also admitted that he was its tenant.
It is at a much later stage that the defendant
tried to develop a case regarding disputing
the title of Smt. Sampata and as such the
documents filed by the plaintiff indicating
the title of Smt. Sampata and the said
documents clearly established the same
which also included the stand of the son of
the defendant, namely, Santosh Chandra
Gupta who had claimed the right of
substitution in the instant suit on the basis
of a Will executed by Smt. Sampata in
favour of Santosh Chandra Gupta.

21. It is urged that all the aforesaid
documents were taken note of and it was
found that the application filed by the
revisionist under section 23 PSCC was
malafide hence it was dismissed and in the
aforesaid circumstances, this revision too
deserves to be dismissed.

22. The Court has heard the learned
counsel for the parties and also perused the
material on record.

23. At this stage it will be apposite
to consider the scope of a revision under
Section 25 of the Provincial Small Cause
Court Act 1887 and this Court in 2019 (12)
ADJ 281 (LB), Zubair Ahmad Khan Vs.
Court
of
Judge,
Small
Causes
Court/A.D.J., Court No.4, Lakhimpur
Kheri and others had noticed the same
with the aid of decisions of the Apex Court.
The relevant portion from para-12 to 14 are
being reproduced hereafter:-

 12. At the outset, it would be
necessary to notice the scope of a revision
under Section 25 of the Provincial Small
Cause Court Act. The Hon'ble Apex Court
in the case of Ram Murti Devi v. Pushpa
Devi and others, 2017 (15) SCC 230, while
considering the scope of revision under
Section 25 of the Provincial Small Cause
Courts' Act has stated in following words
which reads as under :

 ''29. The High Court was hearing
a revision under Section 25 of the 1887 Act.
What is the scope of Section 25 of the 1887
Act came for consideration before this
Court in Hari Shankar v. Rao Girdhari Lal
Chowdhury [Hari Shankar v. Rao Girdhari
Lal Chowdhury, AIR 1963 SC 698], where
this Court laid down the following in para
9: (Hari Shankar case [Hari Shankar v.
Rao Girdhari Lal Chowdhury, AIR 1963
SC 698], AIR p. 701)

 ''9. The section we are dealing
with, is almost the same as Section 25 of
the Provincial Small Cause Courts Act.
That section has been considered by the
High Courts in numerous cases and diverse
interpretations have been given. The
powers that it is said to confer would make
a broad spectrum commencing, at one end,
with the view that only substantial errors of
law can be corrected under it, and ending,
at the other, with a power of interference a
little better, than what an appeal gives. It is
useless to discuss those cases in some of
1772 INDIAN LAW REPORTS ALLAHABAD SERIES
which the observations were probably
made under compulsion of certain unusual
facts. It is sufficient to say that we consider
that the most accurate exposition of the
meaning of such sections is that of
Beaumont, C.J. (as he then was) in Bell &
Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd.
v. Waman Hemraj, 1937 SCC OnLine Bom
99 : AIR 1938 Bom 223] where the learned
Chief Justice, dealing with Section 25 of
the Provincial Small Cause Courts Act,
observed: (SCC OnLine Bom paras 3-4)

 ''3. The object of Section 25 is to
enable the High Court to see that there has
been no miscarriage of justice, that the
decision was given according to law.

 4. The section does not enumerate
the cases in which the Court may interfere
in revision, as does, Section 115 of the
Code of Civil Procedure, and I certainly do
not propose to attempt an exhaustive
definition of the circumstances which may
justify such interference; but instances which
readily occur to the mind are cases in which
the Court which made the order had no
jurisdiction, or in which the Court has based
its decision on evidence which should not
have been admitted, or cases where the
unsuccessful party has not been given a
proper opportunity of being heard, or the
burden of proof has been placed on the
wrong shoulders. Wherever the Court comes
to the conclusion that the unsuccessful party
has not had a proper trial according to law,
then the Court can interfere. But, in my
opinion, the Court ought not to interfere
merely because it thinks that possibly the
Judge who heard the case may have arrived
at a conclusion which the High Court would
not have arrived at.

 ''This observation has our full
concurrence.
 '' 30. Further, in Mundri Lal v.
Sushila Rani [Mundri Lal v. Sushila Rani,
(2007) 8 SCC 609] which was a case
arising from Act 13 of 1972 and a
revisional jurisdiction under Section 25 of
the 1887 Act, in paras 22 and 23, this
Court held that the jurisdiction under
Section 25 of the Provincial Small Cause
Courts Act, is wider than Section 115 CPC.
It is further held that pure finding of the
fact based on appreciation of evidence
although may not be interfered but there
are several circumstances in which the
Revisional Court can interfere with the
finding of fact. In paras 22 and 23
following was stated: (SCC pp. 617-18)

 ''22. There cannot be any doubt
whatsoever that the revisional jurisdiction of
the High Court under Section 25 of the
Provincial Small Cause Courts Act is wider
than Section 115 of the Code of Civil
Procedure. But the fact that a revision is
provided for by the statute, and not an
appeal, itself is suggestive of the fact that
ordinarily revisional jurisdiction can be
exercised only when a question of law arises.

 23. We, however, do not mean to
say that under no circumstances finding of
fact cannot be interfered therewith. A pure
finding of fact based on appreciation of
evidence although may not be interfered
with but if such finding has been arrived at
upon taking into consideration irrelevant
factors or therefor relevant fact has been
ignored, the Revisional Court will have the
requisite jurisdiction to interfere with a
finding of fact. Applicability of the
provisions of Section 2(2) of the Act may in
that sense involve determination of mixed
question of law and fact.''

 13. Similarly in the case of Trilok
Singh Chauhan v. Ram Lal, 2018 (2) SCC
5 All. Jugeshwar Prasad Vs. Hanuman Prasad
1773
566, once again while considering the
scope of Revision under Section 25 of the
Provincial Small Cause Courts Act the
Apex Court has stated and the relevant
portion reads as under :

 ''14.
The
High
Court
was
exercising the jurisdiction under Section 25
of the 1887 Act, which provision is as
follows:

 ''25. Revision of decrees and
orders of Courts of Small Causes.-The
High Court, for the purpose of satisfying
itself that a decree or order made in any
case decided by a Court of Small Causes
was according to law, may call for the case
and pass such order with respect thereto as
it thinks fit.''

 15. The scope of Section 25 of the
1887 Act, came for consideration before
this Court on several occasions. In Hari
Shankar v. Rao Girdhari Lal Chowdhury
[Hari Shankar v. Rao Girdhari Lal
Chowdhury, AIR 1963 SC 698], in paras 9
and 10, this Court laid down the following:
(AIR p. 701)

 ''9. The section we are dealing
with, is almost the same as Section 25 of
the Provincial Small Cause Courts Act.
That section has been considered by the
High Courts in numerous cases and diverse
interpretations have been given. The
powers that it is said to confer would make
a broad spectrum commencing, at one end,
with the view that only substantial errors of
law can be corrected under it, and ending, at
the other, with a power of interference a little
better than what an appeal gives. It is useless
to discuss those cases in some of which the
observations were probably made under
compulsion of certain unusual facts. It is
sufficient to say that we consider that the most
accurate exposition of the meaning of such
sections is that of Beaumont, C.J. (as he then
was) in Bell & Co. Ltd. v. Waman Hemraj
[Bell & Co. Ltd. v. Waman Hemraj, 1937 SCC
OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR
1938 Bom 223], where the learned Chief
Justice, dealing with Section 25 of the
Provincial Small Cause Courts Act, observed:
(SCC OnLine Bom paras 3-4).

 ''3. ... The object of Section 25 is to
enable the High Court to see that there has
been no miscarriage of justice, that the
decision was given according to law.

 4. The section does not enumerate
the cases in which the Court may interfere in
revision, as does, Section 115 of the Code of
Civil Procedure, and I certainly do not
propose to attempt an exhaustive definition of
the circumstances which may justify such
interference; but instances which readily
occur to the mind are cases in which the Court
which made the order had no jurisdiction, or
in which the Court has based its decision on
evidence which should not have been
admitted, or cases where the unsuccessful
party has not been given a proper opportunity
of being heard, or the burden of proof has
been placed on the wrong shoulders.
Wherever the Court comes to the conclusion
that the unsuccessful party has not had a
proper trial according to law, then the Court
can interfere. But, in my opinion, the Court
ought not to interfere merely because it thinks
that possibly the Judge who heard the case
may have arrived at a conclusion which the
High Court would not have arrived at. '

 This observation has our full
concurrence.

 10. What the learned Chief
Justice has said applies to Section 35 of the
Act, with which we are concerned. Judged
1774 INDIAN LAW REPORTS ALLAHABAD SERIES
from this point of view, the learned Single
Judge was not justified in interfering with a
plain finding of fact and more so, because
he
himself
proceeded
on
a
wrong
assumption.''

 16. Another judgment which
needs to be noted is judgment of this Court
in Mundri Lal v. Sushila Rani [Mundri Lal
v. Sushila Rani, (2007) 8 SCC 609]. This
Court held that jurisdiction under Section
25 of the 1887 Act, is wider than the
revisional jurisdiction under Section 115
CPC. But pure finding of fact based on
appreciation of evidence may not be
interfered with, in exercise of jurisdiction
under Section 25 of the 1887 Act. The
Court also explained the circumstances
under which, findings can be interfered
with in exercise of jurisdiction under
Section 25. There are very limited grounds
on which there can be interference in
exercise of jurisdiction under Section 25;
they are, when (i) findings are perverse or
(ii) based on no material or (iii) findings
have been arrived at upon taking into
consideration the inadmissible evidence or
(iv) findings have been arrived at without
consideration of relevant evidence.''

 14. The scope of Section 25 of the
Provincial Small Cause Court Act also
came to be considered by a Coordinate
Bench of this Court in the case of Suresh
Chandra v. Radhey Shyam Agrawal and
others, 2015(5) ADJ 449. The relevant
paras reads as under :

 ''76. The language of Section 25
is different than the Revisional Court's
powers conferred on Civil Court under
Section 115 C.P.C.

 77. Act, 1887 constitute Small
Cause
Courts
not
of
exclusive
but
preferential and limited jurisdiction. The
class of suits not cognizable by small
causes is listed in the schedule appended to
Act,
1887.
The
provisions
of
Civil
Procedure Code inapplicable to Small
Cause Court are provided in Section 7 of
C.P.C. By Section 40 of Bengal, Agra and
Assam Civil Courts Act, 1887 certain
provisions thereof, i.e., Sections 15, 32, 37,
38 and 39 have been applied to Small
Cause Courts. vide Section 7, applicability
of Sections 96, 112 and 115 C.P.C. is made
inapplicable to Small Causes Court,
meaning thereby its judgment is made nonappealable. The Trial in Small Cause Court
is summary and its decision is final subject
to revision under Section 25 only. It is in
these circumstances, one has to make a
distinction between power of Revisional
Court under Section 25 and other appellate
and revisional powers under C.P.C. or
other provisions of procedural statutes.

 78. The circumstances where
Revisional Court to find out whether
decision of Small Cause Court is in
accordance with law, may look into the
facts without assessment have been
explained in para 19 and 20 of judgment
of Division Bench in Laxmi Kishore and
another v. Har Prasad Shukla, 1981 ARC
545 and it says:

 ''19. If it finds that there is no
evidence to sustain a finding on a particular
issue of fact, it can ignore that finding. Same
will be the case where the finding is based
only on admissible evidence. In such case,
the Court will be justified in deciding the
question of fact itself, because the evidence
is all one way. No assessment is needed. The
Court can also decide the revision if only a
question of law or some preliminary point of
law, viz. validity of notice, is sufficient for its
decision.
5 All. Jugeshwar Prasad Vs. Hanuman Prasad
1775
 20. But, if it finds that a
particular finding of fact is vitiated by an
error of law, it has power to pass such
order, as the justice of the case requires;
but it has no jurisdiction to reassess or
reappraise the evidence in order to
determine as issue of fact for itself. If it
cannot dispose of the case adequately
without a finding on a particular issue of
fact, it should send the case back after
laying down proper guidelines. It cannot
enter into the evidence, asses it and
determine an issue of fact.''

 79. The bar, in effect, is with
respect to reassessment of evidence and
substitute its conclusion of fact but not
where relevant evidence has not been
considered
or
finding
is
based
on
inadmissible evidence or finding is without
any
evidence
etc.
In
Dr.
D.
Sankaranarayanan v. Punjab National
Bank, 1995 Supp. (4) SCC 675, the Apex
Court
reiterate
that
reassessment
of
evidence is not permissible to substitute its
own inference but not where the decision is
not in accordance with law. If the
Revisional Court does not agree with
finding, that by itself cannot be a ground
since it is within the realm of assessment of
evidence. This is what has been observed
by Apex Court in Rafat Ali v. Sugni Bai and
others, JT 1998(8) SC 157; Sri Raj Laxmi
Dyeing Works v. Rangaswami, JT 1998(4)
SC 46; Sarla Ahuja v. United Insurance
Company Ltd., JT 1998 (7) SC 297; and,
Ramdoss v. K. Thangavelu, JT 1999(10) SC
51.''

24. Now its time to consider the
provision of section 23 PSCC which 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 (14 of
1882) 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 (15 of 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.

25. The aforesaid section 23 PSCC
has been made the subject matter of
consideration by this Court as well as the
Apex Court and certain relevant decisions on
this point are being noticed hereinafter:- In
Shamim Akhtar Vs. Iqbal Ahmad and
another 2000 (2) ARC S C page 770, the
Apex Court had the occasion to consider the
scope of Section 23 of the Provisional Small
Cause Court Act and it held that it is within
the powers of the Court of Small Causes to
consider upon the prove or disprove of a title
to immovable property and if it comes to a
conclusion that the title cannot be determined
by the said court then it is open for the Court
to return the plaint to be presented before the
Court having jurisdiction to determine the
title. However, the power exercised under
Section 23 of the Provincial Small Causes
Court Act is discretionary. The relevant
portion of the said judgment paragraph-12
reads as under:-
1776 INDIAN LAW REPORTS ALLAHABAD SERIES
 12. The trial court in the facts
and circumstances of the case clearly erred
in returning the plaint to the plaintiffappellant under Section 23 of the Small
Cause Courts Act. Section 23(1) provides
that when the right of a plaintiff and the
relief claimed by him in a 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. The power vested under
sub-section (1) in the court is discretionary.
It is to be exercised only when the relief
claimed by the plaintiff in the proceeding
before the Small Cause Court depends
upon the proof or disproof of a title to the
immovable property and the relief sought
cannot be granted without determination of
the question. In the present case, as noted
earlier, the plaintiff filed a petition for
eviction under Section 20(2)(f) alleging
that she was the landlady of the house and
she had inducted Respondent 1 as tenant of
the premises. The question was whether
that case was to be accepted or not. Indeed
the trial court, at the first instance, had
accepted the plaintiff's case holding, inter
alia, that she had got the property by a
registered
deed
of
gift
from
Smt
Khairunnisa Bibi who in turn had been
gifted the property by her mother Fakia
Bibi who, undisputedly was the original
owner of the property. The question of title
of the plaintiff to the suit house could be
considered by the Small Cause Court in the
proceedings as an incidental question and
final determination of the title could be left
for decision of the competent court. In such
circumstances, it could not be said that for
the purpose of granting the relief claimed
by the plaintiff it was absolutely necessary
for the Small Cause Court to determine
finally the title to the property. The
respondent tenant by merely denying the
relationship of landlord and tenant between
himself and the plaintiff could not avoid the
eviction proceeding under the Rent Control
Act. That is neither the language nor the
purpose of the provisions in Section 23(1)
of the Small Cause Courts Act.

 The Apex Court in Budhu Mal
Vs. Mahabir Prasad & others AIR 1987
SC page 1772, again taking note of the
powers under section 23 of the PSCC Act
in paragraph-9 has held as under:-

 9. 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.
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 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. In case the plea set
up by the appellants that by the deed dated
December 8, 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
5 All. Jugeshwar Prasad Vs. Hanuman Prasad
1777
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
December 8, 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
simpliciter 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
such cases where the plaints ought to have
been
returned
for
presentation
to
appropriate court so that none of the
parties was prejudiced.

 A Coordinate Bench of this Court
in Smt. Munni Devi & others Vs. Xth
Addl. District & Sessions Judge, Agara &
others
1990
(16)
ALR
page
555,
considering the provisions of Section 23
and relying upon the earlier decision of the
Apex Court in Budhu Mal has held as
under:-

 10. In a recent case reported in
(1988) 4 SCC 194 : AIR 1988 SC 1772
Budhumal v. Mahabir Prasad, it has been
held:

 "Section 23 of the Small Cause
Court Act 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 in a suit for eviction.
Also 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 any finding
recorded by a Judge Small Causes in this
behalf could not be res judicata in a suit
based on title."

 11. In my opinion the Judge
Small Cause had jurisdiction to decide the
question of title incidentally involved in the
case. The effort on the part of the
petitioners' counsel for getting the case
remanded to the Judge Small Causes to
frame an issue and decide would be only a
futile exercise in the absence of any
material on record. Moreover in the reply
dated 31-1-1967 sent by the petitioners it
has been stated that rent up to 31-1-1967
has been paid by them to the plaintifflandlord. This amounts to an admission of
the relationship of landlord and tenant. The
objection of the petitioners on this question
does not appear to be a bona fide one

 Another Co-ordinate Bench of
this Court in Sahid Ahmed & others Vs.
Additional District Judge III, Saharanpur
& others 2002 (2) ARC page 303 has
considered the earlier decisions and held in
pargraph-4 as under:-

 4. In view of the law laid down in
my opinion the trial court as well as the
revisional court has not committed any
error of law. This Court in the case
reported in 1987 Vol. (1) ARC page 89,
para 10, which is reproduced below has
held that:

 "10. On a reading of this subsection (1), it is apparent that a discretion
has been conferred on the Court to return
the plaint if it is satisfied that a question of
title is involved in the suit which it cannot
1778 INDIAN LAW REPORTS ALLAHABAD SERIES
finally determine. It is only in such a
situation that it is open to the Court of
Judge, Small
Causes
to
exercise
a
discretion whether return the plaint or not.
A mere allegation in the written statement
that the title vests in a defendant in a suit
filed for ejectment and arrears of rent, is by
itself not sufficient to establish that the
question of title is involved in a suit. Only
after evidence has been produced and the
Court is of the opinion that a question of
title is involved in the suit, which the Court
of Judge, Small Causes cannot finally
determine, it is open to the Court to return
the plaint. In the present case, only a
written statement had been filed in which
the title had been set up. Mere filing of the
written statement does not entitle the
defendant-petitioner
to
move
an
application for return of the plaint to the
proper court. In view of the above, I am of
the opinion that the Court below was right
in refusing to exercise a discretion under
Section 23 of the Act at this stage."

 Again in Sangam Lal Yadav Vs.
Brahm Swarup Tiwari 2012 ACJ 2376 a
Co-ordinate Bench of this Court in
paragraphs 10 to 18 has held as under:-

 10. 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 immovable
property.

 11. 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.

 12. Section 23 of Act, 1887 has
been construed by a three Judges judgment
of Apex Court in Budhu Mal v. Mahabir
Prasad (1988) 4 SCC 194 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. 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."

 13.