8. In this case there appears to be no dispute qua the heirs of the erstwhile landlord with regard to inheritance of the property in suit and it is also not in dispute that the erstwhile owner/landlord was the grandfather of the plaintiff, whose Will has been set up by the plaintiff, after his death. A perusal of the written statement also reveals that the defendant has neither set up title in himself nor on anybody else though he has claimed that to prove the Will the burden is on the plaintiff who had set up the same. It is well settled that while considering a plea to return the plaint to a Court of competent jurisdiction, in exercise of power under section 23 of the Provincial Small Causes Court Act, the JSCC Court is vested with a discretion to return or not to return the same and it is not obligatory on the Court to return the plaint once a question of title is raised by the tenant because such questions of title can be incidentally gone into while deciding the question of landlord-tenant relationship between the plaintiff and defendant. In Shamim Akhtar v. Iqbal Ahmad, the Apex Court took the view that the power vested, under section 23(1) of the Provincial Small Causes Court Act, in the Court is discretionary. It was observed that the question of title of the plaintiff to the suit house could be considered by the Small Causes Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent Court. Following the said decision in the case of Ram Sewak v. Pramod Kumar, this Court approved examination by the JSCC Court of a question relating to valid execution of Will by the erstwhile landlord in favour of the plaintiff by holding that such questions could be incidentally gone into while deciding the question of landlord-tenant relationship between the plaintiff and defendant. In fact, the correctness of the decision in Ram Sewak's case (supra), has not been doubted, rather it has been accepted, in the decision of Mst. Bhagwati Devi (supra), vide paragraph 32 of the report, which has been relied upon by the learned Counsel for the revisionist.
