S.D. Agarwala, J.

1. This is a civil revision filed Under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the Act).

2. A Suit No. 85 of 1976 was originally filed in the Court of the Civil Judge, Basti, for recovery of arrears of rent and damages and for ejectment from the land ABCD, being part of house No. 382, situate in Nai Bazar, Purani Basti, district Basti.

3. The Defendants filed an objection that the suit was not cognizable by the regular court, namely, the Civil Judge, Basti, and was cognizable by the Judge, Small Cause Court, Basti. Consequently, the suit was transferred tor disposal before the Judge, Small Cause Court, Basti. The 2nd Additional District Judge,. Basti, exercising the powers of the Judge, Small Cause Court, Basti, decreed the suit for ejectment as also for arrears of rent and damages for use and occupation. The suit was decreed by the Judge, Small Cause Court, Basti, on 25th October, 1983. It is this judgment, which has been impugned in the present revision.

4. I have heard the learned Counsel for the parties.

5. Learned Counsel for the applicants has raised two contentions before me. His first contention is that the suit was not cognizable by the Judge, Small Cause Court and, as such, the impugned decree is wholly without jurisdiction. The second contention of the learned Counsel is that, in any case, the finding recorded by the court below, that the revisionists had sublet the land in dispute to Achhaibar Prasad, opposite party No. 2, is a finding not sustainable in law.

6. It is necessary to state the facts in detail showing the progress of the suit in order to examine the first contention of the learned Counsel for the revisionists.

7. The suit, as I have already mentioned above, was filed in the court of the Civil Judge, Basti. In para 2 of the plaint, it has been stated that the revisionists *ere given land 14 in length and 4 in width inside a Pataki (gate) at the rate of Rs. 75/- per month for carrying on their business. In the Schedule attached to the plaint, the land in the phatak was specifically indicated being a part of house No. 382.

8. A written statement was filed by the revisionists. In para 2 of the written statement, it was specifically pleaded that the property in dispute was neither a house nor a land, but was a part of a rasta. In para 12 of the said written statement, it was specifically pleaded that the suit was not at all maintainable in law in the regular Court of the Civil Judge, Basti.

9. On 4th August, 1980, the revisionists moved an application in the court that the suit is for ejectment and for recovery of arrears of rent and means profits and that the suit is only cognizable by the Judge, Small Cause Courts. On 6th August, 1980, in view of the application, it appears that in view of the facts on the record, that the property in dispute could be construed to be a building, the learned Counsel, for the Plaintiff opposite parties accepted the contention made by the revisionists and agreed that the suit may be transferred to the Judge, Small Cause Court, as desired by the revisionists. The District Judge, consequently, on 12th September, 1980, transferred the suit to the court of the Judge, Small Cause Court. In the court of the Judge, Small Cause, various issues were framed and issue No. 6 was as under:

6. Whether the suit is not cognizable in this Court

10. On 7th January, 1981, the Court took up Issue No. 6 as a preliminary issue and held that the suit was cognizable by the Judge, Small Cause Court, as urged by the learned Counsel for the revisionists. After this issue was decided, the Court took up the hearing of the suit and, ultimately, by judgment dated 25th October, 1983, the suit was decreed.

11. In the evidence of the revisionists, who was examined as DW 1, it was categorically stated in cross-examination that the land in dispute was covered by a lintel. PW 1 had also stated that the land in dispute was in a gallery. From the evidence on the record, it is clear that the property in respect of which the suit had been filed was an area of land covered by a roofed structure. It is one of those cases where a larger area of land was covered by a roofed structure. It is not uncommon now that a big area of land is covered by a roofed structure and the letting out is on the basis of the area of the land in order that persons may be able to carry on their business on the said land. This is very common in the case of vegetable markets or other such type of markets. In the instant case also, from the facts I have already stated above, it is clear that only a small area of 14 x 4 was given to the revisionists for carrying on business from out of a larger area with a roofed structure. It is, in fact, a nonresidential roofed structure.

12. Section 15(1) of the Act, which is relevant for the decision of this case, is quoted below:

15(1). A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes by which the suit is triable.

By virtue of this Sub-section (1) of Section 15 of the Act, the suits specified in the Second Schedule are excluded from the jurisdiction of the Court of Small Causes. In the Second Schedule, Article 4 is in the following terms:

4. A suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation. For the purpose of this Article, the expression building means a residential or non-residential roofed structure, and includes any land (including any garden), garages and outhouses, appurtenant to such building and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof.

13. This Article (4) was substituted by the U.P. Civil Laws (Amendment) Act, 1972 (U.P. Act No. 37 of 1972) for the purposes of the State of Uttar Pradesh.

14. On a reading of Article 4, it is clear that a suit for possession of an immovable property or for the recovery of an interest in such property has been excluded from the jurisdiction of the Judge, Small Causes Court, but a suit by a lessor for the eviction of a lessee from a building, after the determination of the lease and for the recovery from him or compensation for the use and occupation of that building after such determination of lease, is cognizable by the Court of Small Causes.

15. The Explanation further defines as to what is a building. Building means a residential or a non-residential roofed structure and includes other things mentioned in the Explanation. The position, therefore, is that where there is a suit by a lessor for the eviction of a lessee from a non-residential roofed structure then such a sutt would be cognizable by a Judge, Small Causes Court. In the instant case, as I have already held above, the suit is for the eviction of a lessee by the lessor from a building which is a non-residential roofed structure. In the circumstances, this suit is clearly cognizable by the Court of Judge Small Causes.

16. Learned Counsel for the opposite parties has vehemently urged that the revisionists had himself moved an application to the effect that the suit is cognizable by a Court of Judge, Small Causes, and he cannot now be permitted to urge this question in this revision. The argument of the revisionists, however, on the other hand, is that consent cannot confer jurisdiction on a Court and if the Judge, Small Causes Court, had no jurisdiction to try the suit, the decree would be a nullity, as it is a case of inherent lack of jurisdiction.

17. It is well settled that a jurisdiction cannot be conferred on a Court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is. Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the Court, but these factors have no relevance where the court lacks inherent jurisdiction which strikes at the very root or authority of the Court to pass any decree and renders the decree, if passed, a nullity, See Chandra Bhushan Khanra v. Brij Nandan Singh : 1978 AWC 513 [LQ/AllHC/1978/432] and Koran Singh v. Cha man Paswan AIR 1954 SC 34:

18. The above mentioned principle, in my opinion, would not be applicable to a case where the jurisdiction of the Court depends upon the determination of certain facts. In the instant case, in view of Article 4 of the Second Schedule of the Act, it is clear that the suit, which would be cognizable by the Judge, Small Causes Court, would be only that suit, which is a suit by the lessor for the eviction of a lessee from the building. The two necessary ingredients required are, firstly, that the suit should be by a lessor for eviction of a lessee and, secondly, that it must be a suit relating to a building, In a case where a dispute has been raised whether the property in respect of which the suit has been filed by the lessor for eviction of a lessee is in relation to a building or not, the jurisdiction of the Court would be dependent upon the determination of the question whether the property in dispute is a building. If the parties agree at a certain stage of the proceedings that the suit relates to a building then, in that event, they cannot be permitted to blow hot and cold in the same breath and later urge that the suit does not relate to a building. In the instant case, initially, the revisionists urged that the suit was in relation to a building. The evidence was brought on the record to the same effect. The learned Counsel for the Plaintiff opposite party finding that the suit would relate to a building, ultimately, agreed with the revisionists and permitted the case to be transferred to the court of the Judge, Small Causes. The revisionists are now estopped, in law, in my opinion, from urging that the suit does I of relate to a building and, as such, it is not cognizable by the Court of Judge, Small Causes.

19. It is true that once the suit relates to a property, which is not a building, there would be inherent lack of jurisdiction in the court of the Judge, Small Causes. I, consequently, accept the contention raised by the learned Counsel for the opposite party that the revisionists is estopped from challenging that the suit does not relate to a building and, as such, the decree passed by the Court is without jurisdiction. The contention, consequently, raised by the learned Counsel for the revisionists is, in my opinion, without substance; firstly, for the reason that the revisionists is estopped from taking the plea now that the suit does not relate to a building, and, secondly, from the facts, it is clear that the suit relates to a building.

20. In so far as the second contention of the learned Counsel is concerned, the court below examined the evidence on the record and, thereafter, came to the conclusion that the property had been sublet to Achhaibar Prasad. This clearly is a finding of fact and I do not find any legal infirmity in the same. In any case, since, in the instant case, it is now admitted on the record and also by the parties that the possession of the property has already been delivered to the Plaintiff opposite party, the dispute now only remains regarding payment of rent and damages for use and occupation. The revisionists did not hand over possession of the permises in dispute to the landlord. Till the possession was handed over back to the landlord, the revisionists tenant was liable to pay rent. Consequently, the decree for arrears of rent and damages for use and occupation passed against the revisionists is in accordance with law.

21. In the result, the revision fails and is, accordingly, dismissed. In the circumstances of the case, the parties are directed to bear their own costs.