Kalim Mahomadsab Ansari and Ors. Vs Dr. Suleman Fakkruddin Ansari and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE SIDE

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 Second Appeal No.141 of 2006
 with

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 Civil Application No. 274 of 2006

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 1. Kalim Mahomadsab Ansari

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 @ Mulla and others ..Appellants

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vs.

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 1. Dr.Suleman Fakruddinansari
 since deceased by his legal
 heirs

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 1A. Mr.Mazahar-Ul-Haque
 Suleman Ansari and others ...Respondents

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 Shri S.V.Pitre for appellants
 Shri V.G.Mujumdar for respondent nos.1A to 1H.

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CORAM: S.C.DHARMADHIKARI J
5th September,2007

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P.C.

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 1. This second appeal challenges the concurrent
 findings against the appellants and in favour of
 the respondents in the suit for possession
 instituted by the respondents.

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 2. The suit for possession was decreed by the
 Trial Court and that decree is confirmed in
 Reg.Civil Appeal No.296 of 1992.

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 3. The lower Appellate Court by the impugned
 judgment and order delivered on 13th December, 2005
 partly allowed the appellants’ appeal by setting
 aside that part of the judgment where the
 compensation was awarded in favour of the

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 respondents. In turn, the civil appeal no.838 of
 2000 for enhancement of the award of compensation
 was dismissed.

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 4. Shri Pitre submits that the issue which goes to
 the root of the matter is jurisdiction of the
 ordinary civil court to take cognisance of the
 claim of the respondents in as much as in his
 submission, the respondents instituted the suit in
 regular civil court against the appellants on the
 basis that they are trespassers in respect of the
 suit premises. However, the respondents themselves
 are neither the landlords or owners but allegedly
 the tenants. He submits that whether the tenants
 can institute such a suit in an ordinary civil
 court or not would give rise to substantial
 question of law.

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 5. Shri Pitre places reliance upon the Full Bench
 decision of this Court in the matter of Dattatraya
 Krishna Vs. Jairam Ganesh Gore reported in 1964
 Mh.L.J.750 which has been followed by the learned
 single Judge of this Court in the matter of Abdul
 Aval @ Chakuwalla Vs.Sayed Mohammed Ali Usmanali
 and others reported in 2001(2) Mh.L.J.625.

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 6. Upon perusal of the judgment rendered by the
 Court below, I am unable to accept this contention

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 of Shri Pitre. The plaint averments in this case
 have been noticed to decide the issue of
 jurisdiction. The pleading is on the basis that
 the original plaintiffs claimed tenancy rights over
 the suit property and are alleging that the
 appellants/original defendants are trespassers
 therein.

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 7. In reply to this plea, the defence raised was
 that the original defendant is a tenant in the suit
 premises.

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 8. Thus, it is well settled that the plaint
 allegations would determine the jurisdiction of the
 court and not the nature of the defence. However,
 if the plaint allegations proceed on the basis that
 the defendant is a trespasser and has no right,
 title or interest in the suit property, and defence
 is raised that he has some right including that of
 tenancy which is established, prima facie, then,
 possibly the issue arises regarding the
 jurisdiction of the ordinary civil court. None
 disputes that the ordinary civil court alone is a
 forum, when the suit is for possession on the basis
 of title and against the trespasser. Unless, the
 Civil Court’s jurisdiction is ousted by specific
 provision or impliedly it cannot be held that it
 does not have jurisdiction. In the present case,

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 the appellants set up a defence that they are the
 tenants. That plea was dealt by both the courts
 below. It is held that there is no right in their
 favour in respect of the suit property. In such
 circumstnces, in my view, reliance upon the Full
 Bench decision of this Court is totally
 misconceived. In fact, the observations relied
 upon by Shri Pitre in Full Bench decision would
 militate against his contention rather than support
 him. The following observations of the Full Bench
 are eloquent enough:

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 "17. A tenant or a sub tenant who claims
 his right under the contract with his
 landlord is also a tenant within the meaning
 of the Act. His landlord is also a landlord
 within the meaning of the Act. The dispute
 between them in regard to possession must
 also be decided in conformity with the
 provisions of the Act. Even in a suit
 brought by a tenant on the basis of his
 contract, the matter which will be directly
 and substantially inissue will be (1)
 whether the plaintiff is a tenant and
 whether the suit is between a tenant and the
 landlord as alleged and (2) whether the
 plaintiff is entitled to relief in regard to
 possession. These will be the principal

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 issues which the special court will have to
 adjudicate upon. It will have to decide
 these issues directly and not incidentally.
 Consequently, these issues cannot be the
 subject matter of a fresh suit under section
 29A.

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 18. This view is in accordance with the
 decision of the Supreme Court in Babulal
 Bhurmal’s case (1). The Supreme Court has
 observed (p.959)

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 ’....It is possible to avoid a conflict
 between the provisions of section 28 and
 section 29A ona proper construction thereof,
 then, it is the duty of a Court to so
 construe them that they are in harmony with
 each other. It is possible to conceive of
 cases where in a suit under sec.28 a
 question of title to premises which does not
 arise out of the Act or any of its
 provisions may be determined incidentally.
 Any party to the suit aggrieved by such a
 determination would be free to sue in a
 competent court to establish his title to
 such premises by virtue of the provisions of
 section 29A. On the other hand, in a suit
 where a question of title entirely arises

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 out of the Act or any of its provisions, the
 jurisdiction to try such a suit was
 exclusively vested in the Courts specified
 in section 28 and no other. That is to say,
 a title which could not be established
 outside the Act but which arose under the
 provisions of the Act by virtue of a claim
 made thereunder must be determined by a
 Court specified in section 28 and a title de
 hors the Act may be determined in any other
 Court of competent jurisdiction...The Act
 specially provided that the Courts specified
 in section 28 shall have the jurisdiction to
 deal with any claim or question arising out
 of the Act or any of its provisions and
 expressly excluded any other Court from
 having such jurisdiction. It is difficult
 to accept the suggestion that the
 Legislature intended, after setting up
 special Courts under section 28 to deal with
 such matters, that the same should be
 re-agitated and redetermined in another suit
 by a Court not specified in section 28. By
 enacting section 29A the Legislature clearly
 intended that no finality should be attached
 to the decision of a Court trying a suit
 under section 28 on a question of title
 dehors the Act. The provisions of the Act

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 on the other hand clearly indicate that all
 claims or questions arising out of the Act
 or any of its provisions, even though they
 may be in the nature of a title to the
 premises, were to be determined by the
 Courts specified in section 28 and no
 other".

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 These observationsof the Supreme Court in
 terms apply to the third class of matters
 referred to in section 28, viz. any claim
 or question arising out of the Act or any of
 its provisions. On the same reasoning these
 observations will be equally applicable to
 the other two classes of matters mentioned
 in section 28. This view finds support in
 the observations made by the Supreme Court
 in Raizada Topandas Vs.Gorakhram (1), at
 p.112 in regard to their earlier decision in
 Babulal Bhuramal’s case (2). It was
 observed:

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 "....The Supreme court held (in Bhuramal’s
 case (2)) that a suit which was competent to
 establish title under section 29-A was a
 suit to establish title de hors the Bombay
 Rent Act and not a suit which sought to
 establish title which required to be

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 established under the Rent Act itself. It
 is obvious that in the suit before the Court
 of Small Causes, it was open to the tenant
 to claim protection under the Act and by
 reason of section 28 no other Court had

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 jurisdiction to try that claim;...".

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 9. In my view, therefore, no error was committed
 by the Civil Court in entertaining and trying the
 suit. The civil Court’s judgment has been rightly
 upheld by the lower Appellate Court. Modification
 thereto is also in consonane with the material
 placed before the lower Appellate Court. There is
 no merit in the second appeal and it is accordingly
 dismissed.

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 10. In view of dismissal of the second appeal
 civil application does not survive and hence
 disposed of accordingly.

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(S.C.DHARMADHIKARI J.)

Kalim Mahomadsab Ansari and Ors. v. Dr. Suleman Fakkruddin Ansari and Ors.

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Kalim Mahomadsab Ansari and Ors. v. Dr. Suleman Fakkruddin Ansari and Ors.

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