JUDGMENT
J.A. Patil, J.
1. This is a suit for declaration, injunction and possession. The property in respect of which these reliefs are claimed is Flat No. 10 on the 4th Floor of a building known as “Roxana”, situate at 109, Maharshi Karve Marg, Mumbai-400020. The approximate area of the said suit Flat is 2850 sq. ft. The plaintiffs claim to be the owners and landlords of the said suit Flat. Plaintiff No. 1 is the husband of deceased plaintiff No. 2. Defendant No. 3 is the sister of deceased plaintiff No. 2. The suit flat was previously in occupation of one Minocher Hormasji Nariman, as a tenant thereof. He died issueless on 24th May, 1993.
2. According to the Plaintiffs in the year 1984 the owners and landlords of the ‘Roxana’ building had evolved a scheme to sell the flats and garages in the suit building on ownership basis with a view to form a Co-operative Housing Society or a Limited Company. For that purpose they had given offers to the occupiers/tenants in the said building. The plaintiffs, on coming to know about the scheme, approached the tenant Minocher Hormasji Nariman and requested him to buy the suit flat as he was the tenant thereof. According to the plaintiffs the said M.H. Nariman had already bequeathed his tenancy rights in favour of plaintiff No. 2, some time prior to 1985. It may be pointed out that deceased plaintiff No. 2 and Defendant No. 3 are the nieces of the said M.H. Nariman. The plaintiffs were ready to give the loan to M.H. Nariman for the purpose of purchasing the suit flat and they had told him that since he had already bequeathed his tenancy rights in favour of the deceased plaintiff No. 2, the suit flat would automatically go to deceased plaintiff No. 2 after his death. However, M.H. Nariman was not interested in purchasing the suit flat. According to the plaintiffs he suggested that the plaintiffs would purchase the same.
3. Accordingly plaintiffs entered into an agreement of sale dated 28th January, 1985 with Murarilal Gupta Kamanwala and others, who agreed to sell the suit flat to the plaintiffs for a sum of Rs. 1,50,000/-. The plaintiffs informed M.H. Nariman about the transaction entered into with Murarilal Gupta and Ors. However, they did not claim any rent from him. The plaintiffs have alleged that Defendant No. 3 was fully aware of the fact that M.H. Nariman had already bequeathed his tenancy right in favour of the said suit flat to the deceased plaintiff No. 2. But they induced the said M.H. Nariman to cancel the said Will and execute a fresh Will in favour of the Defendant No. 3, as per which the suit flat came to be bequeathed to Defendant No. 3.
4. On 24th May, 1993 death occurred to M.H. Nariman and after his death, immediately on the next day there was a meeting of all his heirs at the office of the executors. At that time, the plaintiff came to know about the Will executed by M.H. Nariman in favour of Defendant No. 3. It was found that after the death of M.H. Nariman, Defendant No. 3 put a lock on the suit flat and handed over the key thereof to Defendant No. 1, who is the executor of the said Will. It is contended by the plaintiffs that Defendant No. 3 has absolutely no right to the suit flat. According to them the bequest of the said flat made in favour of Defendant No. 3 by M.H. Nariman is not legal and valid since tenancy rights are not transferable. It is their contention that after the death of M.H. Nariman, the possession of the suit flat automatically reverted to them as landlords and owners thereof. The plaintiffs, therefore, filed the present suit against the defendants on 4th April, 1994. It is necessary to point out that during the pendency of this suit the plaint was amended to bring on record a subsequent fact that under a Deed of Conveyance dated 30th November, 1994, the plaintiffs purchased the suit flat from its owners. Thus according to the plaintiffs they are the joint owners of the suit flat and that Defendant No. 3 does not have any right, title or interest in the suit flat. The plaintiffs have, therefore, prayed for a declaration of title along with a declaration that the Will dated 4th December, 1985 made by M.H. Nariman in favour of the Defendant No. 3, does not confer any right or title upon Defendant No. 3 in respect of the suit flat. They have also prayed for declaration that they are entitled to use and occupation of the suit flat. The plaintiffs have also claimed mandatory injunction, directing Defendant No. 3 to remove the lock of the suit flat and for perpetual injunction, restraining her from obstructing or interfering in the possession of the plaintiffs of the suit flat. They have also prayed for possession of the suit flat from Defendant No. 3.
5. Defendant Nos. 1 and 2, who are executors of the Will executed by deceased tenant M.H. Nariman did not file any written statement. Hence, the suit proceeded ex parte against them. At the time of the arguments their Advocate, Shri Avinash Joshi appeared before the Court and submitted that these two defendants submit to the order which the Court may pass in this suit.
6. Defendant No. 3 resisted the suit and pointed out that Plot No. 8 on which the Roxana building is situated is a Government leased property and as such various units in the suit building cannot be sold except to a housing society with tenants, in view of the terms and conditions mentioned in the head lease agreement dated 2nd March, 1940. Thus, according to Defendant No. 3, the agreement of sale in favour of the plaintiffs is bad in law. Defendant No. 3 further contended that the plaintiffs vendors namely, Murarilal Gupta Kamanwala and 4 others have no conveyance in respect of the Roxana building and as such they cannot validly transfer or assign any of the units therein in favour of the plaintiffs. Defendant No. 3 contended that deceased M.H. Nariman was interested in purchasing the suit flat. But he was not given the offer with details. She alleged that the plaintiffs without knowledge and consent of M.H. Nariman entered into an agreement with Murarilal Gupta Kamanwala and others in order to deprive his valuable rights in the suit flat. The defendant has averred that she had inherited tenancy of M.H. Nariman in respect of the suit flat along with the other heirs. She also pointed out that M.H. Nariman had bequeathed in her favour the tenancy rights to the suit flat. Defendant No. 3 pointed out that alleged owner Murarilal Gupta, acting as Chief Promoter of the proposed society had filed application to the Dy. Registrar of the Co-operative Societies for registration of the society. However, that application came to be rejected. The appeal filed by him also came to be dismissed by the Additional Joint Registrar on 27.3.1987 and the revision application filed by him was rejected by the Additional Chief Secretary of the Government of Maharashtra on 25.2.1994, holding that the plaintiffs/applicants were still to get legal ownership of their respective flats.
7. In her additional written statement Defendant No. 3, has raised some technical objections to the maintainability of the suit. It is contended that the suit is barred by limitation. It is further pointed out that this Court has no jurisdiction to entertain and try this suit and that it is the Court of Small Causes which has such jurisdiction. The defendant has further contended that the Deed of Conveyance in favour of the plaintiffs contravenes the provisions of Clause 2(o) of the said head Lease Deed and therefore, it is not legal and valid. On all these grounds Defendant No. 3 has prayed for dismissal of the suit with cost.
8. I have heard the learned Counsel for both the sides at length.
9. In the light of these pleadings following issues came to be framed on 15.2.2000. After the amendment of the plaint, additional issues came to be framed on 21.3.2000. The issues and additional issues are as under:
ISSUES
(1) Whether the plaintiffs prove that they are the joint owners of the suit flat?
(2) Whether the plaintiffs prove that they are entitled to use, possession and occupation of the suit flat?
(3) Whether the plaintiffs prove that Defendant No. 3 has no right of any nature whatsoever over the suit flat?
(4) Does Defendant No. 3 prove that the Agreement for Sale dated 28.1.1985 Ex. A to the plaint is bad in law, void and not enforceable at law?
(5) Does the defendant prove that the plaintiffs in collusion with the vendors Murarilal Gupta Kamanwala and others entered into an Agreement for Sale dated 28.1.1985 (Exhibit A to the plaint) without the knowledge and consent of the existing tenant M.H. Nariman of the suit flat?
(6) Whether the plaintiffs prove that the act of defendant Nos. 1 and 2 of handing over the keys of the suit flat to Defendant No. 3 is bad in law, illegal, wrong, null and void and not binding upon the plaintiffs?
(7) Whether the plaintiffs prove that Defendant No. 3 is liable to deliver possession of the suit premises to them?
(8) What decree and order?
ADDITIONAL ISSUES
(1) Whether Defendant No. 3 proves that the suit is barred by the Law of Limitation?
(2) Whether the Defendant No. 3 proves that the suit is premature as it is filed on the basis of Agreement for Sale dated 28.1.1985?
(3) Whether the Defendant No. 3 proves that the Hon’ble High Court has no jurisdiction as the plaintiffs claim to be landlords and as the substantive claim of the plaintiffs is to obtain possession of the suit premises? (Preliminary issue)
(4) Whether the Defendant No. 3 proves that the Agreement for Sale dated 28.1.1985 and the Deed of Conveyance dated 30.11.1994 are illegal and void as both have contravened and violated the provisions of the Lease Deed dated 2.3.1940?
(5) Whether the Defendant No. 3 proves that the plaintiff No. 1 and the plaintiff No. 2 since deceased, being outsiders, have no right to purchase the suit premisers as they have deprived the deceased tenant M.H. Nariman and his heirs of their valuable legal right to become owners thereof?
(6) Whether the Defendant No. 3 proves that as per provisions of Clause 2(o) of the Lease Deed dated 2.3.1940 the suit premises being only part of the building, cannot be assigned or parted with?
(7) Whether the Defendant No. 3 proves that the alleged predecessors of the Plaintiff Nos. 1 and 2 viz., Murarilal Gupta Kamanwala and others have not acquired any title to Roxana building property as there is no conveyance in their favour from Madanlal Gupta H.U.F. from whom they claim to have purchased the Roxana building property by Agreement for Sale dated 15.2.1984?
10. My findings on the above issues and additional issues are as follows:
First findings on Issues:
1. Yes.
2. Yes.
3. Finding not recorded for want of jurisdiction.
4. Finding not recorded for want of jurisdiction.
5. No.
6. Yes, subject to alleged tenancy right of Defendant No. 3.
7. Yes, subject to her alleged tenancy right.
8. As per the order for the reasons recorded below.
Findings on Additional Issues:
1. No.
2. No.
3. Partly yes and partly no.
4. No.
5. No.
6. No.
7. No.
REASONS
ISSUE Nos. 1, 3, 4, 5 and 6 AND ADDITIONAL ISSUE Nos. 4, 5, 6 and 7:
11. For the sake of convenience of discussion, I have grouped these eight issues together since they relate to the title In respect of the suit flat.
12. The plaintiffs claim to be the joint owners of the suit flat on the basis of the Agreement of Sale dated 28th January, 1985 Exh. A and Deed of Conveyance dated 30th November, 1994 Exh. B-4. Defendant No. 3 on the other hand claims to have acquired tenancy right in respect of the suit flat, firstly, under the Will dated 4th December, 1985 Exh. ‘D-5′ executed by the deceased tenant M.H. Nariman and secondly, on the ground that she, being one of the heirs of the deceased tenant, has inherited the tenancy rights. Defendant No. 3 has stoutly denied the plaintiffs’ claim as being the joint owners of the suit flat. In order to appreciate the controversy between the parties, it is necessary to make a reference to the relevant documents which are produced on record. The first document upon which the plaintiffs have placed reliance is the Deed of Agreement of sale dated 28th January, 1985 Exh. A executed by Murarilal Gupta Kamanwala and 4 others, which mentions that the said vendor agreed to sell the suit flat to the plaintiffs for a consideration of Rs. 1,50,000/-. The second document relied upon by the plaintiffs is the Deed of Conveyance dated 30th November, 1994 Exh. ‘B-4’ executed by Madanlal Gupta, as Karta of Madanlal Gupta H.U.F., Murarilal Gupta Kamanwala and four others. It is true that on the date of the suit the plaintiffs had in their favour only the agreement of sale and there can be no dispute about the legal position contemplated by Section 54 of the provisions of Transfer of Property Act, that an agreement of sale does not create any interest or title in the property. However, as pointed out above, during the pendency of the suit, the plaintiffs got the sale deed Exh. ‘B-4’ executed from the above mentioned six persons. Thus their claim of title is based on this sale deed. Defendant No. 3 has contended that the suit filed by the Plaintiffs is pre-mature as on the date of the suit the Plaintiffs did not have any valid title. However, this contention will no longer survive since after the filing of the suit the plaintiffs obtained the sale deed to base their claim of title to the suit flat.
13. The main contention advanced on behalf of the Defendant No. 3 is that both these documents i.e. Exh. ‘A’ and Exh. ‘B-4’ relied upon by the plaintiffs are null and void and since they are contrary to the provisions of the head lease dated 2nd March, 1940 Exh. ‘D-4’ executed by the Governor General of India in Council in favour of Marwanji F. Kapadia and 3 others. The said document shows that it is a lease deed in respect of plot No. 8 upon which the, Roxana building is standing, Shri Sen drew my attention to Clause (1) of the said lease and the relevant part thereof reads as under:
The Lessor doth hereby demise unto the
Lessees All That piece of land known as Plot No. 8 of the Queens Road Estate of the Government of India within the City and Registration Sub-district of Bombay containing by admeasurement 1871.92 square yards or thereabouts and bounded as follows : that is to say on or towards the North by Plot No. 9, on the said estate on or towards the South by a proposed 40 ft. road between Queen’s Road and Marine Lines on or towards the West by Queen’s Road and on or towards the East by Plot No. 11 on the same Estate and which said piece of land bears C.S. No. 1793 of the Fort Division and is delineated on the plan annexed to these presents and is thereon surrounded by a red line Together with the buildings and erections now or at any time hereafter standing and being thereon And Together With All rights easements and appurtenances thereto….
14. On the basis of the said recitals, it was tried to be contended that what was leased under these lease deed was Plot No. 8 along with the building. It is, however, material to note that it is nobody’s case that at the time when this lease deed was made the present Roxana building was standing upon Plot No. 8. Had it been so then In all probabilities there would have been a specific reference to the said building along with its description. Moreover it is pertinent to note that the lease is for a period of 999 years and the yearly rent is Re. one only. It is inconceivable that the plot along with the building in question could have been leased at such a nominal rent. Therefore, it is obvious that the lease deed Exh. ‘D-8’ is in respect of the Plot of land only and not Roxana building standing upon it.
15. Shri Sen also drew my attention to Clause (2) of the lease deed which casts certain obligations on the lessees. Clause 2(o) requires the lessees not to assign or part with the possession of any part less than the whole of the demised premises or any manner part with assign or transfer the Lessees’ interest therein so as to cause any division therein or otherwise to alter the nature of this present demise.
16. This particular clause in the lease deed is pressed into service in order to contend that the lessees cannot split their rights and that lease hold rights can be transferred or assigned not by bits but in their entirety. However, I do not find any force in this argument for the simple reason that the transfer evidenced by the agreement of sale Exh. ‘A’ and the sale deed Exh. ‘B-4’ in favour of the plaintiffs is in respect of the suit flat i.e. Flat No. 10 only and it has nothing to do with the lease holds rights in respect of the Plot on which the Roxana building is standing. Therefore, it is not possible to accept the submission made by Shri Sen in this respect.
17. Another important submission made by Shri Sen is to the effect that a there is no document on record to show that the plaintiffs’ vendors had conveyance deed in respect of the suit flat in their favour. Therefore, according to Shri Sen, the Plaintiffs do not acquire any right, title or interest under the above mentioned two documents, since their vendors had no title which they could have conveyed to the Plaintiffs. This submission needs some examination. The head lease Exhibit ‘D-8’, shows that the lease hold rights in respect of Plot No. 8 were transferred in favour of Merwanji Kapadia and three others. It is not on record as to who constructed Roxana building upon Plot No. 8 and when it was constructed. The agreement of sale dated 20.1.1985 Exhibit ‘A’ mentions that one Madanlal Gupta in his capacity as Karta and Manager of a joint Hindu undivided family was absolutely seized and possessed of all leasehold lands, hereditaments and the premises together with the building known as Roxana. However, he is not a party to the agreement of sale. As pointed out earlier, the agreement of sale is made by Murarilal Gupta and four others. It is not known as to what is the relationship between Murarilal Gupta and Madanlal Gupta, H.U.F. It is however, material to note that the sale deed dated 30.11.1994 Exhibit ‘B-4’ was executed by Madanlal Gupta as Karta of Madanlal Gupta, Murarilal Gupta and four others. The sale deed was signed by Murarilal Gupta alone for himself and as Constituted Attorney of other vendors including Madanlal Gupta. It was contended that no Power of Attorney executed by Madanlal Gupta in favour of Murarilal Gupta has been produced to show that Murarilal Gupta really had powers to act as a Constituted Attorney of Madanlal Gupta. Shri Dubey, learned Counsel for the Plaintiffs however, submitted that sale deed Exhibit ‘B-4; was executed in the office of the Sub Registrar who would not have registered the same unless he was satisfied about Murarilal Gupta having such Power of Attorney. There is substance in this submission. I am, therefore, not inclined to accept the contention raised by Shri Sen in this respect.
18. The oral evidence on record clearly shows that there is really no dispute of the fact that Madanlal Gupta was the owner and landlord in respect of the suit flat. Defendant No. 3 has admitted in her crossexamination that Madanlal Gupta, was the landlord of the suit flat. She further admitted that till January, 1984 she herself and M.H. Nariman were paying rent of their respective flats to Madanlal Gupta H.U.F. It is necessary to point out here that at the relevant time Defendant No. 3 was in occupation of Flat No. 3 as a tenant in the same building. Defendant No. 3 went on further admitting that some other tenants were also paying rent to Murarilal Gupta and that her uncle i.e. deceased M.H. Nariman wanted to purchase this flat from Murarilal Gupta Kamanwala. Taking the above documents into consideration, it is clear that there is not substance in the denial made in the written statement that the Plaintiffs’ vendor do not have any valid title in respect of the suit flat which they could have conveyed the Plaintiffs. The admissions given by Defendant No. 3 are clear enough to indicate that the Plaintiffs’ vendors were the owners and landlords of the suit flat and therefore, they had a right to enter into an agreement of sale in respect of the suit flat with the Plaintiffs and they have validly transferred their title to the Plaintiffs in respect of the suit flat. There is no question of contravention of any of the conditions of the head lease Exh. ‘D-8’ for the simple reason that what is transferred to the Plaintiffs is not any part of the lease holds land but Flat No. 10 in Roxana building. The subject matter of this suit is Flat No. 10 in Roxana building only and not Plot No. 8 upon which the said building is standing.
19. Defendant No. 3 has set up a title of tenant in herself on the basis of the Will dated 4th December, 1985 Exh. ‘D-5’ executed by the deceased M.H. Nariman. She has also contended that she being one of the heirs of M.H. Nariman has inherited his tenancy rights. So far as bequeath of the suit flat in favour of Defendant No. 3 is concerned, Shri Dubey, learned Advocate for the Plaintiffs contended that the tenancy right cannot be bequeathed. In this respect he referred to the provisions of Section 15 of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 (for short ‘Rent Act’), which inter alia provides that “notwithstanding anything contained in any law but subject to any contract to the contrary, it shall not be lawful after coming into operation of the Rent Act for any tenant to assign or transfer or in any other manner his interest therein”. Shri Dubey relied upon the decision of the Supreme Court in Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis , wherein the principal question for consideration was whether tenancy rights under the Rent Act, can be devised by a Will. Their Lordships held that in their considered view the Legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the landlord to recover possession will stand excluded even though the original party (the tenant) with whom the landlord had contracted is dead. It was further observed that if the word ‘heir’ is to be interpreted to include a ‘legatee’ even a stranger may have to be inducted as a tenant for there is no embargo upon a stranger being a legatee. It was therefore, held that the meaning of words assign or ‘transfer’ as appearing in Section 15, the word ‘transfer’ has been qualified by the words “in any other manner” and there is no reason why it should be restricted to mean only transfer inter vivos. The Supreme Court held that wide amplitude of the words “in any other manner” clearly envisages that the word ‘transfer’ has been used therein a generic sense so as to include transfer by testament also.
20. Defendant No. 3 has also contended that she has acquired tenancy rights in respect of the suit flat on account of her being an heir of the deceased tenant M.H. Nariman. In this respect Defendant No. 3 relies upon the provisions of Section 5(11)(c)(i) of the Rent Act. It may however, be recalled that there is no dispute of the fact that deceased plaintiff No. 2 and Defendant No. 3 are the nieces of M.H. Nariman who was admittedly the tenant in the suit flat. It is also in the evidence that at the relevant time Defendant No. 3 was residing in Flat No. 3 in the same building. However, it is not her case that at the time of the death of M.H. Nariman in May, 1993, she was residing with him as a member of his family. There is no dispute of the fact that M.H. Nariman was a widower of and that he was residing alone in the suit flat.
21. It will thus be seen that Defendant No. 3 has based her claim of tenancy in respect of the suit flat on two counts, firstly, on the basis of the Will dated 4th December, 1985 Exh. ‘D-5’ executed by the M.H. Nariman and secondly on the fact that she is a heir of the deceased M.H. Nariman. The question whether Defendant No. 3 is a tenant of the suit flat within the meaning of Section 5(11)(c)(i), as also the question whether the Plaintiffs are landlords of the suit flat within the meaning of Section 5(3), need not and cannot be decided by this Court in its original jurisdiction for the simple reason that these questions or claims arise out of the Rent Act and in view of Section 28 of the Rent Act no other Court in Greater Bombay except the Court of Small Causes has jurisdiction to entertain any such suit involving the suit claim or questions. The position of law in this respect is well settled and it can hardly be disputed. In this connection reference may be made to two decisions relied upon by Shri Sen. The first is a Division Bench decision of this Court in Mehersing Sethi v. Khurshed Nadirshaw Satarwalla Vol LVI Bom. L.R. 540, wherein it was held that the Special Courts, under the Rent Act, have exclusive jurisdiction with respect of a particular subject matter and their jurisdiction arises, not by reason of any pecuniary or territorial consideration, but by reason of the subject matter being of the nature mentioned in Section 28 of the Rent Act. It was also held that Section 28 confers jurisdiction upon the Special Courts not only to decide questions referred to in the section, but also all matters which are incidental or ancillary to the determination of those questions.
22. The second decision is S.K. Dhonde and Ors. v. Harilal Govindji Bhogani , wherein a suit was filed for enforcing charge for recovery of loan and it was held that the suit related to claims or questions arising out of the Rent Act, or any of its provisions within Section 28(1) and therefore, the Special Court under Section 28 alone had the jurisdiction.
23. In the present suit, the Plaintiffs have prayed for a declaration of their title in respect of the suit flat. The declaration sought by them is, however, not to the effect that they are landlords of the suit flat within the meaning of term under the Rent Act but that they are joint owners of the suit flat. They claim this declaration on the strength of the title of ownership which they have acquired from the previous owners. As discussed above, the Plaintiffs have proved that they are joint owners of the suit flat. Therefore, in my opinion there is no difficulty in granting the relief of declaration as prayed for by them, since there is no bar or want of jurisdiction for this Court to do so.
24. Turning to the other reliefs, the plaintiffs have claimed a declaration that they alone are entitled to use and occupation of the suit flat and that Defendant No. 3 has absolutely no right to the suit flat. They have also claimed a declaration to the effect that the Will dated 4th December, 1985 made by deceased M.H. Nariman does not confer any right or title upon Defendant No. 3 in respect of the suit flat. The Plaintiffs have also sought the reliefs of possession and injunction. Normally there would have been no difficulty in granting these reliefs but for the alleged tenancy rights of Defendant No. 3, which cannot be decided by this Court in this suit. The Plaintiffs have averred not only that they are owners but also the landlords of the suit flat. This is clear from the averments made in para 4 and para 16 of the plaint. They have however, sought no declaration of their title as landlords. Defendant No. 3 on the other hand has set up in herself tenancy rights in respect of the suit flat, as pointed out above. It was strenuously contended by Shri Sen that this Court cannot grant the reliefs claimed by the Plaintiffs for want of jurisdiction and that the plaintiffs suit in the circumstances of the case deserves to be dismissed. At this stage, it may be pointed out that additional Issue No. 3 which pertains to the jurisdiction of this Court was to be treated as preliminary issue. It is however, not known as to why the same was not heard as preliminary issue. The parties appear to have proceeded with the trial of the suit on all the issues perhaps being unmindful that Issue No. 3 was to be heard as preliminary issue. Relying upon the decision in Shantukkurnar Laxmikant Sharma v. Shah Kumudchandra Valchandbhai , and the decision in Manjia Hagria Mahar v. Sakia and Ors. , Shri Sen contended that the Plaintiffs suit deserves to be dismissed. It is well settled that question of jurisdiction is ordinarily decided on the basis of the allegations made in the plaint and not on the contentions raised by the defendants in the written statement. The facts in the case of Shantukkumar L. Sharma (supra) are quite different from the facts of the present case. In that case the Plaintiffs filed suit for recovery of possession of the suit premises, alleging that the Defendant had never resided with the deceased tenant in the suit premises and that the Defendant was a trespasser. The Defendant on the other hand set up a plea of tenancy on the ground that he was residing along with the deceased tenant. The Civil Court, which tried the suit, held that the Defendant was a trespasser and the Plaintiffs were entitled to recover the possession of the suit premises from the Defendants. The learned Single Judge of the Gujarat High Court after referring to several decisions including Babulal v. Nandram and Topandas v. Gorakhram , held that the defence made by the defendants did not raise a claim arising out of the provisions of Section 5(11)(c) of the Rent Act and therefore, the City Civil Court was prevented from deciding the suit though it had jurisdiction to entertain the same. It is however, material to note that the Plaintiffs have filed the present suit on the basis of their title as joint owners of the suit flat without any reference to the alleged tenancy rights of Defendant No. 3. As pointed out above, the declaration of title sought by them is that they are joint owners of the suit flat. Therefore, in my view this Court has jurisdiction to entertain and try the suit in so far as the said declaration of title is concerned. In so far as the other reliefs are concerned, it is not necessary to dismiss the suit because the Court can dismiss the suit only when it has jurisdiction to entertain and try the suit. Shri Sen pointed out from the decision in Manjia v. Sakia (supra) that there is not necessity to return the plaint of the plaintiffs, particularly when they proceeded with trial or merits without the preliminary issue about jurisdiction having been decided. In the said case, it was held that if on such a trial the Court comes to the conclusion that Plaintiffs contention is false and he cannot maintain the suit as laid, the Court ought to dismiss the suit and no question of returning the plaint under Order 7, Rule 10 of the C.P.C. arises in such a case. However, I do not think in the peculiar circumstances of the case that the Plaintiffs suit should be dismissed in relation to the other reliefs. If Defendant No. 3 claims to be a tenant on the basis of her being an heir of deceased M.H. Nariman, it cannot be forgotten that deceased Plaintiff No. 2 also stood in the same position. For the aforesaid reasons, I am not inclined to dismiss the suit in so far as the aforementioned other reliefs claimed by the Plaintiffs are concerned. This Court is very well within its power and its jurisdiction to grant the relief of declaration of title that the Plaintiffs are joint owners of the suit flat. So far as the other reliefs are concerned, I think that in the peculiar circumstances of the case, it would be appropriate to leave the parties to approach the Competent Court to seek proper reliefs in respect of the suit flat on the question arising under the Rent Act. In view of the foregoing discussion, I record my affirmative finding on Issues No. 1 and negative findings on Issue No. 5 and additional Issue Nos. 4, 5, 6 and 7. For want of jurisdiction the findings on Issue Nos. 3 and 4 are not recorded. The finding on Issue No. 6 is in the affirmative but subject to the alleged tenancy right of Defendant No. 3. The finding on additional Issue No. 3 will have to be recorded partly in the affirmative as indicated above.
ADDITIONAL ISSUE No. 2:
25. Defendant No. 3 has contended that the suit is premature and therefore, liable to be dismissed. It is true that on the date of the suit, the plaintiffs had in their favour only a Deed of Agreement of Sale, which did not confer upon them any valid title in respect of the suit flat. However, later on they obtained a valid sale deed in respect of the suit flat and thereby perfected their title. Accordingly, they got the plaint amended and the amendment dates back to the date of the suit and therefore, it cannot be said that the suit is premature. Accordingly I record my finding on the Additional Issue No. 2 in the negative.
ADDITIONAL ISSUE No. 1:
26. Defendant No. 3 has contended that the suit is barred by law of limitation. However, there is nothing in the written statement nor anything was pointed out at the time of the argument to show that the suit is barred by limitation. In fact this issue was not touched by the defendants’ learned Advocate. Therefore, there is no difficulty in recording negative finding on Issue No. 1.
27. Before concluding, it is necessary to point out that it is not the case of any of the parties that they were in possession of the suit flat. This Court appointed a Receiver who is now in possession of the suit flat. In the circumstances of the case, the order regarding appointment of the Court Receiver deserves to be continued till either of the parties approach the appropriate Court for decision in connection with their alleged rights under the Rent Act.
28. In the result, I pass the following order:
ORDER
i. The suit is partly decreed.
ii. It is hereby declared that the plaintiff No. 1 and deceased Plaintiff No. 2 are the joint owners of the suit flat.
iii. The reliefs of possession of the suit flat, declaration that Defendant No. 3 has no right, title or interest in the suit flat and perpetual and mandatory injunction as prayed for are not granted for want of jurisdiction since they are dependent upon Defendant No. 3, establishing her alleged right of tenancy in the competent Court. The parties are at liberty to approach the Small Causes Court, Mumbai subject to law of limitation to seek appropriate reliefs in respect of the suit flat on the question arising under the Rent Act. If no such suit or proceeding is filed by Defendant No. 3 within a period of six months, the Court Receiver shall hand over possession of the suit flat to the Plaintiffs without prejudice to the alleged tenancy rights of Defendant No. 3.
iv. In the circumstances of the case, parties to bear their respective costs.
At this stage, both the learned Advocates pray for stay of the operation of this order. Accordingly, the same is stayed for a period of eight weeks.
Certified copy expedited.