(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 1501 of 2009 Sk. Javed s/o. Sk. Khalil, Age : 31 years, Occupation : Business, R/o. C/o. New Fasion Centre, Mandi Bazar, Ambajogai, Taluka : Ambajogai, District : Beed. .. Petitioner. versus 1. Smt. Vasantabai w/o. Rambhau Ubale, Age : 65 years, Occupation : Household, 2. Smt. Godavaribai w/o. Baburao Ubale, Age : 68 years, Occupation : Household, Both R/o. Mandi Bazar, Ambajogai, Taluka : Ambajogai, Dist. Beed. .. Respondents. .................. Mr. G.R. Syed, Advocate, for the petitioner. Mr. S.S. Thombre, Advocate, for respondent no.1 / caveator. .................. (2) CORAM : B.R. GAVAI, J. DATE : 22ND JUNE 2009. COURT’S ORDER : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. Since no order prejudicial to the interest of respondent no.2 is being passed, service of notice on rule on the said respondent is waived. 3. By way of present petition, the petitioner challenges the order dated 28th January 2009, passed by the learned Civil Judge (Senior Division), Ambajogai, below Exhibit 26 in Special Civil Suit No. 25/2007, thereby rejecting the application filed by the petitioner (original defendant) for framing an additional issue regarding jurisdiction. 4. The respondents plaintiffs have filed a suit against the petitioner defendant, on the ground that he has encroached upon the suit premises. 5. The said suit is resisted by the petitioner. It is a specific (3) contention of the plaintiffs, that the disputed shop was given on rent basis to the father of the petitioner by the husband of plaintiff no.1. It is further contention of the plaintiffs, that after the death of father of the petitioner in 2000, the petitioner denied to be in possession of the said shop in view of tenancy of the suit shop. Accordingly, the defendant prayed for raising an additional issue regarding jurisdiction since the the issue regarding tenancy could not be tried by the learned Civil Judge (Senior Division). The said application is rejected. 6. From the plaint, it is seen that though the plaintiff has averred that the defendant has encroached upon the suit premises, the defendant has specifically averred in the written statement, that the suit premises were given on rent to the deceased father of the defendant and that he is in peaceful possession of the suit premises on account of tenancy after the death of his father. 7. In that view of the matter, I find that the issue regarding jurisdiction was a necessary issue and that the trial court has erred in rejecting the said application. 8. In the result, the petition is allowed. Rule is made absolute (4) in terms of prayer clauses "B" and "C". It is needless to state that all the points available to the parties are kept open. 9. In the circumstances of the case, there shall be no order as to costs. ( B.R. GAVAI ) JUDGE ...................... bgp/wp1501