1 (WP2731.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2731 OF 2011 M/s Gayatri Tinning Agency ... Petitioner. V/s Shri Nopany (India) Pvt. Ltd and another ... Respondents. --- Mr. Ramgopal Tripathi for the Petitioner. Mr. P.K. Dhakephalkar, Senior Advocate with Mr. Chandra Naik i/b Chandra Naik & Associates for Respondent No.1 --- CORAM: V.M. KANADE, J. DATE : 9TH AUGUST 2011 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondent No.1 2. Brief facts are as under:- 3. Respondents, initially, had filed a suit for eviction against the Petitioner herein in this Court. An objection was raised by the Petitioner that this Court does not have jurisdiction to try and decide the suit and, accordingly, the suit was transferred to the Small Causes 2 (WP2731.11) Court. The Small Causes Court, after going through the evidence on record, decreed the suit of the Respondents and passed a decree of eviction alongwith consequential reliefs which were asked for. This order was challenged by the Petitioner in appeal. The said appeal was also dismissed. Being aggrieved by the aforesaid orders, Petitioner has fled this Petition under Article 227 of the Constitution of India. 4. The learned Counsel appearing on behalf of the Petitioner firstly submitted that both the courts below had committed an error of law which is apparent on the face of record. He submitted that the Small Causes Court did not have jurisdiction to try and decide the suit since the Respondents were not the owner of the premises and that they did not have title to seek possession from the Petitioner herein. He submitted that the only document on which reliance was placed was warehouse receipt at Exhibit-1. The learned Counsel invited my attention to the prayer clause of the Plaint which was transferred to the Small Causes Court by the High Court and to paragraph 19 of the said plaint. He submitted that from the reliefs which are claimed in the said paragraph 19 of the plaint, it could not be said that the Small Causes Court had jurisdiction to try and decide the suit under section 41 of the said Act. Reliance was placed on number of judgments of the Apex Court and this Court in support of the said submission. Secondly, he submitted that both the Courts below had erred in relying on section 116 of the Evidence Act and had wrongly held that the Petitioner was estopped from raising a plea regarding title of Respondents. He submitted that it is a settled position in law that 3 (WP2731.11) jurisdiction could not be conferred by consent of parties and there could be no estoppel against the operation of statute. He pointed out that the property belonged to Bombay Port Trust (“BPT”) who were original lessors and the lease agreement initially was executed by BPT with one Mr. Daulatram, which was later on terminated and subsequently there were further transfers during pendency of the execution application and, as such, Respondents clearly did not have title to create license in favour of Petitioner herein. 5. On the other hand, Shri Dhakephalkar, the learned Senior Counsel appearing on behalf of Respondent No.1 submitted that both the Courts below had given cogent reasons while rejecting both the contentions of the Petitioner and, therefore, there was no error of law apparent on the face of record. He also submitted that no evidence was led by the Petitioner herein and on the other hand Respondents had led evidence which was properly appreciated and cogent reasons were given by both the Courts below. 6. In my view, submissions made by the learned Counsel for the Petitioner cannot be accepted. So far as the question of jurisdiction is concerned, it is a settled position in law that the jurisdiction has to be inferred from the basis of averments made in the plaint and not on the basis of defence taken by the Defendant in his Written Statement. While considering the averments in the plaint, certain paragraphs in the plaint cannot be read in isolation as rightly pointed out by Shri Dhakephalkar, the learned Counsel for Respondent No.1. In para 5 of 4 (WP2731.11) the said plaint, specific averments have been made that possession of the premises was given to the Petitioner herein at the agreed rate of Rs 5000/-. All the averments, therefore, in my view, clearly indicate that the suit was filed for recovery of possession from the Petitioner who was a licensee of the said premises as defined under section 52 of the Easement Act. It is, therefore, not necessary to refer to various judgments on which reliance is placed by the learned Counsel for the Petitioner since there is no dispute regarding the ratio laid down in the said judgments. Apart from that, it is an admitted position that the Petitioner had raised an objection regarding jurisdiction of this Court when the Respondents initially filed a suit in this Court and, as a result, the suit was transferred by this Court to the Small Causes Court. 7. So far as the submission regarding the provisions of section 116 of the Evidence Act is concerned, the said position is also quite well settled. The principle behind the said provision is that the person who obtains possession from the party cannot deny or is estopped from denying title of the said party. The said legal position is quite well settled. Both the Courts below, therefore, in my view have rightly held that the Petitioner is now estopped from denying the title of the Plaintiff. The ratio of the judgments on which reliance is placed by the learned Counsel for the Petitioner, in my view, will not apply to the facts of the present case and, therefore, I do not think that it is necessary to refer to the said judgments. There is concurrent finding of facts recorded by both the Courts below. There is no error 5 (WP2731.11) apparent on the face of the record committed by both the Courts below. While exercising limited jurisdiction of this Court under Article 227 of the Constitution of India, it will not be possible to interfere with the concurrent findings of fact recorded by the courts below. 8. Writ Petition is dismissed. Two months’ time is given to the Petitioner to hand over possession of the suit premises to the Respondents. [ V. M. KANADE, J.]