1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.493 OF 2008 Hanumanmal G. Biyani through his Lrs. .. Applicants Versus Nandkishor Savalaram Malu & Ors. .. Respondents Mr.S.S.Patwardhan for applicants Mr.Anilkumar Patil for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd March 2010. P.C.: 1] Regular Civil Suit No.317 of 1982 was filed by the respondent - original plaintiffs in a court of Civil Judge, Senior Division, Sangli and the prayer therein is that the plaintiffs are entitled to possession of the property which is more particularly described in para 1 of the plaint. 2] It is common ground that prior to filing of this suit, the respondents had issued notice dated 9th March 1982 alleging therein that the 2 defendant Nos.2 to 9 to the said suit and particularly a firm of defendant Nos. 2 and 3 is in arrears of municipal rent of Rs.260 from 1st June 1980 to 28th February 1982. The suit thus was filed under section 12(3)(a) of the old Rent Act viz., Bombay Rent, Lodging House Rates Control Act 1947. 3] The Revision petitioner before me is the original defendant No.1 to this suit and the plaintiff's allegation against him was that he had no right in respect of the business so also to occupy the suit property. 4] The other defence of the defendant to the suit need not be adverted as it is common ground that the suit was decreed as against the defendant Nos. 2 to 9 and dismissed as against revisional petitioner original defendant No.1, upon a finding that the suit is not maintainable in the form that it was filed against the defendant No.1. 5] Aggrieved by the rejection of the suit partly, the matter was carried in appeal by the original plaintiff and the appellate court has in a detailed judgement upheld the contentions of the respondent appellant and directed all defendants to the suit to hand over vacant and peaceful 3 possession of the suit property. 6] Aggrieved by this appellate decree that the instant Revision Application is filed by original defendant No.1. 7] The only contention raised before me by Mr.Patwardhan appearing in support of this revision petition is that if the case in the plaint is that the first defendant revisional petitioner is a tresspasser in the suit premises then, based on notice under section 12(3)(a) of the Rent Act, against the original defendant Nos. 2 to 9 in the original suit, no suit for possession impleading the revisional petitioner could have been filed and maintained by the Landlord plaintiff. 8] Mr.Patil on behalf of original plaintiff supported the decree and contended that the lower appellate court was right in interfering with part of the order of the trial court dismissing the suit of the land lord plaintiff against original defendant No.1. 9] With the able assistance of both the learned Counsel, I have perused the judgement and decree of the lower appellate court. 4 10] On point No.4 framed by it, the lower appellate court rendered its finding in para 33. The lower appellate court proceeded on the basis that the suit was filed against the defendant No.1’s legal representatives who are unauthorisedly and illegally residing in the suit premises, whereas, defendant Nos. 2 to 9 are partners of Biyani Firm. The Biyani firm was the tenant and that is how the suit notice was served on them. The lower appellate court to my mind, in para 33 did not advert to the fact as to how the suit claim could have been bifurcated, seeking eviction decree against the tenant and at the same time alleging that the first defendant is tress passer in occupation. The cause of action is the suit notice which is based on the arrears of rent. It was not issue of title to the property as between the plaintiff and the first defendant that could have been put in issue. The parameters of the jurisdiction insofar as Rent Control Legislation is concerned are very clear. Adjudication of title is something which is beyond purview of such exclusive Court’s jurisdiction. If reference is indeed required, suffice it to refer to section 29A of the Bombay Rent Act. 11] In such circumstances, while it may be true that the plaintiff will have to institute fresh proceedings, seeking possession from the first 5 defendant on the basis of his title to he property, the fact remains that the lower appellate court’s decree as far as the revision petitioner – original defendant No.1 is concerned, cannot be sustained. Therefore, the revision application is allowed. The decree of the lower appellate court partly reversing that of the trial court is set aside. The suit of the respondent original plaintiff being R.C.Sit No.317 of 1982 is dismissed through out against only defendant No.1 and the order passed today as well as by the trial court does not preclude respondent plaintiff from seeking possession of the property from defendant Nos. 2 to 9 by enforcing and executing the decree in accordance with law. However, this will not preclude the respondent from initiating fresh proceedings against the first defendant seeking his eviction from the suit property based upon title and such a suit, if instituted, shall be decided on its own merits and in accordance with law uninfluenced by the fact that the earlier suit has been dismissed and which decree has been upheld by this Court. However, this will not preclude parties from raising appropriate pleas including that of limitation. 12] With a view to enable respondent plaintiff to file a suit in a competent court as held above, it is directed that the legal heirs of the first 6 defendant – revision petitioner before me shall not create any third party rights nor part with possession of the suit premises for a period of eight weeks from today. 13] Revision application is allowed in these terms. No costs. (S.C.DHARMADHIKARI, J)