1 WP No.5812/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.5812 of 2010 Amita Krishnarao Deshmukh ... Petitioner versus Prakash Ranchhoddas Rangwala & ors. ... Respondents ... Mr. A.S.Lambhate i/b V.S.Paradkar for the petitioner Mr.Prakash R. Rangwala, respondent no.1 present in person. CORAM : D.G. KARNIK, J. DATED : 6th August 2010 P.C. 1. By this petition, petitioner challenges the judgment and order dated 11 March 2010 passed by the learned Judge of the Small Causes Court, Bombay rejecting the application by the petitioner (original defendant no.8) for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure (for short “the Code”) 2. The suit property originally belonged to Ranchhoddas Rangwala, father of respondent no.1 (plaintiff in the suit). Respondent no.1 filed a suit against the respondent nos.2 to 9 and the petitioner for recovery of possession of the suit premises situated on the ground floor of the building known as “Rangwala building”. In the plaint, respondent no.1 2 WP No.5812/10 alleged that the respondent nos.2 to 6 were the heirs of the original deceased tenant and that respondent nos.7 to 9 were in unlawful occupation of the suit premises. The petitioner, who was original defendant no.8 in the suit gave an application in the court for rejecting of the plaint on the ground that the respondent no.1 was not the landlord but the two sisters of the respondent no.1 were the owners having inherited the property under a Will of their father and praying for rejection of the plaint under Order 7 Rule 11 of the Code. The application was rejected by the trial Court. Aggrieved petitioner is before this Court. 3. Learned counsel for the petitioner submitted that by a Will of the deceased father of the respondent no.1 had bequeathed the suit property to the two sisters of the respondent no.1. Respondent no.1 is therefore not the owner. Even if the contention is accepted at the face value, in my prima facie view, the respondent is entitled to file the suit for possession for the reasons mentioned below. 4. According to respondent no.1, one of the sisters of respondent no. 1 and the legatee under the Will of the father of the respondent no.1, was a spinster and has died prior to the institution of the suit. Therefore, respondent no.1 as an heir of his deceased sister has inherited a share in the property. Therefore, the respondent no.1 is a co-owner of the suit property. As a co-owner, he was entitled to file a suit. Learned counsel for the petitioner submitted that the death certificate of the sister was not produced by the respondent and therefore there was no material on record to show that the plaintiff had inherited the suit property. That is a matter of evidence. Plaint could 3 WP No.5812/10 not have been rejected under Order 7 Rule 11 of the Code on the bald allegation of the petitioner that respondent no.1 was not the owner of the property. If at the trial, the trial Court comes to the conclusion that respondent no.1 is not an owner or a co-owner of the suit property, it would be entitled to dismiss the suit on that ground. However, respondent no.1 cannot be non suited before the trial by rejecting the plaint under Order 7 Rule 11 of the Code even before recording of the evidence. There is no merit in the writ petition which is rejected summarily. (D.G. KARNIK,J.)