Mpt WP No.9226/10 FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.9226 of 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders ------------------------------------------------------------------------------------------------------------------ Mr.D.S. Mhaispurkar i/b Sameer Mangaonkar for the petitioner. Mr.R.A. Thorat for respondent no.1 CORAM : D.G. KARNIK, J DATE : 17th January 2011 P.C. : 1. Petitioners are tenants of the suit structure. A suit filed by the respondents for possession of the suit premises under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 was decreed ex-parte by the Small Causes Court. An application by the petitioner for setting aside the ex-parte decree was dismissed by the trial court. The order of dismissal was confirmed by the appellate court as well as by this court. In the execution petition filed by the respondents for execution of a decree, the petitioners made an application (Exhibit-34) praying for dismissal on the execution petition on the ground that the decree was null and void as the same was passed by the court having no jurisdiction. The application was dismissed by the trial court and on appeal, the appellate bench of the Small Causes Court confirmed the decision by its judgment and order dated 28 September 2010. That decision is impugned in this petition. 2. Learned counsel for the petitioners submitted that the land on which the suit structure stands belongs to the Mumbai Municipal Corporation. Since the property which belongs to the municipal corporation is exempt from the provisions of the Bombay Rent Act, Small Causes Court had no jurisdiction to entertain and try the suit under the Rent Act. The decree for possession under the Rent Act is therefore a nullity. Counsel invited my attention to the property register extract which shows name of the municipal corporation as the owner of the land. Admittedly, super structure was not built by the corporation and super structure belongs to the respondents. In India, concept of dual ownership is recognized in as much as the land may belong to one person and super structure may belong to another. Petitioners do not claim to be tenant of the land but are the tenants of the super structure which belong to the respondents. Hence, Small Causes Court had the jurisdiction to entertain and try the suit under the Rent Act. The contention of the petitioners that the decree is without jurisdiction is rejected. Writ Petition is rejected summarily. (D.G. KARNIK, J.)