abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2603 OF 2008 IN SUIT NO. 2908 OF 2006 Dr.Zenobai Pervez Dumasia .. Plaintiff V/s Dinyar D. Daruwalla .. Defendant Mr.P.K. Dhakephalkar, Senior Advocate with Ms.Geeta Shastri for the Plaintiff. Mr.G.S. Rao i/b Lex Consultus for the Defendant. CORAM : S.J. VAZIFDAR, J. DATE : 8TH SEPTEMBER 2008 P.C. P.C. P.C. : 1. This notice of motion is taken out by the Defendant for an order that this Court has no jurisdiction and for an order rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure. In the alternative, the Defendant has prayed for a stay of the suit till the disposal of R.A.D. Suit No.706 of 2006 filed by the Defendant in the Court of Small Causes at Bombay. - 2 - 2. Jurisdiction is to be decided on the basis of the averments in the Plaint. The Plaintiff has filed this suit on the basis that she is the owner of the suit premises. On this basis, the Plaintiff has sought a declaration that the Defendant is a trespasser in respect of the suit premises. The Plaintiff has accordingly sought an order directing the Defendant to hand over possession of the suit premises and for compensation/mesne profits. 3. The Plaintiff has claimed her right, title and interest in respect of the suit property. One J. Sunawalla and his wife Mrs.M.J. Sunawalla were the lessees of the property. They had two daughters, viz. Rata and Suna. In their wills, the said J. Sunawalla and the said Mrs. M.J. Sunawalla granted each other the life interest in the event of the other pre-deceasing them. Thereafter, they by their wills both dated 26th October 1960 created a life interest in favour of the said Rata and bequeathed the title to the suit property to the said Suna. The wills of the said J. Sunawalla and Mrs.M.J. Sunawalla have been probated by this Court. 4. The plaint read as a whole and paras 3 and 4 in particular makes it abundantly clear that the cause of - 3 - action is on the basis that the Plaintiff is the owner of the property and that the Defendant is a trespasser therein. That the Defendant claims to be a tenant in respect of the said property and has filed R.A.D. Suit No.706 of 2006 in the Small Causes Court at Bombay would make no difference. 5. In the circumstances, the Notice of Motion is dismissed.