1 SNS IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.124 OF 2010 Smt. Hirabai M. Mhatre & Ors. ...Applicants. v. Mumbai Upanagar Seva Mandal Through trustees Damodardas B. Bhuta and Ors. ...Respondents. Mr.V.C.Ghosalkar, adv. for the Applicant. Mr.Vinay J. Hegde, adv. for the respondent nos.1 to 3. CORAM : J.H.Bhatia, J. DATE : 6TH October, 2010 P.C.: 1 Heard the learned counsel for the parties. Revision application is filed by the original defendants in Suit No.1871 of 2008 pending before the City Civil Court at Dindoshi. Respondent no.1 is the original plaintiff in the said suit. According to the plaintiff, one Madhu Mhatre, who was husband of the defendant no.1 and father of the defendant nos.2 to 4, was allowed to occupy a structure as he was appointed as care taker of the large property of the plaintiff. As the defendants were indulging in some illegal activities, plaintiffs had filed S.C.Suit No.7167 of 1985 for possession of that structure alongwith alterations and extentions in the said premises towards the back and 2 front side. That suit is still pending. Second suit filed in 2008 pertains to the piece of land admeasuring 250 sq.ft.. According to the plaintiffs, defendant nos.1 to 4 had made encroachment over that piece of land apart from the area of about 300 sq.ft. Which is the subject matter of the earlier suit. Having made the encroachment , they also raised some structure and they are in occupation of the same. In the second suit, plaintiffs made a prayer that removal of encroachment and possession of the land under encroachment together with the building and structures standing thereon. 2 Plaintiffs also took out notice of motion for some interim relief. In reply to the notice of motion, defendants raised three objections to the tenability of the suit. Firstly, defendants claimed to be tenants and not trespassers and therefore, the City Civil Court does not have jurisdiction and the suit should have been filed before the Small Causes Court. Secondly, the suit is not properly valued. Thirdly, prayer made in the suit is similar to the prayer in the earlier suit filed in 1985 and, therefore, for the same cause of action and relief, two suits could not be filed. The trial Court after hearing the parties, rejected the contentions of the defendants. Hence, the present revision application. 3 3 According to the plaintiffs, defendants have made encroachment on 250 sq.ft. area of their open land and raised structure on that and, therefore, they are trespassers. In view of the pleading of the plaintiffs, City Civil Court, being a Civil Court, has jurisdiction to entertain the suit for removal of encroachment. It is not the case of the plaintiffs that the defendants are the tenants or licensees in respect of said 250 sq.ft. Jurisdiction at this stage will have to be decided on the basis of pleadings of the plaintiffs. If the plaintiffs fail to prove that the defendants are trespassers and the defendants succeed in proving that they are tenants after the trial, suit may be dismissed for want of jurisdiction but the plaintiffs have taken that risk by filing the suit in the City Civil Court. Therefore, at this stage, suit can not be dismissed nor the plaint can be returned for filing before the Small Causes Court on the basis of plea of the defendants. 4 The learned counsel for the plaintiffs/respondents contends that when the prayer is made for possession of the piece of land, case will be covered by clause (b) of Section 6(v) of the Bombay Court Fees Act. However, that clause will be applicable when the possession of the open land is sought. On reading the prayer clauses (a) and (b), it appears that the plaintiffs have claimed not only piece 4 of land but have claimed piece of land together with building and structure standing thereon. Therefore, the suit will have to be valued as per Section 6(v) on the basis of market value of the land and the house standing thereon. The learned counsel for the plaintiffs after some discussion makes a statement that plaintiffs will amend the prayer clauses (a) and (b) and delete the claim for possession of the building or structure on the said land and restrict the claim only to the piece of land after removal of the unauthorised structure by the defendants. The learned counsel also makes a statement that the plaintiffs shall also make appropriate amendment in paragraph 4 and 14 of the plaint to clarify how the suit property involved in the present suit is distinct from the property, which was suit property in the earlier suit in 1985. If such application is moved, the trial Court shall allow that amendment in the plaint. This will take care of confusion, which is created by the contents of paragraph nos.4 and 14 in the plaint in the present suit if read alongwith the description of the suit property in the earlier suit. In fact in view of the clarification in paragraph 10 of plaint in the present suit, it is clear that the present suit is in respect of piece of land admeasuring 250 sq.ft. apart from the area of about 300 5 sq.ft., which was the subject matter of the earlier suit. Therefore, I am unable to accept the contention of the learned counsel for the defendants/revision applicants that the second suit is also about the same property, which is the subject matter of the earlier suit. 5 In view of the facts and legal position noted above, it is clarified that the question of jurisdiction of the City Civil Court shall be decided after the final hearing of the suit, in view of the pleadings of the parties. The plaintiffs shall be allowed to make amendment in prayer clauses (a), (b) and (e) as well as appropriate amendment in paragraph nos.4 and 14. However, if prayer clauses are not amended, plaintiffs will have to make valuation of the suit property as a house as provided under Section 6(v) of the Court Fees Act and to pay the Court fees accordingly. Contention of the defendants that the second suit is about the same property, which was the subject matter of the first suit is hereby rejected. 6 Revision application stands disposed off accordingly. 6 (J.H.BHATIA, J.)