Bombay High CourtShaikh Jaber Abdulah J Ai Sabah vs Ravindra Mukund Chafe & Anr on 19 December, 2013Author:Roshan DalviBench:Roshan Dalvijsn                                          1                            S No.2955_2010


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                         
                                SUIT NO.2955 OF 2010




                                                                 
    Shaikh Jaber Abdulah J AI Sabah                      ...             Plaintiff
                  Vs.
    Ravindra Mukund Chafe & Anr.                         ...             Defendants




                                                                
    Mr. Haresh Jagtiani, Sr. Advocate, a/w. Ms. Olga Lume-Pereira, Adv. 
    & Ms. Vandana Mehta, Adv. i/b. Yashpal Jain & Mr. Suprabh Jain, 
    Adv. for the Plaintiff.




                                                    
    Mr. Rohan Cama, Adv., Mr. T.N. Tripathi, Adv. a/w. Sapna Rachure, 
    Adv. i/b. T.N. Tripathi & Co. for the Defendant No.1.
                                 
    Mr.   Shailesh   Shah,   Sr.   Counsel,   a/w.   Mamta   Sadh,   Adv.   &   Sunil 
    Jadhav, Adv., i/b. Hemant Deshpande, Adv. for Defendant No.2.
                                
                                        CORAM :   MRS. ROSHAN DALVI, J.DATE OF RESERVING THE JUDGMENT       :  25th November, 2013
    DATE OF PRONOUNCING THE JUDGMENT : 19th December, 2013
            


    J U D G M E  N T1.            The Plaintiff is the owner of the building Al-Jabriya Court 
    at 69, Marine  Drive, Mumbai 400 020. The Defendant No.1 is stated 





    to be the trespasser who has illegally encroached upon Flat No.6 and 
    a garage in the aforesaid building.  Defendant No.2 is also  claimed to 
    be stranger and trespasser illegally inducted in flat No.6 by Defendant 





    No.1.  The Plaintiff claims that the Defendants have entered upon the 
    suit premises without his consent or permission and by breaking open 
    the   locks   of   the   suit   premises   and   dispossessed   the   Plaintiff   from 
    possession constraining the Plaintiff to recover possession of the suit 
    premises.2.            It is the Plaintiff's case that the premises was tenanted to 
    one Jayantilal Desai.   Rent receipts were issued to him.   He died in::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                          2                           S No.2955_2010


    April,   1976.     His   wife   Urmila   Desai   and   thereafter   his   married 
    daughter Mrs Renuka Shah lived and died in the suit premises.  Mrs. 




                                                                                        
    Renuka has not left any legal heirs surviving her, residing with her at 
    the time of her death on 23rd  April, 2010.   The Plaintiff, therefore, 




                                                                
    claims that the tenancy rights came to an end upon her death.   The 
    Plaintiff   claims   that   the   right,   title   and   interest   including   the 




                                                               
    possession   of   the   suit   premises   devolves   upon   and   reverts   to   the 
    Plaintiff as the owner and accordingly he has constructive / symbolic 
    possession.3.           The Plaintiff claims to be an absentee landlord.  He claims 
    the revisionary rights in respect of the suit premises upon the death of 
                                
    the last surviving tenant.4.           The Plaintiff has further claimed that on 31st August, 2010 
                               
    Defendant No.1 broke open the lock of the suit premises and entered 
    therein.  The Plaintiff obtained knowledge of the trespass committed 
    by   Defendant   No.1   from   the   neighboring   tenants   through   his 
            


    constituted attorney (CA) one Nabil Rashid Gani (Nabil).5.           Upon   such   a   case   the   Plaintiff   has   sued   for   possession 
    underSection 6of the Specific Relief Act.   Defendant No.1 claimed 
    that he had earlier entered upon the suit premises and was occupying 





    it.  Defendant No.1 claims to have been living with deceased Renuka 
    Shah,   the   Plaintiff's   statutory   tenant.   He   claims   to   have   been 
    transferred and bequeathed the suit Flat to him.  Defendant No.1 has 





    relied upon a photocopy of the Will of the deceased, yet unprobated. 
    Without the grant of probate and consequent title Defendant No.1 has 
    sought to transfer the tenancy to Defendant No.2.6.           Defendant No.2 claims to be a tenant upon the issue of a 
    single rent receipt by the erstwhile CA of the Plaintiff whose Power of 
    Attorney (POA) was since revoked. The receipt is shown to be rubber 
    stamped with his name.::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                            3                             S No.2955_20107.            The  Plaintiff  applied  for   interim   reliefs essentially  of   the 
    appointment of the Receiver in respect of the suit premises upon his 




                                                                                            
    claim   of   recovery   of   possession   of   the   property   of   which   he   was 
    dispossessed   underSection   6of   the   Specific   Relief   Act.     The 




                                                                   
    Defendants claim that the Plaintiff was not in possession and could 
    not   have   been   dispossessed.     It   is,   therefore,   contended   that   the 




                                                                  
    Plaintiff is required to sue U/s.5 of theSpecific Relief Acton his title. 
    Defendant No.2 claims to be a tenant.8.            Consequently   two   preliminary   issues   have   been   earlier 




                                                      
    raised and framed and are required to be answered;   (1) relating to 
    the   maintainability   of   the   suit   U/s.6   of   theSpecific   Relief   Actand 
                                  
    (2) relating to the bar U/s.41 of thePresidency Small Cause Courts 
    Act, 1882(PSCCA) as preliminary issue U/s.9A of the Civil Procedure 
                                 
    Code (CPC).9.            The issues are as follows and answered as follows :ISSUES
            


    1      Is   the   suit   not   maintainable   U/s.6   of   theSpecific         No
         



           Relief Act, 1963.2      Is the suit barred by provision ofSection 41of the                       No
           Presidency Small Cause Court Act, 1882.10.           The   bar   of   jurisdiction   created   U/s.41   of   the   Presidency 
    Small Cause Court, 1882 is required to be determined first because if 
    the Courts inherent jurisdiction is ousted, the Court would not be able 





    to consider the maintainability of this suit U/s.6 ofSpecific Relief Act. 
    Hence the issues shall be determined accordingly.Issues   relating   to   bar   of   jurisdiction   U/s.41   of   thePresidency Small Cause Courts Act, 1882.11.           U/s.41 of the PSCCA suits inter-alia between landlord and 
    tenants for recovery of possession of property are enjoined to be filed 
    in the Court of Small Causes.  The relevant portion ofSection 41runs::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                             4                            S No.2955_2010


    thus:"41. (1) Notwithstanding anything contained elsewhere in  




                                                                                            
          this Act but subject to the provisions of sub-section (2), the  
          Court of Small Causes shall  have jurisdiction to entertain  
          and   try   all  suits  and   proceedings  between  a   licensor   and  




                                                                   
          licensee, or  a landlord and tenant, relating to the recovery  
          of possession of any immovable property situated in Greater  
          Bombay,   or   relating   to   the   recovery   of   the   licence   fee   or  
          charges   or   rent   therefor,   irrespective   of   the   value   of   the  




                                                                  
          subject matter of such suits or proceedings.12.            Even U/s.33 of theMaharashtra Rent Control Act, 1991the 
    bar of jurisdiction is in similar terms.  The relevant part of which runs 




                                                       
    thus :... shall  have  jurisdiction   to  entertain  and  try  any  suit  or  
          proceedings between a landlord and a tenant relating to the  
                                  
          recovery of rent or possession of any premises and to decide  
          any application made under this Act..... and ....no other Court shall have jurisdiction to entertain any such  
          suit, proceeding, or application or to deal with such claim or  
         



          question.13.            It is a settled and an elementary rule of law that to see 





    whether   a suit is between a landlord and tenant one must see the 
    Plaintiff's case from the plaint, whatever be the defence.  The Plaintiff 
    is the dominus litis.  It is for him to sue.  It is for the Plaintiff to show 
    whether his suit is between him as the landlord and the Defendant as 





    the tenant for recovery of possession, for recovery of rent of any other 
    application under theMaharashtra Rent Control Act. It will have to be 
    seen by the Court whether this is one such suit.14.            It can be seen that the Plaintiff's suit is against trespassers. 
    The Plaintiff's suit is not against his tenants.  The suit is not filed as a 
    suit   between   a   landlord   and   tenant   for   recovery   of   possession.::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                           5                           S No.2955_2010


    Defendant No.2 has sought to show that he has become a tenant.  The 
    Plaintiff has not accepted the tenancy.  It is for the Defendant No.2 to 




                                                                                         
    prove that he is tenant.  If the Defendant proves that he is Plaintiff's 
    tenant,  the   Plaintiff's   contentions  would   belied.    The   Plaintiff's  suit 




                                                                 
    itself would be dismissed.In the case ofLaxmipat Singhania Vs.  
    Larsen and Toubro LtdAIR (38) 1951 Bombay 205  which was a 




                                                                
    case of a 99 year lease agreement allowing construction of a building 
    on the land of the Lessor the Court considered the title to the land and 
    the title to the building in English and Indian law and the Lessee's 




                                                     
    rights thereto even after the expiration of the lease. Having concluded 
    that the suit as filed by the Lessor fell within  the provisions of the 
                                 
    Bombay Rent Act, 1947 it held that the Civil Court had no jurisdiction 
    to try the suit and consequently dismissed the suit.15.          If, however, the Defendant No.2 cannot prove the tenancy 
    the Plaintiff's suit on trespass would be justified and his reliefs would 
            

    require  to be granted.   It does not matter that  the  Defendant calls 
    himself a tenant.  It only matters whether the suit is for the reliefs of 
         



    recovery of possession or rent or any other application under the rent 
    Act even between the admitted landlord and the tenant.   Unless the 





    suit specifies the requirements ofSection 41of the Presidency Small 
    Cause Court Act, 1882 the Civil Court's jurisdiction cannot be barred.16.In the case ofKanji Manji Vs. The Trustees of the Port of  
    Bombay, AIR 1963 Supreme Court 468, a monthly lease of land was 





    made by BPT to five lessees.  BPT sued to recover the land from the 
    lessees in the Bombay City Civil Court which suit came to be decreed. 
    The suit was for  eviction  from  BPT  land only.   Such land was not 
    included in the definition of premises U/s.5(8) of the Bombay Rent 
    Control   Act.     Similarly,   U/s.4A   land   belonging   to   BPT   as   the   local 
    authority was exempt.   Hence the Civil Court's jurisdiction was held::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                              6                             S No.2955_2010


    not barred.17.           An analogy can also be drawn from the judgments of this 




                                                                                              
    Court in the cases ofMohinder Kaur Kochar Vs. Mayfair Housing  
    Pvt. Ltd. & Ors., AIR 2013 Bom 57 and Vardhman Developers Vs.  




                                                                      
    Thailambal   Co-Op.   Hsg.   Soc.   Ltd.   &   Ors.   in   Notice   of   Motion  
    No.3274 of 2010 in Suit No.2725 of 2010 dated 7th March, 2011 in 




                                                                     
    which it has been held that the civil court's jurisdiction is not barred 
    by   the   provisions   contained   inSection   91of   the   Maharashtra   Co-
    Operative Societies Act, 1960 in case of redevelopment of the Society 




                                                        
    building   in   a   suit   for   claiming   rights   upon   redevelopment   as 
    redevelopment is not a business of the society.18            Even   if   the   contentions   of   the   Defendants   have   to   be 
    considered, the claims of Defendant No.1 is not of tenancy but under 
                                  
    a transfer and a bequest.  Such a claim would have to be adjudicated 
    in a Civil Court.  Upon the ruling in the case ofVasant Pratap Pandit  
    Vs. Dr. Anant Trimbak Sabnis1994 Mh. L.J. 1450 a legatee is held 
            


    not   to   be   an   heir   as   contemplated   under   Section   5(11)(c)   of   the 
         



    Bombay Rent Act, 1947.The   analysis   ofSection   5(11)(c)(i)in   paras   14   &   15   of   the 
    judgment   shows   the   protection   given   to   members   of   the   family 





    residing with the tenant at the time of the death of the tenant as the 
    tenancy would be taken by the tenant not only for his benefit but also 
    for the benefit of the members of the family residing with him.  Such 





    members of the family of the tenant would be protected under the 
    avowed object of the legislation whether or not those family  members 
    were heirs in the strict sense.   The Court, therefore, held that such 
    heirs are given priority to be treated as tenants and it is only when 
    such  members  of   the   family  are  not   there   that   the   heirs  would   be 
    entitled  to be  treated  as  tenants.   It is  observed in  para 14  of  the::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                            7                             S No.2955_2010


    judgment that a bequest under a  Will which would require the court 
    to   honour   the   wishes   of   the   deceased   tenant   as   a   Testator   would 




                                                                                            
    render   nugatory   a   provision   of   the   section   requiring   the   Court   to 
    decide the tenant amongst the heirs in case of default of agreement 




                                                                   
    between the heirs themselves.Consequently   it   is   held   in  para   14   of  the  judgment   that   the 




                                                                  
    legislature had not intended to confer the statutory tenancy upon a 
    testamentary heir.  Even the reasoning for this ultimate conclusion is 
    given in the said para thus:"Otherwise the right of the landlord to recover possession will  
          stand excluded  even though the original  party  (the tenant)  
                                  
          with whom the landlord had contracted is dead".It is thereafter observed:"Besides, a statutory tenancy is personal to the tenant".The further analysis of the reasoning in para 15 of the judgment 
         



    shows why a legatee under a Will of a tenant cannot claim as an heir. 
    It is observed that if an  "heir is to be interpreted to include a legatee  
    even a stranger  may have to be inducted  as a tenant  for there is no  





    embargo upon a stranger being a legatee".19.           The oral evidence led by parties is essentially to show the 
    relationship between the deceased statutory tenant and the Defendant 





    No.1   as   also   the   tenancy   of   Defendant   No.2.     No   relationship   of 
    Defendant No.1 with the last statutory tenant of the Plaintiff is shown, 
    admitted or established.   Defendant No.1 is shown to be a stranger. 
    The provisions of theMaharashtra Rent Control Actdo not apply to 
    such relationship.  Defendant No.2 claims through Defendant No.1 as 
    having been transferred the suit premises.  His case similarly follows.20.           Upon   seeing   the   plaint   the   above   suit   on   trespass   is::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                             8                             S No.2955_2010


    required to be filed in the Civil Court and the Civil Court's jurisdiction 
    is not seen to be barred U/s.41 of thePresidency Small Cause Courts 




                                                                                             
    Act,   1882.     The   issue   relating   to   bar   of   jurisdiction   is,   therefore, 
    answered   in   the   negative   holding   that   the   Civil   Court's   inherent 




                                                                     
    jurisdiction is not barred.Issue relating to the maintainability of the suit U/s.6 of 




                                                                    
    theSpecific Relief Act.21.            The   owner   of   a   property   can   sue   in   a   Civil   Court   for 
    recovery of possession of the property from any party who he claims is 




                                                       
    in wrongful possession of the property owned by him.   The Plaintiff 
                                   
    has produced the property register cards showing the ownership.    In 
    this   case   the   Plaintiff   is   the   admitted   owner   of   the   building   and 
                                  
    consequently   also   the   suit   flat   No.6   therein.     Defendant   No.2   has 
    admitted the ownership of the Plaintiff. None of the Defendants claim 
    that any other person is the owner.22.            The   Plaintiff   may   recover   possession   either   U/s.5   of   theSpecific   Relief   Acton   his   title   or   U/s.6   of   theSpecific   Relief   Actmerely   on   his   possession,   if   the   Plaintiff   has   been   dispossessed 
    therefrom without his consent.23.            For   the   Plaintiff   to   recover   such   possession   on   title   the 
    Plaintiff would sue U/s.5 of theSpecific Relief Actwhich runs thus :5. Recovery of specific immovable property. -A   person   entitled   to   the   possession   of   specific   immovable  
          property may recover it in the manner provided bythe Code  
          of Civil Procedure, 1908.24.            The Plaintiff  has valued the suit flat at Rs.16 crores and 
    paid Court fee on the entire amount.  The Plaintiff has not valued the 
    suit under item 2 of schedule I to the Bombay Court Fees Act, 1959 at 
    half its value as a suit U/s.6 of theSpecific Relief Act.   The Plaintiff::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                               9                             S No.2955_2010


    has prayed for recovery of possession as also compensation and mesne 
    profits   for   the   unlawful   occupation   of   the   suit   premises   by   the 




                                                                                              
    Defendants.  The reliefs are essentially as in a suit filed on title U/s.5.25.            However the Plaintiff has not chosen to sue on title.   He 




                                                                      
    has   chosen   to   sue   on   dispossession.     The   Plaintiff   claims   to   be   in 
    constructive   or   juridical   or   symbolic   possession   only.     He   has 




                                                                     
    described himself as absentee landlord in paragraph 7 of the plaint 
    being absent from India.   He has claimed the entitlement to the suit 
    premises   upon   juridical   or   symbolic   possession   as   an   owner   in 




                                                         
    paragraph   11   of   the   plaint.     However   he   has   claimed   forcible 
    dispossession of such symbolic possession on the specific date - 31 st 
                                    
    August, 2010 upon the trespass  by Defendant No.1.26.            The Plaintiff has claimed in paragraph 5 of the plaint that 
                                   
    when his CA visited the suit premises on 4 th September, 2010 "to take 
    possession" Defendant No.1 was not available.  He did not state when 
    he would handover possession.  The Plaintiff was given to understand 
            


    that   Defendant   No.1   was   residing   with   his   family   and   would   not 
         



    handover   possession.     The   Plaintiff   claims   that   Defendant   No.1 
    intentionally made duplicate keys of the suit premises and changed 
    the   outer   door   lock   to   restrain   the   Plaintiff's   entry   and   thus 





    dispossessed  the  Plaintiff.    The   Plaintiff  accordingly   claims   right  of 
    recovery  of possession   U/s.6 of  theSpecific  Relief Actthe  relevant 
    part of which runs thus :6. Suit by person dispossessed of immovable property. -(1)   If   any   person   is   dispossessed   without   his   consent   of  
          immovable property otherwise than in due course of law, he  
          or   any   person   claiming   through   him   may,   by   suit,   recover  
          possession thereof,  notwithstanding any other title that may 
          be set up in such suit.27.            It   is   argued   on   behalf   of   the   Plaintiff   that   all   that   the::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                         10                           S No.2955_2010


    section requires is dispossession upon lack of consent.   The section 
    does not state that there should be "forcible" dispossession of "actual 




                                                                                        
    possession".     The   dispossession   may,   therefore,   be   of   symbolic 
    possession of an owner of an immovable property.28.           The title ofsection 6shows a suit by a person dispossessed 
    of immovable property.   He must prove his possession.   If a person 




                                                               
    shows his actual possession such actual possession would be restored 
    even if he does not have title.  It has to be seen whether a person who 
    has   title   can   be   dispossessed   of   possession   not   actually   with   him 




                                                  
    because possession would follow his title and he would be in symbolic 
    possession.29.          A suitu/s.6of the Specific Relief Act would essentially be 
    filed against a person who has taken possession.   Such possession is 
                                
    taken without his consent.  Hence it would be illegal possession, even 
    if it is not forcibly taken as in this case by breaking open the locks and 
    entering upon the suit premises.30.          However   the   averments   in   the   plaint   more   specially 
         



    paragraph 20 do show that the suit is filed only U/s.6 of theSpecific 
    Relief   Act.     The   Defendants   have   contended   that   the   suit   is   not 
    maintainable as aSection 6suit.  Yet the averments in the plaint also 





    show the Plaintiff's right of recovery U/s.5 of theSpecific Relief Act. 
    It may be for the Plaintiff to amend plaint to bring it within either of 
    the aforesaid two sections of theSpecific Relief Act.31.          What is the jurisdictional issue or the plea that concerns 
    the jurisdiction of the Court must be first understood.   The earliest 
    case ofPandurang Vs. Maruti, AIR  1966 SC    lays down  that  law 
    thus :It is well  settled that a plea of limitation or a plea  of res  
          judicata is a plea of law which concerns the jurisdiction of  
          the Court.::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                         11                           S No.2955_201032.            This has been the principle followed in various decisions of 
    this Court, the first which is the caseSmithkline Beecham Consumer  




                                                                                        
    Health   Care   Gmbhy   &   Ors.   Vs.   Hindustan   Lever   Ltd.   &   Anr.,  
    2002(1)   ALL  MR  1043, in  which  the   learned  Single  Judge  of  this 




                                                                
    Court considered what was the plea which concerned the jurisdiction 
    of the Court and the finding on which its jurisdiction could be ousted.33.            That was a case of plea raised underOrder 2 Rule 2 of the 
    CPC.   The Court considered that under Order 2 Rule 1 the Plaintiff 
    had to raise all the grounds available to him in his suit for the matter 




                                                  
    in   dispute.     The   object   of   that   provision   was   to   prevent   further 
    litigation.  Hence the Plaintiff must include all the causes of action in 
                                 
    one suit so far as was practicable and known to him.  If that was not 
    done, the later suit would be barred UnderOrder 2 Rule 2 of the CPC.The   Court   held   that   Order   2   Rule   1   was   much   likeSection   11-   Explanation   4   which   dealt   with   res   judicata. 
    Consequently if a subsequent suit was instituted after the earlier suit 
            


    was finally decided it would be barred U/s.11.   The Court held that 
         



    this bar was pursuant to the bar U/s.9of the CPCrelevant part of 
    which runs thus :9. Courts to try all civil suits unless barred. -The Courts shall (subject to the provisions herein contained)  
          have jurisdiction to try all suits of a civil nature excepting  
          suits   of   which   their   cognizance   is   either   expressly   or  
          impliedly barred.34             In   the   case   ofForeshore   Co-operative   Housing   Society  
    Ltd. Vs. Praveen D. Desai & Ors., 2009(1) Bom CR 757, the Division 
    Bench   of   this   Court,   following   the   case   ofPandurang(Supra) 
    observed   that  the  plea   of   limitation   would  deal   with   the   power   of 
    jurisdiction of the  Court to decide the matter.Referring to the case 
    ofSmithkline(Supra) it held that if a suit was barred by any statute::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                             12                             S No.2955_2010


    the Court would have no authority to hear or decide the same.  Hence 
    the expression "jurisdiction" is used in the wider sense to include the 




                                                                                              
    bar to the maintainability of the suit.  That is the statutory bar to the 
    maintainability of the suit.  It held thatSection 3of the Limitation Act 




                                                                      
    was such a statutory bar and hence the suit had to be dismissed if it 
    was barred by limitation because the Court would have no jurisdiction 




                                                                     
    to entertain it and the parties cannot confer jurisdiction by consent. 
    Consequently the Court concluded in paragraph 21 of the judgment 
    that the plea of limitation is a plea which goes to the jurisdiction of 




                                                      
    the Court and it is plea on law which would preclude the Court from 
    proceeding with the merits of the contentions and obliged it to dismiss 
                                   
    the suit.35             It can be easily seen that there is no such bar U/s.6 (1) of 
                                  
    theSpecific   Relief   Actunder   which   this   suit   is   filed.     It   would   be 
    worthwhile to citeSection 6(1)and6(2)of the Specific Relief Act to 
    understand what is a statutory bar and what is not.Section 6(1)& 
            


    (2) run thus :6. Suit by person dispossessed of immovable property. -(1)   If   any   person   is   dispossessed   without   his   consent   of  
          immovable property otherwise than in due course of law, he  





          or   any   person   claiming   through   him   may,   by   suit,   recover  
          possession thereof,  notwithstanding any other title that may  
          be set up in such suit.(2) No suit under this section shall be brought -(a)   after   the   expiry   of   six   months   from   the   date   of  





          dispossession; or(b) against the Government36.Section 6(1)only entitles the person dispossessed without 
    his consent to sue.   It does not bar any suit.   In fact the only bar is 
    underSection 6(2)if the suit U/s.6 is filed after six months from the 
    date of dispossession or it is filed against the government.  If that was 
    so, the Court would not have the jurisdiction to try the suit.  Section::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                         13                            S No.2955_2010


    6(2) would bar the Court's jurisdiction.  The Court would be obliged 
    to dismiss the suit upon such statutory bar.37.In the case ofRoyal Palms (I) Pvt. Ltd. & Ors. Vs. Bharat  
    Shantilal Shah & Ors., 2009 (2) Bom C R 622, Smithkline (Supra) 




                                                                 
    has been followed.38.In the case ofJagshi K Shah Vs. Shaan Builders Pvt. Ltd.&Ors.,   2012(3)   Bom   C   R   770,   Foreshore(Supra)  has   been 
    followed.39.          Hence it is now settled law that when a statute creates a 




                                                  
    bar,   the   Court's   jurisdiction   is   barred.     When   the   Court's   inherent 
    jurisdiction is barred, the Court cannot try the suit and must dismiss 
                                 
    it.   Hence it must follow as a matter of corollary that if the Courts 
    jurisdiction is not statutorily barred either expressly or impliedly, the 
                                
    Court must try the suit on merits and may dismiss it if the provision 
    under which it is tried is not satisfied or if reliefs cannot be granted 
    under   the   provision   under   which   it   is   tried   or   under   any   other 
            


    provision of law considering the merits of the case.40.          In the case of  Erasmo (Supra)  which was filed U/s.6 by 
    the owner who claimed to be dispossessed  the  Court held that the 
    Court   must   consider   on   merits   his   ownership   rights   and   not   only 





    possession.    The  Court must go that  extra   mile  against  a  wrongful 
    party   in   possession.     That   judgment,   therefore,   considered   thatSection 5prevails overSection 6if the owner of the suit property sued 





    U/s.6 since both theSections 5&6of the Specific Relief Act are in 
    fact for recovery of property.  The suit on title, which is filed only by 
    the   owner   of   the   suit   property,   must   get   precedence   over   only 
    possession that the owner claims upon the case of being dispossessed 
    without his consent.  Of course, if a party is only in possession but is 
    not the owner of the property, he can sue only U/s.6 and not Section::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                         14                           S No.2955_2010


    5 of theSpecific Relief Act.41.         This   suit   is   filed   U/s.6   of   theSpecific   Relief   Actas 




                                                                                        
    aforesaid.  The Plaintiff has paid full Court fee.  He has valued the suit 
    property at the market value.  He has not filed a misconceived action 




                                                                
    to avoid payment of court fee which of course, cannot be entertained 
    by any Court.  There is no bar to the jurisdiction of the Court in trying 




                                                               
    the suit.42          The issue of maintainability of the suit was sought to be 
    tried as a preliminary issue upon evidence  led.   The evidence is to 




                                                  
    show that a suit underSection 6could not be filed upon the facts of 
    the case.  It may be mentioned that Plaintiff as the owner of the suit 
                                
    premises may sue underSection 5also.   Nevertheless the Plaintiff's 
    case in the plaint, the Defendants defence and the evidence led may 
                               
    be considered.43.         The Plaintiff claims in paragraph 4 of the plaint that the 
    Defendants have trespassed into suit premises.  The suit is, therefore, 
            


    on trespass.  The Plaintiff is not in actual possession.  The Plaintiff has 
         



    sued for recovery of possession.   The Plaintiff's suit is, therefore, on 
    title.44.         Mr. Jagtiani argued that the mere fact that the Defendants 





    broke open the lock of the suit premises as averred in paragraph 4 of 
    the plaint, the Plaintiff must be taken to be forcibly dispossessed of his 
    symbolic possession as the owner of the premises in actual occupation 





    of his tenant.  Accordingly the Plaintiff claims that the suit U/s.6 can 
    lie.45.         Paragraph 5 of the plaint shows that the CA of the Plaintiff 
    went to take possession of the suit premises on 4 th September, 2010. 
    Mr. Shah and Cama drew my attention specially to the fact that this 
    averment shows that until then the  Plaintiff  was not in possession. 
    What is contemplated is actual possession.  The Plaintiff concedes that::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                            15                            S No.2955_2010


    the Plaintiff was not in actual possession.  The only question of law to 
    consider   upon   the   averments   in   the   plaint   itself   is   whether   a   suit 




                                                                                            
    U/s.6 of theSpecific Relief  Actcan be  maintained  by an owner in 
    symbolic possession of the suit property to recover possession from a 




                                                                   
    trespasser.46.           It may be mentioned that the evidence of the Plaintiff's CA 




                                                                  
    in his cross examination  relied upon by the  Defendants shows that 
    neither the Plaintiff nor even his CA actually had the keys of the suit 
    premises.  Though he claimed to have had a key of the suit flat after 




                                                    
    the death of the tenant, he did not remember who gave him the key 
    and   when.     He   did   not  keep   the  key   in   his   possession   because   he 
                                  
    thought it was useless to keep the key.   He deposed that he cannot 
    ascertain   its   whereabouts   and   produce   the   key.     The   suit   flat 
                                 
    admittedly was in the actual possession of the tenant and hence the 
    key must be expected to be with her.  The case of the breaking open 
    the   lock   on   31st  August,   2010   is   upon   information   derived   from   a 
            


    certain   neighbour   by   the   CA   of   the   Plaintiff   and   informed   to   the 
         



    Plaintiff.     The   evidence   of   the   CA   in   his   cross   examination   in   this 
    regard shows that one Sanghvi, the other tenant of building, orally 
    informed him.  He lodged police complaint but could not produce it.47.           Though the Plaintiff's cross examination would show a very 
    nebulous case with regard to the actual act of dispossession or the 
    Plaintiff being in possession of the suit flat by way of holding a key 





    thereof as aforesaid, the Plaintiff cannot be non suited for any lapse in 
    the   plaint   U/s.9Aof   the   CPCunder   which   the   objection   to   the 
    jurisdiction   of   the   Court   alone   would   have   to   be   decided   as   a 
    preliminary issue.48.In   the   case   ofKumar   Kalyan   Prasad   &   Anr.   Vs.  
    Kulanand   Vaidik   &   Ors.AIR   1985   Patna   374  dispossession   of 
    symbolic possession  has been  considered.    It  is relied  upon  by Mr.::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                          16                           S No.2955_2010


    Jagtiani   to   show   that   the   Plaintiff   has   not   had   to   be   in   actual 
    possession of the suit property to sue underSection 6.   In that case 




                                                                                         
    the Plaintiffs sued to recover the possession in execution of a decree 
    obtained by them.  The decree was for eviction of the Defendants as 




                                                                 
    also   for   arrears   of   rents.     The   Nazir   handed   over   the   symbolic 
    possession to the Plaintiffs in execution of the decree.   The Plaintiff 




                                                                
    claims that they were handed over actual possession and upon taking 
    delivery of possession they locked the house and deputed two of the 
    servants to keep a watch over the same.  Despite that the Defendants 




                                                   
    forcibly   entered   and   took   possession   of   the   house   by   ousting   the 
    Plaintiffs' servants and also assaulted them. A criminal case was then 
                                 
    filed and accused persons were convicted and the conviction had been 
    maintained by the High Court.   The Defendant started erecting new 
                                
    structures   and   demolished   the   old   ones.     The   Plaintiffs   sued   for 
    recovery of possession U/s.6 upon such actual dispossession.  What is 
    claimed by the Defendant in that suit was that the Plaintiffs were not 
            


    in   actual   possession   but   in   symbolic   possession   under   a   paper 
         



    transaction of the Nazir regarding the delivery of possession in the 
    execution proceedings.   It was contended that because the Plaintiffs 
    were delivered symbolic possession they could not sue U/s.6.  It was 





    held that flagrant and contumacious violation of symbolic possession 
    duly delivered by the court of law would merit the suit U/s.6 for its 
    recovery.   In that case the possession was obtained by the Plaintiff 





    from those very Defendants in accordance with law and by the Courts 
    of  law in  execution  proceedings.  Possession  obtained  admittedly  in 
    execution proceedings was allowed to be recovered.In this case the Plaintiff claims a symbolic possession only upon 
    the statutory tenant having expired without leaving behind any heirs 
    living with her at the time of her death in the  suit premises.   She 
    expired   in   April,   2010.     The   Plaintiff   would   not   come   to   be   in::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                              17                             S No.2955_2010


    symbolic possession ipso facto.49.           The   word   dispossession   implies   that   the   Plaintiff   must 




                                                                                              
    show his possession.  The Plaintiff must show how he came to be in 
    possession, either actual or symbolic.   Possession has to be obtained 




                                                                      
    by   following   due   legal   process.     If   the   Plaintiff   had   actually   taken 
    possession of the suit premises after the death of the tenant peaceably 




                                                                     
    and put his own lock on the suit premises and was in possession of its 
    key, he would be taken to be in symbolic possession even though he 
    was an absentee landlord and did not actually reside in the premises 




                                                       
    but kept it locked.   In this case the Plaintiff has not locked the suit 
    premises   himself.   That   is   not   even   his   case.     He   has   not   taken 
                                    
    possession at all, actually or symbolically.  He was consequently not in 
    possession at all actual or symbolic. He is certainly entitled to recover 
                                   
    possession   on   the   basis   of   his   title,   but   that   is   to   be   recovered   in 
    accordance   with   law   if   there   is   any   contest.   Consequently   the 
    possession   claimed   by   the   Plaintiff   is   the   possession   which   he   is 
            


    entitled to but which he has not secured for himself.   Hence merely 
         



    upon   Defendant   No.1   wrongfully   coming   into   suit   premises   and 
    trespassing   thereupon   the   Plaintiff   could   not   be   taken   to   be 
    "dispossessed" as is required U/s.6.50.           Mr. Jagtiani drew an analogy to a person owning a flat and 
    going abroad.  He questioned as to whether such a person, whilst he 
    was abroad, could be taken to be dispossessed if another person broke 





    open his lock.  Mr. Cama rightly contrasted that analogy from that of 
    the Plaintiff's  case.   Such a person would put his own lock on the 
    premises.  He would, therefore, be in symbolic possession.  If the lock 
    is broken and stranger entered upon suit premises during his absence, 
    such   a   person   would   be   "dispossessed"   and   would   be   entitled   to 
    maintain an action U/s.6 of theSpecific Relief Act.  The Plaintiff is not 
    one such person.  The Plaintiff never put his lock on the suit premises.::: Downloaded on - 23/12/2013 20:36:12 :::jsn                                             18                             S No.2955_2010


    He,   therefore,   cannot   claim   such   symbolic   possession.     He   is,therefore, not "dispossessed".Section 6suit, therefore, would not lie.51.           Mr.   Jagtiani   relied   upon   the   case   of  Sadashiv   Shyama  
    Sawant (Dead) thru LRs. &Ors. Vs. Anita Anant Sawant, (2010) 3  




                                                                      
    Supreme Court Cases 385 to contend that theSection 6suit can be 
    filed by the person dispossessed or any person claiming through him.In that case though a tenant was dispossessed, the landlord was held 
    entitled to sue as a person claiming possession through such tenant. 
    The   Plaintiffin   that   casewas   held   entitled   to   suein   that   caseas 




                                                      
    person  claiming through  the  tenant.     The  tenant was in  exclusive 
    possession; he was forcibly dispossessed.The Plaintiff's case is not one such; he has not sued though his 
    tenant on his tenant's behalf.Mr.   Jagtiani   relied   upon   the   extract   of   the   case   ofRatanlal  
    Ghelabhai   V.   Amarsing   Rupsing,   AIR   1929   Bom   467  made   in 
    paragraph 14 of the judgment in which it is observed that there is 
            


    nothing inSection 6to show that the possession is confined to actual 
         



    physical possession and that the landlord is in possession through his 
    tenant and that  the  landlord can sue for revisionary interest  in his 
    own name.However the point that is missed is thatin that case, as rightly 
    pointed out by Mr. Shah, the landlord sued through the tenant.  The 
    Plaintiff does not sue through his tenant.  The Plaintiff has sought to 





    sue in his own right as the owner to whom the property would revert 
    after the death of the last statutory tenant.  Consequently the Plaintiff 
    cannot   fall   under   the   category   of   the   "person   claiming   through"another - i.e. his tenant.Consequently   in   the   extract   of   the   judgment   in   the   case   of 
    Gobind   Ram   Jamma   Dass   V.   Mewa,   Air   1953   Pepsu   188  whilst::: Downloaded on - 23/12/2013 20:36:13 :::jsn                                           19                            S No.2955_2010


    holding that the word "dispossession" is not confined only to actual 
    possession,   it   is   immediately   added   that   a   suit   by   a   landlord   is 




                                                                                           
    competent   even   if   the   landlord   is   not   in   actual   possession  but  in 
    possession through a tenant at the time of illegal dispossession.  The 




                                                                   
    discussion about why the landlord in such symbolic possession must 
    be held entitled to sue is that a contrary view would defeat the aims 




                                                                  
    and objects of thesection 6because if the tenant dispossessed refuses 
    to sue, the landlord would suffer dispossession until he is forced to 
    file   a   recovery   suit.   Thus   the   wrong   door   would   be   put   in   an 




                                                    
    advantageous   position   and   that   would   be   putting   a   premium   on   a 
    wrongful act of the trespasser.52.           After considering the various judgments the proposition of 
    law laid down in paragraph 18 is not of any person dispossessed but 
                                 
    relates only to a landlord dispossessed in respect of the property  let 
    out to the tenant of which the tenant has been dispossessed forcibly 
    by   the   third   party.     Consequently   the   forcible   dispossession   is   the 
            


    essential   requirement.   Dispossession   contemplates   the   actual 
         



    possession   either   of   the   landlord   himself   or   of   his   tenant   through 
    whom he claims or sues.Mr.   Jagtiani   would   rely   upon   the   following   specific   part   of 





    paragraph 18 of the judgment which runs thus :A person is said to have been dispossessed when he has been  
          deprived of his possession; such deprivation may be of actual  





          possession   or   legal   possession.     Possession   in   law   follows  
          right to possession.  The right to possession, though distinct  
          from possession, is treated as equivalent to possession itself  
          for certain purposes.He would argue that any person dispossessed may be in actual 
    possession   or   legal   possession   and   that   the   Plaintiff   is   certainly   in 
    legal possession since he has the right to possess.  However, the right::: Downloaded on - 23/12/2013 20:36:13 :::jsn                                        20                           S No.2955_2010


    to possess must be followed by possession  since it is held that the 
    possession in law follows the right to possession.  It may be treated as 




                                                                                       
    equivalent to possession but there must be possession for a Plaintiff to 
    be dispossessed.The explanation of the distinction between physical and legal 
    possession in Halsbury Laws of England set out in paragraph 19 of the 




                                                              
    Judgment further shows that the legal possession may exist without 
    de   facto   possession.     A   person   may   be   deemed   to   be   in   legal 
    possession   though   not   having   de   facto   possession.   Such   is 




                                                 
    constructive possession.   Consequently it is held in paragraph 21 of 
    the judgment that dispossession of the tenant is dispossession of the 
                                
    landlord.   If the tenant was forcibly thrown out by a trespasser, the 
    landlord has the implied right of entry to recover possession.  As the 
                               
    landlord would continue in legal possession through his tenant who is 
    in   actual   possession   but   not   contrary   to   his   tenant   who   was   in 
    possession.  Hence if the tenant is in physical possession the landlord 
            


    retains possession through him.Consequently one of them must be in actual physical possession 
    and must be forcibly dispossessed.If   a   landlord   is   in   such   constructive   possession   and   claims 





    through the tenant, he can certainly sue U/s.6 because his tenant is in 
    possession   and   has   been   wrongfully,   illegally   and   forcibly 
    dispossessed without his consent.  If not, the landlord himself must be 





    in   possession   and   must   be   wrongfully,   illegally   and   forcibly 
    dispossessed without his consent.53.          In this case the landlord's right is certainly impinged by the 
    claim of the Defendants.  Such a claim may be wholly false, frivolous, 
    misconceived,   malicious   and   even   vexatious.     The   Plaintiff   as   the 
    landlord would certainly have right to recover the possession but only 
    by following due legal process.  He cannot claim to be in possession::: Downloaded on - 23/12/2013 20:36:13 :::jsn                                          21                            S No.2955_2010


    merely because his last statutory tenant has expired  without any act 
    on his part in taking possession of the suit flat after her death and 




                                                                                          
    putting up a lock thereon.  This the landlord can do by suing on title. 
    That would be the action on trespass such as this case is.  That would 




                                                                  
    be   for   recovery   of   possession   from   the   Defendants   as   trespassers. 
    However, that is not an action U/s.6 of theSpecific Relief Act; it is an 




                                                                 
    action for recovery of immovable property on title U/s.5 of the Act as 
    the person "entitled" to possession of the suit property.54.          Defendant No.1, however, claims that he was transferred 




                                                   
    the suit premises and also bequeathed the suit premises.  Mr. Shah on 
    behalf   of   Defendant   No.1   relies   upon   the   case   ofBhavarlal  
                                  
    Labhchand   Shah   Vs.   Kanaiyalal   Nathalal   Intawala,   (1986)   1  
    Supreme Court   Cases 571  in which the Plaintiff had not obtained 
                                 
    even symbolic possession in accordance with law.   The Plaintiff had 
    not   sued   for   any   declaration   and   obtained   possession   under   any 
    decree in favour of the Plaintiff executed by the Plaintiff.  The Plaintiff 
            


    claimed   to   be   in   symbolic   possession   ipso   facto.Such   is   not   the 
         



    symbolic possession contemplated in the judgment in the caseKumar  
    Kalyan(Supra).55.          Mr. Cama on behalf of the Defendant No.2 relied upon the 





    judgment in the case of Lalji Yeshwant Singh (Dead) by hisLRs Vs.  
    Rao Jagdish Singh, 1967 DFLS (Soft.) 305 in which it has been held 
    by the Supreme Court that a person in actual possession could not be 





    dispossessed   even   though   he   has   no   title   because   law   respects 
    possession even if there is no title to support it if possession is taken 
    without   having   recourse   to   law.It,   therefore,   contemplates 
    dispossession of actual possession as held in the case ofBhavarlal  
    Shah   &   Vasant   Pratap   Pandit(Supra).     The   Plaintiff   is   certainly 
    entitled   to   sue   on   title   though   not   simplicitor   on   possession.     The::: Downloaded on - 23/12/2013 20:36:13 :::jsn                                           22                           S No.2955_2010


    Plaintiff claims to be the landlord of suit building in which the suit flat 
    is situate.  Defendant No.2 has admitted that the Plaintiff is the owner 




                                                                                          
    of the suit property in a criminal complaint filed by Defendant No2 
    against the erstwhile CA of the Plaintiff.56.           In any event Defendant No.1 claims through the Plaintiff's 
    tenant during the continuance of her tenancy.  He cannot, therefore, 




                                                                 
    be permitted to deny that the Plaintiff was the landlord of such tenant 
    at   the   beginning   of   the   tenancy   and   had   title   to   the   immovable 
    property.57.           Defendant No.2 also claims to be a Plaintiff's tenant.   He 
    claims to be issued a single rent receipt by the erstwhile CA of the 
                                  
    Plaintiff.  He also cannot deny the Plaintiff's title.  The Plaintiff's suit 
    on   title   for   recovery   of   the   possession   from   the   Defendants   as 
                                 
    trespassers.  Though the Plaintiff has averred in paragraph 20 of the 
    plaint that he has sued U/s.6 of theSpecific Relief Act, the suit for 
    recovery to possession and mense profits is seen to be a suit on title 
            


    U/s.5 of theSpecific Relief Act.58.           However,   the   filing   the   suit   under   one   or   other   of   the 
    provisions is not a jurisdictional issue and is capable of correction by 
    amendment, if required.   The Plaintiff cannot be non suited at the 





    threshold.  There is no bar to the filing of the suit underSection 6of 
    the   Specific   Relief   Act.     Seeing   of  the  entire   evidence  which  is   on 
    merits of whether the suit can succeed or fail as aSection 6suit is, 





    therefore, seen to be an act of frivolity undertaken in futility.59.           Consequently   the   issue   relating   to   the   maintainability   of 
    the suit U/s.6 of theSpecific Relief Actis answered in the negative 
    holding that the suit is maintainable.( ROSHAN DALVI, J. )::: Downloaded on - 23/12/2013 20:36:13 :::