JUDGMENT : D.P. DESAI, J. 1. The petitioners, who are original defendants Nos. 1 and 2, were sued by the opposite party No. 1 plaintiff, as the heirs of one Harbai Jemal Along with them two other persons who are opposite parties Nos. 2 and 3 before this Court were also impleaded and sued as defendants Nos. 3 and 4. Admittedly Harbai Jemal was a tenant of opposite party No. 1. A notice was given to her on February 28, 1966 by the landlord terminating her tenancy. She replied to this notice on March 6, 1966. It is specifically averred in the plaint that after the receipt of this notice, Harbai sent rent up to March 9, 1966. Thereafter she died. According to the plaintiff-landlady Harbai had unlawfully sublet the rented premises to opposite parties Nos. 2 and 3 (original defendants Nos. 3 and 4). This was one ground on which possession was sought by the plaintiff. The other ground was that the plaintiff required the suit premises bona fide and reasonably for personal occupation. After Harbai's death the present petitioners who were her heirs and legal representatives were given a notice on September 10, 1966, stating specifically therein about the notice given to Harbai on February 28, 1566 It was also stated that rent was in arrears from March 10, 1966, to September 9, 1966, and on account of non-payment thereof, the landlord was entitled to recover possession of the rented premises under section 12 of the Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "the Act")- Harbai had replied to the landlord's notice of May 5, 1966 and it appears that she died thereafter Therefore, part of these arrears of rent were the arrears during the life time of Harbai. The landlord also stated in this notice that present petitioners were not staying with Harbai till her death and that Harbai was staying in the rented premises alone It was also stated that the present petitioners were not dependents of Harbai and on account of these features, they were not entitled to claim status of tenants under the Act. Than the landlord stated in the notice that as the legal representatives of Harbai, the petitioners are bound to hand over possession of the rented premises and also to pay up rent till the date of delivery of possession. Than the landlord stated in the notice that as the legal representatives of Harbai, the petitioners are bound to hand over possession of the rented premises and also to pay up rent till the date of delivery of possession. These averments would show that as per the case of the landlord the petitioners came into possession of the premises rented to Harbai after her death as her heirs and legal representatives and therefore, they ware bound to hand over possession of the premises to the plaint if not only on the ground that they could not claim the status of tenants under the provisions of the Act being not qualified to do so, but alto on the ground that there were arrears of runt and that the rented premise; were sublet unlawfully by Harbai to defendants Nos. 3 and 4. Another ground for claiming possession was also stated in the notice and it was the ground of bona fide and reasonable requirement for personal occupation of the landlord A reply to this notice was given by the petitioners on September 26, 1965. It may be stated that the notice in question was given to the petitioners by the plaintiff as the heirs and legal representatives of Harbai. Thereafter the suit from which present proceeding has arisen was filed on January 2, 1967. In the plaint it was stated that the rent in arrears from March 10, 1966 to September 9, 1966 was paid up by the petitioners through their lawyer, but they had not surrendered possession of the rented premises. The possession was sought on the grounds of unlawful subletting as well as bona fide and reasonable requirement for personal occupation. In filing the suit in the Court having jurisdiction under section 28 of the Act for claiming possession on these two grounds the landlord also stated that the petitioners were not entitled to claim status of tenants in view of the fact that they had never stayed with Harbai during her life time and that they never were dependents of Harbai. In reply to plaintiff's notice the petitioner had taken up a contention that they were entitled to the status of tenants in view of the fact that their family members were staying with Harbai till her death and continued to stay in the rented premises thereafter. 2. In reply to plaintiff's notice the petitioner had taken up a contention that they were entitled to the status of tenants in view of the fact that their family members were staying with Harbai till her death and continued to stay in the rented premises thereafter. 2. The trial Court negatived the grounds of subletting as well as bona fide and reasonable requirement for personal occupation. It. however, came to the conclusion that the petitioners were not entitled to the status of tenants under section 5 (11)(c) of the Act, inasmuch as they did not satisfy the requirements of that provision. It was on this finding that the learned trial Judge passed a decree for possession against the petitioners along with mesne profits, giving three months' time to the defendants to vacate. It may be observed that defendants Nos. 3 and 4 who were alleged to be the sub lessees from Harbai denied that they were sub-lessees. They stated that they were the sons of the daughter of Harbai and they were staying with Harbai in these premises. The learned trial Judge though he negatived the case of subletting also negatived the plea that defendants Nos. 3 and 4 were staying with Harbai till her death, for more than 27 years, and that they were dependants of the deceased Harbai. 3. Against this decree for possession, present petitioners filed an appeal to the District Court, Rajkot. The plaintiff-landlord also filed cross-objections regarding relief of possession on the ground of bona fide and reasonable requirement for personal occupation. The learned Assistant Judge Rajkot District at Gondal confirmed the findings of the trial Court on both points that arose before him, viz.(i) whether the petitioners were entitled to get any protection under the Act and (2) whether the plaintiff landlord was entitled to possession on the ground of bona fide and reasonable requirement for personal occupation. In the result, the learned Judge dismissed the appeal as well as cross-objections with costs. The petitioners have come in revision to this Court against this decree of dismissal of their appeal 4. During the course of the trial, the learned trial Judge has raised an issue being issue No. 4 which contemplated that in case the present petitioners failed to prove that they are dependents of Harbai, in what capacity they held possession of the suit premises. During the course of the trial, the learned trial Judge has raised an issue being issue No. 4 which contemplated that in case the present petitioners failed to prove that they are dependents of Harbai, in what capacity they held possession of the suit premises. What the learned trial Judge meant was that in case the present petitioners failed to prove that they were entitled to the status of tenants under section 5 (11)(c) of the Act, what was the character in which they were holding possession of the rented premises after Harbai's death ? As the finding on this issue No. 4 stands, it appears that the learned trial Judge came to the conclusion that the petitioners were trespassers upon the rented premises. It is on this finding that a contention has been raised by Mr. Suresh M Shah, appearing for the petitioners, regarding the jurisdiction of the Court under the Act to grant a decree for possession against a tres passer. Two more contentions were also urged by Mr. Shah and they were : (1) On the: allegations made in the plaint and the notice dated September 10, 1965, the petitioners were treated as tenants by the plaintiff. Therefore, unless the plaint if succeeded in proving the ground for eviction of tenants as laid down by sections 12 and 13 of the Act, no decree for eviction could have been passed ; and (2) that the finding of the Courts below that the members of the petitioners' family were not residing with Harbai as required by the provisions of section 5 (11)(c) of the Act, was perverse. We may deal with these two grounds first. So far as the ground that the finding of the Courts below with regard to the proof of requirement of section 5(11)(c) of the Act, was perverse, is concerned, it is clear that the said contention is not tenable. Both the Courts below appreciated the evidence before them as well as certain school certificates at Exhs 41 and 44 dated February, 3, 1967 and February 4, 1967 on this point. They disbelieved the petitioners' evidence that the wives and children of the petitioners were staying with Harbai till her death. Both the Courts below appreciated the evidence before them as well as certain school certificates at Exhs 41 and 44 dated February, 3, 1967 and February 4, 1967 on this point. They disbelieved the petitioners' evidence that the wives and children of the petitioners were staying with Harbai till her death. With regard to the school certificates, the learned appellate Judge said that they were of a date after the filing of the suit and there was nothing to show that these children were studying in these schools during the life time of Harbai. All that Mr. Shah submitted with regard to his contention was that from these school certificates an inference should have been drawn that the children of the petitioners were studying in the school from the beginning of the academic year in June, 1966 No scope for any such inference arises in the present proceeding in which even the date of death of Harbai is not proved. All that can be said is that Harbai must have died sometime after May 5, 1966. Apart from that, the learned appellate Judge has given good reasons for not relying upon these certificates which imply that be was not prepared to draw any inference from these documents. 5. The ground that the landlord gave notice to the petitioners and filed the suit accepting them as tenants, is misconceived. It ignores that from the date of the notice, the landlord stated in specific words that the petitioners did not satisfy the requirement of residence with Harbai as contemplated by section 5(11)(c) of the Act and that they being the legal representatives of the deceased and having come upon the property as such, were bound to deliver possession thereof to the plaintiff. Mr. Shah relied on the fact that by the notice Exh. 22 dated September 10, 1966, the tenancy was sought to be terminated by the plaintiff. Now, this termination seems to have been made without admitting that the petitioners were entitled to the status of tenants. This is clear from paragraph 5 of the notice. It is stated therein that the petitioners were staying in Bombay since years and that the deceased Harbai was staying in the rented premises alone. Now, this termination seems to have been made without admitting that the petitioners were entitled to the status of tenants. This is clear from paragraph 5 of the notice. It is stated therein that the petitioners were staying in Bombay since years and that the deceased Harbai was staying in the rented premises alone. It is also stated that till she died, none of the petitioners had stayed with her and therefore, the petitioners were not entitled under the Act to claim any rights as tenants and therefore, they were bound to hand over possession as the heirs and legal representatives of Harbai, if the landlady made it clear that she was not prepared to accept the petitioners as tenants in that very notice, it would be a contradiction in terms to construe that notice as a notice given to the petitioners accepting them as tenants. Reliance was also placed on paragraphs 3, 6, 9 and all of the plant. It was also pointed out that court-fees were paid by valuing the claim in the suit on the basis of 12 months' rent It is also pointed out that in paragraph 9 there was a statement about the liability to hand over possession after termination of the relationship of tenants. Here again, if we read the whole plaint, it seems clear that the plaintiff referred to the earlier notice given to Harbai demanding vacant possession from her on account of arrears of rent. That notice was also given to defendants Nos. 3 and 4 as alleged in paragraph 4 of the plaint. There is a reference to the reply of Harbai that defendants Nos. 3 and 4 were not sub-tenants. This notice was given to Harbai on the grounds of non-payment of rent, subletting and bona fide and reasonable requirement for personal occupation. So far as the last ground is concerned, it is clear from the notice dated February 22, 1966 at Exh. 33. In paragraph 6 of the plaint the plaintiff has specifically stated that present petitioners had never stayed with Harbai during her life time and that they were never the dependents of Harbai. The plaintiff also stated that the deceased Harbai was using the house herself and therefore, present petitioners were liable to band over possession to the plaintiff. 33. In paragraph 6 of the plaint the plaintiff has specifically stated that present petitioners had never stayed with Harbai during her life time and that they were never the dependents of Harbai. The plaintiff also stated that the deceased Harbai was using the house herself and therefore, present petitioners were liable to band over possession to the plaintiff. The cause title of the plaint also shows that present petitioners were surd as the heirs and legal representatives of Harbai. Therefore; it cannot be said that the plaint was filed on the basis that the petitioners were tenants. To say so, would contradict the case made out is the notice and the plaint that the petitioners were not entitled to the status of tenants under the Act. It appears that averments have been made loosely in the plaint with regard to the rent. So far as termination of the relationship of tenants is concerned that averment has been made because the notice terminating tenancy was given by way of abundant caution. It should be noted that Harbai's tenancy was already terminated during her life time by the notice of February 28, 1966 That notice is at Exh 33. It was nowhere pleaded during the course of trial of this suit that this notice given to Harbai was waived during her life time. The giving of the second notice in the absence of any plea as regards waiver, cannot be considered at this stage in revision to amount to waiver of the first notice. Harbai's tenancy having been determined and no fresh contract of tenancy with the petitioners having been pleaded, the only question was whether the petitioners became statutory tenants under Section 5(11)(c) of the Act. And the controversy between the parties from the beginning had centered round this question. In these circumstances, it would be futile to proceed on the basis that the plaintiff landlord gave notice and filed the suit in question admitting that the petitioners were her tenants. In this view, the contention of Mr. Shah does not hold good. 6. Then remains the main question about jurisdiction raised by Mr. Shah in this matter. In these circumstances, it would be futile to proceed on the basis that the plaintiff landlord gave notice and filed the suit in question admitting that the petitioners were her tenants. In this view, the contention of Mr. Shah does not hold good. 6. Then remains the main question about jurisdiction raised by Mr. Shah in this matter. In order to resolve this question we must take note of the fact that before filing of the suit, the plaintiff was faced with a claim of the petitioners to be tenants of the rented premises on the ground that their wives and children were staying with the deceased tenant till her death. Therefore, in substance the petitioner's claimed a statutory right conferred upon the persons falling within Section 5(11)(c) of the Act. The plaintiff was denying this right from the beginning But apart from this right, even if it was vested in the present petitioners, plaintiff wanted possession on the grounds mentioned in Sections 12 and 13 of the Act. To recapitulate these grounds were non- payment of rent, subletting contrary to the provisions of the Act and bona fide and reasonable requirement for personal occupation. In these circumstances, only course left open to the plaintiff was to approach the Rent Court under section 28 of the Act. In order to enable the plaintiff to obtain the relief of possession on the grounds mentioned in Sections 12 and 13 of the Act, it would have been necessary to determine the claim made by the present petitioners as statutory tenants. Therefore, this is clearly a case in which a claim or question arising out of the Act, was required to be answered in order to enable the plaintiff to get a relief of possession on the grounds mentioned in Sections 121 and 13 of the Act. In Babulal v. Nandram, the landlord had filed a suit in the Court of Small Causes against three persons of whom one i.e., deft No. 1 was his tenant. He alleged that 2nd and 3rd defendants to the suit were tres-passers and had no right to be on the premises. It appears that these two defendants claimed to he sub-tenants of the rented premises. The Small Causes court held that they were not lawful sub tenants and by subletting the premises to them, the had tenant was deprived of the protection of the Act. It appears that these two defendants claimed to he sub-tenants of the rented premises. The Small Causes court held that they were not lawful sub tenants and by subletting the premises to them, the had tenant was deprived of the protection of the Act. Therefore, a decree for eviction was passed. An appeal against that decree and a revision application to the High Court failed. Then the three defendants i.e. the head tenant and the two alleged sub-tenants filed a suit in the City Civil Court at Bombay for a declaration that the first plaintiff was a tenant and was entitled to the protection of the Act and that the second and the third plaintiffs were lawful sub tenants of the first plaintiff and were entitled to possession, use and occupation of the premises as sub-tenants. The question of jurisdiction of the City Civil Court arose. The first Court holding that it had jurisdiction dismissed the suit on merits. An appeal against that decision was also dismissed by the High Court but the High Court disagreed with the view of the fist Court that it had jurisdiction to entertain the suit. There upon the matter went in appeal to the Supreme Court in paragraph 7 of the judgment, while examining the contents of Section 28 of the Act which have material bearing upon the question of jurisdiction, the Supreme Court observed : "Do the provisions of Section 28 cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of its provisions ? The answer must be in the affirmative on a reasonable interpretation of Section 28." These observations came up before the Supreme Court in the year 1964 again in Topandas v. Gorakhram, AIR 1964 Supreme Court 1348. The answer must be in the affirmative on a reasonable interpretation of Section 28." These observations came up before the Supreme Court in the year 1964 again in Topandas v. Gorakhram, AIR 1964 Supreme Court 1348. Having reproduced the aforesaid observations on page 1354, the Court said : "We agree with the High Court that these observations merely show this that in order to decide whether a suit comes within the purview of Section 28, what must be considered is, what the suit, as framed, in substance is and what the relief claimed therein is, if the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of claim which arises out of the Act or any of its provisions, then only and not otherwise will it be covered by Section 28." These observations, in my opinion, settle the point raised before me. The observations in Babulal's case (supra) reproduced above clearly show that a landlord in order to claim relief for possession on the grounds mentioned in the Act can file a suit alleging that on account of unlawful subletting the persons put in possession by his tenant are trespassers. Thus, a landlord in a case like the present case can approach the Rent Court saying that he is the landlord of the rented premises and that he required possession thereof on the grounds mentioned in Sections 12 and 13 of the Act. In the same suit, he can say that the person in possession against whom the suit had been filed wrongly claims the status of a tenant under section 5(11)(c) of the Act. Such a suit would be a suit between a landlord and a person who claim to be a tenant. Mr. Shah's contention, however, is that once the Court comes to the conclusion that the petitioners were not the tenants, the landlord could not have obtained possession from the Rent Court and was obliged to have resort to the ordinary Court. It is not possible to agree with this contention. To accept it would mean that in the present case the landlord should have started litigation in the first instance in the ordinary Court treating the petitioners as trespassers ; and if he failed in that suit he should have resorted to the Rent Court. It is not possible to agree with this contention. To accept it would mean that in the present case the landlord should have started litigation in the first instance in the ordinary Court treating the petitioners as trespassers ; and if he failed in that suit he should have resorted to the Rent Court. There is no reason why the landlord should be driven to two suits in a case like this. It will be equally open to him to approach the Rent Court suing there as landlord and stating that the other side wrongly claimed the status of a tenant, provided he alleges grounds which entitled him to possession under Section 12 or Section 13 of the Act. The fact that he fails on these grounds has no bearing upon the question of jurisdiction. There is no reason, therefore, why such a land- lord should not be delivered possession on the finding that the persons in possession are not entitled to the protection of the Act as they did not fall within Section 5(11)(c) of the Act, more particularly in a case like this where they admittedly are the heirs and legal representatives of the deceased tenant of the plaintiff. 7. There is another way of looking at this question also. So far as the decree for possession passed by the Courts below is concerned, it is clear that on termination of the contractual tenancy of Harbai she was under an obligation to surrender possession of the rented premises to the plaintiff. She died without carrying out that obligation. Of course, it may be that subject to any claim for possession having been made by the landlord under Sections 12 and 13 of the Act, she was protected from eviction. But that protection was a personal protection and it disappeared with her death. As soon as that protection disappeared, the obligation to surrender possession which was suspended on account of that protection, became effective. It is this obligation that the plaintiff seeks to enforce by way of this suit against the heirs and legal representatives of the deceased Harbai who have come into possession of the rented premises. Therefore, the plaintiff can sue the heirs and legal representatives on the basis of the obligation of the deceased tenant arising out of the contract. It is this obligation that the plaintiff seeks to enforce by way of this suit against the heirs and legal representatives of the deceased Harbai who have come into possession of the rented premises. Therefore, the plaintiff can sue the heirs and legal representatives on the basis of the obligation of the deceased tenant arising out of the contract. This will show that the plaintiff can go to the Rent Court as a land- lord, even though she does not admit that the defendants are tenants. The plaintiff can go to the Rent Court because, as observed earlier, the claim or question arises under the Act and the relief of possession depends upon the determination of that claim or question. That claim or question would be with regard to the status claimed by the petitioners as tenants under section 5(11)(c) of the Act. Another claim or question also arises under the Act and it is the claim of the plaintiff to recover possession under sections 12 and 13 of the Act if the petitioners are held to be tenants under Sections 5(11)(c) of the Act. 1 see no reason why I should come to the conclusion that such a suit was not within the jurisdiction of the Rent Court. 8. A contention very similar to the contention advanced by Mr. Shah before me, arose for determination before Mr. Justice J. B. Mehta in Special Civil Application No. 496 of 1965 decided on June 16, 1970. The learned Judge has framed a point involving that contention as under : "That on the finding arrived at by the two lower Courts that the petitioners were not such heirs who had become statutory tenants, and that they had no right in the suit premises, no decree could have been passed by the Rent Court as it would have no jurisdiction to entertain such a suit." The learned Judge negatived this contention. 9. Mr. Shah relied upon certain observations made by the Supreme Court in Hiralal v. Kasturbhai, 9 G.L.R. 41. They occur in paragraph 6 at page 45 and read as under :- "The suit was brought in the Court of the Judge Small Causes under section 28 of the Act. 9. Mr. Shah relied upon certain observations made by the Supreme Court in Hiralal v. Kasturbhai, 9 G.L.R. 41. They occur in paragraph 6 at page 45 and read as under :- "The suit was brought in the Court of the Judge Small Causes under section 28 of the Act. The section gives power to the Small Cause Court to proceed to evict a tenant (along with whom a sub-tenant would also go) provided the provisions contained either in section 12 or section 13 of the Act are satisfied. But when the appellate Court held that the present appellant was a trespasser there was no jurisdiction under the Act to pass a decree for ejectment against a trespasser. Such a decree against a trespasser could only be passed by a regular Civil Court in a suit brought under the Code of Civil Procedure. It could not be passed by a Judge Small Cause Court before whom a suit for eviction as a special forum is maintainable under section 28 of the Act." These observations had to be made in view of the peculiar facts of that case. In that case there were three tenants in chief and against them and against a fourth person the suit for eviction was brought in the Small Causes Court under the Act. The allegation was that the three tenants had sublet the premises to the 4th defendant. The contention of defendants Nos. 2 and 3 i.e. tenants was that there was a partnership with the fourth defendant. The trial Court found that the three defendants had sublet the premises to the fourth defendant and negatived the contention about partnership. However, the trial Court came to the conclusion on the basis of the amendment of the Act in 1959 that no decree for eviction could be given. The result was that the suit was dismissed against all the four defendants. The landlord went in appeal. The appellate Court negatived the ground seeking possession on account of arrears of rent and as regards subletting the appellate Court did not examine the correctness of the view taken by the trial Court that the fourth defendant was a sub-tenant. Instead it took resort to a reasoning which has been described by the Supreme Court as curious. The appellate Court negatived the ground seeking possession on account of arrears of rent and as regards subletting the appellate Court did not examine the correctness of the view taken by the trial Court that the fourth defendant was a sub-tenant. Instead it took resort to a reasoning which has been described by the Supreme Court as curious. The reasoning was that the fourth defendant having denied that he was a sub-tenant, should be treated on his own showing to be a trespasser. Therefore, holding that he was a trespasser, his ejectment was ordered on the ground that the benefit of amendment of 1959 in the Act could only be available to a sub-tenant which the appellant (4th defendant) was not. In that case, three tenants were admitted tenants of the landlord and there was no question of their raising a claim to tenancy arising by virtue of the provisions of the Act. The only questions which arose before the Courts in that case were about non-payment of rent and unlawful subletting. When on these questions the trial Court went against the landlord, the appellate Court could not have passed a decree for ejectment on the ground that the fourth defendant was trespasser. In the case before us, the question whether the petitioners are entitled to the right of tenants under section 5(11)(c) of the Act has arisen for determination. That question is a question arising out of the Act and the Rent Court had exclusive jurisdiction to determine the same. Therefore, the present case is governed by the observations of the Supreme Court made in Babulal's case (supra). The observations made by the Supreme Court in Hiralal's case (supra), no doubt, lay down that the jurisdiction of the Rent Court to evict a tenant would be confined to the establishment of the grounds mentioned in section 12 or section 13 of the Act. In that case, the Supreme Court had no occasion to decide the question whether a landlord would be entitled to go to the Rent Court seeking eviction inter alia on the ground that the person who claims protection under section 5(11)(c) of the Act is nit entitled to protection and that person being an heir and legal representative of the deceased tenant, is bound to hand over possession, having come upon the property as the heir and legal representative of the deceased tenant. It has been made clear earlier that the tenancy of the deceased tenant in the present case was terminated during her life time. There- fore, there was no question of petitioners inheriting the right of the deceased tenant under the contract. Precisely because of this, they claim the right under section 5(11)(C) of the Act. If that claim comes in the way of getting possession from them, there is no reason why the landlord could not have filed the suit in the Rent Court particularly when the claim made by the petitioners arose specifically out of the provisions of section 5(11)(C) of the Act. 1, there- fore, hold that the Rent Court had jurisdiction to try and decide the suit in the facts and circumstances of the present case. 10. No other contention was raised. 11. In the result, the revision application will fail. Looking to the question of interpretation of the provisions of section 28 involved in this case, it is fair to order that each party will bear its own costs of this revision application. Rule will stand discharged. Interim stay of the execution of the decree for possession will stand vacated. Application dismissed.