JUDGMENT - B.N. DESHMUKH, J.:---These two Revision applications arise out of a suit filed by the plaintiff in the Bombay City Civil Court. Revision Applicant in C.R.A. 69 of 1976 is original defendant No. 2 who is admittedly the landlord of the premises. The Revision applicant in C.R.A. No. 86 of 1976 is original defendant No. 1 and who calls himself today as the tenant of the suit premises and against whom the plaintiff has a substantial grievance of pleading fraud etc. Defendant No. 2 alone raised the question of jurisdiction of the Civil Court and the preliminary issue was tired on that point. The trial Court held that the Civil Court had jurisdiction to try the suit. Being aggrieved the two defendants have filed the two separate Revision Applications. Since they arise out of the same proceedings and involve the same point they are heard together and will be disposed of by this common judgment. The facts that must be noted in the controversy between the parties are these : One Mavji Waghji was admittedly the tenant of a godown belonging to defendant No. 2. He had been a tenant for about 25 years during his life time. This Mavji had two sons Damodar and Laxmidas. Damodar, the elder son is alleged to be a person not of sound mind. Laxmidas had strained relationship with the deceased and was staying away from him during his life time. The plaintiff is the daughter-in-law of the deceased Mavji and wife of the elder son Damodar. Damodar died on 1-3-1964. The plaintiff alleges that Mavji left will. Under that whiles is the sole legatee of the entire property including the tenancy rights of Mavji in relation to godown in dispute. As the legal representative and sole legatee under the will she alone represent the entire estate of Mavji and is entitled to succeed to the tenancy rights with regard to the godown. She then alleges that defendant No. 1, Karsondas was a person working with the deceased Mavji for quite sometime. He created intimate relation of confidence and Mavji in his declining age had implicit faith in whatever was represented by defendant No. 1. Sometime in the year 1962, defendant No. 1 played fraud on Mavji and made some misrepresention on the strength of a writing which was obtained from Mavji. He created intimate relation of confidence and Mavji in his declining age had implicit faith in whatever was represented by defendant No. 1. Sometime in the year 1962, defendant No. 1 played fraud on Mavji and made some misrepresention on the strength of a writing which was obtained from Mavji. By making use of that writing and during the life time of Mavji himself defendant No. 1 got the tenancy of disputed premises transferred to his own name and also started obtaining rent receipts from defendant No. 2. This was discovered by one of the grand son of Mavji and the elder son of the present plaintiff sometime in December, 1963 when Surendra the plaintiffs son realised this and received point blank reply from defendant No. 1 that the disputed premises belonged to him exclusively and neither Mavji nor any of the heirs had anything to do with the matter, it was communicated to Mavji. Mavji was then realised how he had been duped and trying to contract but before he could take effective steps he died on 1st March, 1964. Under the above circumstances, the plaintiff claims a declaration that Mavji was the tenant of the premises in dispute till the end of his life and that the title of Mavji as the tenant of the premises is now inherited by the plaintiff as legated under the will. She is, therefore, entitled to a declaration of her own title to the tenancy of the premises against defendant No. 1 who had fraudulently deprived Mavji as well as the present plaintiff of the possession of the premise. As the consequence of the declaration she has also claimed possession of the premises in question from defendant No. 1 together with the stock-in-trade lying in the said premises or total price value of Rs. 15,000/-. This suit is opposed by both the defendants. Defendant No. 1 who is now alleged to be the person in occupation on the basis of fraudulent transaction against Mavji has not raised in his written statement the question of want of jurisdiction of the Civil Court. Only the landlord, defendant No. 2 who raised the question in the written statement, an issue has been so framed. Defendant No. 1 who is now alleged to be the person in occupation on the basis of fraudulent transaction against Mavji has not raised in his written statement the question of want of jurisdiction of the Civil Court. Only the landlord, defendant No. 2 who raised the question in the written statement, an issue has been so framed. When that issue was to be tried as a preliminary issue, the learned trial Judge points out that in the pleading of defendant No. 2 beyond a vague statement that the City Civil Court has no jurisdiction, no reasons are alleged or pointed out that City Civil Court has no jurisdiction. It is only at the time of framing and setting an issue that the learned Counsel for defendant No. 2 orally stated that since there exists a relationship of landlord and tenant between the parties it is only the Court of Small Causes which is empowered to try the dispute between the landlord and tenant. Obviously the learned Counsel has section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the Bombay Rent Act) in mind. The learned trial Judge by a short order found that this is essentially a suit bases on the plaintiffs title against defendant No. 1 This is a suit between the two rival claimants who both claim to be the tenants of the property. This is not a suit between the landlord and the tenant nor is it a suit relating to rent or possession, nor a suit to which any of the provisions of the Bombay Rent Act, would apply. In that view, he decided the preliminary issues against the defendants and directed the suit to proceed ahead. The only question that is raised in this revision application by both the defendant relates to the jurisdiction of the Bombay City Civil Court. According to me neither of the revision applications has any substance. It cannot be disputed that if there is a dispute which falls under any of the provisions of section 28(1), undoubtedly, so far as Bombay is concerned, the Court of Small Causes at Bombay alone will have jurisdiction. According to me neither of the revision applications has any substance. It cannot be disputed that if there is a dispute which falls under any of the provisions of section 28(1), undoubtedly, so far as Bombay is concerned, the Court of Small Causes at Bombay alone will have jurisdiction. One cannot also forget the facts that primarily all disputes of civil nature are triable by the Civil Court and unless the jurisdiction is ousted either expressly or by necessary implication by the provisions of law, the jurisdiction will continue to exist. Apart from the other questions which I will consider hereinafter, the dispute between the parties are of Civil nature primarily or prima facie and it is the Civil Court which has the jurisdiction to try. If it could be shown that the real dispute between the parties, irrespective of the form of the plaint, falls within the ambit of section 28 of the Bombay Rent Act, undoubtedly, the jurisdiction of the Bombay City Civil Court will be ousted. Friday, 28th January, 1977 It is again well settled law that for finding out jurisdiction of the Civil Court, the case made out by the plaintiff in the plaint alone must be considered. In examining the case in the plaint, it is not so much the form but the substance that must be considered by the Court. It will be necessary, therefore, to examine the real nature of the dispute raised by the present plaintiff in the suit before the City Civil Court. There is no dispute that Mavji was the original tenant. It can be said that the lease-hold right is inheritable right in view of the fact that Mavji made a will and made the plaintiff owner of a considerable property including the lease-hold right, she will be entitled to inherit the same. However, though the plaintiff filed that suit in respect of the lease-hold right under the will, the fact remains that defendant No. 1 obtained a writing from Mavji and began paying the rent directly to defendant No. 2. This act of defendant No. 1 is being described as fraudulent and deceptive. The real nature of that writing was never known by the deceased and he was defrauded. In substance and in fact, the allegation is that the lease-hold right still subsists. This act of defendant No. 1 is being described as fraudulent and deceptive. The real nature of that writing was never known by the deceased and he was defrauded. In substance and in fact, the allegation is that the lease-hold right still subsists. There is a cloud on the title of the plaintiff created by ones action of obtaining writing. If fraud or mis-representation as alleged is proved it would amount to this that Mavji never executed any writing authorising defendant No. 1 to become the direct tenant of defendant No. 2. If Mavji never consented to such a transaction, he would continue to be the tenant of the suit premises till the end of his life. In that case the plaintiff will be entitled to lease hold right on the basis of the will of the deceased. The lease-hold right here is, in the circumstances a title or foundation of the title of the plaintiff to retain the possessio of the demised premises. Since the possession is being deprived by defendant No. 1 by fraud and mis-representation, this a principally a suit for establishing a title as a tenant of the premises as against defendant No. 1. In such a suit undoubtedly the landlord has been joined as the party-defendant. The landlord has acted upon the socalled document of the deceased and began executing the rent receipts in favour of defendant No. 1. The landlord has taken that decision because the writing of the deceased was produced. He has accepted the same. Thus the pleadings have necessarily been that Mavji had not given any authority as alleged by defendant No. 1, the landlord was not right in accepting defendant No. 1 as tenant and status quo ante infact continued. In these circumstances, the landlord becomes more or less formal or at the best proper party as no direct relief is claimed against him. Declaration of the subsistence of the relationship as a lessee is primarily a declaration against defendant No. 1 and possessio is also claimed on the basis of that title. If the landlord is not made a party and the said declaration is obtained, it might give further ground to the landlord to complain that he is not bound by the judgment not being a party to the suit. If the landlord is not made a party and the said declaration is obtained, it might give further ground to the landlord to complain that he is not bound by the judgment not being a party to the suit. This makes the landlord a property party to the suit though the real dispute in the suit against defendant No. 1 and the mail relief claimed is also against defendant No. 1. On behalf of the defendant Shri Ajit P. Shah argued that the litigation involves a question which really falls under the provisions of the Bombay Rent Act. The provision of section 28, according to him, is wide enough to include not only direct suit between landlord and the tenant for possession and rent but include suit involving any claim or question arising out of the Act or any of the provisions of the Act. He merely brought to my notice the definition of the word tenant in Clause 11 of section 5 of the Bombay Rent Act. A tenant has been defined as a person by whom or on whose account rent is payable for any premises and includes certain types of persons describes therein. Mr. Shah argued that at present rent is payable for and on behalf of defendant No. 1 but the plaintiff wants to allege that the rent is really payable on their behalf being the heirs and legal representatives of the deceased Mavji. This is a litigation involving the question of tenancy and, therefore, it falls within the ambit of section 28. I am not impressed by this argument. What section 28 says is that a suit or proceeding must be one between the landlord and the tenant relating to the recovery of rent or possession of any premises to which any of the provisions of Part I of the Bombay Rent Act apply. That section also authorises the special Court to decide any application made under the Act and deal with any claim or question arising out of the Bombay Rent Act or any of its provisions. Can it be said that this is a suit between the landlord and tenant ? In a formal way it could be said because the landlord is a party to the suit. Can it be said that this is a suit between the landlord and tenant ? In a formal way it could be said because the landlord is a party to the suit. However, if the substance of the suit is seen as discussed above, it is the claim of title ascertained against defendant No. 1 who is a rival defendant. This is not a suit in that sense between the landlord and tenant and nor is it a suit relating to any question which arises under the Bombay Rent Act. The lease-hold right being property like any other piece of property who is the owner of piece of property is subject-matter within the general domain of the civil disputes and it is not one of the questions which arises under any of the provisions of the Bombay Rent Act. It may be that the plaintiff may be able to claim possession if the plea in the plaint is proved but that will not be a possession from the landlord. If the plea of the plaintiff is held proved by the Civil Court it will mean that the title to lease hold property subsists in the plaintiff and defendant No. 1, who is a rank trespasser unauthorised in possession of the premises. The decree for possession in the circumstances will be undoubtedly in favour of the tenant but against a trespasser and this is not a litigation between the landlord and tenant either for recovery of rent or possession or for determination of any other question that falls for consideration under any of the provisions of the Bombay Rent Act. The learned Counsel then brought to my notice a full bench decision of this Court in (Dattatraya Krishna v. Jairam Ganesh)1, 66 Bom.L.R. 645. The full bench was considering a question where the plaintiff had claimed a declaration that he was a sub-tenant or tenant of the defendant and further claimed the injunction res-raining the defendant from proceeding or from obtaining an order of eviction of the plaintiff is an application made by the defendant under section 41 of Act XV of 1882, or executing an order of eviction obtained by him in such an application. They very basis of that suit was different and the pleading of the plaintiff squarely fell within the ambit of the Bombay Rent Act. They very basis of that suit was different and the pleading of the plaintiff squarely fell within the ambit of the Bombay Rent Act. The plaintiff asked for declaration that he is a tenant or sub-tenant of the defendant against whom relief was claimed. The plaintiff there became the tenant and the defendant, the landlord of the plaintiff, who claimed an order of injunction restraining the landlord from recovering possession from him. That being the essence of that plaint, the dispute was one between the landlord and the tenant and related to possession though the relief was claimed in the form of the injunction. Having come to the conclusion on the facts of that case that the subject-matter squarely fell within the provisions of the Bombay Rent Act, the full bench observed that the plea that the plaintiff is claiming on the basis of title was also not acceptable and on the facts and circumstances the title must de hors the Act and not relating to some of the provisions of the Act. This judgment will have no application to the facts of the present case because the plaintiffs declaration of title though relating to tenancy against a rank trespasser who had played fraud against the deceased and obtained unlawful possession for claiming declaration and possession against a person is unlawful. I do not find any provisions of law anywhere in the Act so as to make the dispute fall within provisions of the Bombay Rent Act. Mr. Shah further argued that in order to apply the provisions of the Bombay Rent Act, the parties need not be necessarily related to each other as landlord and tenant and to elaborate his point he refers to the Supreme Court judgment in (Sushila Kashinath v. Harilal Govindji)2, 73 Bom.L.R. 320. Though the argument is correct as is demonstrated by the Supreme Court in the judgment, I wonder what use can be made of that approach in the present case. The Supreme Court was dealing with what is popularly known a the building a construction contract provided by section 18 of the Bombay Rent act and it is claim which arises under section 18 and not necessarily of claim between the landlord and tenant. The Supreme Court was dealing with what is popularly known a the building a construction contract provided by section 18 of the Bombay Rent act and it is claim which arises under section 18 and not necessarily of claim between the landlord and tenant. The provisions of section 28 themselves are clear enough, and printout that it must be a suit between the landlord and tenant or it must be an application or proceeding arising out of the provisions of the Act. Unless one of the conditions is satisfied, the suit does not fall within the provisions of the Bombay Rent Act. So far as the present suit is concerned, as discussed earlier, this is a clear suit based on title of tenancy but against a trespasser who is alleged to have been in lawful possession. To such a suit the provisions of the Bombay Rent Act do not apply and the Civil Court continues to have jurisdiction to entertain and dispose of the suit. The order of the learned trial Judge on the preliminary issue is correct and is upheld. Revision Application fail and are dismissed with costs. -----