M. K. SHAH, S. H. SHETH, J. ( 1 ) THE plaintiff went to Court with a case that on partition of the joint family estate the suit land admeasuring about 1167 sq. yds. and forming part of S. Nos. 133 and 134 in the estate known as Madhubhai Mill Compound came to his share as per the partition deed dated the 3 of October 1963. The defendant mills were in occupation of the substantial part of the estate as a tenant of the joint family and on partition they continued to be tenant in respect of the property which had come to the share of the plaintiff and which was already in occupation of the defendant as a tenant. But so far as the suit land is concerned it was the plaintiffs case that the same was never let out to the defendant nor was any permission granted to the defendant to make use of the same at any time. The defendant however oft and on was illegally entering upon the suit land and storing its coal thereon creating obstruction in plaintiffs possession and enjoyment of the same. As the defendant continued in its acts of trespass and as it was intending to put U? wire fencing and iron and cement pillars the plaintiff filed the said suit praying for a permanent injunction. By an amendment the plaintiff in the afternative prayed for possession in the event of the Court accepting the plea of the defendant that it was in actual possession of the suit land. ( 2 ) THE defense of the defendant mills was that along with the mill property let out to the defendant mill in the year 1938-39 the suit land was also let out as it formed part of the tenancy existing between the defendant mill and the landlord of the mill property. It was contended that the defendant had been in possession of the suit land as a tenant of the same and it was denied that it had trespassed upon the same as alleged. The title of the plaintiff to the suit land was also challenged and it was contended that as the defendant was a tenant in respect of the suit land the City Civil Court at Ahmedabad had no jurisdiction to try the suit which would be triable by the exclusive forum under the Rent Act viz. The title of the plaintiff to the suit land was also challenged and it was contended that as the defendant was a tenant in respect of the suit land the City Civil Court at Ahmedabad had no jurisdiction to try the suit which would be triable by the exclusive forum under the Rent Act viz. the Court of Small Causes at Ahmedabad. ( 3 ) THE learned Judge of the City Civil Court at Ahmedabad on the evidence led before him found that the plaintiff had proved that he was the owner of the suit land and that the defendant had illegally entered on the same. The defendants case that he was in possession as a tenant was negatived and so was also negatived its case that it had become owner by adverse possession. The Court also held that it had jurisdiction to entertain and try the suit and it therefore passed a decree and order for possession against the defendant in respect of the suit land which was found to be admeasuring 870. 66 s. yds. instead of 1160 sq. yds as initially contended by the plaintiff. A permanent injunction was also granted in favour of the plaintiff restraining the defendant from obstructing the plaintiff in the possession and enjoyment of the suit land and from putting up any hedge or wire fencing around the suit land. The trial Court also directed an inquiry with regard to mesne profits from the date of the institution of the suit till the delivery of possession to the plaintiff under Order XX Rule 12 (1) (c) of the Code of Civil Procedure and further ordered the defendant to pay costs of the suit to the plaintiff and bear its own. ( 4 ) THIS decree passed by the City Civil Court at Ahmedabad has been challenged in the appeal preferred by the defendant mill. ( 5 ) MR. G. N. Shah the learned Advocate appearing for the appellant has raised three points and they refer to:1 the jurisdiction of the City Civil Court to try the suit;2 the title of the plaintiff in the suit land;3 the occupation or possession of the suit land by the defendant as a tenant and not as a trespasser. ( 6 ) ON the first paint Mr. ( 6 ) ON the first paint Mr. G. N. Shahs contention is that as the plaintiff has come to court admitting relationship of a landlord and tenant existing between him and the mill though in respect of other property which is not the subject matter of the suit yet as this would be a dispute between landlord and tenant concerning possession of premises the bar with regard to jurisdiction as contained in sec. 28 of the Bombay Rents? Hotel and Lodging House Rates Control Act? 1947 hereinafter referred to as the Act will come into operation and so far as such s suit in Ahmedabad is concerned the court having jurisdiction would be only the special court under the Act i. e. the court of Small Causes at Ahmedabad and the City Civil Court at Ahmedabad will therefore haw no jurisdiction to entertain and try such a suit. ( 7 ) SEC. 28 of the Act so far as it is relevant for our purpose reads thus-"28 (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason the suit or proceeding would not but for this provision be within its jurisdiction. (a) in the City of Ahmedabad the Court of Small Causes of Ahmedabad. . . . . . . . . . . . . shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of the Act or any of its provisions and subject to the provisions of sub-sec. (2) no other court shall have jurisdiction to entertain any such suit proceeding or application or to deal with such claim or question". THE rest of the provisions are not relevant for our purpose. ( 8 ) MR. G. N. Shah has formulated his contention as stated below: The litigation between the parties before the City Civil Court at Ahmedabad was a suit between a landlord and a tenant relating to recovery of possession of premises to which the provisions contained in that part of the Act in which sec. ( 8 ) MR. G. N. Shah has formulated his contention as stated below: The litigation between the parties before the City Civil Court at Ahmedabad was a suit between a landlord and a tenant relating to recovery of possession of premises to which the provisions contained in that part of the Act in which sec. 28 appears apply and that therefore the exclusive forum for such a litigation would be the Court of Small Causes at Ahmedabad and not the City Civil Court at Ahmedabad. The case of the plaintiffs as it emerges from the plaint is that though the defendant is a tenant of the plaintiff in respect of other properties so far as the suit land is concerned the same has never been let out to the defendant and that it was therefore a trespasser thereon. Mr. G. N. Shahs contention is that once a plaintiff comes to a Court of law with an admission that the relationship of a landlord and a tenant exists between him and the defendant may be with regard to other premises which are not the subject matter of the proceeding then immediately the bar contained in sec. 28 would come into play. This proposition of Mr. G. N. Shah appears startling because If the same is accepted any defendant who happens to be a tenant of the plaintiff in respect of the premises which are not the subject matter of the suit will be able to take out the proceeding between the owner of a property and a trespasser from the jurisdiction of a Court which is otherwise competent to try the same. The expression any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of this Part apply in our opinion would cover the premises let out and cannot cover within its sweep the premises which are not let out but are trespassed upon by the defendant according to the case of the plaintiff. The relationship of a landlord and a tenant as contemplated in sec. 28 must exist qua the premises which are the subject matter of the suit and not do hors such premises. This becomes clear if the said expression used ia sec. 28 (1) is closely scrutinized. Three conditions have to be satisfied before the bar becomes applicable. The relationship of a landlord and a tenant as contemplated in sec. 28 must exist qua the premises which are the subject matter of the suit and not do hors such premises. This becomes clear if the said expression used ia sec. 28 (1) is closely scrutinized. Three conditions have to be satisfied before the bar becomes applicable. Firstly the suit or proceeding must be between a landlord and a tenant secondly the suit or proceeding must be one relating to rent or possession and thirdly such recovery of rent or possession claimed in the suit or proceeding must be in respect of premises to which any of the provisions of part Two of the Act apply. As specified in sec. 6 (1) of the Act Part Two applies to premises let for purposes set out therein in areas specified in Schedule One. It will be thus seen that unless the premises are let no provisions in Part Two will apply. The suit or proceeding therefore relating to recovery of rent or possession exclusively triable by the special court on which exclusive jurisdiction is conferred under sec. 28 (1) of the Act must be a suit or proceeding for recovery of rent or possession between a landlord and a tenant in respect of premises let. In the instant case as the plaintiff pleads the premises are in his personal enjoyment and occupation. That means the premises are not let to any person much less to the defendant. Thus the third condition in the instant case not having been satisfied the bar to jurisdiction will not apply. We therefore do not see any substance whatsoever in this part of Mr. G. N. Shahs submission. ( 9 ) ALTERNATIVELY Mr. G. N. Shah submits that in any event as provided in the latter part of sec. 28 (1) if in any suit or proceeding any claim or question arising out of the Act or any of its provisions requires to be dealt with then also the jurisdiction of the other courts would be barred. In the instant case the question which arises for consideration of the court submits Mr. G N Shah is as to whether the defendant is a tenant of the plaintiff or not in respect of premises which according to the defendant are let out for business purposes or storage by the plaintiff to the defendant. In the instant case the question which arises for consideration of the court submits Mr. G N Shah is as to whether the defendant is a tenant of the plaintiff or not in respect of premises which according to the defendant are let out for business purposes or storage by the plaintiff to the defendant. This would therefore be a question arising out of the Act or the provision contained in the Act with regard to possession of property claimed by a landlord from his tenant which would require decision on a question whether the defendant is a tenant of the landlord or not in respect of the suit land. In our opinion this part of the argument of Mr. G. N Shah also suffers this same fallacy as the first part. It is well settled that the jurisdiction of the court to entertain and try such a suit depends upon the averments male in the plaint and the same cannot be ousted by the averments made in the written statement. However if the defendant substantiates his averments in the course of the trial the court will have to dismiss the suit which will a so have to be dismissed if the plaintiff fails to substantiate the averments with which he has gone to court. In a case of this type the question of returning the plaint for presentation to proper court does not arise because the special court constituted under sec. 28 of the Act will have no jurisdiction to entertain the suit based on a plaint in which the plaintiff seeks the relief of possession of immovable property on the strength of his title. ( 10 ) IF the initial jurisdiction to entertain the suit depends upon what is stated in the written statement no case of such a type shall ever succeed because if the plaintiffs the suit for possession in the City Civil Court on the strength of his title the defendant can plead protection of the Rent Act and displace the jurisdiction of that court and if the same plaintiff sues him for the same purpose in the Court of Small Causes then with the sole object of depriving the jurisdiction of the court the defendant may go the length of raising the extreme plea of being a trespasser and thus displace the jurisdiction of that court. Where would the plaintiff go in such a situation? in order that the defendant may not reduce the plaintiff to a shuttlecock and scuttle him the healthy rule that the initial jurisdiction to entertain a suit depends on the allegations made in the plaint irrespective of what is stated in the written statement has been evolved. ( 11 ) MR. G. N. Shah has vainly tried to rely upon some decisions. But none of them helps him in establishing his proposition. He first of all drew our attention to Raizada Topandas v. Gorakram Gokalchand A. I. R. 1964 S. C. 1348. Here a suit was instituted by the plaintiff in the City Civil Court at Bombay for a declaration that the defendants were not entitled to enter into or remain in possession of a certain shop and for a paramount injunction and the reliefs were based on the premise that a licence was granted to the defendant to use the shop and the defendant was wrongfully continuing there inspite of the termination of the licence. The defence of the defendant was that the relationship between the parties was not of a licensor and licensee hut the shop had in fact been sublet by the plaintiffs to the defendant and the licence granted was a mere cloak to protect the plaintiffs from ejectment under the Act by the landlord. As the real relationship between the parties was that of landlords and tenants the defendants contended that the provisions of sec. 28 (1) of the Act were attracted and the City Civil Court al Bombay had no jurisdiction to entertain the suit. The contention of the defendants was negatived by the Supreme Court and it was held that sec. 28 did not say or intend to say that the plea of defendant would determine or change the forum. Mr. G. N. Shah relies on certain observations made by the Supreme Court while holding that in such cases the provisions of sec. 28 (1) would not be attracted and these observations appear at page 1352. They are in the following terms : If therefore the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under sec. 28 (1) would not be attracted and these observations appear at page 1352. They are in the following terms : If therefore the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under sec. 28 depends we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. Mr. G. N. Shah in these observations wants us to read conversely a rule that whenever a plaintiff goes to a court of law admitting that the defendant is his tenant. then irrespective of the fact that the suit is in respect of premises concerning which the tenancy is not admitted the special Court havinng exclusive jurisdiction under sec. 28 will he the only court competent to entertain such a suit. We cannot read such a wide proposition in these observation of the Supreme Court. These observations are to be read in the context of the topic which is discussed and not in isolation. The ratio which the Supreme Court has laid down is that the jurisdiction will be decided on the plea of the plaintiff who goes to a court of law and the defendant by his plea cannot force the plaintiff to go to a forum where on his averment (plaintiffs averment) he cannot go. The expression therefore if therefore a plaintiff in his plaint does not admit the relations which would attract any of the provisions of the Act cannot be interpreted to mean that whenever a plaintiff goes to a court of law admitting that the relationship of a landlord and a tenant exists between him and the defendant then irrespective of other factors which would be relevant for the purpose of deciding exclusive jurisdiction conferred under sec. 28 the special court on which such jurisdiction is so conferred will supply the forum and no other courts which are otherwise competent to entertain such suits or proceedings will be competent. Mere existence of relationship of a landlord and a tenant between the parties is not determinative of the jurisdiction as contemplated under sec. 28 but this relationship must exist qua the premises which are the subject matter of the proceeding because the admission of the relation which would attract the provisions of sec. Mere existence of relationship of a landlord and a tenant between the parties is not determinative of the jurisdiction as contemplated under sec. 28 but this relationship must exist qua the premises which are the subject matter of the proceeding because the admission of the relation which would attract the provisions of sec. 28 is not merely confined to the admission of the existence of relation of a landlord and tenant between the parties but it has to be coupled with the fact of the action being on fore recovery of rent or possession in respect of premises to which part II of the Act applies. Between the same parties there may simultaneously exist relationship of landlord and tenant of mortgagees and mortgagor of under and vendee as well as of donor and donee in respect of different premises or properties. What matters and what the court has to take into account is the relationship between the parties in respect of the suit premises and nothing else. ( 12 ) ANOTHER decision cited by Mr. G. N. Shall is Jayantkumar v. Lilavatiben 7 G. L R. 1018. This was a case in which the tenant denied the title of the landlord and it was held that the suit contemplated under sec. 28 of the Act is not a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that such relationship exists between the parties though the defendant might deny such claim. In such a suit the determination of the question of title to the premises being merely an incidental determination though the court having jurisdiction can decide such a question if it becomes necessary to go into the same for the purpose of deciding the main question with regard to the tenancy the same would not preclude the aggrieved party from suing in an ordinary civil court to establish his title to the premises as provided under sec. 29a. This division is not applicable to the facts of the present case and it does not help Mr. Shah at all. ( 13 ) BOMBAY Grain Dealers Association v. M/s. Lakhmichand Vasanji and Co. 71 Bom. 29a. This division is not applicable to the facts of the present case and it does not help Mr. Shah at all. ( 13 ) BOMBAY Grain Dealers Association v. M/s. Lakhmichand Vasanji and Co. 71 Bom. L. R. 179 was a case in which the plaintiff claimed to be a tenant in the defendant landlords building and on an averment that he was a tenant of the terrace on which he had constructed a shed which had been forcibly demolished in part and from entering which he was prevented by the Landlord he filed a suit in the Bombay City Civil Court for a declaration that he was entitled to possession and occupation of the terrace and for an injunction restraining the defendant from obstructing him in the enjoyment of the terrace and for a mandatory injunction directing the defendant to reerect the demolished portion of the parapet wall of the terrace. It was held that notwithstanding the fact that the reliefs asked for by the plaintiffs were cast in the form of an injunction the court must consider their substance and that the suit in reality being one for getting possession from the landlord it fell within the ambit of sec. 28 of the Act and the City Civil Court had therefore no jurisdiction to entertain the same. We fail to understand how this decision helps Mr. Shah. It only strengthens the settled legal position that jurisdiction to entertain the suit has to be decided will reference to the averment in the plaint irrespective of the questions which the defendant might raise in defence. ( 14 ) MR. G. N. Shah lastly in support of his alternative submission referred to the decision in Sushila Kashinath Dhonde v. Harilal Govindji Boghani A. I. R. 1971 S. C. 1495. Now this was a suit filed on the basis of a registered agreement embodying a deed of charge for construction of a building towards loan executed by tale defendant landlord in favour of the plaintiff. The deed complied with all the requirements of sec. Now this was a suit filed on the basis of a registered agreement embodying a deed of charge for construction of a building towards loan executed by tale defendant landlord in favour of the plaintiff. The deed complied with all the requirements of sec. 18 (3) of the Act and on the defendant failing to let out the premises after completion of the building inspite of the provisions to that effect in the deed of charge the plaintiff filed the suit for enforcing his claim for the premises being let out to him and it was held that the suit related to a claim or question arising out of the Act or any of its provisions within the meaning of sec. 28 (1) of the Act and therefore the special court under sec. 28 of the Act alone had jurisdiction. The rights of the plaintiff flowed from the Act and not from the contract viz. the deed of charge. The ratio of this decision would not apply to the facts of the present case. The present suit does dot relate to any claim or question arising out of the Act or any of its provisions. Be it noted that in the case before the Supreme Court the question directly arose under the provisions contained in sec. 18 (3) of the Act and proceedings were taken by the plaintiff to enforce such a claim specifically arising under the said section. ( 15 ) THUS Mr. G. N Shahs submissions on the point concerning jurisdiction do not get any support from the last decision cited by him also. None of the decisions cited by Mr. Shah supports the proposition advanced by him. They in fact militate against it. The position which emerges is that the initial jurisdiction to entertain a suit flows from the averment made in the plaint and is not displaced by contrary stand taken by the defendant in his written statement. The first contention embodying challenge with regard to jurisdiction therefore fails. . . . . . . . . . Appeal dismissed. .