JUDGMENT - Dr. CHANDRACHUD D.Y., J.:---By the impugned order dated 27th July, 1995, the learned Civil Judge, Senior Division, Nagpur, has sustained the preliminary objection to the maintainability of the suit raised on behalf of the third respondent. By the application, the third respondent had prayed that Regular Civil Suit No. 1066/1993 instituted by the applicant, be dismissed as being "frivolous, vexatious and barred by law, being devoid of any cause of action" and on the ground that the applicant had no locus standi to institute the suit. That application has been allowed by the impugned order. 2. The dispute in the present cases relates to a tenement bearing No. L.A. 22, situated at L.I.G. Colony at Laxminagar in Nagpur. There is no dispute about the fact that the tenement was allotted by the erstwhile Nagpur Housing Board, whose assets have now been merged with the Maharashtra Housing and Area Development Authority, to one Tulsabai, who was the widow of Damduji Chalpe. Tulsabai had four children, a son by the name of Shripad, who is the third respondent herein and three daughters by the names of Kamlabai, Yamunabai and Rukhminibai. Rukhminibai expired in the year 1964 and applicant-Vithal is her son. Kamlabai and Yamunabai are not contesting parties to this dispute. The applicant herein was in occupation of the tenement, which forms the subject matter of the dispute in the present case. Relations between Tulsabai and her grandson, the applicant herein, were strained for she instituted Regular Civil Suit No. 1066/1993 against the applicant for possession and damages. The suit came to be partly decreed on 24th April, 1985 by the learned 28th Joint Civil Judge, Junior Division, Nagpur and a decree for possession was passed against the applicant. The applicant thereupon preferred Regular Civil Appeal No. 564/1985 which was dismissed by the learned 9th Additional District Judge, Nagpur on 29th March, 1993. Tulsabai died in the meantime on 3rd December, 1988 during the pendency of the appeal and as is unfortunately not uncommon in civil litigation the plaintiff was not able to witness the fruits of the decree. A second appeal preferred by the applicant against the order of the Appellate Court being Second Appeal No. 166/1993 was dismissed by this Court on 8th June, 1993. A second appeal preferred by the applicant against the order of the Appellate Court being Second Appeal No. 166/1993 was dismissed by this Court on 8th June, 1993. The special leave petition moved by the applicant under Article 136 of the Constitution of India, being S.L.P. No. 12400/93 was dismissed by the Supreme Court on 6th September, 1993. The decree for possession has therefore attained finality. The Court has been informed that execution proceedings were instituted for the execution of the decree but those proceedings are still pending. 3. During the life time of Tulsabai, she had on 7th February, 1988 made an application to the Nagpur Housing Area Development Board, Nagpur, for transferring the suit premises which stood in her name, to her son Shripad, the third respondent herein. She recorded in her application that she was old and was residing with her son, who had ben regularly depositing the instalments towards the price of the tenement in question. Simultaneously, an application for allotment was moved by the third respondent before the Housing Board and on 8th September, 1988, an order of transfer came to be passed by the Board, by which, the tenement in question was allotted to the third respondent. A sale deed was formally executed in favour of the third respondent on 18th September, 1989. 4. The applicant in the second appeal which was filed before this Court against the decree for possession in the suit instituted by Tulsabai, contested the right of the third respondent to retain the tenement on the ground that he was not eligible to do so under the Rules framed under the Maharashtra Housing and Area Development Act, 1976. Reliance was sought to be placed on Rule 9(1-A) of the Rules framed under the Act and it was contended that the third respondent was not entitled to retain the suit premises since he had another house in his name in the same municipal area. That contention was rejected by the learned Single Judge while disposing of the second appeal. The learned Single Judge held that the suit premises had devolved on the third respondent and that there was no reason to interfere with the concurrent findings of fact which had been arrived at by the courts below. 5. That contention was rejected by the learned Single Judge while disposing of the second appeal. The learned Single Judge held that the suit premises had devolved on the third respondent and that there was no reason to interfere with the concurrent findings of fact which had been arrived at by the courts below. 5. On 8th June, 1993, which was the very date on which the second appeal was dismissed, the applicant instituted a suit before the learned 5th Joint Civil Judge, Junior Division, Nagpur, being R.C.S. No. 1066/1993. The following reliefs were prayed for in the said suit:--- i. Declare the sale deed in respect of tenement No. L.A. 22, Laxminagar, Nagpur registered at Serial No. 13380 dated 18-11-1989 executed by defendant No. 1 in favour of the defendant No. 3 registered in additional book No. I, volume No. 1498, pages 109 to 113 as null and void and unenforceable at law; ii. Further be pleased to restrain the defendants permanently from dispossessing the plaintiff from tenement No. L.A. 11; iii. Further be pleased to direct the defendants 1 and 2 to transfer the tenement No. L.A. 22 in the name of the plaintiff; iii-A. Further be pleased to declare that the provisions of section 173 in respect of the wording "not after six months from the date of the act complained of" are violative of the guarantee of Article 14 of the Constitution of India; iii-B. Or in the alternative, further be pleased to declare that the provisions of Limitation Act, 1963, are applicable to the provisions of the Maharashtra Housing and Area Development Act, 1976; iii-C. Or in the alternative, further be pleased to declare that the forum to challenge the illegal act by the authority or Board after the expiry of six months from the act complained of is the Civil Court only; iii-D. Further be pleased to declare that the provisions of Rule 19 of the Maharashtra Housing and Area Development (E.M.S.T. E. T.) Regulations, 1981, are applicable to the provisions of Part V and Rule 24 of the Maharashtra Housing and Area Development Regulations, 1981; iii-E. Further be pleased to declare that the defendant No. 3 has no need of the premises/tenement No. L.A. 22 and he was not eligible for transfer of the premises into his name; iv-Further be pleased to saddle the cost of the suit upon the defendants; 6. The third respondent, as already noted, moved an application for the dismissal of the suit under section 9-A of the Code of Civil Procedure, 1908 read with Order VII, Rule 11 thereof. The contention of the third respondent was that on 18th November, 1989, the allotment of the tenement had been transferred to his name by the Housing Board on the request of late Tulsabai, who was the allottee of the tenement. The applicant, it was contended, was neither the allottee, nor a person having any interest in the tenement and he had no locus standi to institute the suit. According to the third respondent, the applicant had no cause of action and he was a trespasser against whom a decree for eviction had been passed and which had attained finality. Secondly, it was urged that the cause of action had arisen on 29th July, 1991 as set up in para No. 8 of the plaint, when the applicant states that he came to know about the transfer of the tenement in the name of the third respondent. The suit which was instituted, it was urged, was barred by limitation by virtue of the special provisions contained in section 173 of the Maharashtra Housing and Area Development Act, 1976. Finally, it was urged that the jurisdiction of the Civil Court is ousted under section 177 of the Act, since it was for the authority to dispose of the tenement in accordance with the provisions of the Act. 7. The application has ben allowed by the impugned order dated 27th July, 1995 of the learned Civil Judge, Senior Division, Nagpur. The learned trial Judge has held that the proceedings in the earlier civil suit being R.C.S. No. 1660/1981 had attained finality. The Court noted that it was the case of the applicant herein in the said proceedings that the suit property had been purchased by his father-benami in the name of deceased Tulsabai and that he was the owner of the suit house. That issue, it was held, was answered in the negative and the applicant was directed to deliver vacant possession of the suit property on or before 31st May, 1985. The order of the trial Judge was then confirmed in appeal all the way upto the Supreme Court. That issue, it was held, was answered in the negative and the applicant was directed to deliver vacant possession of the suit property on or before 31st May, 1985. The order of the trial Judge was then confirmed in appeal all the way upto the Supreme Court. The learned trial Judge then noted that in pursuance of the application, which was moved by Tulsabai on 7th February, 1988 for the transfer of the tenement to the name of her son, the third respondent, the third respondent had furnished his consent to the Housing Board and on 8th September, 1988 (wrongly referred to as 8th June, 1988) the premises came to be transferred to the name of the third respondent by the Housing Board. A sale deed was also stated to have been executed on 20th October, 1989. 8. The learned trial Judge held that the transfer of the premises had taken place by the Competent Authority under sections 66 and 67 of the Act; that the applicant had been declared as an unauthorised occupant and a decree for eviction had been passed against him by the competent Court. The jurisdiction of the Court was therefore ousted under section 177. The trial Court held that the applicant had no right to challenge the sale deed which was executed by the Competent Authority as he had been held to be a trespasser by the competent Court. Finally, it was held that the suit was barred by limitation specifically under section 173 of the Act, since the suit had not been instituted within a period of six months after the applicant obtained knowledge of the transfer of the premises. 9. The learned Counsel appearing on behalf of the applicant has first sought to urge that the finding which was recorded on the bar of jurisdiction is patently erroneous. The learned Counsel submitted that reliance was sought to be placed by the learned trial Judge on the provisions contained in sections 66 and 67 of the Maharashtra Housing and Area Development Act, 1976, which have absolutely no application in the present case, since no proceedings under Chapter VI of the Act, have been initiated by the Housing Board. The learned Counsel submitted that reliance was sought to be placed by the learned trial Judge on the provisions contained in sections 66 and 67 of the Maharashtra Housing and Area Development Act, 1976, which have absolutely no application in the present case, since no proceedings under Chapter VI of the Act, have been initiated by the Housing Board. The learned Counsel submitted that the jurisdiction of the trial Court was not barred for the simple reason that there was no provision of the M.H.A.D.A. Act, 1976, under which, a challenge to the execution of the sale deed in favour of the third respondent could be preferred. 10. In so far as this aspect of the matter is concerned, reliance was sought to be placed on behalf of the third respondent on the provisions contained in section 177 of the Act. Section 177 of the M.H.A.D.A. Act, provides as follows: "177. Bar of jurisdiction.---Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the authority or the Tribunal is empowered by or under this Act, to determine; and no injunction or stay shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred or duty imposed by or under this Act." 11. Section 177 provides that no Civil Court shall have jurisdiction in respect of any matter which the authority or the Tribunal is empowered by or under the Act, to determine. Therefore, before the bar of jurisdiction is attracted, it must be found, as a matter of fact, that the matter which is sought to be raised before the Civil Court is one, which the authority or the Tribunal is empowered by or under the Act to determine. The learned trial Judge has relied upon the provisions of sections 66 and 67 of the Act. But ex facie those provisions can have no application at all. Sections 66 and 67 fall under Chapter VI of the Act, which is titled "Power to evict persons from authority premises and to recover dues". Section 66 empowers the Competent Authority to pass an order of eviction in certain stipulated cases and section 67 empowers the Board to recover the rent, compensation, amount or damages as arrears of land revenue. Sections 66 and 67 fall under Chapter VI of the Act, which is titled "Power to evict persons from authority premises and to recover dues". Section 66 empowers the Competent Authority to pass an order of eviction in certain stipulated cases and section 67 empowers the Board to recover the rent, compensation, amount or damages as arrears of land revenue. In the present case, no proceedings were initiated by the Housing Board under Chapter VI of the Act and, therefore, the reliance which has been placed by the learned trial Judge on the provisions of those two sections, is clearly erroneous. 12. The learned Counsel appearing on behalf of the applicant inter alia referred to the provisions contained in Regulations 9(1-A), 24 and 25(2) of the Maharashtra Housing Area Development (Estate Management, Sale, Transfer, etc.) Regulations, 1981. The submission of the learned Counsel was that under Regulation 9(1-A), a person is not eligible to apply for any tenement in a municipal area if he or his spouse owns a house or a flat in his or her name, in such municipal area. Then it was urged that under Regulation 24, provision has been made for transfer of tenements only in certain specified eventualities. The learned Counsel urged that it is a well settled principle of law that the jurisdiction of the Civil Court is not ousted where a statutory authority has acted in violation of statutory Rules or it has acted beyond its authority and or in violation of sound principles of judicial procedure. 13. The position in law in the matter of statutory provisions which oust the jurisdiction of Civil Courts is well settled. In the judgment of the Constitution Bench, of the Supreme Court in (Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh)1, reported in A.I.R. 1964 S.C. 322, it was laid down that in dealing with the question whether the Civil Courts' jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary Civil Courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. Mr. Mr. Justice P.B. Gajendragadkar, (as the learned Chief Justice then was) held that the exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the Civil Court to deal with a case brought before it in respect of some of the matters covered by the said statute. In (Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon)2, A.I.R. 1966 S.C. 185, a Constitution Bench of the Supreme Court held that it is a settled principle of law that the ouster of the jurisdiction of the Civil Court is not to be readily inferred and that the cause of action must either be explicitly barred or that must be clearly implied. 14. In (Dhulabai etc. v. State of Madhya Pradesh and another)3, A.I.R. 1969 S.C. 78, the learned Chief Justice, Mr. Justice Hidayatullah, speaking for a Constitution Bench of the Supreme Court, formulated seven principles governing the question of the exclusion of the jurisdiction of a Civil Court. The first proposition is thus:--- 1. Where the statute gives a finality to the orders of the special Tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts, would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. The third proposition is that a challenge to the provisions of a particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. The seventh and final proposition is that an exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set out in the propositions formulated by the Supreme Court apply. 15. The jurisdiction of the Court is ousted under section 177 of the M.H.A.D.A. Act of 1976 in respect of a matter which the authority or the Tribunal is empowered by or under the Act to determine. 15. The jurisdiction of the Court is ousted under section 177 of the M.H.A.D.A. Act of 1976 in respect of a matter which the authority or the Tribunal is empowered by or under the Act to determine. A learned Single Judge of this Court held in (Rajan Prabhakar Borde v. Maharashtra Housing and Area Development Authority and another)4, A.I.R. 1983 Bombay 493, that if the question involved or the matter raised is not a question in respect of which any power is conferred upon the authority to determine, section 177 would have no application. 16. In the present case in the suit which has been instituted before the trial Court, one of the averments in paragraph 5 of the plaint is that the applicant herein is a Class I heir of deceased Tulsabai. Now, there can be no dispute about the point and, in fact, none has been raised on behalf of the respondent that since Tulsabai died intestate, her estate would be liable to devolve in accordance with the rules, and principles of succession which are set out in sections 15 and 16 of the Hindu Succession Act, 1956. Section 15(1)(a), provides that the property of a female Hindu dying intestate is to devolve firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. The learned trial Judge in coming to the conclusion that the applicant had no locus standi to institute the suit, observed that the third respondent herein is the son of the deceased, whereas the applicant is a son of a predeceased daughter of Tulsabai. The learned trial Judge concluded that "under the provisions of section 15 of the Hindu Succession Act, the son and daughter will be given preference to that of grandson". It was on this basis, that the learned trial Judge held that, the applicant had no right to challenge the sale deed executed by the competent authority, as he had been held to be a trespasser by the competent Court. The view of the learned trial Judge that the third respondent as the son of the deceased would take preference over the applicant who is the son of a predeceased daughter, is ex facie erroneous and suffers from a clear illegality. The view of the learned trial Judge that the third respondent as the son of the deceased would take preference over the applicant who is the son of a predeceased daughter, is ex facie erroneous and suffers from a clear illegality. Section 16 of the Hindu Succession Act, 1956 provides that amongst the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Therefore, the very basis of the assumption made by the learned trial Judge that as between the third respondent and the applicant it was the third respondent alone excluding who would be entitled to a share in the estate of the deceased, is completely contrary to the express language of sections 15 and 16 of the Hindu Succession Act, 1956. 17. The learned Counsel appearing on behalf of the third respondent, however, submitted that in the present case, an application for the transfer of the tenement had been made by the deceased during her life time, on 7th February, 1988 and it was only thereafter that she expired on 3rd December, 1988. The contention, that was urged was that the order for the transfer of the allotment had been passed on 8th September, 1988 during the life time of the deceased. Here again it would be material to note that the case of the applicant is that the actual sale deed was executed on 18th September, 1989 which was after Tulsabai expired on 3rd December, 1988. Therefore, it was submitted that on the date on which she expired, Tulsabai continued to be the owner of the suit property and hence the property must devolve according to the rules governing intestate succession in sections 15 and 16 of the Hindu Successions Act, 1956. At the present stage, it would not be appropriate for this Court to go into the question as to whether the applicant has established that he was entitled to any share in the tenement in question upon the death of Tulsabai, or whether the transfer had been completed in all respects, even during her life time, as urged on behalf of the third respondent. These are matters, on which evidence would have to be adduced before the trial Court and it is on the basis of the evidence, which is adduced at the trial that the learned trial Judge would have to arrive at a finding. 18. It must be emphasized at this stage that the learned trial Judge was seized of an application under section 9-A read with Order VII, Rule 11 of the Code of Civil Procedure, 1908. Under section 9-A if at the hearing of an application for granting or for setting aside an order granting interim relief, an objection to the jurisdiction of the Court to entertain a suit is taken by any party to the suit, the Court shall proceed to determine at the hearing of the application, the issue as to jurisdiction as a preliminary issue. Under Order VII, Rule 11 the Court is empowered to reject the plaint inter alia under Clause (a) where it does not disclose the cause of action or under Clause (d), where the suit appears from the statements in the plaint to be barred by any law. In the present case, having heard the learned Counsel appearing on behalf of the parties, I am of the view that the jurisdiction of the trial Court could not have been held to be ousted by the provisions contained in section 177 of the MHADA Act, 1976. The Housing Board is clearly not competent to make a final determination upon the devolution of the estate of the holder of a tenement upon her death. The devolution of the estate must take place in accordance with the governing law of succession and it is for the Civil Court to determine as to whether a person, who claims an interest in the property of the deceased, is entitled to an interest or share therein. 19. In the present case there can however be no doubt about the fact that execution of the decree for eviction which has been passed against the applicant cannot be stayed or impeded by the pendency of the suit instituted by the applicant. During the life time of Tulsabai, she had an absolute interest in the tenement in question and it was for her to determine as to who would, or would not reside therein. During the life time of Tulsabai, she had an absolute interest in the tenement in question and it was for her to determine as to who would, or would not reside therein. The decree for possession which has been passed against the third respondent has attained finality and that decree has to be executed as it stands. But, the decree which has been passed in the suit which has been instituted by Tulsabai for possession, cannot be conclusive of the question as to whether the applicant has any interest or share in the State of Tulsabai after her life time and upon her death or whether there was, in fact, any property, which remained to be distributed after her life time. The applicant would contend that on the date, on which Tulsabai expired, the tenement still continued to stand in her name and had not been transferred and that there was no valid transfer of the tenement to the name of the third respondent. On the other hand, the case of the third respondent is that the order of transfer had been passed by the competent authority prior to the death of Tulsabai and, therefore, there was no surviving interest of Tulsabai in the tenement in which the third respondent claims absolute interest. These are matters, which would have to be considered by the trial Court on the basis of the evidence which will be recorded in the suit. 20. Similarly, I am of the view that the suit ought not to have been dismissed on the preliminary objection that it was barred under section 173 of the MHADA Act, 1976. Section 173 provides that no person shall commence any suit against the authority or against any member of the Authority or of any Board in respect of anything done or purporting to have been done in pursuance of the Act, without giving to the Authority two months' previous notice in writing of the intended suit, nor after six months from the date of the act complained of. The question as to whether the special provision in regard to the limitation made in section 173 will apply in respect of a plaintiff, who asserts an interest or share in the property of a deceased allottee upon the death of the allottee, will have to be considered by the learned trial Judge at the trial of the suit. The question as to whether the special provision in regard to the limitation made in section 173 will apply in respect of a plaintiff, who asserts an interest or share in the property of a deceased allottee upon the death of the allottee, will have to be considered by the learned trial Judge at the trial of the suit. This was clearly not a case where it could be said that the trial Court had no jurisdiction in the matter or where the suit was without a cause of action or was barred by any law for the time being in force. Finally, it must also be noted that one of the prayers, which has been urged in the suit, is in respect of a challenge to the provisions of section 173 of the Act. 21. Having, therefore, regard to the totality of the facts and circumstances of the case, I am of the view that the applicant is entitled to succeed. The impugned judgment and order of the learned Civil Judge, Senior Division, Nagpur is, therefore, quashed and set aside to the extent that it allows the application of the third respondent for the dismissal of the suit. The order, allowing the application of the third respondent for the dismissal of the suit on the preliminary issue, shall stand quashed and set aside. However, before concluding it would be necessary to clarify that none of the observations contained in this order shall be regarded as in any manner being reflective of any opinion upon the merits of the case including the question of limitation which is kept open to be urged at the trial of the suit. Similarly, it is clarified that the pendency of the suit before the trial Court or the order passed by this Court in this proceeding, would not be construed as amounting to a stay of the execution proceedings which have been commenced. The execution of the decree which has been passed by the trial Court in the earlier proceeding and which has attained finality, shall proceed in accordance with law, and nothing contained in this order shall be construed as constituting any impediment for the Executing Court taking necessary steps in accordance with law. Consequently, the order passed by the learned trial Judge, vacating the injunction on the execution of the decree passed in the earlier proceeding is not disturbed. Consequently, the order passed by the learned trial Judge, vacating the injunction on the execution of the decree passed in the earlier proceeding is not disturbed. However, having regard to the facts and circumstances of the case, the learned trial Judge is required to expedite the disposal of RCS No. 1066/1994 and to endeavour to dispose of the same within a period of six months from the date on which a certified copy of this order is produced before the learned trial Judge, by either of the parties. The Civil Revision Application is disposed of in the aforesaid terms. -----