JUDGMENT - KHANWILKAR A.M., J.:---This appeal takes exception to the order passed by the City Civil Court, Bombay dated 31st January, 1986 in S.C. Suit No. 4190 of 1968. 2. The appellants instituted the suit before the Bombay City Civil Court at Bombay stating that they are the trustees of public trust known as "Saraswatibai Bishwambharlal Charity Trust" registered under the provisions of the Bombay Public Trusts Act, 1950. It is their case that the trust owns building known as Maheshwari Mansion situate at 34, Nepean Sea Road, Bombay-6, Flat No. 5 on the ground floor of the said building was let out to one Mrs. Shantabai Thakorlal Gajjar on monthly rent basis. The said Shantabai expired in the year 1962. After her death, her husband Thakorlal Krishnaram Gajjar and her son Kikabhai continued to use and occupy the said flat. The said Thakorlal expired in the year 1964. Thereafter Kikabhai continued to occupy the suit flat. It is common ground that Kikabhai was of unsound mind since his childhood. According to the appellants, after the demise of Thakorlal, Kikabhai was looked after by the servants and continued to reside in the suit flat. Whereas the respondents contend that after the death of Thakorlal, original respondent No. 1 Ramesh I. Gajjar started staying with Kikabhai to look after him in view of his mental condition. According to the appellants, however, the respondents had no connection with the suit flat and they were falsely claiming right in respect of the said flat. In the circumstances, after the death of Kikabhai on 22nd June, 1968 the flat was kept in locked condition for which reason they instituted suit before the City Civil Court on the allegation that the respondents were trespassers and, therefore, for a relief that the respondents be directed to hand over vacant and peaceful possession of the suit flat to the appellants and further to pay a sum of Rs. 487.28 towards the arrears of compensation in respect of the said flat with interest and for mesne profits. The suit was resisted by the respondents by filing written statement. In the written statement, however, the respondents clearly asserted that after the death of Thakorlal the 1st defendant occupied the suit flat along with said Kikabhai. Further the 1st defendant was looking after him as he was insane. The suit was resisted by the respondents by filing written statement. In the written statement, however, the respondents clearly asserted that after the death of Thakorlal the 1st defendant occupied the suit flat along with said Kikabhai. Further the 1st defendant was looking after him as he was insane. The respondents further asserted that they were maternal uncles of deceased Kikabhai and, therefore, entitled to claim the estate of deceased including the tenancy rights of the suit premises being heirs of deceased. The respondents, therefore, contended that they were entitled to use and occupy the suit flat and were protected by the provisions of the Bombay Rent Act. 3. On the basis of the rival pleadings the matter went for trial. The trial Court, on the basis of the pleadings raised five issues which read thus: "1. Do defendants prove that they have become entitled to the tenancy rights of the suit premiss as heirs of deceased Shantaben and/or Kikabhai? 2. Are plaintiffs entitled to possession of suit premises from defendants? 3. Are plaintiffs entitled to arrears of compensation and if so, how much? 4. Are plaintiffs entitled to future mesne profits? 5. What order and decree?". 4. The parties adduced oral evidence in support of their respective claim. The original defendant No. 1 stepped into the witness box as D.W. 1, whereas Shri Badriprasad Gaudshankar Sharma was examined as P.W. 1. The trial Court, after considering the pleadings, evidence on record including the rival submissions held that there was truth in the case of the defendants that after the death of father of Kikabhai, Kikabhai was looked after by the defendants and it is possible that defendants were residing in the suit premises till Kikabhai was removed in the hospital. The trial Court has further held that the plaintiffs were not able to show whether Kikabhai or his father or his mother had any other heir or legal representative who could raise any claim over the tenancy rights of the suit flat and it is undisputed that the defendants are the maternal uncle of Kikabhai. The trial Court has therefore held that it is obvious that the defendants are the heirs of Kikabhai, being the brothers of his mother Shantaben-original tenant and this being the position if the defendants were found in possession of such premises after the death of Kikabhai, it cannot be said that they are trespassers. The trial Court has therefore held that it is obvious that the defendants are the heirs of Kikabhai, being the brothers of his mother Shantaben-original tenant and this being the position if the defendants were found in possession of such premises after the death of Kikabhai, it cannot be said that they are trespassers. The trial Court further took the view that the defendants were also claiming to be the guardians of Kikabhai under the Will of the father of Kikabhai. The trial Court, however, refrained from examining the matter any further because in its view to return finding regarding the claim of tenancy or inheritance of the tenancy by the defendants was the matter which was completely barred by virtue of the provisions of section 28 of the Bombay Rent Act. The trial Court, accordingly, dismissed the suit preferred by the appellants. 5. Mr. Dalvi, learned Counsel for the appellants, has taken me through the pleadings and the entire evidence on record. According to him, the findings recorded by the trial Court cannot be sustained. He, however, fairly concedes that the Issue No. 1 as framed by the trial Court was improper, whereas the trial Court ought to have been framed the following issue: "Does the plaintiffs prove that the defendants are trespassers?" 6. In his submission, on the basis of the evidence on record and in particular the admission of the defendants witness that the suit flat was kept in locked condition after Kikabhai was shifted to hospital and after his death and also till the filing of the suit, the trial Court ought to have returned the finding in favour of the appellants that the respondents were trespassers in the suit flat. 7. On the other hand Mr. Karandikar, learned Counsel for the respondents, contends that there is no substance in the plea taken by the appellants. According to him, the evidence would clearly establish the position that the defendants were maternal uncles of deceased Kikabhai being brothers of his mother Shantaben-the original tenant. He submits that the finding of fact recorded by the trial Court that there is truth in the case of the defendants that after the death of father of Kikabhai, Kikabhai was looked after by the defendants and it is possible that the 1st defendant was residing in the suit premises till Kikabhai was removed in the hospital cannot be doubted. According to him, if that be so, there would be no occasion for this Court to hold that the respondents were trespassers as such. He further submits that assuming that the respondents were not actually staying with Kikabhai during his lifetime or on the date of his death, however, since they are undisputedly related to Kikabhai being heirs of Kikabhai they would still inherit the tenancy and even for which reason the finding that they are trespassers cannot be returned in the fact situation of this case. He, therefore, submits that the trial Court cannot be faulted. 8. On the basis of the above arguments advanced before me, the only point for consideration which arises is: "Whether the decision of the trial Court can be said to be illegal on facts and in law?" 9. After considering the pleadings, evidence and the rival submissions, I have no hesitation in observing that the reframed issue as refereed to above as to whether the plaintiffs have proved that the defendants are trespassers will have to be answered in the negative. Moreover, on examining the evidence on record, no fault can be found with the conclusion reached by the trial Court. There is clear evidence on record that the original defendants are the maternal uncles of Kikabhai being the brothers of his mother Shantaben, the original tenant. That evidence has gone unchallenged. It is also common ground that Kikabhai was of unsound mind and was left alone after the demise of his father Thakorlal in 1964. Since 1964 till the death of Kikabhai he was all alone in the suit premises and, therefore, the defendants claim that the defendant No. 1 started staying with him in the suit flat to look after his needs. In my view, therefore, the trial Court has rightly held, on analysing the evidence on record that there is truth in the case of the defendants that after the death of father of Kikabhai, Kikabhai was looked after by the defendants and it is possible that the 1st defendant was residing in the suit flat till Kikabhai was removed in the hospital. If this be so, then, naturally the trial Court was justified in holding that the defendants cannot be termed as trespassers. If this be so, then, naturally the trial Court was justified in holding that the defendants cannot be termed as trespassers. I am of the view that it will not be necessary to closely examine the evidence which has come on record with regard to the nature of right of the respondents in the suit flat. For, that question will have to be examined only by the Rent Court. It is suffice to observe that the evidence which has come on record including the deposition of P.W. 1, there is nothing to suggest that the defendants were not related to deceased Kikabhai as claimed by them. As such it is not possible to take the view that they were totally strangers. If this be so then it necessary follows that it will be open for them to contend that they have inherited the tenancy rights in respect of the suit flat. This is possible having regard to the provisions of section 5(11)(c)(i) of the Bombay Rent Act which defines "tenant" to include any member of the tenant's family residing with the tenant at the time of his death, or in the absence of such member, any heir of the deceased tenant as may be decided in default of the agreement by the Court. A priori, a person may claim to be member of the tenant's family coupled with the fact that he was staying with the tenant at the time of his death so as to get benefit of this provision. In another situation, a person may claim to be a member of the tenant's family and further contend that being the heir of the deceased tenant, he would be entitled to inherit tenancy rights in respect of the dismissed premises. Even assuming that the appellants are right in contending that the defendants witness have admitted that the suit flat was kept in locked condition after Kikabhai was removed to hospital and after his death till the filing of the suit, even then the respondents can legitimately claim that they would still inherit the tenancy rights in respect of the suit flat at least by virtue of the latter part of section 5(11)(c)(i) of the Rent Act. If this be so, then it is incomprehensible as to how the respondents can still be termed as trespassers as such. If this be so, then it is incomprehensible as to how the respondents can still be termed as trespassers as such. It is not necessary for me to examine the matter as to whether the defendants have actually inherited the tenancy rights within the meaning of the provisions of the Bombay Rent Act as that will have to be done by the Rent Court. As observed earlier, it is not possible to take the view that the defendants were total strangers so as to term them as trespassers. But the evidence on record clearly indicates that they were closely related to Kikabhai and were looking after him till his death and being his maternal uncles were entitled to claim that they have inherited the tenancy rights being heir of the deceased tenant so as to legitimately resist the claim of the appellants for possession much less that they were trespassers. No further enquiry in this case would be warranted. The inescapable conclusion that will have to be recorded is that the appellants have failed to prove that the defendants were trespassers in the suit flat as alleged. If this point is answered against the appellants, as a necessary corollary relief of possession or for that matter all other reliefs will have to be adjudicated between the parties only before the Rent Court. All questions in that behalf, which are exclusively triable by the Rent Court are left open to be decided on its own merits if an occasion arises. 10. In the circumstances, there is no merit in this appeal. The same deserves to be dismissed and is so dismissed with costs all throughout. 11. At this stage, Mr. Dalvi, learned Senior Counsel for the appellants prays that operation of this order be stayed so that the appellants may consider of taking recourse to appropriate remedy if so advised. The parties shall not give effect to this order for a period of six weeks from today. On expiry of six weeks, however, it will be open to the respondents to approach the Court Receiver for giving back possession of the suit flat since possession of the suit flat was made over to the Court Receiver by the defendants. That liberty is granted to the respondents. Ordered accordingly. The parties may be provided with ordinary copy of this order duly authenticated by the Private Secretary of this Court. Appeal dismissed. -----