JUDGMENT 1. The three matters arising between real brothers are to be decided together. 2. Insofar as second appeal No. 89 of 2000 is concerned, respondent No. 1 Vishweshwar had filed regular civil suit No. 1578 of 1984 for permanent injunction seeking restraining orders against Maharashtra State Electricity Board from providing electric connection to present appellant Anyaji who according to plaintiff Vishweshwar (respondent No. 1 in the second appeal) was in illegal or unauthorised occupation of the suit premises. The suit was decreed on 04/12/1996 and regular civil appeal filed by present appellant was dismissed on 28/02/2000. Thereafter, this second appeal has been filed. During hearing it has been pointed out that now there is no provision which requires a person in occupation to get no objection of the owner of premises. It was also pointed out that appellant Anyaji has already secured the electric connection. In this circumstance it is apparent that grievance made by Mr. Anyaji against the impugned judgments and decrees does not survive and in fact the claim of present respondent No. 1 Vishweshwar itself is rendered infructuous. In view of this development, this second appeal needs to be disposed of as infructuous. By way of abundant precaution, it is clarified that because of judgment and decrees impugned in this second appeal, so long as appellant Anyaji continued in possession of the premises in dispute, his electric supply cannot be disconnected. 1. Present appellant Anyaji filed a suit for partition and separate possession against respondent Vishweshwar and his sister Smt. Yamini Bhaurao Nikhade. The suit came to be opposed by Vishweshwar by pointing out that property of which partition was being sought was his self acquired property except one ancestral house. The trial Court by common judgment dated 04/12/1996 dismissed his suit observing that Anyaji has partly proved his case, and therefore, he is entitled to ½ share in house property at Lodhikheda (M.P.). It also decreed that Vishweshwar also had ½ share in that house. This judgment and decree of the trial Court was challenged by Anyaji by filing regular civil appeal and that appeal No. 86 of 1997 was dismissed again by common judgment delivered on 28/02/2000. Thereafter, this second appeal has been filed and it has been admitted on 24/3/2004 by formulating following question : .Whether the burden to prove the subsistence of the joint family lies on the person who claims partition?. Thereafter, this second appeal has been filed and it has been admitted on 24/3/2004 by formulating following question : .Whether the burden to prove the subsistence of the joint family lies on the person who claims partition?. 2. I have heard Shri Mohta, Advocate for appellant Anyaji and Shri Khapre, Advocate for respondent Vishweshwar. Advocate Mohta contends that as one house property at Lodhikheda has been held to be ancestral property and its status as such has been admitted by Vishweshwar by not challenging the judgment and decree delivered by the trial Court, burden shifted to respondent Vishweshwar to show that other property was not ancestral property. He contends that it was essential to establish severance of status between two brothers in this respect. 3. Advocate Khapre in reply has contended that it was always specific plea of present respondent that except the house property at Lodhikheda, there was no other ancestral or separate property and whatever was earned was self acquired property of Vishweshwar. Similarly, Anyaji also had his own self acquired property. He, therefore, argues that there was no question of severance of status as such because existence of joint family, availability of nucleus and its use to acquire in property by Vishweshwar has not come on record at all. 4. I find that after both parties, upon clear pleadings and with clear understanding, led evidence on the question of grant of relief of partition to Anyaji, the issue of burden as such was not very relevant. Similarly, perusal of concurrent judgments reveal that there were no pleadings to show that nucleus was existing and because of that nucleus, Vishweshwar acquired any property. In the absence of such plea it is also clear that there cannot be and in fact, there is no evidence to show such acquisition of joint family property by Vishweshwar. The Courts below have accordingly appreciated the controversy, and therefore, the findings concurrently reached cannot be labelled either as erroneous or perverse. The second appeal is, therefore, dismissed. 1. This revision application under Section 25 of the Provincial Small Causes Courts Act challenges common judgment and decree delivered by 5th Additional District Judge, Nagpur on 28/02/2000 in regular civil appeal No. 29 of 1997 and also 106 of 1997. The second appeal is, therefore, dismissed. 1. This revision application under Section 25 of the Provincial Small Causes Courts Act challenges common judgment and decree delivered by 5th Additional District Judge, Nagpur on 28/02/2000 in regular civil appeal No. 29 of 1997 and also 106 of 1997. These two appeals arise out of a suit registered as regular civil suit No. 2553 of 1987 (old No. 305 of 1981) filed by respondent-Vishweshwar against his brother Anyaji seeking decree of ejectment and possession from the suit house. There is dispute between the parties about description or identity of suit house. The proceedings were initially filed before Small Causes Court as suit No. 305 of 1981 but then later on transferred on regular side after Anyaji filed his written statement claiming title in himself. The suit came to be decreed by the trial Court by common judgment delivered on 04/12/1996. By said judgment 6th Joint Civil Judge, Senior Division directed Anyaji to handover vacant possession of suit property, i. e. plot No. 41 of Kailash Nagar to Vishweshwar within the period of one month from that date. As Vishweshwar did not get the relief of recovery of arrears of rent, he also filed appeal against this judgment and decree which came to be registered as regular civil appeal No. 106 of 1997. Appellant Anyaji challenged the decree passed against him in regular civil appeal No. 29 of 1997. On 28/02/2000 regular civil appeal No. 106 of 1997 filed by Vishweshwar came to be decreed and Anyaji was directed to pay amount of Rs. 1,400/- to Vishweshwar as arrears of rent. Regular civil appeal No. 29 of 1997 filed by Anyaji was dismissed. 2. Advocate Mohta for revision/applicant-Anyaji points out that in plaint as filed, the portion in occupation of Anyaji as a tenant on monthly rent of Rs. 100/-is mentioned to be one block of northern side of house on plot No. 41, Kailash Nagar. He points out that in notice dated 30/12/1980 issued under Section 106 of the Transfer of Property Act, the tenanted portion has been mentioned as one of the blocks on plot No. 41. He points out that in these circumstances the trial Court has directed Anyaji to handover vacant possession of suit property, i.e. plot No. 41 of Kailash Nagar to respondent Vishweshwar. He points out that in these circumstances the trial Court has directed Anyaji to handover vacant possession of suit property, i.e. plot No. 41 of Kailash Nagar to respondent Vishweshwar. He states that thus, there is no decree calling upon the revision applicant to handover possession of any particular block on plot No. 41 and plot No. 41 is not the subject matter of the suit as filed. He points out that southern block on plot No. 41 is also in possession of Anyaji and Vishweshwar has filed another suit against Anyaji for recovery of its possession. According to him, therefore, the judgment and decree passed by the trial Court as upheld by lower appellate Court is vitiated, and therefore, deserves to be quashed and set aside. 3. In alternative, Advocate Mohta points out that there was no permission obtained from the Rent Controller before issuing notice of termination of tenancy and in any case there was no notice of forfeiture under Section 111 (g) of the Transfer of Property Act after the alleged denial of title of landlord by Anyaji. He, therefore, states that the suit as filed without obtaining permission from the Rent Controller is not maintainable and in any case the decree as obtained therein, cannot be executed. He points out that initially when the suit was filed, provisions of Rent Control Order were applicable only to houses constructed on sites lying vacant on or before 01/01/1951. He points out that the Division Bench of this Court in its judgment reported at 1985 Mh. L. J. - 548 - Prabhakar Rokde vs. State of Maharashtra held the date as 01/01/1951 to be obsolete and thus the classification between pre 1951 structure and post 1951 structure was held to be bad. Hence, after 1985 permission of Rent Controller became necessary, and therefore, in 1987 when suit was transferred on regular side, such transferee Court could not have taken its cognizance in absence of permission of the Rent Controller. He further points out that on account of these defects, the judgment and decrees are liable to be quashed and set aside. Lastly, he argues that the lower appellate Court has granted decree for recovery of arrears of rent of Rs. 1,400/- to Vishweshwar but then there is no evidence of any third person to show that any such amount was due and payable by Anyaji to Vishweshwar. 4. Lastly, he argues that the lower appellate Court has granted decree for recovery of arrears of rent of Rs. 1,400/- to Vishweshwar but then there is no evidence of any third person to show that any such amount was due and payable by Anyaji to Vishweshwar. 4. Advocate Khapre for respondent-Vishweshwar points out that both the Courts have held that as there was denial of title, permission of the Rent Controller was not required and he points out the finding is supported by placing reliance upon judgment of this Court reported at 1990 Mh. L. J. -18 . Ashwinikumar Govardhandas Gandhi vs. Gangadhar Dattatraya Gadgil. He further states that because of this denial, only the forfeiture was incurred and he points out the circumstances in which the tenancy came to be terminated. According to him vide notice at Exh. 59 dated 08/12/1980 appellant Anyaji claimed partition of house constructed on plot No. 41 by alleging it to be a joint family property. This notice was replied to by Vishweshwar through his Advocate on 30/12/1980 vide Exh. 60. In Exh. 60 the said contention of Anyaji was specifically denied and it was brought to his notice that he had denied the title of Vishweshwar and all his allegations were false and ill motivated. It was also pointed out to him that he has no concern with the property of Vishweshwar and thereafter Vishweshwar communicated his decision not to continue Anyaji as tenant. He, therefore, states that the said notice at Exh. 60 is in fact a notice under Section 111 (g) also and the contention of Anyaji that there was no such notice is misconceived. He further points out that notice of denial of title was very much in issue before both the Courts and both the Courts have found that because of such denial by present appellant, permission of the Rent Controller was necessary. He states that thus, the aspect of denial of title was used by present appellant only to contend that permission of Rent Controller was not necessary and it was never his case that there was no separate notice for forfeiture. He argued thus such issue cannot be allowed to be raised for the first time in revision when it was not raised earlier before two lower Courts. He relies upon judgment reported at AIR 1989 SC 2187 . He argued thus such issue cannot be allowed to be raised for the first time in revision when it was not raised earlier before two lower Courts. He relies upon judgment reported at AIR 1989 SC 2187 . Majati Subbarao vs. P.V.K. Krishna Rao to point out that even if such denial of title takes place during pendency of suit, law permits the plaintiff-landlord to forfeit tenancy and to prosecute very same suit and it is not necessary for him to institute another suit for recovery of possession. He points out that in paragraph 6 of the plaint these facts have been amended subsequently and it has been pointed out that plaintiff was seeking eviction of defendant on the ground of disclaimer of plaintiff's title and because of defendant claiming the title. He, therefore, states that said objection about Section 111(g), notice is misconceived. 5. About permission of the Rent Controller, Advocate Khapre relied upon the judgment of this Court in case of Ashwinikumar Govardhandas Gandhi vs. Gangadhar Dattatraya Gadgil (supra) and states that issue already stands concluded and both the Courts have accepted said judgment and applied it and hence no interference is warranted in revision. He points out that plaint specifically mentions northern block on plot No. 41 and suit notice also mentions only one of the blocks on plot No. 41. He therefore urges that judgment and decree of trial Court needs to be looked into in the background of pleadings and it was not case of anyone that entire structure on plot No. 41 is in possession of appellant Anyaji. He further states that southern block is in possession of another tenant and Vishweshwar has filed proceedings against that tenant. He further urges that decree for arrears of rent as granted by lower appellate Court is supported by evidence of Vishweshwar and there is no perversity in said grant. He places reliance upon judgment reported in AIR 1967 SC page 155 . Gopalakrishna Pillai & others vs. Meenakshi Ayal & others to state that though Vishweshwar (landlord) has not challenged the judgment and decree of lower appellate Court further, still as this Court has during pendency of present revision protected the possession of appellant Anyaji while passing final orders, this Court is competent to mould relief and grant enquiry under Order XX Rule 12 C.P.C. in favour of respondent No. 1 Vishweshwar. 6. 6. In his brief reply Advocate Shri Mohta points out that in Gopalkrishna Pillai and others vs. Meenakshi Ayal and others (supra), there was no prayer for grant of mesne profit at all, and the Hon'ble Apex Court has considered the issue in that background. He points out that in present case there was a prayer which was turned down or not granted by the trial court, and that grievance made in the Regular Civil Appeal by the respondent no.1 was only about denial of decree for arrears of rent and cost. The failure of the trial court to order enquiry into future mesne profits was never questioned in Regular Civil Appeal. He further states that the judgment and decree of the Lower Appellate Court is not being questioned before this court by filing any proceeding by the respondent Vishweshwar. He further points out that the other judgment of Hon'ble Apex Court i.e. reported in the matter of Majati Subbarao vs. P.V.K. Krishna Rao (supra), again has no application, because the Hon'ble Apex Court there was not required to consider the provisions of Section 111[g] and issue of giving notice thereunder. He states that the limited issue which was raised before the Hon'ble Apex Court was of effect of denial of landlord's title in pending suit and that has been appreciated in the said judgment. According to him, therefore, the said judgment has no relevance in the present facts. 7. Plaint as also notice mention that the present applicant is in possession of one block only on monthly rent of Rs. 100/- and said block is on plot no.41. Neither the plaint nor the notice allege that he is in possession of entire plot no.41 or of both the blocks on said plot no.41. The words used in notice are .one of the blocks. while the words used in the plaint are .one of the blocks on northern side.. Thus there is no inconsistency between the notice and plaint. In written statement again this position has not been disputed by the present applicant. The trial court however, while passing the decree has mentioned that the present appellant has to hand over vacant possession of suit property and then it has put words :- .i.e. plot no.41 of Kailash Nagar.. Thus it has mentioned the suit property as plot no.41. In written statement again this position has not been disputed by the present applicant. The trial court however, while passing the decree has mentioned that the present appellant has to hand over vacant possession of suit property and then it has put words :- .i.e. plot no.41 of Kailash Nagar.. Thus it has mentioned the suit property as plot no.41. In so far as the description of the suit property is concerned, the parties have clearly understood what constituted the suit property. It was never the case of Anyaji [applicant] in this revision that plot no.41 constituted suit property or that northern block as described in plaint did not constitute suit property. I, therefore, find that the arguments being advanced before this Court are only because of inadvertent error committed by the trial court in operative part of its order. The same does not prejudice the revision applicant in any way and, I do not find any substance in it. 8. The institution of suit is after notice dated 30.12.1980 and in fact said notice at Exh.60 is reply to communication dated 8.12.1980, sent by the present revision applicant to Vishweshwar demanding partition. After this Exh.60 was served upon the applicant on 15.1.1981, he has sent reply thereto through his Advocate and the said reply is at Exh.57. The stand of Vishweshwar in his notice that suit property was his self-acquired property and contention of revision applicant about having undivided ½ share in it being false, have been specifically denied and again correctness of his story in his earlier notice dated 8.12.1980 has been affirmed by the present applicant. The suit was thereafter filed and all these facts are mentioned in the plaint. Written Statement was then filed before the Small Causes Court only by the present applicant and in his specific pleadings, he again pleaded that he was joint owner along with his brother Vishweshwar. It is thereafter the suit came to be transferred and registered as Regular Civil Suit No. 3553/1987. The transfer of suit as Regular Civil Suit was never questioned by the present revision applicant. The learned counsel for the revision applicant has tried to urge that the suit though transferred as regular civil suit still remained a suit between landlord and tenant and it was not a suit of eviction of applicant on the basis of title. The transfer of suit as Regular Civil Suit was never questioned by the present revision applicant. The learned counsel for the revision applicant has tried to urge that the suit though transferred as regular civil suit still remained a suit between landlord and tenant and it was not a suit of eviction of applicant on the basis of title. However, it is to be noted that in the said regular civil suit the trial court has not framed any issue separately. The issues are framed only in Special Civil Suit Nos. 438/1985 and 1578/1984. The Trial Court found that the present respondent proved that he was the exclusive owner of the suit house and he further proved that the present applicant was in forcible occupation of the suit premises. It is to be noted that the evidence in all the three suits have been jointly recorded in Regular Civil Suit No.438/1985. It is therefore, obvious that suit No. 3553/1987 was tried as title suit. It appears that as the objection raised by the learned Advocate Shri Mohta about absence of notice under Section 111(g) was not raised before the trial court, the question of proper valuation of that suit never arose for consideration. The fact remains that the suit has been adjudicated upon by the court of Senior Division, which has unlimited monetary jurisdiction and hence whatever may be the valuation the suit has been tried by the court of competent jurisdiction. During arguments Advocate Shri Khapre, has stated that had such objection been raised at earliest, proper court fee upon the suit might have been paid before the trial court. It is obvious that for not valuing the suit properly or for not paying court fee only, the suit cannot be dismissed. If this objection was raised at initial stage the trial court itself could have given liberty to the present respondent to cure the defect. 9. The objection about notice under section 111 (g) of the Transfer of Property Act also according to me does not survive in the present facts. The present revision applicant was aware that his brother [present respondent] was treating him as a tenant, but he did not accept landlord and tenant relationship and claimed title. 9. The objection about notice under section 111 (g) of the Transfer of Property Act also according to me does not survive in the present facts. The present revision applicant was aware that his brother [present respondent] was treating him as a tenant, but he did not accept landlord and tenant relationship and claimed title. In fact he issued Exh.59 which is first communication in this respect, and his claim of joint ownership therein induced present respondent to issue notice at Exh.60 terminating his tenancy and calling upon him to vacate. Thereafter again the present revision applicant has issued another notice Exh.67 and reiterated his stand. Even in written statement filed before the Small Causes Court same stand was taken. The transfer of suit to regular side was not challenged and though the plea of protection of rent control order was taken, the plea of notice under section 111 (g) was not raised. In such circumstances, even if it is presumed that any contractual relationship between the parties is not proved, still it is apparent that a party on the basis of its title is entitled to seek eviction of other who is claiming adversely. The law has taken correct course in the present facts. The Hon'ble Apex Court in Majati Subbarao vs. P.V.K. Krishna Rao (supra), also states that the ground of disclaimer of title can be used by the landlord and the Hon'ble Apex Court has in paragraph no.6 there found that failure of landlord to apply for amendment of his plaint and incorporate the ground of denial of title therein, was not sufficient to vitiate the decree of eviction passed in favour of such landlord. In paragraph no.6 the Hon'ble Apex Court has found that before Rent Controller the issue about denial of title was specifically framed and parties went on trial with said issue. In present case, it is .denial. only which gave cause of action and litigation started thereafter. The issue of permission of rent controller was specifically raised but the ground of absence of notice under section 111(g) was never raised. Said objection is sought to be raised in this revision before me for the first time. In present case, it is .denial. only which gave cause of action and litigation started thereafter. The issue of permission of rent controller was specifically raised but the ground of absence of notice under section 111(g) was never raised. Said objection is sought to be raised in this revision before me for the first time. Even if it is to be presumed that the ground has got any substance, I feel that such a ground ought to have been taken immediately before the trial court so as to enable the landlord to take appropriate steps immediately. Raising of such ground after 27/28 years of litigation cannot be countenanced. Not giving notice under Section 111(g) in present facts can not be treated as fatal defect. I also find that by his conduct the revision applicant can be said to have waived it. 10. The contention of Advocate Shri Khapre, that though the courts below have not ordered any enquiry into future mesne profits, as this court has while admitting the revision, protected the possession of the revision applicant, it has to order such enquiry, cannot be accepted. It was open to the respondent to move this court for obtaining appropriate direction or for imposing appropriate condition when interim order was passed by this court. Reliance upon the judgment in the case of Gopalkrishna Pillai and others .vrs. Meenakshi Ayal and others (supra), is misconceived because in facts before the Hon'ble Apex Court there was no prayer made for grant of mesne profit and the issue was therefore open for consideration. In present facts, the plaint as filed contained a prayer vide clause (iii) for ordering such enquiry under Order 20 Rule 12 of C.P.C. The Trial Court did not consider that prayer and there fore did not grant it. The trial court also did not grant decree for recovery of arrears of rent to respondent. Respondent then filed Regular Civil Appeal and 5th Additional District Judge, Nagpur on 28.2.2000 granted only decree of arrears of rent. In said appeal no grievance about non grant of Order 20 Rule 12 enquiry for mesne profit was made. Thus the prayer specifically made by the landlord stood rejected as far as the present revision applicant is concerned. In such circumstances, for the first time in revision it is not possible for this court to grant a relief which has already been rejected. 11. Thus the prayer specifically made by the landlord stood rejected as far as the present revision applicant is concerned. In such circumstances, for the first time in revision it is not possible for this court to grant a relief which has already been rejected. 11. In the circumstances, I do not find any merit in the Civil Revision Application, the same is therefore, dismissed. No costs. However, the judgment and decree obtained by the respondent for eviction of revision applicant shall not be executed till he pays court fees on valuation of northern side block of plot no.41 which is the suit property in Regular Civil Suit No. 2553/1987. 12. At this stage, Advocate Shri Mohta, makes a request for continuing the interim order protecting possession of the petitioner for further period of 8 weeks, so as to enable him to approach the Supreme court in the matter. Advocate Shri Khapre, for respondents states that he has no objection for grant of reasonable time. In the circumstances, interim order granted by this court in the present Revision Application is continued till 10.11.2008 and shall cease to operate automatically thereafter.