1. The appellant (original defendant no.1) challenged validity and legality of the judgment and order dated 28.8.2012 passed by Learned Judge, City Civil Court, Greater Mumbai, whereby the learned City Civil Judge had framed issue about proof of tenancy in respect of suit premises as also as to who inherited the tenancy rights amongst the heirs of original tenant Mathuraprasad Mittal Yadav. The court held that the instrument (agreement dated 26.10.2005) executed between defendant nos.1 and 2 is not binding upon the plaintiff.

2. The appellant while challenging the impugned judgment and order made a grievance that learned City Civil Judge did not take into consideration the facts and circumstances of the case, as also the real cause of action before the court, which raised question relating to tenancy of the suit premises, as also, as to status of legal heir as tenant under the Maharashtra Rent Control Act, 1999. It does appear that the trial court had framed an issue regarding jurisdiction of City Civil Court to entertain and try the suit. But it was answered in the affirmative and the learned Judge proceeded to deal with the merits of the averments in the plaint.

3. Learned counsel for the appellant submitted that when an issue relating to jurisdiction of the court is raised, learned Judge ought to have addressed himself to the averments made in the plaint and the question arising out of the pleading in the plaint. According to learned counsel for the appellant, City Civil Court, Mumbai, had no jurisdiction to entertain and try the suit, as the question arising from the pleadings or averments made in the plaint regarding tenancy of the suit premises or relating to the question as to who is tenant after death of original tenant were questions cognizable and triable exclusively by Small Cause Court, Mumbai, and not by City Civil Court.

4. My attention has been invited to the averments made in the plaint in S.C. Suit No.2849 of 2006. The plaintiff Shyamji Bhagirathi Yadav who is grandson of Mathuraprasad Yadav (original tenant of suit premises) in respect of suit premises described as land and structure in C.T.S.No.128, at Ghatkopar (West), Mumbai, admeasuring about 9920 sq. feet known as Ramnath Tiwari Tabela Compound, situated near Damodar Park, L.B.S. Road, Ghatkopar (west), Mumbai. According to the plaint, Mathuraprasad Yadav was tenant in respect of above suit premises and landlord was Ramnath Tiwari. Mathuraprasad died in the year 1976 at Village Ahopur in Uttar Pradesh, leaving behind legal heirs as mentioned in paragraph 4 of the plaint. The dispute raised in the plaint is about the relinquishment of the tenancy rights in respect of suit premises, with consequent mandatory injunction to restrain defendants from dispossessing the plaintiff or his family members. According to learned counsel for the appellant, the question raised by the plaintiff was relating to tenancy in respect of suit premises as the plaintiff averred in paragraph 12 and because of non-availability of other heirs of original tenant at Mumbai, the plaintiff did not array them as either co-plaintiff or defendant. In substance, therefore, the plaintiff averred that he is one of the cotenants in respect of suit premises and sought relief based upon right arising out of tenancy in respect of suit premises seeking declaration that agreement for relinquishing the tenancy right is illegal, null and void, and also sought cancellation thereof. The agreement dated 26.10.2005 was purportedly executed between defendants in the suit. Learned counsel for the appellant therefore contended that City Civil Judge could not have decided any such question relating to tenancy of suit premises which is governed under the Maharashtra Rent Control Act, 1999. The question in substance to be decided was as to who is tenant after death of original tenant Mathuraprasad Yadav.

5. My attention is invited to ruling in Vasant Pratap Pandit vs. Anant Trimbak Sabnis reported in