A suit seeking declaration of tenancy rights without a claim for possession is barred under Section 144(2) of the Code of Civil Procedure, as it indirectly seeks restitution already denied.

JUDGMENT :

(Sandeep V. Marne, J.)

1) Revisionary jurisdiction of this Court is invoked for setting up a challenge to the judgment and order dated 19 April 2024 passed by the Appellate Bench of the Small Causes Court, by which R. Appeal No. 316/2017 filed by the original Plaintiffs-Respondent Nos.1 and 2 has been allowed and order dated 22 October 2016 passed by the Small Causes Court has been set aside. By allowing the Appeal, the Appellate Bench has rejected application at Exhibit-38 filed by Revision Applicant-Defendant No.6 for rejection of plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 (the Code). The Small Causes Court had allowed the application at Exhibit-38 filed by the Revision Applicant-Defendant No.6 and had rejected the Plaint under the provisions of Order 7 Rule 11 of the Code by order dated 22 October 2016. The Appellate Bench has reversed the decision of the Small Causes Court and has restored R.A.D. Suit No.227/2012. The Revision Applicant-Defendant No.6 is aggrieved by the order of the Appellate Bench of the Small Causes Court and has accordingly filed the present Revision Application.

2) The case involves chequered history. By registered Indenture of Lease dated 15 June 1927, the then trustees of the City of Bombay granted lease in respect of the plot of land admeasuring 6981 sq. yards situated at 40, Naigaon Estate Scheme, Naigaon, Dadar in favour of one Goswami Shri Vallabhlalji Dwarkeshwarlalji Maharaj (Goswami Maharaj-Original lessee) for a period of 999 years commencing from 30 November 1922, who constructed three buildings of ground plus first floor thereon leaving open 3975 sq.yds of open plot of land. By Registered Indenture of sub-lease dated 13 May 1967, the original Lessee-Goswami Maharaj granted sublease of the property, with the consent of the original lessors, to one Brijmohan Kanodia (original sub-lessee) which comprised of open land as well as constructed buildings for a period 98 years commencing from 1 April 1967. On 13 May 1967, original Lessee-Goswami Maharaj issued consent letter in favour of Brijmohan Kanodia to grant further sub-lease/under-lease in favour of Plaintiff-M/s. Chudiwala Company, partnership firm with Tolaram Chudiwala and Shantilal N. Jain as its partners. Plaintiff constructed building named Venu Apartments Co- operative Housing Society Limited comprising of ground plus seven floor and sold tenements to individual flat purchasers on ownership basis.

3) Original lessee-Goswami Maharaj filed R.A.E. & R. Suit No. 772/6145 of 1968 against the original sub-lessee-Brijmohan Kanodia and partners of Plaintiff-M/s. Chudiwala Company for recovery of possession of the leased property. The suit was decreed on 12 August 1976 directing the Defendants therein to handover possession of the property alongwith structures standing thereon to original lessee- Goswami Maharaj. Plaintiff as well as sub-lessee-Brijmohan Kanodia filed Appeal No.255/1977 before the Appellate Bench of the Small Causes Court challenging the decree dated 12 August 1976. During pendency of the appeal, Plaintiff and sub-lessee-Brijmohan Kanodia took out an application for stay of the decree and by order dated 4 October 1977. The Appellate Bench granted stay subject to deposit of rent at the rate of Rs.6021/- per month. The order dated 4 October 1977 was challenged before this Court by filing Special Civil Application No. 2712 of 1977, which was dismissed on 19 April 1978. Plaintiff and sub-lessee-Brijmohan Kanodia filed Special Leave Petition (Civil) No. 2778/1978 before the Supreme Court which granted stay to the execution of the decree on the condition of deposit of Rs. 3,88,356/- being the amount of arrears of rent calculated at the rate of Rs.6,021/- per month upto 30 September 1978 and to continue to deposit the said compensation. Plaintiff did not comply with the order of the Supreme Court and therefore heir of Goswami Maharaj (Defendant No.1-Harish Vallabh Goswami) took out execution proceedin