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(1) Whether the City Civil Court, Bombay has jurisdiction to entertain a suit for a declaration that a sub-tenancy was created in favour of the plaintiff by the defendant tenant before the commencement of the Bombay rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, and for an injunction restraining the defendant from interfering with his possession as a sub-tenant? and (2) Whether the City Civil Court, Bombay has jurisdiction to entertain a suit for a declaration that the plaintiff is a tenant or sub-tenant of the defendant and for an injunction restraining the defendant from proceeding with or from obtaining an order for eviction of the plaintiff in the application made by the defendant under section 41 of the Presidency Small Cause Courts Act or from executing the order for eviction obtained by him in such application?

"In our opinion it is only when a landlord or a tenant files a suit for possession as a landlord or a tenant and in his capacity as a landlord or a tenant and relying on his title as a the description mentioned in section 28 of the Act." With respect we agree with this observation. Where, therefore, a claim to possession is based on the plaintiff being a landlord or a tenant, the suit will be a suit of the description mentioned in section 28.

(12) The facts in Madhavprasad Kalkaprasad's case were that the plaintiff alleged that he was a sub-tenant of the defendant. The defendant had filed a suit in the Small Cause Court against one Patil alleging that Patil was his sub-tenant. An order was made by the Small Cause Court ordering Patil to vacate the premises. The defendant obtained a warrant of possession and the plaintiff offered obstruction. The defendant took out an obstructionist notice and the plaintiff was ordered to hand over possession to the defendant. the plaintiff thereupon filed a suit for a declaration that he was a tenant of the defendant and as such tenant entitled to remain in possession of the premises. During the pendency of the suit he was dispossessed. The plaintiff therefore amended the plaint and prayed that possession should be restored to him. It was held that section 28 did not apply to this suit and that the suit could be tried by the High Court. The judgment shows that the primary reason why the learned Judges came to this conclusion was that they regarded the suit as a suit substantially on title and not as a suit for possession. At p. 29 (of Bom LR ) : (at page 193 of AIR ) it is specifically stated that it was not a suit for possession. This case was distinguished by Chagla C.J. himself in Harswarup Khannamal v. Nandram . he has pointed out that that it was a suit under O. 21 R. 103 Civil Procedure Code under which a party not being a judgment-debtor may institute a suit to establish the right which he claims to the present possession of the property of which the possession is sought to be taken. In the opinion of the learned Judges, such a suit could only be filed in a civil Court and not in Special Court set up under section 28. We are inclined to take a different view on this point. It seems to us that if the plaintiff alleges a relationship of tenant and landlord between him and the defendant and if he seeks relief relating to the recovery of possession, then the suit must be filed in the Special Court under section 28.

(15) The next question to be considered is about the scope of section 29A. Assuming that a claim to a tenancy of premises is a question of title, what is the title which section 29A permits a party to establish in a competent Court other than the Special Court? Section 28 confers exclusive jurisdiction on the special Court in respect of three classes of matters specified therein. It also ousts the jurisdiction of any other Court to deal with these matters. It is not possible to believe that after specifically taking away the jurisdiction of all other Courts the Legislature could have intended that there should be a second round of litigation and that the same question should be agitated again in a suit under section 29A. It is a well settled rule of construction that different provisions of an Act must so far as possible be so read as to bring about harmony between them. It follows that no suit will lie under section 29A in respect of matters in regard to which jurisdiction vests only in the special Court under Section 28. It may of Course happen that for the purpose of deciding these matters the Court may decide incidentally certain questions of title. For instance, in a suit by a landlord, a tenant may contend that the plaintiff has sold the premises to him and that consequently he has no right to sue. If such a contention is raised, it will be necessary for the special Court to decide it for the purpose of determining whether any relief should be granted to the plaintiff. But as the question of ownership is not one of the questions which the special Court is called upon to decide, its decision on this question will not bar a suit under S. 29A. But no suit will lie under S. 29A in respect of a matter in regard to which exclusive jurisdiction is vested in the special Court under S. 28. This was so held in . In that case it was decided that sub-tenants, who had been found not to be lawful sub-tenants by the Special Court in a suit under section 28, could not maintain a suit under section 29A for a declaration that they were lawful sub-tenants and as such entitled to the possession of the premises. It was observed that the title contemplated by section 29A is a title de hors the Act, but that where the decision is on the very question which has been left to the special Court to decide, such a question cannot be reagitated under section 29A of the Act.

(20) The case in which the second question in this reference was directly decided is 61 Bom., LR 1223 : (AIR 1960 Bom . 338). It was held in that case that a suit brought to challenge the order of possession obtained by the defendant under S. 41 of the Small Cause Courts Act did not fall within the ambit of section 28 of the Rent Act. The plaintiff in that suit had specifically claimed the protection of the Rent Act. The claim therefore arose out of the provisions of the Act and the suit was consequently triable exclusively by the Special Court. Abdul Kayum's case 61 Bom. LR 1223 : (AIR 1960 Bom. 338) was, therefore, in our opinion not correctly decided. We agree with the view taken in 65 Bom. L.R. 464 that after a decree for eviction has been passed against the plaintiff by the Special Court under section 28 on the basis that he was a tenant of the defendant, the plaintiff cannot file a suit under section 29A for a declaration that he was not a tenant of the defendant and that he is entitled to remain in possession of the property. We also agree with the view taken in . that a suit for a declaration that the plaintiff was a sub-tenant and for an injunction restraining the defendant from executing the order obtained by him under section 41 of the Small Cause Courts Act, falls within the jurisdiction of the Special Court under section 28 of the Rent Act and that the Bombay City Civil Court has no jurisdiction to entertain such a suit.