Dr.Ramchandra Vishnu Paranjpe vs Jugalkishor Gupta
2023 Latest Caselaw 11500 Bom

2023:BHC-AS:34883

                                                             29_sa_672_2017.odt

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                                       SECOND APPEAL NO.672 OF 2017
                                                    WITH
                                     CIVIL APPLICATION NO.1210 OF 2017
                                                     IN
                                       SECOND APPEAL NO.672 OF 2017

               Dr. Ramchandra Vishnu Paranjape                         ...Appellant
                                      Versus
               1. Jugalkishor Gupta
               2. Sharayu Jugalkishor Gupta                          ...Respondents
                                                 ...
               Mr. Nitin P. Deshpande for the Appellant.
               Mr. Sanjay Kshirsagar for the Respondents.


                                                CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED: 8th NOVEMBER, 2023.

P. C. :-

1. This is an appeal under Section 100 of the CPC filed by the

Appellant-Defendant challenging the judgment and order dated

27/03/2017 passed in Civil Appeal No.292 of 2007 whereby the First

Appellate Court dismissed the appeal and confirmed the judgment and

decree dated 28/02/2007 passed by the learned 2 nd Additional Judge,

Small Causes Court, Pune, in Special Civil Suit No.38 of 1990.

2. The Respondents were the Plaintiffs and the Appellant was

Megha 1/8

29_sa_672_2017.odt

the Defendant No.1 in the suit and shall be hereinafter referred to as

'the Plaintiffs' and 'Defendant No.1' respectively.

3. The dispute is in respect of a flat situated on the ground

floor of House No.200, Narayan Peth, Pune-30. The said flat shall be

hereinafter referred to as 'the suit premises'. The Appellant is the

Defendant No.1 and the Respondents are the Plaintiffs in the suit and

shall be hereinafter referred to as 'Defendant No.1' and 'Plaintiffs'

respectively.

4. The suit premises were owned by late Raghunath Keshav

Khadilkar, father of Mrs. Sharayu Jugalkishor Gupta, the Plaintiff

No.2. Raghunath Khadilkar had gifted the suit premises to Plaintiff

No.2 and her two sisters -Vijaya Ghaisas and Shailaja Pant, who are

arrayed as Defendant Nos.2 and 3 in the Suit. The sisters of Plaintiff

No.2 transferred their share in favour of Plaintiff No.2. The Plaintiffs

therefore were the absolute owners of the suit premises.

5. The mother of Plaintiff No.2 was a medical practitioner

and she was running her dispensary in the suit premises. It is stated

that father of the Plaintiff No.2 was a union minister hence both the

Megha 2/8

29_sa_672_2017.odt

parents had shifted to Delhi. The mother of Plaintiff No.2 therefore

entered into an agreement with Defendant No.1, who is also a doctor

by profession, to run the dispensary for a period of five years. Plaintiff

No.2 claimed that she was not aware of the said agreement. She

learnt about the same only when she was made a party in the previous

proceedings filed for fixation of standard rent. The Respondent No.2

claimed that her mother had no right to enter into leave and license

agreement in favour of the Appellant-Defendant No.1 and that the

agreement was null and void. The Plaintiffs claimed that they are the

owners of the suit premises and that they had requested the Defendant

No.1 to handover vacant possession of the suit premises. The

Defendant No.1 having failed to vacate the suit premises, the Plaintiffs

filed the suit for recovery of possession.

6. The Defendant No.1 claimed that he is the tenant in

respect of the suit premises. The Defendant No.1 also contended that

the civil court had no jurisdiction to try the suit and that the suit ought

to have been filed before the Small Causes Court, Pune.

7. The Trial Court framed the issues and upon analysing the

evidence adduced by the respective parties held that the Plaintiffs are

Megha 3/8

29_sa_672_2017.odt

the owners of the suit premises and further that the Defendant No.1 is

a trespasser. The Trial Court held that the Small Causes Court has no

jurisdiction to decide the issue whether a person is a trespasser. The

Trial Court therefore decreed the suit and directed the Defendant No.1

to handover vacant possession to the Plaintiffs within two months

from the date of the decree. The Defendant No.1 was further

directed to pay an amount of Rs.36,000/- towards compensation for

his use and occupation of the suit premises. Being aggrieved by the

said judgment and decree, the Defendant No.1 preferred an appeal

before the first Appellate Court. The Appellate Court has confirmed

the findings that the Plaintiffs are the owners of the suit premises and

that the Defendant No.1 is a trespasser and further that the Small

Causes Court had no jurisdiction to decide the issues involved in the

suit.

8. The only challenge raised in this appeal is to the findings

rendered on the issue of jurisdiction. Mr. Nitin Deshpande, learned

counsel for the Defendant No.1 states that the Civil Court had no

jurisdiction to order eviction when the relationship between the

parties is that of a landlord and tenant or licensor and a licencee.

Such jurisdiction vests with the Court of Small Causes. He submits

Megha 4/8

29_sa_672_2017.odt

that both the courts were clearly in error in answering the issue of

jurisdiction.

9. Per contra, Mr. Sanjay Kshirsagar, learned counsel for the

Plaintiffs submits that the Small Causes Court has no jurisdiction to

decide the issue of title. He has relied upon the decision of Ramji

Gupta and Anr. vs. Gopi Krishnan Agrawal (dead) and Ors., (2013) 9

SCC 438 and Budhu Mal vs. Mahabir Prasad and Ors. (1988) 4 SCC

194 .

10. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

11. As noted above, the Plaintiffs had filed a suit for recovery

of possession with specific averments that they are the owners of the

suit premises and the Defendants are the trespassers.

12. In Ramji Gupta (supra) the Hon'ble Apex Court has

observed as under:-

"16. In Nirmal Jeet Singh Hoon vs. Irtiza Hussai (2010) 14 SCC 564 this Court has held that the Small Cause Court has no right to adjudicate upon the title of the property,

Megha 5/8

29_sa_672_2017.odt

as Section 23 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "the 1887 Act") reads:

"23. Return of plaints in suits involving questions of title-

(1)Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title.

(2) When a court returns a plaint under sub-

section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure (14 of 1882) and make such order with respect to costs as it deems just, and the court shall, for the purposes of the Indian Limitation Act, 1877 (15 of 1877) be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction."

Thus it is evident from the above, that the Small Cause Court cannot adjudicate upon the issue of title. In the instant case, therefore, the trial court has rightly refused to go into such issue, a nd neither can any fault be found with

Megha 6/8

29_sa_672_2017.odt

the findings recorded by the courts below in this regard. Furthermore, as it is an admitted fact that Defendants 1 and 2 were tenants of the original plaintiffs, the question of title could not be adjudicated at the behest of the appellants under any circumstances."

13. It is well settled that the jurisdiction of a court has to be

determined only on the basis of the allegations contained in the plaint.

In the instant case, the Plaintiffs have filed a suit for possession

alleging that the Defendant No.1 was a trespasser. The Small Causes

Court, which is vested with jurisdiction to entertain and try suits or

proceedings between landlord and tenant would have no jurisdiction

either to decide the title or order eviction of a trespasser. It is also

pertinent to note that both the courts below have recorded categorical

findings that the Defendant No.1 is a trespasser. In the absence of

challenge to these findings, the findings on the issue of jurisdiction

cannot be disturbed.

14. Under the circumstances, the appeal does not involve

substantial question of law. Hence, the appeal is dismissed.

15. In view of dismissal of the appeal, the interim application

does not survive and hence stands disposed of.

Megha                                   7/8



                                            29_sa_672_2017.odt

16. Learned counsel for the Appellant-Defendant No.1 seeks

continuation of stay for a period of six weeks. He makes a statement

that the Defendant No.1 shall clear the arrears of Rs.6.59 lakhs within

a period of three months. Statement is accepted.

17. Interim relief granted earlier to continue for a further

period of six weeks.

                                    (SMT. ANUJA PRABHUDESSAI, J.)




Megha                                8/8