Bombay High Court
Shri Mahendrakumar Chunilal Tailor vs Smt. Parvatiben Rathod on 2 May, 2025
2025:BHC-AS:20013
FA-1056-1997.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1056 OF 1997.
Mahendra Kumar Chunilal Tailor ]
of Bombay, Indian Inhabitant residing at ]
Room No. 22, Purshottam Dayabhai Chawl, ]
Nanabhai Laxman Cross Road, Somwar Bazar, ]
Chincholi, Malad (W), ]
Mumbai - 400 062. ] ... Appellant.
Versus
1. Smt. Parvatiben Rathod, since deceased ]
through his legal heirs:- ]
a) Nirmala Mehta. ]
b) Lata Khan nee Rathod. ]
]
At- Room No. 22, Purushottam Dayabhai
]
Chawl, Nanabhai Laxman Cross Road,
]
Somwar Bazar, Chincholi, Malad (W)
]
Mumbai 400062.
] ...Respondent.
------------
Mr. V. Y. Sanglikar, Ms. Payal Chheda for Appellant.
Mr. Saeed Akhtar for Respondent.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : February 12, 2025.
Pronounced on : May 2, 2025.
JUDGMENT :
1. The First Appeal impugns the Judgment dated 28/29 th July, 1997
passed by the City Civil Court at Mumbai in LC Suit No. 5929 of 1987
decreeing the suit declaring the Defendant as trespasser and ordering
him to restore possession of the suit premises to the Plaintiff. For sake
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of convenience parties are referred to by their status before the Trial
Court.
2. L.C.Suit No. 5929 of 1987 was instituted seeking declaration that
the Defendant is trespasser and has no right, title and interest in
respect of portion delineated by orange boundary in the sketch
annexed to the plaint and for recovery of vacant and peaceful
possession of the suit premises. The suit premises is portion of Room
No 22 situated at Purshottam Dayabhai Chawl, Nanabhai Laxman Cross
Road, Malad, Mumbai.
3. The Plaintiff came with a case of being a tenant of Room No 22
which tenancy was subsequently converted into ownership. In or about
about 1978 the Defendant, who was the neighbour's son, approached
the Plaintiff for permission to sleep at night in the Plaintiff's room,
which was allowed by the Plaintiff, without any monetary
compensation. In order to give privacy to the Defendant and his wife
at night while sleeping, she allowed the Defendant to put up a
temporary and ordinary plywood partition up to the height of 5 ft. In or
about 1985, the Defendant put up a false claim in respect of the
portion, where the Defendant used to sleep, by filing RAD Suit No.
1797 of 1985 claiming to be tenant of the Plaintiff. In the said suit, the
Injunction Notice No.2679 of 1985 filed was discharged by order dated
24th June, 1987. Thereafter the Defendant filed Suit No. 5226 of 1986
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in the City Civil Court seeking protection against dispossession in which
interim relief was refused.
4. On 30th July, 1987, as the Defendant brought some construction
material near Defendant's father room, N.C. Complaint No. 7483 was
lodged by Plaintiff. On 3 rd August, 1987, the Defendant attempted to
raise height of the walls upto the ceiling which was prevented by the
Plaintiff and she again lodged complaint bearing 7627 of 1987.
However the police failed to take action and on 3 rd August, 1987, the
Defendant constructed walls on two sides of the front portion,
constructed an entry on one side of Plaintiff's room and brought his
household articles in the suit premises, thereby dispossessing the
Plaintiff from the suit premises. Hence the suit came to be filed on 13 th
August, 1987.
5. Vide order dated 14th August, 1987, Court Commissioner was
appointed who visited the suit premises on 14 th August, 1987 at 8.15
pm and submitted his report.
6. As no written statement was filed, the suit proceeded without
written statement. The Plaintiff examined herself and was cross
examined by Defendant in person. The suit was decreed by judgment
dated 24th/26th December, 1996, which was challenged before this
Court and was remanded with permission to Defendant to file written
statement.
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7. Upon remand, the Defendant by his written statement dated
December 1996, objected to the jurisdiction of the Civil Court pleading
existence of landlord tenant relationship. The case pleaded was that
in 1978-1979, the Defendant approached the Plaintiff and she gave
portion of Room No 22 admeasuring 10'x 10' which was independent
unit on monthly tenancy of Rs.18/-. By handwritten portion, it is
pleaded that sum of Rs.2,000/ was paid as deposit. Both portions had
independent entrance and separate entity and the previous tenant of
suit room was one Tataria Hirji Kunvarji. Since 1983, the Plaintiff
stopped accepting rent which led to filing of RAD suit in Small Causes
Court against Plaintiff and the superior landlord and civil suit for
injunction.
8. The written statement came to be amended in July, 1997. By way
of amendment, it was pleaded that the jurisdiction of civil court is
barred in dispute between licensor-licensee and the suit is for recovery
of possession of licensed premises. The amendment further pleaded
that previously one Jagannath Panchal was monthly tenant of the suit
premises and in the year 1975, Jagannath Panchal inducted one Hirji
Kunverji Tataria in the suit premises and the plaintiff in other part of
the portion of room no. 22. Jagannath Panchal left the city and Hirji
Kunverji Tataria also left the suit premises and inducted Defendant in
the suit premises in the year 1978 directing the Defendant to pay rent
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of Rs. 18/- to the Plaintiff. The Plaintiff, without consent of Jagannath
Panchal, got the rent bill transferred in her name and as Hirji Kunverji
Tataria had requested the Defendant to pay the rent of Rs. 18/- to the
Plaintiff the Declaratory Suit was filed against the Plaintiff for
declaration in tenancy.
9. The Plaintiff deposition, in earlier round of proceedings was that
she is residing in Room No.22 and at the time of filing of suit, the rent
was Rs.18/- p.m. and had produced the rent receipts-Exhibit P-4. She
has deposed that the tenanted room no.22 was converted into
ownership basis in her name in the year 1989 and produced share
certificate- Exhibit P-5 and electricity bills-Exhibit P-6. She has deposed
that she was acquainted with the Defendant being neighbors and in
the year 1978, the Defendant's father approached her for permission
for Defendant to sleep in the premises during night hours, which she
permitted without any monetary consideration. She has deposed that
she permitted cardboard partition to be put up for privacy, which
partition was not upto the roof. She further deposed about the RAD
suit and civil suit filed by Defendant. She deposed that on 30 th July,
1987, the Defendant brought material for converting the partition into
permanent partition for which complaint was filed and on 3 rd August,
1987, the Defendant took forcible possession of the suit premises for
which suit is filed.
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10. Prior to remand, the cross-examination was conducted by the
Defendant-in-person. The case put up in the cross examination was
that Plaintiff was treating Defendant as her thread brother and that
one painter was residing in the room where at present partition was
prepared. It was further put to the Plaintiff that after the painter left
the suit premises, the Plaintiff allowed the Defendant's father to
occupy disputed part of the suit room and allowed the Defendant to
carry out diamond factory in the suit premises.
11. In view of the amended written statement, further evidence of
Plaintiff was recorded. She deposed that she was working with one
Purshottam Dayabhai from whom she took the suit premises which was
single room tenement admeasuring 10ft x 20ft having one door and
the suit premises was in her exclusive possession. She has deposed
that she does not know Jagannath Panchal and Heerji Tataria.
12. In cross-examination, she has stated that she came to reside in
the suit premises in or around October-1978 along with her two minor
daughters and the suit premises was numbered Room No 22 and not
Room No.12. She has deposed that rent receipts were issued in
respect of Room No. 22 from 1979 as in 1978, she was not paying rent
and started paying rent in 1979. She has stated that the partition is
wall to wall partition open from top and there is only one door for both
of them for ingress and egress. She has stated that there was no
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writing executed by her allowing Defendant to use portion of her
room. She has admitted that she has not revoked the permission given
by her to the Defendant by writing any letter or issuing notice. She has
admitted that the Defendant's wife and children are all residing in the
suit premises since 1978-79. She has denied that she had accepted any
rent or deposit from Defendant since beginning. The case put to her
was that the Defendant was paying rent upto October, 1983, which was
denied by her.
13. The Defendant examined himself and deposed that the Plaintiff
had come to reside in Room No 22 which was adjacent to his room and
admeasured 10 ft x 8 ft, in the year 1975, and that his other neighbor
was Heerji Kunverji Tataria and the doors of ingress and egress of
Plaintiff and Hirji Kunverji Tataria were separate and the room was
partitioned. Prior thereto, one Jagannath Panchal was residing as
tenant and that one Purshottam Dayabhai was owner of the Chawl. He
has further deposed that he took the suit premises from Heerji
Kunverji Tataria in the year 1978 with an agreement that he will pay
Rs.2,000/- and go on paying monthly rent of Rs.18/- to Plaintiff, who
will pay the same to Jagannath Panchal, who will turn, will pay to the
landlord and this arrangement was arrived at in presence of Plaintiff.
He has deposed that when took the suit premises there was full
partition and three pucca walls with one window to his premises and
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two separate doors for both the rooms. He has deposed that he has
paid rent to the Plaintiff as per the agreement however no rent receipt
was issued and as the rent was not accepted from September-1983, the
same was sent by money order.
14. To support his case of possession, he has produced ration card of
the year 1980, electricity bills of 6 th July, 1984 and 4th January, 1996,
allotment of gas connection in 5th March, 1985 in the name of his wife.
He has deposed that Heerji Kunvarji Tataria was residing in the suit
premises and had voted,and, in support produced extract of electoral
roll for 20th December, 1972 to 19th December, 1977 reflecting Hirji
Kunverji Tataria's name-Exhibbit "H", extract of electoral roll of 4 th
January, 1985 to 9th September, 1990 reflecting his name, his wife's
name and Plaintiff's name -Exhibit "G". He has deposed that the suit
premises was earlier numbered as room no. 12. He has deposed that
the rent receipt of the suit premises was transferred in Plaintiff's name
in October, 1979 from name of Jagannath Panchal. Upon a query by
the Trial Court, he has deposed that BMC did not grant permission to
repair the suit premises and thereafter the work of plastering the walls
of suit premises was carried out. He has deposed that the partition of
the plywood is in the same condition. He has further deposed that
prior to obtaining electricity in the suit premises he has taken
electricity connection from his father's room which is adjacent room.
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15. In cross-examination, DW-1 was confronted with the averments
in Small Causes Court plaint and he has admitted that incorrect
statements are made in that plaint that he subsequently came to know
the landlord's name and that Plaintiff had inducted him as tenant. He
deposed that he paid Rs 2000/ as deposit to Heerji Kunverji Tataria. He
deposed that in 1978-1979, the rent of Room No.11 was Rs.11/-. He
has admitted that he has not obtained "No Objection" from Plaintiff
while obtaining electricity meter in the suit premises in the year 1983
and not taken any writing from the Plaintiff while applying for ration
card. He has deposed that he was residing in Room No.11 alongwith
his parents, five brothers and sisters and also having factory in Room
No.11. He has deposed that he got married in the year 1976 and
thereafter his younger brother got married. DW-1 was confronted with
the handwritten amendment in the written statement that he has paid
Rs.2,000/ as deposit and has admitted his signature in the margin and
deposed that he is not aware of the handwritten amendment. He has
admitted that at no point of time the Plaintiff demanded or collected
any amount from him for the facility. He has deposed that in August-
1987, he constructed half wall in place of wooden partition since the
wooden partition from the bottom had been damaged.
16. The Trial Court framed and answered the following issues as
under:-
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Sr. Issues Findings.
1. Whether the Plaintiff proves that the defendant is a Affirmative
trespasser in the suit premises and he has no right,
title and interest in respect of the same ?
2. Whether this Court has jurisdiction to entertain and Affirmative
try the suit of the Plaintiff in view of the averments
of the defendant in paragraph (2) of the amended
written statement ?
3. Whether the plaintiff proves that at the relevant Affirmative
time, she was a tenant in respect of the suit
premises and entitled to grant permission ?
4. Whether the plaintiff is entitled to get the prayers Affirmative
for declaration, decree for possession, decree for
damages, appointment of Court Receiver, injunction
etc, as prayed in the plaint ?
5. What order and decree ? Decree as
below
6. Whether the defendant proves that one Shri Negative
Jagannath Panchal was the monthly tenant in
respect of the suit premises and that the defendant
wad inducted in the suit premises by one Hirji
Kunverji Tataria ?
17. The Trial Court noted that the Defendant initially claimed
monthly tenancy through Plaintiff on payment of Rs.2,000/- as deposit
and rent of Rs.18/- and in cross-examination the case has been given
complete go by. The Trial Court held that in RAD suit as well as the Civil
Suit, the claim to the suit premises by the Defendant was as alleged
tenant of Plaintiff whereas in amended written statement a
completely different case of being tenant of Heerji Tataria was put up,
which was not even suggested to the Plaintiff.
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18. The Trial Court noted the Defendant's admission that Room
No.11 which is adjacent to Room No.22 was overcrowded with so many
family members and was being used for commercial as well as
residential purpose leading to the probability that Defendant would
have requested the Plaintiff for permission to sleep at night in her
room. As regards the documentary evidence, the Trial Court held that
the same does not assist the Defendant's case as the Plaintiff has
proved that only facility to sleep was granted due to close relationship.
As regards the electoral rolls produced, the Trial Court noted that it is
not the Defendant's case that Room No 12 and Room No 22 are one
and the same and was divided into Room No 12 and 12-A. It held that
electoral roll at Exhibit "H" is in respect of Room No 12 only and there
is no evidence as to when Room no. 12 was divided and as per the
document at Exhibit-H, Room No.12 or Room No. 22 was single room
tenement in which Hirji Kunverji Tataria and his wife were residing and
therefore it cannot be accepted that the Plaintiff with two younger
daughters was also residing in the said room. It held that the
deposition of forcible possession on 3 rd August, 1987 remained
uncontroverted and the Court Commissioner's Report showed new
work being executed.
19. On jurisdiction, the Trial Court has held that the Defendant is
not consistent in his plea regarding jurisdiction and there is no case of
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license created in his favour by Plaintiff or Heerji Kunverji Tataria. The
Trial Court held that the suit of the Plaintiff falls within Section 6(1) of
the Specific Relief Act and therefore the Court has jurisdiction. The
Trial Court held that only facility of sleeping was given which does not
create right, title or interest in favour of the Defendant. The Trial Court
held that after permission was withdrawn, the possession of the suit
premises by the Defendant was trespasser and decreed the suit.
20. Mr. Sanglikar, Learned Counsel for the Appellant would submit
that the Plaintiff's case was for eviction of gratuitous licensee which
would lie only before the Small Causes Court. He submits that taking
Plaintiff's case as it is, the permission granted to use and occupy
premises constitutes license and in absence of monetary consideration
would make the Defendant a gratuitous licensee for which the Small
Causes Court would have jurisdiction. He submits that while denying
the gratuitous nature of license granted, the Defendant has stated
that the Plaintiff was paid deposit of Rs 2,000/ and rent of Rs 12/ per
month. He submits that the finding of Trial Court that there was no
case of creation of license is erroneous as in the written statement
specific case was pleaded. He submits that the Trial Court's finding
that suit will lie before the Civil Court even on assuming licensor-
licensee relationship is erroneous. He submits that there was no
question of application of Section 6 of Specific Relief Act as the
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Defendant was in actual physical possession since the year 1978. He
submits that it is specifically deposed by the Defendant that he was
inducted as tenant by one Hirji Kunverji Tataria in the suit premises
whereas the Plaintiff was occupying the other portion and there is no
question of dispossessing the Plaintiff.
21. He submits that upon termination of license, the possession
cannot be said to be of trespasser unless adjudicated by the competent
Court. He submits that the construction of pucca wall in case of pre
exiting partition does not amount to dispossession by the Defendant.
He would further submit that if the suit is one under Section 6 of the
Specific Relief Act there cannot be any prayer for mesne profit.
22. On the aspect of possession, he has taken this Court through the
documentary evidence to contend that the material on record shows
that there existed a partition and since the year 1979, the Defendant
was in settled possession. He would further submit that the case of
the Plaintiff cannot be believed as a person who is granted mere
permission to sleep will not be issued two ration cards. He submits
that the Defendant has produced the money order slips to show
payment of rent. He would further submit that the Trial Court erred in
failing to consider the electoral rolls. He would further submit that the
nature of the suit which was for eviction of gratuitous licensee has
been changed into one under Section 6 of Specific Relief Act for the
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purpose of assuming jurisdiction which is unsustainable. He submits
that the Plaintiff has to prove her own case and cannot rely upon the
fact that the Defendant's RAD suit is dismissed.
23. In support he relies upon following decisions:
Prabhudas Damodar Kotecha vs. Manhabala Jeram Damodar1
N. Rangachari vs. Bharat Sanchar Nigam Ltd2
Nagin Mansukhlal Dagli vs. Haribhai Manibhai Patel3
Mahadev P. Kambekar (D) vs. Shree Krishna Woolen Mills Pvt. Ltd. 4
24. Per contra, Mr. Akhtar, learned Counsel appearing for the
Respondent submits that the averments in the plaint make it clear that
at the request of the Defendant ,to give privacy to him and his wife at
night, facility was given by the Plaintiff as neighbor to sleep in part of
her room for which there was no monetary consideration. He has
taken this Court through the written statement to demonstrate
varying stands. He has taken this Court through the evidence to
demonstrate the consistent stand of Plaintiff that only sleeping facility
was given to the Defendant on humanitarian ground.
25. He submits that the Defendant has deposed that the plywood
partition is in the same condition, whereas the Court Commissioner
Report shows different picture. He has taken this Court through Court
Commissioner's report to contend that Defendant was carrying out
1 AIR 2013 SC 2959
2 2007 (5) Mh. L.J.
3 AIR 1980 Bom 123
4 AIR 2019 Supreme Court 913
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new construction. He submits that by construction of new door and
putting up new walls, the Plaintiff has been dispossessed from that
portion of the premises for which the suit under Section 6 of the
Specific Relief Act is maintainable.
26. He would further submit that the Defendant put up a claim of
tenancy and there was no suggestion of license being given by the
Plaintiff and therefore the argument on jurisdiction of Small Causes
Court upon revocation of license cannot be accepted. He would
further point out the contrary pleas taken in Small Causes Court suit
and the Civil Suit filed by Defendant. He submits that the temporary
sleeping facility was withdrawn rendering the Defendant's possession
as that of trespasser.
27. In rejoinder, Mr. Sanglikar submit that the pleading in paragraph
3 of plaint shows that permission was given in the year 1978 by the
Plaintiff to occupy the suit premises which was divided by temporary
and ordinary partition, which establishes that the partition was already
there. He submits that the case is that she has been dispossessed on 3 rd
August, 1987 by converting temporary partition into regular wall. He
would further point out that the Court Commissioner was not
examined and therefore no reliance would be placed upon the Court
Commissioner's Report.
28. The following points will arise for consideration in facts of the
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case:
(a) Whether in essence, the suit filed before the City Civil Court
sought eviction of gratuitous licensee which would lie within
the jurisdiction of Small Causes Court ?
(b) Whether the Plaintiff has been forcibly dispossessed from the
suit premises by the Defendant ?
(c) Whether the suit could be held to be maintainable under
Section 6 of Specific Relief Act, 1963 in view of the Defendant's
claim of being in possession since the year 1978 ?
(d) Whether the Defendant has any legal right to remain in
possession of the suit premises or the suit premises is required
to be restored to the Plaintiff ?
29. Dealing first with the issue of jurisdiction, the suit premises is
portion of Room No 22. It is the Plaintiff's case that she was tenant of
Room No.22 and had permitted the Defendant, who was the
neighbour's son, the facility to sleep at night in Room No.22 and to
afford privacy to Defendant and his wife and permitted him to put up
ordinary plywood partition upto height of 5 feet. The relevant extract
of the pleadings to have clarity about the nature of suit is re-produced:
"7. The Plaintiff states that thereafter on 1st August,
1987 the Defendant inspite of warning started working on
Plaintiff's room and started constructing the walls on the part
of the Plaintiff's room......The Plaintiff state the defendant
made walls on two sides on the front portion of the Plaintiff....
The Defendant wanted to make the partition wall shown in
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green ink at points A, B on the sketch in the Plaintiff's room so
as to contended that the part of the premises belonging to the
Defendant. On 3rd August, 1987 the Defendant wanted to raise
the height of the walls upto the level of ceiling, but the plaintiff
prevented the Defendant from completing the entire
walls........The Defendant brought all his household articles and
kept in the said portion as marked with the orange coloured
boundary on the sketch. In the aforesaid manner the Plaintiff
was forcibly, without due process of law, in such high handed
manner and with the help and backing of law enforcing agency
disposed by the defendant from the portion in the plaintiff
room as shown on the sketch annexed hereto by the orange
coloured boundary. The Plaintiff states that the Defendant has
made a door on one side of the Plaintiff's room on 3/8/1987
and thereby has created a separate entry for him......"
7. The Plaintiff states that the defendant has no right,
title and interest in the said premises and is a rank trespasser
and he has abused the facility granted to him as aforesaid. The
Plaintiff therefore seeks a declaration from this Hon'ble Court
that he is trespasser in respect of the said portion and that the
Plaintiff has been dispossessed forcibly by defendant without
due process of law.
9. In the aforesaid manner the defendant has
dispossessed the Plaintiff without due process of law from the
said portion on 30/7/87 and since then illegally retained the
said house without the consent of the Plaintiff........
13. The Plaintiff states that the cause of action accrued
to the plaintiff on 30/7/87 and since the nature of claim in the
suit is for possession of the said portion which the plaintiff lost
on 30/7/1987 and therefore, the suit is within the time limit and
it is not barred by provision of law of limitation."
30. The pleaded case of the Plaintiff is that by construction of walls
and pucca partition and creation of new door for the Defendant's
ingress and egress, the Plaintiff has been forcibly dispossessed from
the suit premises by the Defendant. Section 6(1) of Specific Relief Act
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provides that where any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he, may, by
suit, recover possession thereof, notwithstanding any other title that
may be set up in such suit. The suit is evidently filed within the
prescribed period of limitation of six months from date of
dispossession. The Plaintiff essentially seeks recovery of possession on
basis of prior possession and upon reading of the plaint as a whole that
it is a suit seeking restoration of possession upon forcible
dispossession without due process of law.
31. The Plaintiff does not seek eviction of the Defendant on the
ground that the permissive user has been withdrawn but the specific
case is of forcible dispossession by the Defendant. With this frame of
the suit, where there is no averment in the plaint as regards the
landlord tenant relationship or licensor-licensee relationship, the suit
would lie only before the Civil Court.
32. The Small Causes Court has been constituted under Presidency
Small Causes Court Act, 1882 and Chapter VII thereof governs the suits
relating to recovery of possession of certain immovable property and
certain license fees and rent. Section 41 of the Act of 1882 PSCC Act
contained in Chapter VII of PSCC Act provides as under :
"41.(1) Notwithstanding anything contained elsewhere in this
Act but subject to the provisions of sub-section (2), the Court
of Small Causes shall have jurisdiction to entertain and try all
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suits and proceedings between licensor and licensee, or a
landlord and tenant, relating to the recovery of possession of
any immovable property situated in Greater Bombay, or
relating to the recovery of the licence fee or charges or rent
therefor, irrespective of the value of the subject matter of such
suits or proceedings.
(2) Nothing contained in sub-section (1) shall apply to suits or
proceedings for the recovery of possession of any immovable
property, or of licence fee or charges or rent thereof, to which
the provisions of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947, the Bombay Government Premises
(Eviction) Act, 1955, the Bombay Municipal Corporation Act,
the Maharashtra Housing and Area Development Act, 1976 or
any other law for the time being in force apply."
33. In Raizada Topandas v. Gorakhram Gokalchand5 the Hon'ble Apex
Court was considering the issue of jurisdiction of City Civil Court to
entertain the suit seeking declaration of possession and injunction on
the basis of an agreement dated 23 rd June, 1955 appointing the
Plaintiffs therein as commission agent. The defence raised was of sub-
letting and the existence of landlord-tenant relationship. The
preliminary issue of jurisdiction was decided against the Defendant by
the High Court. The Hon'ble Apex Court noted the decision of
Allahabad High Court in Ananti v. Channu6 on the issue of jurisdiction
at the inception of suit which had held as under:
""The plaintiff chooses his forum and files his suit. If he establishes
the correctness of his facts he will get his relief from the forum
chosen. If ... he frames his suit in a manner not warranted by the
facts, and goes for his relief to a court which cannot grant him relief
on the true facts, he will have his suit dismissed. Then there will be
no question of returning the plaint for presentation to the proper
5 (1964) 3 SCR 214.
6 (1929) ILR 52 Allahabad 501
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court, for the plaint, as framed, would not justify the other kind of
court to grant him the relief ... If it is found, on a trial on the merits
so far as this issue of jurisdiction goes, that the facts alleged by the
plaintiff are not true and the facts alleged by the defendants are
true, and that the case is not cognisable by the court, there will be
two kinds of orders to be passed. If the jurisdiction is only one
relating to territorial limits or pecuniary limits, the plaint will be
ordered to be returned for presentation to the proper court. If, on
the other hand, it is found that, having regard to the nature of the
suit, it is not cognizable by the class of court to which the court
belongs, the plaintiff's suit will have to be dismissed in its entirety."
The Hon'ble Apex Court held in paragraphs 6 and 8 as under:
"......We do not think that the section says or intends to say that the
plea of the defendant will determine or change the forum. .......... If,
therefore, the plaintiff in his plaint does not admit a relation which
would attract any of the provisions of the Act on which the exclusive
jurisdiction given under Section 28 depends, we do not think that the
defendant by his plea can force the plaintiff to go to a forum where
on his averments he cannot go........"
".. The High Court has rightly said:
"A suit which is essentially one between the landlord and
tenant does not cease to be such a suit merely because the
defendant denies the claim of the plaintiff..."
34. In Babulal Bhuramal v. Nandram Shivram7, the Hon'ble Apex
Court held as under:
".....The suit did not cease to be a suit between a landlord and a tenant
merely because the defendants denied the claim of the plaintiffs.
Whether the plaintiffs were the tenants would be a claim or question
arising out of the Act or any of its provisions which had to be dealt with
by the court trying the suit. (Emphasis supplied)"
35. In a Full Bench decision of this Court in Dattatraya Krishna
Jangam v. Jairam Ganesh Gore8, the question under consideration was
7 1958 SCC Online SC 24.
8 1964 SCC OnLine Bom 30.
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the jurisdiction of the City Civil Court to entertain a suit for declaration
of tenancy and injunction from a proceeding under Section 41 of PSCC
Act in the context of provisions of Bombay Rents, Hotel and Lodging
House Rates (Control) Act, 1947. The Full Bench considered the
question whether the jurisdiction of Special Court depends on the
Plaintiff's case as made out in the plaint or whether the contentions
raised by the Defendant are also to be taken into consideration. The
Full Bench followed the decision in Raizada Topandas (supra) that the
jurisdiction of the Court should ordinarily be determined at the time of
institution of suit when the plaint is filed, that the plea of defendant
will not determine or change the forum. The Full Bench held in
paragraph 5 as under :
"The position, therefore, is that in order to determine which Court
has jurisdiction to try a suit, the Court should read the plaint as a
whole and ascertain the real nature of the suit and what in substance
the plaintiff has asked for. Whatever may be the form of relief
claimed, if on a fair reading of the plaint it becomes apparent that
the plaintiff has alleged the relationship of landlord and tenant
between him and the defendant and the relief claimed in substance
relates to recovery of rent or possession or raises a claim or question
arising out of the Rent Act or any of its provisions, then it is the
special Court alone that will have jurisdiction to decide the suit. If a
dispute is subsequently raised by the defendant about the existence
of relationship of landlord and tenant, the continuance of the suit in
the special Court will depend on the decision of the Court on that
issue. Similarly, if the plaint does not allege the relationship of
landlord and tenant and no claim or question arises out of the Act or
any of its provisions, then it will be the ordinary civil Court and not
the special Court that will have jurisdiction to entertain the suit."
Shubham Talle / Patil-SR 21 of 40
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36. The law is well settled that it is the averments in the plaint which
determines the forum and not the defence. The relevant pleadings
reproduced hereinabove will make it evident that in substance, the suit
is for recovery of possession under Section 6 of Specific Relief Act on
ground of forcible dispossession. In event during trial it was found that
the relief prayed could not be granted by the Civil Court as there
existed landlord tenant relationship or licensor licensee relationship,
the consequence would be dismissal of the suit.
37. The Plaintiff's case is not for eviction of the Defendant as the
Plaintiff has not acknowledged that the Defendant was in possession
of the suit premises. The case is simply of recovery of possession of
suit premises upon being forcibly dispossessed without following due
process of law. Therefore there is no question of gratuitous licensee or
ouster of civil court's jurisdiction. It is also pertinent to note that
according to Defendant, he was inducted as tenant by Heerji Kunvarji
Tataria and not by the Plaintiff and therefore there is no landlord
tenant relationship between the Plaintiff and the Defendant which
would bar the jurisdiction of Civil Court.
38. The submission of Mr. Sanglikar that claim for mesne profits is not
maintainable in suit for specific performance overlooks the position
that even if relief of mesne profits is sought, the same would not take
the suit filed under Section 6 of Specific Relief Act, 1963 outside the
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jurisdiction of the Civil Court and the Court would have to decline to
grant the relief of mesne profits.
39. Now it will have to be considered whether the Plaintiff has
proved forcible dispossession at the hands of the Defendant. The
Plaintiff has specifically deposed that on 3 rd August, 1987, the
Defendant took forcible possession of the suit premises. The testimony
of the Plaintiff about dispossession on 3 rd August, 1987 has not been
shaken in the cross examination, which is substantially dedicated to
prove the tenancy rights of the Defendant. The deposition of Plaintiff
is corroborated by the Court Commissioner's report dated 14 th August,
1987 to which no objection has been raised by the Defendant. The
report of Court Commissioner notes the following:
"The said portions is a very small room about 10" X 10" size.
The whole portion of the room was under repair.
Northern side wall appears to be newly constructed and
plastering work was completed.
Western side wall also newly appezrs to be newly constructed
with plastering work completed with window fixed in the said
wall.
Southern side wall also appears to be newly constructed with
plastering work. In the middle of the said Southern wall there
was a new wooden door fixed with new wooden frame. Above
the said door there was tittle open space and above that there
was one old rusted tin shade.
The Eastern side portion of the wall was lying in between the
portions occupied by the Plaintiff and the defendant. The said
wall was completed and appears to be recently constructed
upto 3 feet hight and the rest of the portion was covered by
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tin sheet and wooden planks.
There was one mori recently constructed admeasuring 41" x
44".
............
New flooring was made out of the stone pieces."
40. The suit premises was inspected by the Court Commissioner on
14th August, 1987 i.e. barely within a period of eleven days from date of
forcible dispossession alleged on 3rd August, 1987. The fact that the
Court Commissioner's Report states in no uncertain terms about the
entire new construction of walls, fixing of new window, new door,
construction of pucca partition corroborates the stand of the Plaintiff
that the Defendant, by carrying out new construction and replacing the
ordinary partition with a constructed wall, has forcibly dispossessed
the Plaintiff from the suit premises. Though the case of the Defendant
was that he was inducted in the suit premises which was an
independent entity having two separate entrances for ingress and
egress, there is nothing produced on record by the Defendant to show
the position prior to the new construction which has been carried out
and therefore the only inevitable conclusion is that there was no
separate entrances and new door has been created in the southern
side wall by the Defendant. Further, the Court Commissioner has
noticed that there is one mori which was recently constructed which
also militates against the case of defendant and his family members
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residing in the said room. The act of carrying out construction in Room
No.22 amounts to forcible dispossession of the Plaintiff from the
portion of the Room No 22. The wooden partition which was
temporary and ordinary partition was attempted to be converted into a
pucca wall and at the time of Court Commissioner's visit was
incomplete with height of upto 3 feet whereas in his cross-examination
the defendant has deposed that the wooden partition continues to
exist despite the Court Commissioner's report. The construction of
pucca wall in place of temporary and ordinary plywood partition meant
only for giving privacy to the Defendant and his wife while sleeping at
night amounts to forcible dispossession of the Plaintiff from that
portion of Room No.22.
41. Coming to the aspect of possession of the Defendant, the
Plaintiff's case is that the Defendant was only permitted to sleep at
night in portion of Room No 22. On the other hand, the Defendant
claims tenancy rights in the suit premises. If comparative cases are
considered, there is oral deposition of Plaintiff that only facility to
sleep at night was granted. As limited facility was given, there cannot
be any documentary evidence to that effect. It is the Defendant's
claim that he was inducted in the premises in the year 1978 as tenant.
The source of Defendant's possession is thus tenancy rights in the suit
premises, which will have to be tested.
Shubham Talle / Patil-SR 25 of 40
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42. The Defendant has adopted varying stands in respect of source
of his tenancy rights. In the written statement, it is pleaded that in the
year 1978-1979, Defendant was inducted in the suit premises which
was independent in nature having separate entrance, by the Plaintiff
upon payment of monthly rent of Rs.18/- and that sum of Rs.2,000/-
towards deposit to the Plaintiff. The pleading was that the previous
tenant of suit premises was Heerji Kunverji Tataria. Though Defendant
pleads about the previous tenancy of Heerji Kunverji Tataria, there is
no pleading that he was inducted by Heerji Kunverji Tataria. His stand
changed in the amended written statement claiming to have been
inducted as tenant by Heerji Kunverji Tataria. Even though the written
statement was amended to plead that he was inducted as tenant by
Heerji Kunverji Tataria, the pleadings as regards induction by Plaintiff
were not deleted. The pleadings indicate that the Defendant is unsure
about whether he was inducted by the Plaintiff or Heerji Kunverji
Tataria. Considering the case put by the Defendant in the cross-
examination of Plaintiff that the permission given by Plaintiff has not
been revoked, it constitutes an admission of the Defendant that he was
inducted in the suit premises by the Plaintiff.
43. In evidence, DW-1 deposed that he was inducted by Heerji
Tataria and the arrangement was that the Defendant shall pay deposit
of Rs.2,000/- and Rs.18/- per month rent should be paid to the Plaintiff,
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who shall pay it to the Jagannath Panchal, who in turn, shall pay the
same to the landlord and that this arrangement was in presence of
Plaintiff. There is no such case pleaded in the written statement and
this case was not suggested to the Plaintiff.
44. As far as the rent is concerned, the deposition of DW-1 that till
September, 1983, he paid Rs.18/- monthly rent to the Plaintiff does not
inspire confidence. There is no documentary evidence produced to
show rent being paid to Plaintiff. In event, after September 1983, if
rent was not accepted by Plaintiff, there would be some notice or
letter issued by the Defendant for non acceptance of rent. Considering
the defendant's denial of being inducted by Heerji Tataria and the
admission that he was aware of the landlord, the rent would have been
forwarded to Heerji Tataria or the landlord. DW-1 claims that rent of
Rs.18/- was fixed and being paid till September 1983. It cannot be
believed that when the rent of Defendant's father's room was Rs.11/-,
the monthly rent of Rs.18/- for portion of a room in same Chawl would
be agreed to be paid by Defendant. The Defendant's case that
Jagannath Panchal had inducted Plaintiff in portion of Room No.22 and
Heerji Tataria in the suit premises and Defendant was inducted by
Heerji Tataria who directed the defendant to pay Rs.18/- p.m. to the
Plaintiff is disbelievable for the reason that if the Plaintiff was
tenant/sub-tenant in respect of portion of room and not in respect of
Shubham Talle / Patil-SR 27 of 40
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the suit premises the monthly rent would not be routed through
plaintiff to Jagannath Panchal and instead the Defendant would have
been directed to pay the rent directly to Jagannath Panchal or the
landlord. That apart, DW-1 has admitted in cross examination that at
no point of time Plaintiff demanded or collected any amount from him
for the facility.
45. As far as payment deposit is concerned, in the written statement,
it is pleaded that Rs.2,000/- was paid as deposit to Plaintiff and in the
cross examination DW-1 states that the deposit was paid to Heerji
Kunvarji Tataria.
46. The discrepancy in the pleading and evidence of Defendant is
summarised as under :
In written statement:
(a) The Plaintiff inducted him as tenant in suit premises for
which he paid deposit of Rs. 2,000/ and was paying monthly rent of
Rs.18/- till September, 1983. Defendant pleads that previous
tenant was Heerji Tataria but does not plead that he was inducted
by Heerji Tataria.
(b) In amended written statement, the pleading is that
Jagannath Panchal was monthly tenant of Room No.22 and in the
year 1975, he inducted Plaintiff in portion of Room No.22 and
Heerji Tataria in suit premises and Heerji Tataria inducted the
Shubham Talle / Patil-SR 28 of 40
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Defendant as tenant in suit premises in the year 1978.
(c) Heerji Tataria directed Defendant to pay monthly rent of
Rs.18/- to Plaintiff.
In evidence:
(a) Defendant took the suit premises from Heerji Tataria for
his residence. It was agreed between Defendant and Heerji Tataria
that Defendant should pay monthly rent of Rs 18/ to Plaintiff, who
in turn will pay the same to Jagannath Panchal, who in turn will pay
to the landlord. This arrangement was in presence of Plaintiff.
(b) The case put up in cross examination of Plaintiff is that she
has not revoked the permission given by her to the Defendant by
issuing any notice.
(c) Till September, 1983, Defendant paid Rs 18/ per month to
Plaintiff. DW-1 deposed that till September, 1983 he paid Rs 18/ to
Plaintiff. In cross examination, he admits that at no point of time
Plaintiff demanded or collected any amount from him for this
facility.
47. The submission of Mr. Sanglikar is that the gratuitous nature of
license granted to Defendant is denied as Defendant has stated that
the Plaintiff was paid deposit of Rs.2,000/- and was being paid monthly
rent and that money orders were produced to show rent paid to the
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Plaintiff would militate against the Defendant's case of being inducted
in suit premises by Heerji Tataria.
48. Similarly, the filing of RAD Suit by the Defendant against the
Plaintiff demolished the case of Defendant being inducted in the suit
premises by Heerji Kunverji Tataria. DW-1 has admitted that he is
aware of the landlord of Chawl, in which case, the claim for tenancy/
sub-tenancy would be against the landlord and not against the
Plaintiff. The Defendant's varying oral stands are not corroborated by
any documentary evidence. In order to establish his tenancy rights in
respect of the suit premises, there is no rent receipt produced, no
witness examined, no notice to either the Plaintiff or the landlord
claiming tenancy/sub-tenancy of the suit premises.
49. On the other hand, the Plaintiff has produced the rent receipts
from the year 1979 which establishes her tenancy in respect of Room
No 22. The share certificate issued by the Society establishes her
ownership rights in Room No.22. The conversion of the Plaintiff's
rights into ownership rights have not been shown to be disputed by the
Defendant. She has also produced the electricity bill of the year 1995
which shows the address as 1/22, Purshottam Dayabhai Chawl.
50. The Plaintiff is consistent in her stand that she was tenant of
room no. 22 and in 1978 she gave temporary facility to the defendant
and his wife to sleep at night being neighbors and that for privacy,
Shubham Talle / Patil-SR 30 of 40
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temporary partition was allowed to be set up. As to the nature of
possession, it is the Plaintiff's case that temporary sleeping facility was
given to the Defendant to sleep at night, which is not uncommon in
chawls, where the rooms are overcrowded with family members. In
previous cross-examination by the defendant-in-person, the case put
up by the defendant was that the plaintiff and the defendant were
neighbours and that she was treating him as his thread brother which
leads to the probability that having good relationship, the Plaintiff
permitted the Defendant to sleep in her room at night.
51. The case put up by the defendant, who cross-examined the
Plaintiff-in-person, is completely different from what is pleaded in the
written statement or in the amended written statement. There is no
suggestion given by the Defendant-in-person that he was put in
possession of the suit premises by the said Heerji Kunverji Tataria. The
evidence of Plaintiff after remand shows complete denial about
knowing Jagannath Panchal or Hirji Kunverji Tataria.
52. In cross-examination, the testimony of the Plaintiff has not
been shaken that she was tenant of room no.22 and that she had
permitted the defendant to sleep in portion of suit premises. DW-1
has deposed that the rent receipt in respect of the suit premises was
transferred in the name of Plaintiff in October-1979 which shows that
in 1979 the Plaintiff was the tenant of the room no. 22. To counter the
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Plaintiff's case that the Defendant was granted facility to sleep at
night and to demonstrate possession, the Defendant has produced the
old ration card of the year 1980 and new ration card of the year 1984,
the electricity bills of the year 1984 which shows the room as room
no. 22 and the letters which have been addressed to him at the said
room. He has also relied upon electoral roll extract for the period from
December, 1972 to 19th December, 1977 and for the period from
January, 1985 to 9th September, 1990.
53. Perusal of the old ration card of the year 1980 shows the address
at Chawl No.1/12, whereas the new ration card of 1984 shows the
address at Chawl No.1/22. When considered in juxtaposition to the
electoral roll for the period from January, 1985 to 9 th September, 1990-
Exhibit "G", the room number in electoral roll is shown as G-12 and G-
12A whereas the ration card of year 1984 shows room No.22. There is
no explanation as to how the ration card of year 1984 would show
Room No.22 when the Electoral Roll for 1985 to 1990 shows Room
No.12 and Room No.12-A. The extract of electoral roll for the period
from December, 1972 to December, 1977 reflects the name of Heerji
Tataria and Parvati Himmat Rathod in respect of Room No G-12. There
is no pleading on record and no evidence to show the nexus between
Room No 22 and Room No 12 and nothing to demonstrate when the
Room No 12 was divided into Room No 12 and 12 A. In absence of any
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evidence to connect Room No.22 with Room No.12 or Room No.12A,
the documentary evidence cannot be relied upon to support the case
of Defendant's possession. As far as electricity connection and gas
connection is concerned, DW-1 has admitted in the cross-examination
that prior to 1983 there was no separate electricity meter in the suit
premises and he had taken connection from his father's room and he
did not take "no objection" from Plaintiff at the time of obtaining
electricity meter in 1983 and did not obtain consent of Plaintiff while
obtaining ration card in 1980.
54. The cross-examination shows that all the documents obtained by
the Defendant in respect of the suit premises was not with the consent
or the knowledge of the Plaintiff. Though the Defendant claims to
have been inducted in the suit premises in the year 1978, the electricity
connection is obtained in the year 1983, ration card in the year 1984,
gas connection in the year 1985, which apparently was to create the
foundation for filing of RAD suit in the year 1985 to claim tenancy of
suit premises.
55. The Plaintiff has come with a specific case that she was inducted
as tenant in Room No.22 in the year 1975. The Defendant in order to
establish his induction in suit premises through Heerji Tataria and to
show that Plaintiff has no connection with suit premises in which Heerji
Tataria was residing claims that the Plaintiff came to be inducted in
Shubham Talle / Patil-SR 33 of 40
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portion of Room No.22 in the year 1972. The Plaintiff has produced
the rent receipts from the year 1979 to prove that she came into the
suit premises in the year 1978, and there is no evidence produced to
show that the Plaintiff was inducted in portion of Room No.22 in the
year 1975. It was open for the Defendant to examine the landlord of
the Chawl or any neighbour or even his family member to establish the
year when the Plaintiff was inducted as tenant. The reliance placed on
electoral roll does not inspire confidence in absence of any evidence to
link Room No.12 to Room No.22. Further the Trial Court is right in
considering that it cannot be accepted that the Plaintiff alongwith her
daughters would be residing in one room tenement alongwith Heerji
Tataria and his wife.
56. The Defendant has failed to prove that he was inducted in the
suit premises through Heerji Kunverji Tataria. On the other hand the
Plaintiff has produced the rent receipts of room no. 22 which
establishes that she is tenant of the said premises since the year 1979.
This questions the very right of the defendant to claim possession of
the suit premises. Admittedly Room No.22, whether divided into two
parts or not, is tenanted premises. There is no separate rent receipt
for the suit premises. When we look at the defence, the defendant
firstly comes with the case that the Plaintiff had inducted him as
tenant on payment of monthly rent of Rs.18/- which he admits in the
Shubham Talle / Patil-SR 34 of 40
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cross-examination that the Plaintiff has neither collected nor
demanded any amount from him for the facility. This means that the
defendant is not paying any amount to the Plaintiff. Coming to varying
stand of the Defendant that the defendant was inducted in the suit
premises by Heerji Kunverji Tataria, there is no witness examined by
the defendant to establish the said fact. The Defendant has not been
able to establish his legal right to possession of suit premises. When
the defendant is neither paying any amount to the plaintiff nor to any
other person and when the plaintiff's right to Room No.22 through
tenancy is established, the status of defendant is nothing but a
trespasser. The possession of suit premises, which has been forcibly
taken over by Defendant is required to be restored to the Plaintiff.
57. The case of the Defendant that the suit premises is independent
premises having separate ingress and egress is not established by the
Defendant. The Defendant has not examined even his family members
to show that the suit premises and the premises occupied by the
Plaintiff have separate entrances. The Court Commissioner's report
would show creation of new entrance in the suit premises and
corroborates the case of Plaintiff.
58. In the context of issue of possession, it would be profitable to
refer to the decision of Hon'ble Apex Court in Maria Margadia
Shubham Talle / Patil-SR 35 of 40
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Sequeria Fernandes v. Erasmo Jack De Sequeria 9 wherein the Hon'ble
Apex Court has observed thus :
"62. Possession is an incidence of ownership and can be
transferred by the owner of an immovable property to another
such as in a mortgage or lease. A licensee holds possession on
behalf of the owner.
63. Possession is important when there are no title
documents and other relevant records before the Court, but,
once the documents and records of title come before the
Court, it is the title which has to be looked at first and due
weightage be given to it. Possession cannot be considered in
vacuum.
64. There is a presumption that possession of a person,
other than the owner, if at all it is to be called possession, is
permissive on behalf of the title-holder. Further, possession of
the past is one thing, and the right to remain or continue in
future is another thing. It is the latter which is usually more in
controversy than the former, and it is the latter which has seen
much abuse and misuse before the Courts.
65. A suit can be filed by the title holder for recovery of
possession or it can be one for ejectment of an ex-lessee or for
mandatory injunction requiring a person to remove himself or
it can be a suit under Section 6 of the Specific Relief Act to
recover possession.
66. A title suit for possession has two parts - first,
adjudication of title, and second, adjudication of possession. If
the title dispute is removed and the title is established in one
or the other, then, in effect, it becomes a suit for ejectment
where the defendant must plead and prove why he must not
be ejected.
67. In an action for recovery of possession of immovable
property, or for protecting possession thereof, upon the legal
title to the property being established, the possession or
occupation of the property by a person other than the holder
of the legal title will be presumed to have been under and in
subordination to the legal title, and it will be for the person
resisting a claim for recovery of possession or claiming a right
to continue in possession, to establish that he has such a right.
To put it differently, wherever pleadings and documents
establish title to a particular property and possession is in
question, it will be for the person in possession to give
sufficiently detailed pleadings, particulars and documents to
9 AIR 2012 SC 1727.
Shubham Talle / Patil-SR 36 of 40
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support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the
parties to give all details of pleadings with particulars. Once
the title is prima facie established, it is for the person who is
resisting the title-holder's claim to possession to plead with
sufficient particularity on the basis of his claim to remain in
possession and place before the court all such documents as in
the ordinary course of human affairs are expected to be there.
Only if the pleadings are sufficient, would an issue be struck
and the matter sent to trial, where the onus will be on him to
prove the averred facts and documents.
69. The person averring a right to continue in possession
shall, as far as possible, give a detailed particularized specific
pleading along with documents to support his claim and details
of subsequent conduct which establish his possession.
70. It would be imperative that one who claims
possession must give all such details as enumerated
hereunder. They are only illustrative and not exhaustive:
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession--whether he purchased the
property or inherited or got the same in gift or by any other
method;
(g) in case he purchased the property, what is the consideration;
if he has taken it on rent, how much is the rent, licence fee or
lease amount;
(h) If taken on rent, licence fee or lease--then insist on rent
deed, licence deed or lease deed;
(i) who are the persons in possession/occupation or otherwise
living with him, in what capacity; as family members, friends or
servants, etc.;
(j) subsequent conduct i.e. any event which might have
extinguished his entitlement to possession or caused shift
therein; and
(k) basis of his claim that not to deliver possession but continue
in possession."
59. In light of the above guiding principles on aspect of possession,
when the facts of present case are seen, the Defendant's case of being
in actual physical possession since the year 1978 is not established as
Shubham Talle / Patil-SR 37 of 40
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the documentary evidence on record such as ration card, electricity
connection, gas connection are all documents procured from the year
1983-1984 for creating a foundation for RAD suit filed in the year 1985.
All documents have been procured without the consent and
knowledge of Plaintiff and the landlord. The electoral rolls do not
prove the residence of the Defendant in Room No.22 or suit premises.
The facility of permitting Defendant to sleep at night cannot be
construed as Defendant's possession of the suit premises. As held by
Hon'ble Apex Court for protecting possession, the burden is upon the
person claiming right to continue in possession, to establish that he has
such a right. Upon cumulative appreciation of the oral and
documentary evidence, it cannot be said that the defendant has
established his actual physical possession of the suit premises. The
source of Defendant's possession is not established and it cannot be
believed that the Defendant was unaware of the person who had
inducted him as tenant in the suit premises, to whom deposit of Rs
2,000/ was paid or rent is being paid. These varying stands creates a
doubt about the Defendant's possession of the suit premises. On basis
of evidence, it would be a misnomer to say that the Defendant was in
possession.
60. The Plaintiff on the other hand has, by production of the rent
receipts, share certificate, electricity bills established that she is tenant
Shubham Talle / Patil-SR 38 of 40
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of room no. 22 since the year 1979 and that the suit premises was not
separate premises. There is no material on record to show that room
no. 22 is divided into two rooms which constitutes independent units
having separate ingress and egress. As the Defendant attempted to
construct a pucca wall in place of ordinary plywood partition and to
create separate ingress and egress, the Defendant has forcibly
dispossessed the Plaintiff from the suit premises. The evidence
establishes that the Plaintiff has been dispossessed from the suit
premises by the Defendant. Sans any evidence to establish the legal
right of the Defendant to remain in possession, the status of the
defendant is that of trespasser.
61. The case of the Plaintiff was that the facility which was granted
to the defendant was only for the purpose of sleeping at night
however in July-1987 the defendant brought material and started
construction and attempted to carry out structural additions in room
no. 22 as regards the portion in respect of which the defendant was
permitted to sleep at night and from that portion of the room the
Plaintiff has been dispossessed and therefore the suit under Section 6
of the Specific Relief Act is maintainable.
62. The decisions which have been relied upon by the learned
Counsel is as regards the jurisdiction of the Small Causes Court in case
of gratuitous licensee. There is no quarrel with the said proposition,
however in the present case the facility granted to the Defendant to
Shubham Talle / Patil-SR 39 of 40
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sleep at night cannot be construed as license. It is not the case of the
defendant that there was any licensor-licensee relationship between
the Plaintiff and the defendant and on the contrary the case of the
defendant that he was inducted as tenant by Heerji Kunverji Tataria. As
such the decisions do not assist the Defendant's case.
63. As regards the decision in the case of Govind Babaji Naik v.
Shankar B. Naik10 it has been held that under Section 6 of Specific
Relief Act, 1963 there is no question of entertaining claim of mesne
profits which is settled position in law. The claim for mesne profits
/damages would not take the case out of Section 6 of Specific Relief
Act, 1963, however, the claim cannot be entertained. The impugned
judgment to the extent that it grants mesne profits is required to be set
aside.
64. Resultantly, Clauses 5 and 6 of the impugned judgment dated
28th/29th July, 1997 are hereby quashed and set aside. Rest of the
judgment remains undisturbed.
65. First Appeal is partly allowed to the extent of setting aside
Clauses 5 and 6 of the impugned judgment dated 28th/29th July, 1997.
66. In view of the disposal of First Appeal, nothing survives for
consideration in the pending civil/interim Applications and the same
stand disposed of.
[Sharmila U. Deshmukh, J.]
10 AIR 1971 Goa 24
Shubham Talle / Patil-SR 40 of 40
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 02/05/2025 20:51:24
