[Cites 3, Cited by 0]
Bombay High Court
Shriram S/O Eknath Lonare And Other vs Smt Rimatai W/O Ghanshyam Lonare on 25 February, 2026
2026:BHC-NAG:3329
19. SA 162.2024.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.162 OF 2024
APPELLANTS :- 1. Shriram S/o. Eknath Lonare, Aged
(Ori. Defendants)
(on R.A.) about 69 years, Occu: Cultivator
R/o.77, Shrihari Nagar No.2, Nagpur
2. Vijay S/o. Namdeorao Lonare, Aged
about 57 years, Occu: Cultivator
R/o.77, Shrihari Nagar No.2, Nagpur
..VERSUS.
RESPONDENT :- 1) Smt. Rimatai W/o. Ghanshyam Lonare,
(Ori. Plaintiff)
Aged about 63 years, Occu: Cultivator
R/o. Gumgaon, Tahsil & District
Nagpur
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Mr. A. M. Quazi with Mr. T.A. Mirza, Advocates for Appellants.
Mr. Markandewar a/w. Mr. R. D. Murkute, Advocates for the Respondent.
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CORAM : ROHIT W. JOSHI, J.
DATE : 25.02.2026
JUDGMENT:
1) Heard finally with consent of learned advocates for
the respective parties.
2) The present Second Appeal is preferred against
judgment and decree dated 03.04.2007 passed by the learned
5th Joint Civil Judge, Senior Division, Nagpur in Special Civil
Suit No.235 of 2000, whereby the suit for possession filed by
respondent came to be decreed and counter-claim for specific
19. SA 162.2024.odt
performance of contract filed by the appellants came to be
dismissed and judgment and decree dated 29.04.2023 passed
by the learned District Judge-15 and ASJ, Nagpur dismissing
Regular Civil Appeal No.1090 of 2012 filed by the appellants/
original defendants against the aforesaid decree passed by
the learned Trial Court.
3) The parties will be referred as "plaintiff" and
"defendants" hereinafter.
4) The plaintiff filed the suit against the defendants
inter alia contending that the defendants were in occupation
of the suit property as her licensees and that the licence was
without any consideration. The defendants filed a written
statement opposing the suit. They also filed a counter-claim
inter alia contending that an oral agreement of sale was
entered into between the parties, whereby the plaintiff had
agreed to sell the suit property to them for a consideration of
Rs.75,000/-.
5) The only point raised by the learned advocate for
the defendants/appellants is that, since the suit is filed
contending that the defendants were in occupation of the suit
19. SA 162.2024.odt
property as gratuitous licensees, the learned Civil Court did
not have jurisdiction to entertain the suit. It was contended
that this objection pertaining to jurisdiction was raised in the
appeal by amending the written statement. A grievance is
made that, although the written statement was allowed to be
amended, issue of jurisdiction is not decided by the learned
First Appellate Court.
6) Mr. Quazi, learned Advocate for the
appellants/defendants, places reliance on judgment of the
Hon'ble Supreme Court in the case of Prabhudas Damodar
Kotecha and Ors. Vs. Manhabala Jeram Damodar and Anr.,
reported in (2013) 15 SCC 358 and unreported judgment of
this Court in the case of Sitaram Punjaram Borikar Vs.
Leelabai Rambhau Borikar (Second Appeal No.107 of 2015
decided on 09.01.2017 at Nagpur Bench).
7) In view of submissions canvassed, following
substantial question of law came to be framed:-
"Whether the Civil Court has jurisdiction to
entertain a suit for eviction against a gratuitous
licensee? "
19. SA 162.2024.odt
8) Mr. Markandewar, learned Advocate for the
respondent/plaintiff, stated that he does not dispute the legal
position that the suit would lie before the learned Small
Causes Court in view of Section 26 of the Provincial Small
Cause Courts Act, 1887 and that jurisdiction of the Civil
Court will be barred. He, however, makes a request that
rather than dismissing the suit, the plaint be returned to the
respondent/plaintiff for presentation before the Court of
Small Causes. He further requests to fix a date for appearance
before the Small Causes Court at Nagpur as provided under
Order VII Rule 10-A(2)(b) of the Code of Civil Procedure,
1908. Mr. Quazi, in fairness does not oppose the said
requests.
9) In view of the aforesaid, Second Appeal is allowed
in the following terms:-
i. Judgment and decree dated 03.04.2007 passed by
the learned 5th Joint Civil Judge, Senior Division, Nagpur in
Special Civil Suit No.235 of 2000 and judgment and decree
dated 29.04.2023 passed by the learned District Judge-15
and ASJ in Regular Civil Appeal No.1090 of 2012 are
19. SA 162.2024.odt
quashed and set aside.
ii. Plaint in Special Civil Suit No.235 of 2000 (decided
by the learned 5th Joint Civil Judge, Senior Division, Nagpur
vide judgment and decree dated 03.04.2007) is returned to
the plaintiff in the said suit for presentation before the Small
Causes Court at Nagpur.
iii. Parties are directed to appear before the learned
Small Causes Court at Nagpur on 30.03.2026.
iv. Parties to note that separate summons or notice for
appearance will not be issued.
v. Decree with respect to dismissal of counter-claim is
maintained.
vi. Having regard to the fact that the suit for eviction
was filed in the year 2000, the learned Small Causes Court is
requested to decide the suit as expeditiously as possible and
in any case before 31.12.2026.
vii. Parties to bear their own costs.
(ROHIT W. JOSHI, J.)
Tanmay...
