I am inclined to observe that the term “licensee” even
as contemplated under the Indian Easement Act and/or under the
Rent/Small Cause Courts Act, has no way extended to cover the
dispute between the two heirs who are occupying the premises as a
member of the family. There is no question to declare the occupation
as a licensee. By birth, such person even cannot be treated as a
licensee and/or in any other such capacity. A son or a daughter gets
into a family by birth and resides with the parents, such residence
and/or permission to reside in the premises, in no way can be treated
to be a relationship which falls within the ambit of Section 41/45 of
the Small Cause Courts Act. The learned Judge, completely
overlooked this relationship and by relying on the cases between the
licensor and licensee and/or even gratuitous licensee, extended the
proviso of Small Cause Court Act and pass the impugned order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 710 OF 2010
WITH
CIVIL APPLICATION NO. 1628 OF 2011
IN
APPEAL FROM ORDER NO. 710 OF 2010
Manohar Sahadev Shinde,
Vs.
Yashwant Sahadev Shinde,
CORAM : ANOOP V. MOHTA, J.
DATE : 15 OCTOBER 2013.
Heard finally.
2 The present Appeal from Order is filed by the Appellantoriginal
Plaintiff, as the learned Judge of the City Civil Court, Mumbai
by order dated 10 September 2009, returned the plaint to the plaintiff,
to file the same before the proper Court. This is on a foundation of
preliminary issue that the Court has no jurisdiction to entertain
and/or try the Suit.
3 Admittedly, the Plaintiff is residing in the premises owned
by the father along with his brother. The Suit is filed to evict the
Defendantbrother.
The Civil Court is the only remedy/forum to take
such action. The Plaintiff prayed to declare that the Defendant has no
right, title or interest in the property and also prayed for mandatory
inunction for eviction, apart from the permanent injunction from
disturbing the Plaintiff's possession, occupation and enjoyment of the
Suit property. These prayers and the contents/averments made in the
Suit, in my view, also show that there exists no relationship of
landlord and tenant and/or licensor or licensee, which are basic
elements for invoking the jurisdiction under Section 41 of the
Presidency Small Cause Courts Act, 1882 (for short, “the Small Cause
Courts Act”).
4 The learned Judge, in my view, committed an error in
extending the definition of licensee to this extent, whereby the person
who is in possession of the premises the son and/or the legal heirs of
the owner of the property and thereby returning the plaint to present
the same in an appropriate forum for getting the eviction
order/decree. This, in the present facts and circumstances, is
impermissible. I am inclined to observe that the term “licensee” even
as contemplated under the Indian Easement Act and/or under the
Rent/Small Cause Courts Act, has no way extended to cover the
dispute between the two heirs who are occupying the premises as a
member of the family. There is no question to declare the occupation
as a licensee. By birth, such person even cannot be treated as a
licensee and/or in any other such capacity. A son or a daughter gets
into a family by birth and resides with the parents, such residence
and/or permission to reside in the premises, in no way can be treated
to be a relationship which falls within the ambit of Section 41/45 of
the Small Cause Courts Act. The learned Judge, completely
overlooked this relationship and by relying on the cases between the
licensor and licensee and/or even gratuitous licensee, extended the
proviso of Small Cause Court Act and pass the impugned order.
5 Therefore, in view of the above legal position, which is
also discussed and settled in Conrad Dias Vs. Joseph Dias 1 , the case is
made out by the Appellant to interfere with the order so passed. The
order, therefore, liable to be quashed and set aside.
6 In a similar type of dispute between the family
members/heirs of the deceased tenant, I have held that such suit is
maintainable in Civil Court. (Arun Bhaskar Adarkar Vs. Mina
Srinivasan Krishnan & Anr. 2 ) The relevant observations are as
under:“
11 ...…....The Suit is not between the landlord and
tenant/licensor or licensee. The same is not initiated
by the landlord. The landlord is not a party to this
proceeding, initiated by the heirs of the deceased
tenant to protect their respective rights and the
possession. It nowhere related to the recovery of rent
or possession of the tenanted premises.
12 This Suit is not barred by the provisions of the
1 1996 (2) Mh.L.J.208
2 2012 (3) Bom. C.R. 17
Maharashtra Rent Control Act, 1999.
13 The Suit, as filed in this Court, is maintainable. The
issue is answered accordingly. Place the Notice of
Motion before regular Bench for hearing on merits.”
7 Resultantly, the following order:ORDER
(a) Impugned order dated 10 September 2009 is
quashed and set aside.
b) The Appeal from order is allowed.
c) The learned Judge to proceed with the Suit in
accordance with law.
d) The Civil Application is also disposed of accordingly.
e) There shall be no order as to costs.
(ANOOP V. MOHTA, J.)
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