Ashok Agarwal, J.
1. Whether the defendant is a rank trespasser or a licensee, if he is a licensee whether his possession is protected under the Bombay Rent Act; whether the City Civil Court or the Court of Small Causes under section 41 of the Presidency Small Causes Courts Act or under section 28 of the Bombay Rent Act has jurisdiction are some of the questions which have been debated before me in the present Appeal.
2. The present suit has been instituted by one Daulatrai Mohanlal Kothari acting as the Constituted Attorney of the plaintiff. By this suit, the plaintiff seeks to recover possession of the suit premises being Room No. 10, Noor Mahal, now known as Baughwala Mahal at 125/127, Sir Ratan Tata Road, Tardeo, Bombay - 400 034.
3. Shortly stated it is the case of the plaintiff that the defendant is in unauthorised use and occupation of the suit premises. The defendant however, claims to be the plaintiff's licensee in respect thereof. According to the plaintiff, the defendant had forcibly entered into the suit premises in or about 1979 and had refused to remove himself although called upon to vacate the same. According to the plaintiff, he is a tenant in respect of the said premises on the monthly rent of Rs. 14.55 Ps. He was prohibited from sub-letting, transferring or otherwise parting with possession of the suit premises in any manner whatsoever including by way of leave and licence, both by reason of the terms and conditions of tenancy as also the provisions of the Bombay Rent Act which expressly forbid sub-letting of the demised premises by the tenant as also the grant of leave and licence by the tenant in favour of any person. Since the defendant had entered into possession in or about 1979 when the statutory prohibition against sub-letting and/or grant of licence was in force, the defendant was no better than a rank trespasser. He would be a trespasser even if it were to be assumed that he had entered in the suit premises by virtue of or under the permission of the plaintiff's Constituted Attorney D.M. Kothari as alleged by the defendant. This suit was filed in the City Civil Court at Bombay.
4. The defendant by his Written Statement denied the aforesaid allegations contained in the plaint. He, inter alia, contended that the suit was between a Licensor and Licensee and this relation between the Licensor and Licensee will have to be decided by the Court of Small Causes which alone had the exclusive jurisdiction. The City Civil Court had, therefore, no jurisdiction to entertain and try the suit. According to him, even if there was a dispute in regard to the relationship of Licensor and Licensee, the same was required to be tried exclusively by the Court of Small Causes under the Presidency Small Causes Courts Act. On merits, the defendant averred that in or about the year 1967 D.M. Kothari himself and on behalf of the plaintiff granted to him Leave and Licence in respect of the suit premises and put him in exclusive occupation of the same. In or about the year 1979 the said D.M. Kothari agreed to transfer the suit premises in the name of the defendant by accepting a sum of Rs. 25,000/- as Pagadi. The defendant paid the plaintiff the sum of Rs. 25,000/- in the presence of Shri Ashok Naik, a friend of the defendant. He, however, subsequently dishonestly backed out and avoided to transfer the tenancy rights. According to him, since 1979 till January 1981 the aforesaid Constituted Attorney of the plaintiff kept quiet till 3rd January, 1981 and allowed the defendant to continue to stay as a rank trespasser. The said Constituted Attorney has been accepting rent from the defendant at the rate of Rs. 25/- per month and in turn paid the same to the landlord. The defendant reiterated that he was in possession as a licensee since the year 1967 and was consequently protected. He contended that the suit of the plaintiff was liable to be dismissed with costs.
5. Before adverting to the evidence led by the contending parties to the suit, it may be appropriate to notice a few broad facts which have appeared in the evidence on record. The plaintiff is a tenant of the suit premises. He was born in Amli in the Tehsil Kasba of District Navsari. He came to Bombay from Gujarat in the year 1935. He started residing in the shop of his maternal uncle who is D.M. Kothari, his Constituted Attorney. He was conducting business in the name of Mohanlal & Sons in a building 'Terrace of Sheraz' at 127/B, Tardeo, Bombay. The defendant did tailoring work in that shop for about a year and went to reside in the suit premises as a tenant. After residing there for about a year he left for Africa. He thereafter shifted and started residing in Bolton in London. Since about 1937 he has been residing abroad. Apparently he had left the suit premises in charge of his maternal uncle D.M. Kothari. The defendant was closely associated with the said D.M. Kothari. He was almost brought up by the said D.M. Kothari since childhood. The defendant used to do domestic work for him.
6. I have given a short resume of the background in regard to the relations between the parties and the situation prevailing at the relevant time so that the same may assist us in the proper appreciation of the evidence led by the parties to the suit. The plaintiff in support of his case led the evidence of his Constituted Attorney D.M. Kothari. By way of rebuttal the defendant examined himself as D.W. 1, his brother Madhusudan Sawant as D.W. 2, and a common friend Ashok Naik as D.W. 3. On a perusal of the aforesaid oral evidence as also the documentary evidence produced by the parties the learned Judge of the trial Court by the impugned judgment and order was pleased to hold that the plaintiff had proved that the defendant is a trespasser. He further held that the City Civil Court has the jurisdiction to entertain and try the suit. Consequent upon these findings the suit of the plaintiff was decreed and the defendant was directed to hand over possession of the suit premises to the plaintiff. Taking exception to the said findings, and the consequent decree, the original defendant has preferred the present First Appeal.
7. Shri Paranjape the learned Counsel appearing in support of the Appeal has taken me through the entire evidence on record. He firstly contended that on a proper appraisal of the evidence, the only inference that could legitimately be drawn is that the defendant was in exclusive possession of the suit premises with effect from the year 1967. The defendant was, therefore, in possession under a subsisting licence on the 1st February, 1974 and hence the possession of the defendant was protected under the Bombay Rent Act. He pointed out that even the learned Judge of the trial Court has found that the defendant is in possession as a licensee with effect from the year 1979. According to him, on this finding the City Civil Court would cease to have jurisdiction to try the suit in view of the amended provisions of section 41 of the Presidency Small Causes Courts Act. According to him, under the aforesaid provision, the suit was liable to be tried only by the Court of Small Causes. Whether the licence of the defendant was protected under the Rent Act or not was not an issue which could legitimately be tried by the City Civil Court. According to him, all the findings arrived at by the City Civil Court stood vitiated for want of jurisdiction. Since the plaintiff had failed to prove that the defendant was a rank trespasser since the year 1967 as alleged in the plaint, the present suit was liable to be dismissed.
8. Shri Abhyankar the learned Counsel appearing on behalf of the plaintiff on the other hand submitted that there was not an iota of evidence regarding the possession of the defendant since 1967. Even if the defendant had come on the suit premises since 1979, it was merely at the grace of said D.M. Kothari who had practically brought him up from his childhood. The defendant was unable to produce any receipts in regard to payment of rent or compensation. According to him, the defendant has taken undue advantage of the grace extended by the said D.M. Kothari and has refused to vacate. If in these circumstances there was any negotiation for the transfer of the tenancy rights of the suit premises in his favour, the same would not come to his aid for claiming protection under the Rent Act. On the question of jurisdiction he contended that the plaintiff had approached the City Civil Court with an allegation that the defendant was a trespasser. Having regard to the allegations contained in the plaint, the City Civil Court had the jurisdiction to entertain and try the suit. According to him, if it is ultimately found that the defendant is not a trespasser but is a licensee as contemplated either under section 41 of the Presidency Small Causes Court Act or under section 5(4-A) of the Bombay Rent Act, it would be open to the City Civil Court either to return the plaint for presentation to the proper Court or to dismiss the suit. That would, however, not effect the basic jurisdiction of the City Civil Court to entertain any try the suit.
9. On the question of possession, Shri Abhyankar contended that the defendant could not be held to be in possession either in fact or in law. According to him, this was a case of mere permissive user. The moment the permission was withdrawn, the position of the defendant would be nothing else but that of a trespasser. According to him, the defendant's position would not be of a licensee either under section 52 of the Indian Easements Act or under section 5(4-A) of the Bombay Rent Act. Hence, he submitted, the decree passed by the trial Court was fully justified. He prayed for the dismissal of the Appeal.
10. The plaintiff being abroad did not step into the witness box. He led the oral evidence on his Constituted Attorney Shri D.M. Kothari. The plaintiff is the maternal uncle of the said D.M. Kothari. He produced a Power of Attorney dated 11th November, 1980 executed in his favour by the plaintiff. This is a Special Power of Attorney granted for the purpose of filing the present suit. It appears that prior to the execution of this Power of Attorney there was no other Power of Attorney authorising said D.M. Kothari to manage or deal with the suit property on behalf of the plaintiff. It appears that being the nephew of the plaintiff he was put incharge of the suit property and he was paying rent to the landlord on behalf of the plaintiff. Shri D.M. Kothari deposed that the plaintiff was residing in England, that he had come to Bombay from Gujarat in the year 1975 and was residing in their shop Mohanlal & Sons situated in 'Terrace of Sheraz.' He stayed there for about a year doing tailoring work in his father's shop. After that he went to reside in the suit premises. He resided there for about a year and then left for Africa. Since about 19 7, the plaintiff is residing in a foreign country. He further deposed that he knew the defendant as he used to see him in Tardeo area standing in front of Irani's hotel. He further stated that the defendant came to reside in the suit premises in 1979 when he had already shifted to the premises in Mulund Society in 1978. He stated that the defendant broke open the lock of the suit premises and occupied the same. The suit premises consisted of only one room with a Nahni inside. He lodged the complaint about the defendant occupying the suit premises, at Agripada Police Station. The police, however, did not take any action against the defendant. He was confronted with the complaint dated 12-10-1979 (Exhibit 2) lodged by him against on Shri Ashwinikumar Ganpat Parulekar alleging intimidation, threats and fisting by the said Ashwinikumar. He stated that he did not remember whether he had filed that complaint. When confronted with the contents, he denied having stated in terms thereof and contended that it must be a typing error. In this complaint which was lodged against the said Ashwinikumar, the following recital was made at paragraph 7:---
'I have a room (Room No. 10) at Noor Mahal Building, Ground Floor, Sir Ratan Tata Road, Tardeo, Bombay-34, where one Vishwanath Sawant is residing alone, with my consent. On Saturday, the 6th October, 79 at about 2.30 p.m., I went to meet Vishwanath Sawant at the said place (Noor Mahal). There, I found Vishwanath Sawant and the said accused. The accused asked me to part with an amount of Rs. 15,000/-, which he required for starting some business. I refused, and the accused started fisting me, breaking my spectacles to pieces and injuring me on the hand and lips, and I bled, when Vishwanath Sawant saved me.......'
Placing reliance on the above recitals, it was contended on behalf of the defendant that the defendant, on the showing of D.M. Kothari was in exclusive possession with his consent.
11. In my view, it will be impermissible to hold on the basis of the aforesaid averment contained in the complaint lodged not by the plaintiff but by his nephew that the defendant was inducted in possession with the consent of the plaintiff. The complaint was not directed against the defendant but one Ashwinikumar. Though a reference to the defendant being in possession with the consent of D.M. Kothari was made, the same was merely for a collateral purpose. On the date of the complaint, Shri D.M. Kothari had no legal authority to deal with the suit premises on behalf of the plaintiff. In any event, the above statement cannot bind the plaintiff for arriving at a finding that the defendant was inducted in the suit premises with his consent.
12. Shri D.M. Kothari further went on to depose that the electricity bills of the suit premises were in the name of his mother (the plaintiff's sister) till 1979. Thereafter the defendant got the same transferred to his name. He learnt about the same in the year 1981-82. He objected by writing to the B.E.S.T. He does not known whether the bill is re-transferred to his mother's name. The electricity bill was in the name of the plaintiff. That he had deposed by mistake that it stood in the name of the witness' mother. It was all along in the name of the plaintiff. The ration card of his mother was at the address of the suit premises till 1980 and now it is at witness' address Mulund Society she was residing with him. The rent of the suit premises was Rs. 13.49 ps. and he was paying it all along. According to him, the defendant never paid any compensation in respect of the suit premises. When the defendant entered the suit premises in 1979 they had their two steel cupboards, one collar pressing machine, a kitchen table a steel cot, a wooden cot and other sundry articles. The witness denied that the suit premises were given to the defendant on leave and licence basis in 1967 and that the defendant was paying rent of Rs. 25/- per month to him. He denied that in 1979 he offered to dispose of the suit premises to the defendant for Rs. 25,000/- and he denied that he had told the Police Inspector Kulkarni that the defendant was ready to hand over the keys to the witness provided that he returned the amount of Rs. 25,000/- paid to the witness by the defendant.
13. Having perused the aforesaid evidence, I find it difficult to hold that the defendant had been inducted in the suit premises as a licensee of the plaintiff. However, I am not included to place reliance on the evidence of D.M. Kothari when he alleged that the defendant, in the year 1979, had broken open the lock and occupied the suit premises. Had it been the case he would not have remained a silent spectator till the lodging of the complaint (Exhibit 2) on the 12th October, 1979. In any event, he appears to have taken no steps to redress the wanton and blatent act of trespass. It, however, does appear that the witness was put in occupation of the suit premises by the plaintiff while leaving for abroad. However, the plaintiff had not given any legal authority to said D.M. Kothari to deal with or disposed of the same. The defendant was known to D.M. Kothari since childhood. He was his domestic servant. It does appear that said D.M. Kothari did permit the defendant to temporarily occupy the suit premises. Whether this permission would amount to a licence conferring any statutory right in favour of the defendant will be considered at a later stage of this judgment. However, it is enough at this stage to hold that the plaintiff has failed to establish that the defendant had trespassed upon the suit premises some time in the year 1979 after breaking open the lock. The aforesaid evidence does establish that the defendant was permitted to temporarily occupy the suit premises. This was by the said D.M. Kothari at a point of time when he had no specific authority to deal with the suit premises.
14. This takes me to the appreciation of the evidence of the defendant Vishwanath Mahadeo Sawant. He deposed that he knew D.M. Kothari since his childhood. Prior to 1967 he was residing in IIIavial Building. From 1960-61, he used to visit the suit premises to meet Shri Kothari as his father had good relations with D.M. Kothari's father. From 1967 he permanently shifted to the suit premises. D.M. Kothari gave the suit premises permanently to him in the year 1967, on condition that he paid the maintenance charges of the suit premises including rent etc. Another condition was that he should reside there but should not have any correspondence or any documentary proof regarding his occupation in the suit premises. In 1979 D.M. Kothari proposed that he should pay him something and continue to occupy the suit premises permanently. After negotiations he agreed to accept Rs. 25,000/- from him. Accordingly, he paid Rs. 25,000/- to D.M. Kothari in or about June 1979. He agreed that the suit premises would be transferred by the landlord in his name. He did not taken any writing about the payment of Rs. 25,000/-. However, that amount was paid through one Ashok Naik (D.W. 3), their common friend. He went on to depose regarding the complaint (Exhibit 2) lodged by D.M. Kothari and stated that D.M. Kothari had admitted at the Police Station that the suit premises were given to him and that D.M. Kothari had received money viz. Rs. 22,000/- for the same. The defendant thereafter proceeded to depose that in February 1982 he visited the tailoring shop of D.M. Kothari when he had carried a taperecorder concealed in a cloth bag. Placing reliance upon the tape-recorded conversation, the defendant sought to make good his case that D.M. Kothari had agreed to transfer the suit premises in favour of the defendant for a consideration of Rs. 25,000/-. He stated that he was paying rent of Rs. 25/- per month for the suit premises to the plaintiff. He, however, never passed any receipts for having received the rent. When it was agreed to transfer the rent bill of the suit premises in his name, the continued to pay rent to D.M. Kothari. When he was looking after the transactions of D.M. Kothari he paid rent of the suit premises to the landlord. He produced five rent receipts dated 22nd June, 1964, 22nd September, 1968, 1st November 1976, 1st January, 1979 and 1st February, 1979 issued by the landlord.
15. The defendant appears to have produced the aforesaid rent receipts in his anxiety to establish his possession or his tenancy rights in respect of the suit premises. In his anxiety he had produced rent receipt dated 22nd June, 1964 which pertained to a period when it was not even the case of the defendant that he was in possession of the suit premises. He had admitted that he was in possession of the suit premises. He has admitted that he was looking after the transactions of D.M. Kothari. Apparently he has produced some rent receipts which may have come to his hands while looking after the affairs of D.M. Kothari.
16. The defendant further deposed that the electricity bills in respect of the suit premises stand in his name since 1979. Prior to that it was standing in the name of Manibhai Kothari. He produced about 25 electricity bills for period from 1st January, 1980 to 4th March, 1980 and from 3rd September, 1984 to 1st November 1984. He produced his ration card standing at the address of the suit premises. He also produced documents relating to the cooking gas connection and also certain mail received at the suit address. He asserted that he was residing in the suit premises since 1967, and that the suit premises belong to said D.M. Kothari. According to him he is the tenant of the suit premises and was entitled to the rent bill being transferred in his name. In cross-examination he stated that in 1967 he was serving in an auto repair garage doing welding work, on the salary of Rs. 150/- per month, that he was almost brought up by D.M. Kothari since his childhood and he used to do his domestic work. D.M. Kothari was residing in Milan Building since a little prior to 1967 and the suit premises were vacant except for occasional visits of his mother. So D.M. Kothari proposed that he should occupy the suit premises. He was, however, accepting the rent of Rs. 25/- per month from him. In regard to the tape recorded conversation he stated that D.M. Kothari was to pay him Rs. 22,000/- by disposing of his room on the first floor. D.M. Kothari was to pay an additional sum of Rs. 9,000/- making a total of Rs. 31,000/- in order that he may not claim any interest in the suit premises. He further went on to depose that D.M. Kothari wanted back the suit premises. So he was ready to pay him the amount of Rs. 22,000/- which was referred to in the tape-recorded conversation. According to him, the amount of Rs. 20,000/- referred to in the conversation was in respect of the upper floor room transaction though did not exactly remember. He admitted that he had no other evidence except what he had produced in Court to show that he was residing in the said premises since 1967. He admitted that he had taken the ration card on the address of the suit premises for the first time on 23rd June, 1979.
17. An appraisal of the above evidence of the defendant would show that the defendant was known to D.M. Kothari from his childhood. He had practically been brought up by D.M. Kothari since his childhood. The defendant was doing domestic work for D.M. Kothari. Apparently, the defendant was a person of his confidence. In the circumstances, it does appear that D.M. Kothari permitted the defendant to use the suit premises. This was, however, without charging any consideration. I am not prepared to accept the word of the defendant when he stated that he was paying rent of Rs. 25/- per month and no rent receipts were issued in his favour, that he was in possession since 1976. Apart from his bare statement, there is no other evidence to support this case. The evidence in the form of ration card electricity bills, the correspondence received by the defendant at the suit address show that the defendant was permitted in the suit premises since about the year 1979. I am, inclined to hold that this permission was granted gratis and the defendant did not pay any consideration either in the form of rent or compensation to either the plaintiff or to D.M. Kothari.
18. If one has a reference to the transcript of the tape-recorded conversation between D.M. Kothari and the defendant produced at Exhibit 4-A, it must be said that he same does not make an intelligent reading. The defendant has on placing reliance on the transcript has sought to contend that there were negotiations between D.M. Kothari and himself, for the transfer of the tenancy rights in respect of the suit premises in his favour said D.M. Kothari at the relevant time was in possession of another room on the first floor. It does appear that one Gulam Sheth was interested in purchasing the tenancy rights in respect of the room on the first floor. It may be that D.M. Kothari finding that the defendant was refusing to quit may have offered certain sum of money by way of consideration for the defendant to quit and vacate the suit premises. That, however, in my view, cannot improve the case of the defendant as this offer by D.M. Kothari was an action at sufferance when the defendant had take undue advantage of the grace offered to him and was establishing his right of tenancy or of a licence and was refusing to vacate. The offer, it at all, in my view, would not change the nature of the occupation of the suit premises by the defendant. In ay event, this would not bind the plaintiff especially when he had not given any specific authority to D.M. Kothari to deal with or dispose of the suit premises. The only authority we have is Exhibit C dated 11th November, 1980. This is a Special Power of Attorney executed for the purpose of filing present suit.
19. It may be convenient to briefly refer to the evidence of the other two witnesses examined by the defendant in support of his case. These witnesses seek to support the case of the defendant in regard to the proposed transaction of transfer of the rent bills in regard to the suit premises. According to D.W. 2 Madhusudan Sawant and D.W. 3 Ashok Naik they had advanced some money to the defendant to enable him to pay the same for the purpose of obtaining the transfer. In view of my observations in regard to the aforesaid transaction, I do not deem it necessary to delete at any length on the said evidence, as in my view even if the case regarding the proposed transaction of transfer of the tenancy rights to the defendant is true, the same would have no relevance for determining the nature of occupation of the defendant.
20. This takes me to the consideration of the nature of possession of the defendant in respect of the suit premises. In my view, a distinction will have to be drawn between the grant of a licence contemplated either under the Indian Easements Act or under the Bombay Rent Act and a mere permission to occupy. The owner may permit his servant to sleep is one of the rooms in his Bungalow. He may invite a friend resident abroad to his hospitality. He may give his house for painting. In this case he may withdraw from possession and hand over possession to the painter for completing the turn key project. One may encourage his wife's brother at his education and permit his residence as a member of the family. Can it be said that these possessions are the possessions which are sought to the protected by the legislature I should think not.
21. A licence may be of two kinds, namely, a bare licence which is purely a matter of personal privilege and a licence coupled with a grant or interest. A bare licence without more is always revocable at the will and the pleasure of the licensor and is not assignable. On the other hand, if a licence is coupled with a grant or interest then the grantor cannot in general revoke it so as to defeat the grant to which it is incident. A mere licence does not create any estate or interest in the property to which it relates. It only confers legality on an act which would otherwise become unlawful. A licence may be purely personal gratuitous or contractual. The first two classes are of mere licences which are revocable, the third class whether is recoverable or not would depend upon the express or implied terms of the contract between the parties. A licence coupled with grant of an interest in the property is not revocable. Such a licence has been described as a right to enter on land and enjoy a profit a prendre or other incorporeal hereditament. To understand the true nature of the relationship between the licensor and the licensee, the decisive consideration is the intention of the parties. Where there is no formal document embodying the terms of agreement, the intention is to be inferred from surrounding circumstances and the conduct of the parties. A licence is personal both to the grantor as well as the licensee. It is a personal right granted to a person to do something upon the immoveable property of the grantor, and does not amount to the creation of an interest in the property itself. It is purely a permissive right, and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is, therefore, revocable except in certain circumstances expressly provided for in the Indian Easements Act itself. The licence has no other effect than to confer a liberty upon the licensee to go upon the land which would otherwise be unlawful. Even the tenancy rights are immoveable property of the tenant. In order to grant licence a man need not be its owner. The tenancy rights of an-immoveable property are also the immoveable property of the tenant and, therefore, he can well grant the licence. But by virtue of section 53 of the Act he can obviously grant licence subject to the limitation and the extent to which he may be able to transfer his interest, viz. the tenancy rights. Whether the act which is allowed to be done is a bare licence or some-thing more than a licence would depend on the terms of the transaction. If a person is allowed to do something on the land without interfering with the nature of the land or without taking any profits from it, it could be described to be case of a bare licence. Thus if A is allowed just to pass over the land of B, such an interest can properly be described as a bare licence. A merely walks over the land. He has no right to occupy it. He does not take any profits out of it. He does not enjoy the land or its profits in any way. He is merely allowed to do an act on the land which, but for the permission, would be unlawful. The position, however, would be quite different if B allows A not only to pass over his land, but also to take exclusive possession of the same, to plant trees over it or to set up cattle troughs or to prepare cow-dung cakes on it or to put up constructions of a permanent nature on it to cultivate it by carrying on agricultural operations on the same on payment of rent in respect of it. The interest carved out in this fashion cannot be termed to be a bare licence or a licence pure and simple. It is an interest of a complex nature comprising within itself composite features both of a licence as well as of a grant. In so far as it allows the licensee to do some act on the land it partakes of the character of a licensee. In so far however as it further allows the licensee to hold exclusive possession of the land, to use it for his own personal enjoyment, to plant trees on the same and to benefit himself by the fruits of the said trees, to construct a house and reside therein and to carry on agricultural operations on the said land and enjoy its usufruct or produce, the transaction presents the features of a grant. A transaction like this may be described be as a licence-cum-grant.
22. Applying the aforesaid principles to the facts of the present case, I find that what was granted to the defendant was a mere personal gratituous licence to occupy the suit premises. The same was not coupled with any grant. Such a licence can be revoked at any time at the whims and fancies of the grantor and without assigning any reasons. Once such a licence is revoked the nature of the continued occupation by the defendant is nothing but that of a trespasser. Such a person cannot continue to claim to be a licensee entitled to any protection whatsoever either under the Easements Act or under the Bombay Rent Act. He is a rank trespasser.
23. Section 52 of the Indian Easements Act defines licence:---
'Where one person grants to another...................... a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.' (emphasis provided).
24. In my judgment, it is only when a licence is created as of right that it can be covered under the provisions of section 52. When a permission is afforded not as of right but as of grace or where permission is afforded, it is incidental or ancillary to say a family arrangement, an arrangement of employment or the like, the same would not amount of a licence under section 52. The transaction has to partake the nature of a commercial transaction for valuable consideration before it can partake the nature of a right envisaged by section 52 of the Indian Easements Act.
25. In the present case, the plaintiff who is the tenant of the suit premises was nowhere on the scene. He had left the suit premises in charge of his nephew. He had not given him any authority to deal with or dispose of the suit premises. The defendant was known to D.M. Kothari since his childhood. He was practically his domestic servant. After D.M. Kothari had shifted to his alternate premises at Mulund, he may have, out of grace permitted the defendant to occupy the suit premises. This, as I have held, was without charging any consideration. As fate could have it, the defendant enlarged his position from that of an occupant inducted by the grace of D.M. Kothari. He started asserting his tenancy rights and refused to vacate. In desperation D.M. Kothari may have attempted to seek back possession even by offering some consideration. At the cost of repetition I must state, that would not improve the nature of possession of the defendant. Having found that the possession of the defendant was not one as contemplated under section 52 of the Indian Easement Act, the same cannot be possession of a licensee contemplated under section 5(4-A) of the Bombay Rent Act. Having found that the defendant came to occupy the suit premises in 1979, there can arise no question of there being a subsisting licence as on the 1st of February, 1973. Having found that the defendant was not charged either rent or compensation, there can arise no question of there being a licence given for licence fee or charge. Hence, the defendant can have no claim either under section 15 or 15-A of the Rent Act.
26. The next question that arises for consideration is in regard to jurisdiction. Shri Paranjape, the learned Counsel appearing on behalf of the defendant strenuously submitted that the defendant had been inducted in the suit premises as a licensee. Even the learned Judge of the trial court found that the defendant was inducted in the suit premises with the consent of said D.M. Kothari in or about 1979 According to Shri Paranjape, the moment this finding was given, the City Civil Court would cease to have jurisdiction and it would be the Court of Small Causes either under section 41 of the Presidency Small Causes Courts Act or under section 28 of the Bombay Rent Act that would have jurisdiction. According to him, whether the defendant was protected under the provisions of the Rent Act or not, whether the defendant was entitled to the protection of the Rent Act or otherwise, whether the licence of the defendant had been revoked or not were questions which could be decided only by the Small Causes Court. These questions were quoted from the jurisdiction of the City Civil Court.
27. Shri Paranjape placed reliance on the case of Eknath Vithal v. Mansukhlal, : (1988)90BOMLR22 , wherein it was observed as under :---
'Where 'A' who claimed to be in exclusive possession on the basis of relationship of licensor and licensee, filed a suit simpliciter for injunction to protect the possession before the City Civil Court, it could not be said that City Civil Court had jurisdiction to try such suit. It is now well settled that in order to determine which Court has jurisdiction to try the 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 the relief claimed. Therefore, when 'A' had alleged the relationship of a licensor and licensee and the relief claimed in substance related to recovery of possession, it would be the special Court that would have jurisdiction to decide the suit. Amended section 41(1) clearly prescribes that Court of Small Causes have jurisdiction to entertain and try all suits and proceedings between the licensor and the licensee relating to the recovery of possession of any immovable property situated in Greater Bombay.
'Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 confers jurisdiction on the Court of Small Causes, Bombay to entertain and try any suit or proceeding between landlord and a tenant relating to the recovery of rent or possession of any premises. The words used in the section are 'relating to recovery of rent or possession' and not for recovery of rent and possession and the words 'relating to' are very wide and would include any suit or proceeding in connection with or having a direct bearing on the question of possession of the premises. Even if a suit is not for possession, but the relief claimed in the suit is in regard to or in respect of recovery of possession then it well come within the ambit of the section. The same interpretation must squarely apply while determining the ambit of expression 'relating to recovery or possession' in section 41 of the Presidency Small Causes Courts Act.'
28. In the above case the plaintiffs instituted a suit in the City Civil Court claiming that they were in possession of the suit shop since December 1974. The defendant was the tenant of the shop premises. It was the case of the plaintiffs that irrevocable leave and licence had been created in their favour on payment of consideration of Rs. 18,500/-. When defendants threatened to physically throw out the plaintiffs from the premises, they filed the said suit for a permanent injunction restraining the defendant from disturbing the plaintiffs peaceful enjoyment and possession of the suit shop. In the suit the plaintiffs took out a Notice of Motion for interim injunction. The defendants appeared and raised preliminary objection to the jurisdiction of the Court to entertain and try the suit. The defendant claimed that the relief sought by the plaintiffs related to possession of the shop on the strength of alleged licence granted by the defendant and such a suit would be tried only by the Court of Small Causes in exercise of the powers under section 41 of the Presidency Small Cause Courts Act, 1882. The preliminary objection was turned down by the judge of the City Civil Court and the defendant preferred a Revision Application to this Court. The matter was referred to a Division Bench in view of the importance of the question involved. There was a difference between the learned Judges which constituted the Division Bench and the matter was, therefore, placed before a third Judge and it was in these circumstances that the aforesaid observations came to be made. The learned Judge in paragraph 7 of his judgment was pleased to observed as under:---
'In my judgment the suits instituted under section 6 of the Specific Relief Act cannot be equated with the suits for injunction simpliciter. Section 5 of the Specific Relief Act prescribes that the person entitled to the possession of the specific immoveable property may recover it in the manner provided by the Code of Civil Procedure, 1908, and that by institution of suit in a proper forum. Chapter VII of the Specific Relief Act deals with subject of jurisdiction and section 38(1) of the Act provides that the perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. In suit for injunction simpliciter, the City Civil Court has to determine whether the defendant has committed a breach of obligation existing in favour of the plaintiff and to ascertain that fact the Court must find out whether the relationship of licensor and licensee existed between the parties and whether the initial induction of the plaintiff in the shop premises was under the authority of law. It is, therefore, not correct to suggest that a suit for injunction simpliciter does not involve any inquiry into the status of the plaintiff. The contention that the suit under section 6 of the Specific Relief Act is maintainable in the City Civil Court after the tenant is forcibly dispossessed by the landlord and on the same analogy the suit for injunction simpliciter before such forcible dispossession should be entertained by the City Civil Court cannot be accepted. In the suit instituted under section 6 of the Specific Relief Act the plaintiff does not claim recovery of possession in his capacity as a licensee and the issue of relationship between the licensor and the licensee is wholly immaterial, but in the suit for injunction simpliciter relief can be granted provided such a relationship existed.'
29. In my judgment, the ratio laid down in the above case can have no application to the facts of the case at hand. The plaint in that case recited that the plaintiffs were in possession as a licensee. As against that in the present case, the plaint recites that the defendant is a rank trespasser. The plaint as it stood was properly triable by the City Civil Court. On a perusal of the evidence, I have given my finding that the possession of the defendant after revocation of the license was not that of a licensee but of a rank trespasser. The licence which was granted to him was a mere temporary gratituous permission uncoupled with a grant or interest. On the revocation of this licence, the continued possession of the defendant was nothing else but that of a trespasser. Hence, the City Civil Court would have the jurisdiction to entertain and try the suit.
30. Shri Abhyankar, the learned Counsel appearing on behalf of the plaintiff placed reliance on the case of Sarfarazali Nawabali Mirza v. Miss Maneck, reported in 78 B.L.R. 704, wherein it was contended before the Division Bench of this Court as under:---
'The next contention advanced on behalf of the petitioner was that in view of the contention raised by the defendant that he was not a paying guest but was a licensee who had acquired the status of a tenant by virtue of the amendment made in the Rent Act by Act No. 17 of 1973, the jurisdiction to try this suit was exclusively vested in the Court of Small Causes. In this respect it was contended that while determining the question of jurisdiction, it is not only the allegations made in the plaint that should be taken into consideration by the Court but also defences raised by the defendant and on consideration of the cumulative effect of both the allegations in the plaint and the defences raised by the defendant in the written statement that the Court should determine whether a particular suit falls within its jurisdiction. In other words, what was contended was that the Court should determine the question of jurisdiction after ascertaining the substance of the controversy between the parties by going through the plaint as well as the written-statement.'
31. It has been observed in the above case that the jurisdiction of a Court is normally and ordinarily to be determined at the time of inception of a suit. This jurisdiction should not be controlled or affected by any subsequent contention that may be taken up by the defendant. Hence the decision whether a Court other than the Small Causes Court has jurisdiction to try a particular suit is to be determined on the basis of the averments made in the plaint. The defence raised by the defendant is irrelevant for this purpose. If ultimately at the trial it is found that the allegations of the plaintiff are not substantiated and the defence is true, it is open to the Court to return the plaint for presentation to the proper Court or to dismiss it if the circumstances so warrant. Under section 28, the exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in section 28. When the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary Court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. 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 be the form of relief claimed, if on a fair reading of the plaint, it becomes apparent that the plaintiff has alleged relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to the recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provision, then it is the special Court alone which 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 he special Court that will have jurisdiction to entertain the suit.
32. Reliance was placed on the case of Govindram Salamatria v. Dharampal, reported in 53 B.L.R. 386, wherein it was held as under:---
'Where a person is entitled to the protection of the Act, whether a person is entitled to the benefit of any of the provisions of the Act, all these are questions which only the Small Causes Court can decide and determine, but whether a person is a tenant or a licensee or a trespasser are not questions which section 28 has left to the determination of the special Court set up under the Act. ........ The proper forum for the determination of the question whether the relationship between the plaintiff and the defendant is as between landlord and tenant or as between licensor and licensee or as between owner and trespasser is the High Court which initially has got the jurisdiction to entertain the suit for ejectment which has been properly framed on the basis of relationship as between licensor and licensee or owner and trespasser.'
33. Further reference was made to the case of Raizada Topandas v. Gorakhram and Vasudeve v. Board of Liquidators, reported in 66 B.L.R. 205 decided by the Supreme Court, wherein it was held :---
'Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, proceeds on the basis that exclusive jurisdiction is conferred on certain Court to decide all question or claims under the Act as to parties, between whom there is or was relationship of landlord and tenant. It does not invest those Courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. 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, the defendant cannot by his plea force the plaintiff to go to a forum where on his averments he cannot go.'
34. Reference was also made to a Full Bench decision of this Court in the case of Dattatraya Krishna v. Jairam Ganesh, reported in 66 Bom.L.R. 64 wherein it was held :
'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 is 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.'
35. Reliance was also placed in the case of Natraj Studios (P) Ltd. v. Navrang Studios, decided by the Supreme Court and reported in A.I.R. 1981 S.C. 537, wherein the following observations were made:---
'Thus exclusive jurisdiction is given to the Court of Small Causes and jurisdiction is denied to other Courts (1) to entertain and try any suit or proceeding between landlord and a tenant relating to recovery of rent or possession of any premises, (2) to try any suit or proceeding between a licensor and licensee relating to the recovery of licence fee or charge, (3) to decide any application made under the Act and, (4) to deal with any claim or question arising out of the Act or any of its provisions. Exclusive jurisdiction to entertain and try certain suits, to decide certain applications or to deal with certain claims or questions does not necessarily mean exclusive jurisdiction to decide jurisdictional facts also. Jurisdictional facts have necessarily to be decided, by the Court where the jurisdictional question falls to be decided and the questions may fall for decision before the Court of exclusive jurisdiction or before the Court of ordinary jurisdiction. A person claiming to be a landlord may sue his alleged tenant for possession of a building on grounds specified in the Rent Act. Such a suit will have to be brought in the Court of Small Causes, which has been made the Court of exclusive jurisdiction. In such a suit the defendant may deny the tenancy but the denial by the defendant will not oust the jurisdiction of Court of Small Causes. If ultimately the Court finds that the defendant is not a tenant the suit will fail for that reason. If the suit is instituted in the ordinary Civil Court instead of the Court of Small Causes the plaint will have to be returned irrespective of the plea of the defendant. Conversely a person claiming to be the owner of a building and alleging the defendant to be a trespasser will have to institute the suit, on the plaint allegations, in the ordinary Civil Court only. In such a suit the defendant may raise the plea that he is a tenant and not a trespasser. The defendant's plea will not straightway oust the jurisdiction of the ordinary Civil Court but if ultimately the plea of the defendant is accepted the suit must fail on that ground. So the question whether there is relationship of landlord and tenant between the parties or such other jurisdictional questions may have to be determined by the Court where it falls for determination be it the Court of Small Causes or the ordinary Civil Courts. If the jurisdiction question is decided in favour of the Court of exclusive jurisdiction the suit or proceeding before the ordinary Civil Court must cease to the extent its jurisdiction is ousted.'
36. A further reference was made to the case of Miss Mani J. Desai v. Gayson & Co., reported in 73 B.L.R. 394, wherein it was held that in case of an unlawful sub-letting the occupant's possession is unlawful at its inception. In such a case the occupant cannot succeed under section 41 of the Presidency Small Causes Court Act. He will have to pursue his remedy elsewhere by filing a suit in a Court of competent jurisdiction.
37. Shri Abhyankar finally relied upon an unreported decision in the case of Dr. Jeevan Avinash Mohadikar v. Dr. Surendra Maruti Parkar, (A.O. No. 350 of 1985 decided by Jahagirdar, J., on the 29th July, 1985). In that case, the plaintiff filed a suit in the City Civil Court for a declaration that he is entitled to use, occupy and possess the suit premises for the purposes of conducting and running the defendant's general medical practice. A prayer was made that the defendant was not entitled to disturb the plaintiff's use, occupation and possession in respect of the said premises. A Notice of Motion was taken out by the plaintiff for interim reliefs. The Notice of Motion was resisted by the defendants on the ground, inter alia, that the suit filed by the plaintiff in the City Civil Court was not maintainable in view of the provisions contained in section 41 of the Presidency Small Causes Courts Act. The trial Court held that the plaintiff had in terms and in effect mentioned in the plaint that he was paying a certain sum by way of monthly compensation for use, occupation and possession of the suit premises. This indicated, according to the learned trial Judge, that the plaintiff was himself claiming to be the licensee of the suit premises and if it is so, the suit filed in the City Civil Court was barred by section 41 of the Presidency Small Causes Courts Act. It was contended on behalf of the plaintiff before this Court in Appeal that the plaintiff had not claimed and did not claim to be the protected licensee under the provisions of the Bombay Rent Act. Therefore, the suit was not for recovery of possession, nor is it a suit for recovery of licence fee or charges or rent thereof. After considering the averments made in the plaint it was observed that it is clear that the plaintiff is not suing for recovery of possession of any immovable property. Naturally he is also not suing for the recovery of the licence fee or charges or rent of the suit premises. He is also not suing for a declaration that he is a licensee protected under the provisions of the Bombay Rent Act. The question is whether on the avernments in the plaint the suit can be said to be one for recovery of the suit premises which are held by the plaintiff under the agreement of licence entered into between the plaintiff and the defendant. It was held that though there is a prayer made for injunction restraining the defendant from disturbing the possession of the suit premises, it did not relate to the recovery of possession of the immovable property as mentioned in section 41 of the Presidency Small Causes Court Act. It was observed that the plaintiff could have filed the suit in Court of Small Causes under section 41(1) of the Presidency Small Causes Courts Act for a declaration that he is a licensee though not the one protected by the Bombay Rent Act and could not have proceeded to obtain interim relief such as injunction of the type which he has sought in that suit. The suit which was filed in the City Civil Court was not covered by the provisions of section 41(1) of the Presidency Small Causes Courts Act. It was not only not a suit for recovery of possession of immovable property; it was not even a suit relating to recovery of possession. The Appeal was, therefore, allowed and it was held that the City Civil Court had the jurisdiction to entertain and decide the same.
38. If regard is had to the aforesaid decisions, in my view, it will be the City Civil Court which has the jurisdiction to entertain and try this suit. In my judgment, the possession of the defendant is not that of a licensee, but of a mere temporary gratituous permission. On revocation of this permission his possession is that of a rank trespasser. The plaint recites that the defendant is a trespasser. On an appraisal of the evidence, I have found that the defendant is a trespasser. Consequently, the provision of section 41 of the Presidency Small Causes Courts Act or of section 28 of the Bombay Rent Act are not be attracted. Hence, the City Civil Court has the jurisdiction to entertain and try the suit.
39. In view of my aforesaid findings, the decree of the trial Court is liable to be confirmed though on grounds different from the ones that had commanded themselves to the learned Judge of the trial Court. The decree dated 13th August, 1986 of the Bombay City Civil Court in Short Cause Suit No. 1050 of 1982 is confirmed and the Appeal is dismissed. The respondent (original plaintiff) will be entitled to the costs both of the suit as also of this Appeal. Shri Pai appearing on behalf of the appellant prays for stay of the impugned decree for a period of six weeks to enable him to consider preferring a Letters Patent Appeal. Shri Abhyankar for the respondent has no objection. He, however, stated that the appellant should be called upon to give an undertaking that he is himself in possession and he will not create third party interests. Shri Pai on behalf of the appellant agrees to filed such an undertaking within one week from today.
The impugned decree not to be executed for a period of six weeks.