MP - 1 - CRA763_09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 763 OF 2009 WITH CIVIL REVISION APPLICATION NO. 764 OF 2009 Noshir Phiroze Khambatta ... Applicant Versus Mrs. Homai Faredoon Modi ... Respondent Mr. P. S. Dani for Applicant. Mr. N. V. Walawalkar, Senior Advocate with Mr. G. S. Godbole for Respondent. CORAM : B.R. GAVAI, J. MONDAY, APRIL 18, 2011 P. C. : The revision applications arise out of concurrent orders passed by the learned Judge of the Small Causes Court in R.A.D. Suit No. 248 of 1982 filed by the present applicant, dismissing the same and L.E. & C. Suit No. 453/478 of 2001 filed by the present respondent, decreeing the same, and the judgment and order passed by the learned Appellate Bench of the Small Causes Court in Appeals Nos. 292 of 2008 and 293 of 2008 filed by the present applicant, thereby dismissing the same. 2. The R.A.D. Suit No. 248 of 1982 was filed by the present applicant claiming therein a declaration that his licence on the basis of leave and licence agreement dated 15th September 1970 was subsisting on 1st February 1973, and as such, in view of the provisions of Section 15-A of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the “Bombay Rent MP - 2 - CRA763_09 Act” for short), he had become a protected tenant. The suit was defended by the original defendant Firoza Deboo by filing a written statement. After her demise, the legal representative of the said defendant was brought on record. The said legal representative filed an additional written statement. The said legal representative after the death of the original landlady, also filed a L.E. & C. Suit No. 453/478 of 2001 for eviction of the defendant on the ground that despite the expiry of the leave and licence granted in favour of the licensee, he had failed to vacate the premises, and as such, the plaintiff in the said suit was entitled for a decree of eviction. 3. For the sake of convenience, the parties would be referred to as the landlady and the licensee. 4. It is the claim of the licensee that vide agreement dated 15th September 1970, the original landlady Ms. Firoza Deboo had entered into an agreement of leave and licence, for a period of eleven months. It is also the contention of the licensee, that it was agreed at the time of execution of the agreement itself, that the licensee was at liberty to occupy and reside in the suit premises as long as the licensee desired, and that the landlady had agreed to accept the agreed licence fees, from time to time, from the licensee, and as such, the terms recorded in the agreement dated 15th September 1970 stood modified. It was the case of the licensee that even after the expiry of the period of eleven months, he was regularly making the payment by giving instructions to his bankers to debit his account and credit the same in the account of the landlady. It is the case of the licensee, that the payment was regularly accepted by the landlady. It is the case of the licensee, that the possession of the licensee was threatened by the landlady, and in these premises, a suit for MP - 3 - CRA763_09 declaration that the licensee had become a protected tenant came to be filed with other ancillary reliefs. In a written statement filed on behalf of the original defendant, it was the case of the original defendant that the leave and licence had come to an end by efflux of time after a period of eleven months. The case of the licensee that the payment was regularly accepted by the landlady was denied by the original defendant. It was the case of the defendant, that since in the year 1970, the mother of the defendant was ailing, the landlady was required to go to Navsari to look after her, and since the licensee wanted the premises for a limited period, as he had already booked a house, the leave and licence was granted as and by way of temporary arrangement. After the death of the landlady, in the additional written statement filed by her legal representative, it was contended that since the licensee had made the landlady to suffer a lot, she had decided not to accept any compensation till the possession was handed over. In the suit filed by the legal representative of original landlady, it was contended that the licensee, after the expiry of leave and licence, was not entitled to continue with the possession of the suit premises, and as such, the landlady was entitled to decree of eviction. The suit filed by the licensee came to be dismissed. The suit filed by the landlady was decreed. Being aggrieved thereby, two appeals as aforesaid were preferred by the licensee. Both the appeals are dismissed. Hence, the present two civil revision applications. 5. Mr. Dani, the learned Counsel appearing on behalf of the applicant, submits that even after the expiry of the period mentioned in the leave and licence agreement of 1970, the licensee continued to exclusively occupy the premises. He submits that not only that, but the rent was accepted on behalf of the landlady, and that there is also an MP - 4 - CRA763_09 admission by the witness on behalf of the landlady, that till the period of October 1972, the rent was accepted by the landlady. He further submits that the learned Courts below had themselves come to the conclusion, that the payment has been accepted by the landlady after 1974. The learned Counsel for the applicant, therefore, submits that from the attending circumstances i.e. the compensation was paid; that the applicant was in exclusive possession of the suit premises; that even after the filing of a declaratory suit, no notice for revocation of licence was issued by the landlady, the only inference that could be drawn was that the leave and licence was subsisting on 1st February 1973. The learned Counsel, therefore, submits that, if that is so, then the licensee was entitled for protection in view of the provisions of Section 15-A of the Bombay Rent Act. The learned Counsel for the applicants, in this respect, relies on the judgment of the Apex Court in the case of Mani Nariman Daruwala and others Vs. Phiroz N. Bhatena and others reported in (1991) 3 SCC page 141. 6. The learned Counsel for the applicant further submits that, the courts below have erred in coming to a conclusion that the suit in question is governed by Article 65 of the Limitation Act. He submits that the suit in question would be governed by either Article 66 or Article 67 of the Limitation Act. He submits that the licensee has not claimed anything adverse to the interests of the landlady, and as such, Article 65 would not be applicable to the facts of the present case. He further submits in view of Section 19(d) of the Presidency Small Cause Courts Act, 1882, the Small Causes Court has no jurisdiction to entertain the suit for recovery of possession on the basis of title, and therefore, insofar as the issue of limitation is concerned, the Courts below have patently erred in arriving at the findings, as recorded. The learned MP - 5 - CRA763_09 Counsel, in this respect, relies on the judgment of the Apex Court in the case of Shakuntala S. Tiwari Vs. Hem Chand M. Singhania reported in AIR 1987 SCC page 1823. 7. As against this, Mr. Walawalkar, the learned Counsel appearing on behalf of the landlady, submits that since there was a specific written agreement for leave and licence, the licensee was barred from contending anything contrary thereto, in view of the provisions of Section 92 of the Indian Evidence Act. The learned Counsel submits that the licensee has utterly failed to establish that on 1st February 1973, he was a licensee, and therefore, no error could be found with the concurrent findings of fact. The learned Counsel further submits that, even insofar as the issue of limitation is concerned, the learned Courts below have rightly come to a finding that the suit would be governed by Article 65 of the Limitation Act. Reliance, in this respect, is placed on the judgment of the learned Single Bench of this Court, in the case of Devidas Krishna Salunke Vs. Tanubai w/o. Vasudeo Ghogare reported in 1999 (1) Mh.L.J. page 616. Reliance is placed also on the judgment of the Apex Court, in the case of Gaya Parshad Dikshit Vs. Dr. Nirmal Chander and another reported in AIR 1984 SC page 930. 8. While sitting in revisional jurisdiction under Section 115 of the Code of Civil Procedure, the jurisdiction of this Court, while entertaining an application against the concurrent findings of fact would be very limited. Unless it is noticed by this Court, that the jurisdiction exercised by the Courts below has been exercised with material irregularity, it would not be permissible for this Court to interfere with the same. MP - 6 - CRA763_09 9. Undoubtedly, the agreement dated 15th September 1970, which has been entered into between the parties, is for a period of eleven months. No doubt that the learned Counsel for applicant is right in contending that for determining the question as to whether the licensee was in fact having licence on 1st February, 1973, it would be necessary to take into consideration the attending circumstances. However, the question as to whether, on the basis of the attending circumstances, the licensee has established that the licence was in fact existing on 1st February 1973, is purely a question of fact, which is required to be determined on the basis of the evidence that has been led by the parties before the Trial Court, and which has been appreciated by it as well as by the Appellate Court. 10. Insofar as the concurrent findings are concerned, unless it is noticed that the findings, as recorded, are perverse, it would not be permissible for this Court to interfere with the same. The Courts below have concurrently found that the licensee has failed to establish that after the expiry of the period of licence, the payments were not made till 1974. The Appellate Court in paragraph 22 and the learned Trial Court in paragraph 14, after considering the entire material placed on record, by the licensee, have arrived at the finding of fact, that the licensee has failed to establish that the licence was subsisting on 1st February 1973. Insofar as the judgment of the Apex Court in the case of Mani Daruwalla (supra) is concerned, the said case, instead of supporting the case of licensee, would rather support the case of the landlady. In the said case, the learned Trial Judge had held that the tenant had no authority to give the premises on licence, and as such, the respondents who claimed to be the licensors on 1st February 1973 were not entitled to any protection. However, the Appellate Bench of the Small Causes MP - 7 - CRA763_09 Court in view of the judgment of the Apex Court in the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram reported in (1986) 4 SCC page 447 held that even a statutory tenant can create a licence, and on the basis of the evidence, held that since the licence was subsisting on 1st February 1973, the licensees were entitled to protection under the Bombay Rent Act. The High Court reversed the same. Reversing the judgment of the High Court, the Apex Court observed thus : “18. Was the High Court justified in taking this view and in upsetting the finding recorded by the appellate bench? While considering this question it has to be borne in mind that the High Court was exercising its jurisdiction under Article 227 of the Constitution of India. In the exercise of this jurisdiction, the High Court can set aside or ignore the findings of fact of an inferior court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or tribunal who has come or in other words it is a finding which was perverse in law. Except to the limited extent indicated above, the High Court has no jurisdiction to interfere with the findings of fact. Applying these tests, we are unable to persuade ourselves to hold that the findings recorded by the appellate bench suffer from such an infirmity so as to justify interference with the said finding under Article 227 of the Constitution.” (emphasis supplied) It is, thus, clear that the Apex Court, itself, has held that unless the finding is perverse in law, it is not permissible for this Court to interfere with the finding of fact. The same principle would be equally applicable while this Court exercises revisional jurisdiction under Section 115 of the Code of Civil Procedure to examine as to whether the jurisdiction exercised by the lower courts have been exercised with material irregularity or not. The perusal of the concurrent orders, in my MP - 8 - CRA763_09 respectful opinion, would not show any perversity in the approach adopted by both the Courts below. On the contrary, the Courts below, on the basis of the correct and proper appreciation of the evidence, have held that the licensee had failed to establish that the licence was not subsisting on 1st February 1973. 11. Insofar as the second contention of the licensee regarding the suit not being governed by Article 65 but Articles 66 and 67 is concerned, the learned Counsel has relied on the judgment of the Apex Court in the case of Shakuntala Tiwari (supra). The question that arose for consideration before the Apex Court was as to when the landlord was entitled to file a suit for recovery of possession. It was held by the Apex Court that in view of the breach of the conditions mentioned in Section 13 of the Bombay Rent Act and on lifting of the embargo against eviction of tenant in terms of Section 12 of the said Act, the suit would be governed by either Article 66 or Article 67. The contention that the suit would be governed by Article 113 was negatived by the Apex Court. Insofar as the present suit is concerned, I find that it would be governed by the law laid down by the judgment of the Apex Court in the case of Gaya Parshad Dixit (supra) where their Lordships of the Apex Court observe thus: “Mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises MP - 9 - CRA763_09 from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough.” It can be seen from the facts before the Apex Court that a contention was raised by the tenant that since a tenant was in unauthorised possession for a period of more than twelve years, the suit was barred under Article 65 of the Limitation Act. The High Court rejected the said contention. The Apex Court observing that there was nothing to show that at any time after termination of licence, the licensor had asserted hostile title in himself, and as such, rejected the appeal. In the present case, it is not even the case of the licensee, that he was claiming any adverse title to the interests of the landlady. In that view of the matter, I find that the concurrent findings recorded by the Courts below regarding applicability of Article 65 also do not warrant interference. 12. In that view of the matter, no case is made out for interference. The revision applications are, therefore, rejected. 13. At this stage, Mr. Dani, the learned Counsel appearing on behalf of the applicant requests for continuation of interim protection, on the basis of the statement which was made by the Counsel for the respondent, for a period of four months from today. The learned Counsel for the respondent vehemently opposes the said prayer. 14. However, in the facts and circumstances of the case, I am inclined to protect the present applicant for a period of four months from today. It is directed that the respondents shall not execute the decree till MP - 10 - CRA763_09 15th August 2011, on the condition that the applicant files an undertaking to this Court, that the applicant and his family members residing with him, in the suit premises shall handover vacant and peaceful possession of the suit premises to the respondent-decree holder on or prior to 15th August 2011, and further that he shall not create any third party interests / rights in the suit property. 15. Needless to state that this shall be subject to any orders passed by the Hon'ble Supreme Court. (B.R. GAVAI, J)