IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 92 OF 2005 WITH CROSS OBJECTION NO. 1 OF 2005 Shri Chatrapati Shivaji Smarak Mandal, Mumbai & Ors. ...Appellants Versus Shri Arvind Shantaram Kerkar & Ors. ...Respondents Shri D.A. Nalawade, Advocate for the Appellants Shri R.A. Thorat for Respondents. CORAM : A.S. OKA, J Date on which submissions were heard : 1st April, 2011 Date on which Judgment is pronounced : 6th May, 2011 JUDGMENT :- 1. By the impugned Judgment and Order, the Learned Judge of the City Civil Court at Bombay has returned the plaint for presentation to proper Court. The Appellants are the Plaintiffs and the Respondents are the Defendants. 2. The Appellants are a Public Trust duly registered under the Bombay Public Trusts Act, 1950. The Suit Premises is Room No. 2 which is described in the plaint. According to the case of the Appellants, one Shri D.G. Amberkar was employed as a Watchman by the Appellants. The said Amberkar was in the employment of the Appellants till 31st August, 1981. According to the Appellants, the suit premises was alloted to the said Amberkar as staff quarters, free of charge till he continued to be in the employment. It is stated in the plaint that the said Amberkar was in the employment of the Appellants from 2nd February, 1957 and he was alloted the suit premises as staff-quarters in April, 1970. It is stated in the plaint that the said Amberkar was regularly paid his salary and no amount was deducted or recovered from the said Amberkar on account of occupation of the suit premises. 3. The said Amberker was called upon to hand over vacant and peaceful possession of the suit premises to the Appellants w.e.f 1st September, 1981. It is stated in the plaint that all along the said Amberkar was staying in the suit premises alone. It is stated that by letter dated 7th December, 1981 the said Amberkar informed the Appellants that he was in financial difficulties and needed medical attention. He stated in the said letter that he had no relatives. He requested for financial assistance. In view of this request, notwithstanding his retirement, the Appellants continued to treat the said Amberkar as its employee and in addition to rendering some help to him, the Appellants allowed the said Amberkar to occupy the suit premises. 4. The Appellants by letter dated 5th April, 1982 called upon the said Amberkar to hand over possession of the suit premises. Again the said Amberkar made a request to allow him to continue in the suit premises. On purely humanitarian grounds, the Appellants allowed the said Amberkar to continue. On 19th August 1982, the said Amberkar died in the suit premises. On the same day, when the body of the said Amberkar was taken out of the suit premises the Appellants noticed that the respondents who were claiming to be relatives of the Amberkar were in the suit premises. When members of the staff of the Appellants tried to put on lock, the respondents pleaded that they had come to the suit premises for few days only for looking after the said Amberkar. They stated that they would perform the last rites and thereafter take away the articles, after due intimation to the Appellants. The Appellants stated that even after lapse of 13 days from the death of the said Amberkar, the respondents continued to be in the suit premises. Therefore, they were called upon to remove the articles of the deceased. However, the respondents avoided to do so. A police complaint was lodged by the Secretary of the Appellants. A notice dated 20th November, 1982 was issued by the Appellants to the defendants calling upon them to vacate. By way of reply, the respondents claimed protection under Bombay Rent Act. In the suit the Appellants contended that the respondents were trespassers and therefore by no stretch of imagination they were protected by Bombay Rent Act. Therefore, the present suit was filed by the Appellants inter-alia praying for declaring that the respondents are trespassers in the suit premises. A decree for possession of the suit premises is also prayed for. A prayer for damages was also incorporated. 5. The respondents filed written statement to the suit. The main contention in the written statement was that the suit premises was alloted to the said Amberkar by the Appellants on tenancy basis. It was contended that the said Amberkar was a protected tenant under the Bombay Rent Act. It was contended that the 2nd Respondent being the daughter of the said Amberkar was entitled to claim tenancy which was protected under the Bombay Rent Act. Therefore, it was submitted that only the Court of Small Causes had jurisdiction to entertain and try the suit. 6. The Learned Trial Judge framed various issues. The issues framed and the findings recorded by the learned Trial Judge by impugned Judgment & Order are as under :- ISSUES. FINDINGS (1) Do the plaintiffs prove that the plaintiffs are the owners of the suit premises ? Yes (2) Do the plaintiffs prove that the defendants are the trespassers ? No. (3) Do the defendants prove that the late Mr. D.G. Amberkar was tenant in respect of the suit premises and further that the defendants have succeeded to the tenancy rights under Section 5(11) (c) of the Bombay Rent Act and after the death of Mr. Amberkar ? No. (4) Do the plaintiffs prove that they are entitled to the reliefs sought in the Plaint ? No. ADDITIONAL ISSUE :- Whether there is substance in the plea raised in the written statement that this Court has no jurisdiction to entertain and try this suit ? Yes. (5)What order ? The plaint is ordered to be returned for being presented before the Court of Small Causes under Order 7, Rule 10 of the Code of Civil Procedure. See the order passed below. 7. The learned Judge negatived the plea of tenancy raised by the respondents. The learned Judge held that the suit was filed by the Appellants against a gratuitous licensees. The learned Trial Judge held that the suit was governed by Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as the Small Cause Courts Act). Therefore, by impugned order, the learned Trial Judge directed that the plaint be returned to the Appellants for presentation to the Court of Small Causes. The respondents have filed cross objections by which they have challenged the finding recorded by the learned Trial Judge on issue no. 3. 8. Learned Counsel appearing on behalf of the Appellants invited the attention of the Court to the averments made in the plaint. He submitted that the averments made in the plaint clearly indicate that the respondents were never inducted as licensees by the Appellants. He submitted that the respondents were found present in the suit premises at the time when body of the deceased Amberkar was taken out of the suit premises and the respondents assured to go away with the articles of Amberkar after performing his last rites. He submitted that the case made out by the Appellants is that respondents were trespassers and there was no reason to hold that the respondents were licensees. He submitted that the learned Trial Judge did not accept the plea of tenancy of the respondents and therefore, the learned Trial Judge ought to have accepted the case made out in the plaint that the respondents were the trespassers. He submitted that the finding of the learned Trial Judge that the suit is governed by Section 41 of the Small Cause Courts Act is completely erroneous. 9. The learned Counsel appearing for the respondents submitted that the Appellants failed to adduce any evidence to prove their case in the plaint. He submitted that when the respondents examined the 1st respondent as a witness, the said witness deposed that the deceased Amberkar was the tenant in the respect of the suit premises. He stated that the Respondent no. 2 was the daughter of deceased Amberkar and that after Respondent no. 2 married to Respondent no. 1 in 1979, they were residing in the suit premises along with the deceased Amberkar. He submitted that under Section 5(11) (c) of the Bombay Rent Act, the 2nd Respondent was entitled to inherit the tenancy. He submitted that as there is no evidence adduced by the Appellants, the case of tenancy claimed by the respondents ought to have been accepted. He submitted that long standing exclusive possession of the deceased Amberkar was admitted by the Appellants. His submission is that the finding on issue no. 3 ought to have been recorded in favour of the respondents. He submitted that the Appeal be dismissed and the Cross examinations be allowed. 10. I have given careful consideration to the submissions. It is true that the Appellants did not adduce any oral evidence. However, the learned Trial Judge has noted that the Appellants had reserved their right to lead evidence by way of rebuttal to the evidence adduced by the respondents. 11. The 1st Respondent was examined as the witness by the respondents. Learned Trial Judge, after considering the evidence of the 1st Respondent, held that there is no evidence to show that the deceased Amberkar was paying any rent to the Appellants. The learned Trial Judge noted that in the written statement, the respondents have relied upon the documents, but no document was produced. The learned Trial Judge has observed that there was no rent receipt produced by the respondents. It is true that for establishing the plea of tenancy, what was required to be proved was payment of rent together with exclusive possession. Perusal of the evidence of the 1st Respondent shows that the respondent could not prove that either the deceased was paying any rent to the Appellants or that the rent was being recovered by the Appellants in some other manner. The Respondent no. 1 in his evidence did not dispute that when the said Amberkar entered the suit premises, he was an employee of the Appellants. Infact, the 1st Respondent admitted that the deceased Amberkar was employed by the Appellants in the year 1957. He admitted that the suit premises was given to the deceased Amberkar because he was in the employment of the Appellants. However, he could not produce documentary evidence to show that the deceased was paying any rent to the Appellants. Therefore, it is not possible to find fault with the finding of the Trial Court that the Respondents failed to establish that the deceased was the tenant in respect of the suit premises. Thus, the respondents could not have claimed any tenancy right in respect of the suit premises. 12. The learned Trial Judge on the basis of the evidence of the 1st Respondent observed that the 2nd Respondent was daughter of the deceased Amberkar and 1st Respondent was son-in-law of the deceased Amberkar. He came to the conclusion that the 1st and 2nd Respondents were residing in the suit premises as the members of the family of the deceased Amberkar. The learned Trial Judge held that as the deceased was allowed to use and occupy the suit premises by virtue of his employment, he was a licensee in respect of the suit premises. The Learned Judge relied upon the decisions of this Court in the case of G.K. Talwar v/s M/s. Rallis India Limited (1992(2) Bombay Cases Reporter 638) and Kirit Kumar v/s Champaben (1998 (2) Maharashtra Law Journal, 597) which hold that an employee who is inducted in the premises of the employer as a licensee, by virtue of termination of his employment does not become a trespasser. These were the cases where the suit were filed against ex-employees by the Employer to recover possession of the premises given to the employees in connection with the employment. It was held that the suits will be against gratuitous licensees which will be governed by Section 41 of the Small Cause Courts Act. 13. In the present case, deceased Amberkar who was an employee of the Appellants died prior to the institution of the suit. Even assuming that the deceased Amberkar was a gratuitous licensee, the license being personal, the same came to an end on his demise. Even assuming that the respondents were residing in the suit premises along with the deceased, the respondents can never claim to be licensees of the Appellants. By no stretch of imagination, the respondents can be described as the licensees of the Appellants as it is not even the case of the Respondents that the Appellants granted license to them to occupy and use the suit premises. Therefore, Section 41 of the Small Cause Courts Act which applies the suits between licensors and the licensees for recovery of possession of the premises will have no application in the present case, inasmuch as even going by the case of the respondents, they were never the licensees of the Appellants. Therefore, a case was made out by the Appellants that the Respondents were trespassers inasmuch as they had no right in respect of the suit premises. Therefore, the finding recorded by the learned Trial Judge on issue no. 2 is erroneous and the said issue no. 2 will have to be answered in the affirmative. 14. As far as issue no. 1 regarding title is concerned, the finding on the said issue recorded in favour of the Appellants has not been challenged by the Respondents. The finding on issue no. 3 for the reasons recorded earlier will have to be confirmed. 15. Therefore, a decree of declaration and possession must follow. However, there is a prayer made in the suit for grant of mesne profit @ Rs. 10/- per day or such amount as may be fixed by the Court from the date of filing of the suit till the date of handing over of the possession. The said prayer has not been considered by the Trial Court and therefore by setting aside the impugned order the suit will have to be remanded to the City Civil Court for determination of issue regarding mesne profits. If there is no evidence on record, the Trial Court may take recourse to Rule 12(1)(c) of Order XX of the Code of Civil Procedure, 1908. It must be made clear that issue nos. 1 to 3 are already concluded as above. 16. Hence, I pass following order :- (i) The impugned Judgment and Order dated 14th June, 2000 is quashed and set aside. (ii) The finding recorded by the Trial Court on issue nos. 1 and 3 is confirmed. (iii) The finding recorded by the Trial Court on Issue No. 2 is set aside and the said issue is answered in favour of the Appellants in the affirmative. (iv) The suit is remanded to the City Civil Court for deciding the same in the light of the observations made in this Judgment. (v) The Appeal is accordingly allowed on above terms with no order as to costs. (vi) Cross Objection No. 1 of 2005 is dismissed with no order as to costs. (A.S. OKA, J)