0204cra17.09.sxw 1/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CIVIL REVISION APPLICATION NO. 17 OF 2009 Dhanraj Dayaram Gedam Vs. Smt. Jijabai wd/o Gariba Gedam & others .......................................................................................................................................................... Shri S. P. Kshirsagar, Advocate for the applicant. Shri Joharapurkar, Advocate for respondent No. 1. ................................................................................................................................. CORAM : Smt. Vasanti A. Naik, J. DATE : 02nd April, 2009 P. C. : 1. By this revision, the applicant challenges the order passed by the Joint Civil Judge, Jr. Dn., Nagpur on 17/02/2009 in Regular Darkhast No. 210 of 2002 rejecting the application filed by the applicant under Section 47 of the Code of Civil Procedure. 2. It appears that the owner of the house is not able to execute the decree for possession in spite of the fact that the decree was confirmed in second appeal. It was the case of the respondent/plaintiff that defendant Krishna Kumar Gedam was residing in the suit premises as permissive occupier and the license has been terminated by the plaintiff by the notice dated 25/3/1980. The judgment debtor had failed to vacate the suit premises and hence the suit was filed on 29/4/1980. The suit was 0204cra17.09.sxw 2/6 decreed on 31/3/1992. The first appeal filed by Krishna Kumar against the judgment and decree dated 31/3/1992 was dismissed. Similar was the fate of the second appeal which was filed by Krishna Kumar. The decree was sought to be executed by the non-applicant/decree holder. However, Krishna Kumar filed an objection, which was rejected by the Executing Court and an appeal by Krishna Kumar against the same was also dismissed. Ramesh-other son of Dayaram Gedam also filed an objection before the Executing Court but the same was also dismissed. The present applicant-son of Dayaram has then filed this objection before the Executing Court under Section 47 of the C. P. C. on the ground that the Civil Court did not have jurisdiction to try the suit and the Court of Small Causes had exclusive jurisdiction to entertain and try the suit between the licensor and licensee. The said objection was, however, rejected by the Executing Court by the order dated 17/02/2009 which is challenged in this civil revision. 3. Shri Kshirsagar, the learned Counsel for the revision applicant submitted that the suit between the licensor and licensee was triable exclusively by the Court of Small Causes and, therefore, the Civil Judge, Jr. Dn., Nagpur did not have jurisdiction to pass a decree in a suit filed by the non applicant for eviction and possession of the property on the ground that the license of Dayaram had been terminated. The learned 0204cra17.09.sxw 3/6 Counsel for the applicant submitted that the Executing Court was not justified in holding that the amendment to the Small Causes Court Act did not have retrospective effect. The learned Counsel for the applicant relied on the decision reported in AIR 1989 BOM. 313 to substantiate his submission. The learned Counsel for the revision-applicant then relied on the decision reported in 2007 (5) Mh. L. J. 341 – Prabhudas Damodar Kotecha & another Vs. Smt. Manharbala Jeram Damodar & others to canvass that the suit filed by a licensor against a gratuitous licensee was also tenable before the Court of Small Causes under Section 41 of the Presidency Small Causes Courts Act. The learned Counsel for the revision applicant submitted that though a plea was raised by Krishna Kumar in the suit filed by the non applicant that Dayaram was the owner of the suit property, the Court of Small Causes had the jurisdiction to try the suit. According to the learned Counsel for the revision applicant, the application filed by the revision applicant under Section 47 of the Code of Civil Procedure ought to have been allowed by the Executing Court. 4. Shri Joharapurkar, the learned Counsel for the non applicants took this Court through the written statement of Krishna Kumar in the suit filed by the non applicant No.1 to show that Krishna Kumar had denied the title of the non applicant/plaintiff. According to the learned Counsel for the non applicantNo.1, it was the case of Krishna Kumar that 0204cra17.09.sxw 4/6 the plot was purchased by Dayaram, the father of Krishna Kumar and a house was also constructed on the same by Dayaram. It was the case of Krishna Kumar that the defendants were the owners and possessors of the entire property and it was specifically denied that the non applicant/plaintiff was owner thereof. In such circumstances, according to the learned Counsel for the non applicant No.1, the Court of Small Causes did not have jurisdiction to try the issue of ownership between the parties and the civil suit was rightly tried by the Civil Judge, Jr. Dn., Nagpur. The learned Counsel for the non applicants relied on the decision reported in 2007 (2) Bom. C. R. 673 – J. C. & Sons & another Vs. Ghafrana H. Ahmed Ali to substantiate his submission that the question or issue of title raised by the defendant is not an incidental issue or question which falls for consideration before the Civil Judge, Junior Division and, therefore, the suit would not have been tried as a small cause suit when the issue of ownership and title was raised by the defendant. The learned Counsel for the non applicant also relied on the judgment reported in 1986 Mh. L.J. 207 – Lilabai Rasiklal Waghela & others Vs. Keshaorao Domaji Tidke to further substantiate that the amendment to the Presidency Small Causes Courts Act did not have a retrospective effect and, therefore, the suit filed in the year 1980 was rightly decided by the Civil Judge, Jr. Dn., Nagpur. 0204cra17.09.sxw 5/6 5. I have considered the submissions made on behalf of the parties and have perused the order dated 17/02/2009 which is challenged in the civil revision application. It is necessary to note that every member from the family of the judgment debtor appears to have filed objections before the Executing Court so as to avoid the execution of the decree passed in favour of the non-applicant No. 1. It is not necessary to go into the question whether any amendment effected to the Presidency Small Causes Courts Act did or did not have a retrospective effect as in view of the pleas raised by Krishna Kumar in the written statement, it is amply clear that the Court of the Civil Judge, Jr. Dn., Nagpur did have jurisdiction to entertain and decide the suit. Though it was the case of the plaintiff that the license of the defendants had been terminated, the defendants came up with a specific case before the trial Court to deny the title of the plaintiff and also asserted title in themselves. It is specifically pleaded in the written statement filed by Krishna Kumar and others that Dayaram, the father of Krishna Kumar had purchased the plot on which the suit house was constructed and the suit house was also constructed by Dayaram. The defendants claimed to be the absolute owners and possessors of the suit property. In view of these pleadings, it cannot be said that the Civil Judge, Junior Division, Nagpur did not have jurisdiction to entertain and try the suit filed by the plaintiff. The 0204cra17.09.sxw 6/6 judgment reported in the case of J. C. & Sons & another Vs. Ghafrana H. Ahmed Ali (supra) clearly supports the case of the non applicant No.1. The judgment reported in 1995 (1) Mh. L. J. 861 also records a similar view and further supports the case of the non-applicant No.1. In this background, it cannot be said that the Joint Civil Judge, Jr. Dn., Nagpur had committed any error in rejecting the objection filed by the revision- applicant by the order dated 17/02/2009. 6. In the result, the civil revision application is dismissed with costs. JUDGE wwl