1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6032 OF 1999 Jokhuram Shamsher Gupta ...Petitioner vs. Jagroop Sahatu Gupta ...Respondent Mr.B.K.Raje for the petitioner None for the respondent CORAM :A.S.OKA,J. DATE : JANUARY 7, 2010 JUDGMENT : 1 Heard the learned counsel for the petitioner. The petitioner is the original 3 rd respondent in a suit filed by the respondent under section 41 of the Presidency Small Cause Courts Act,1882. Initially, the father of the petitioner was impleaded as a 1 st defendant and his uncle was impleaded as 2 nd defendant and their names have been deleted. 2 The case made out by the respondent is that he is the tenant of the suit room more particularly described in paragraph 1 of the plaint. The specific case made out in paragraph 2 is that the respondent had granted to the defendants leave and licence to use and occupy the suit premises. It is pointed out that each of them agreed to pay monthly compensation of Rs.4/- to the respondent. It is pointed out that the eviction proceedings were 2 initiated by the Competent Authority of the State Government against the respondent, petitioner and his father. The proceedings were dropped by order dated 15 th April 1986. It is alleged that in the plaint that after the said order was passed by the Competent Authority, the defendants started harassing respondent and were trying to oust the respondent from the suit premises. It is alleged that from 1 st December 1973 the defendants stopped paying compensation. It is stated that on 15 th April 1976, apart from the petitioner, his father and uncle there were four other persons in the suit premises and after the aforesaid order was passed by the competent authority, without consent of the respondent, the original defendants brought wife of the petitioner and one more person in the suit premises. It is contended that by Advocate s notice dated 19 th June 1976, the licence was revoked. As possession was not handed over, a suit was filed by the respondent for possession and for mesne profits. 3 The petitioner filed the written statement contending that the suit premises was taken on rent by the respondent, petitioner s father and three other persons. As B.D.D. Chawl authorities declined to issue rent receipt in the joint names of the said persons, they agreed that the rent receipt be issued in the name of the father of the respondent. It is contended that the 3 petitioner has been residing in the said room since he was 5 years old. Various documents were produced to show that the petitioner was residing in the said room for last many years. 4 The respondent stepped into witness box. The petitioner examined himself. The petitioner also examined one more witness for proving his date of birth. The petitioner also examined a Peon employed with Mata Bal Sangopan Sanstha for producing the register of birth. 5 The learned trial Judge did not accept the case of the respondent and dismissed the suit. The learned trial Judge accepted the case made out by the petitioner that he was occupying the suit premises along with his father since much prior to the year 1961 and therefore, the case was made out that the petitioner was a mere licensee was negatived. In an appeal preferred by the respondent, the Appellate Bench has interfered and passed the decree for possession. 6 The learned counsel for the respondent submitted that the specific case of the respondent is that a leave and licence was granted to the petitioner along with his father and uncle. He pointed out that the evidence on record shows that the petitioner was residing in the suit premises since the age of 5 years and 4 therefore, by no stretch of imagination, it can be accepted that a licence was created in favour of the petitioner. He submitted that there are large number of documents on record to show that the petitioner was residing along with his father at least from 1961. He submitted that the order passed by the Competent Authority on 15 th April 1976 itself establishes the case that the petitioner, his father and uncle were not mere licensees. None appears for the respondent. 7 I have carefully considered the submissions. It will be necessary to consider the material averments in the plaint. The respondent has stated thus : 2 The Defendant No.2 is the brother of the Defendant No.1 and the Defendant No.3 is the son of Defendant no.1. All the Defendants were allowed to use and occupy the suit premises as under the leave and licence granted to them by the Plaintiff and along with the Plaintiff and certain other licences of the Plaintiff. Each of the defendants had agreed to pay a monthly compensation of Rs.4/- to the Plaintiff in respect of the said leave and licence and for the said use and occupation of the suit premises. 5 8 In paragraph 3 of the plaint, the respondent stated that in October 1973, he made an application to the Chawl authority for transfer of tenancy in respect of the suit premises in favour of his son. At that stage eviction proceedings were initiated by the Competent Authority. According to the respondent, the father of the petitioner raised a contention in the said eviction proceedings that he is entitled to get the suit premises transferred in his name. A reference has been made to the order dated 15 th April 1976 passed by the competent authority. It must be stated here that the respondent has not stated the date or month or year in which the leave and licence was granted in favour of the petitioner, his father and uncle. The respondent in his deposition specifically stated that his father permitted the petitioner to occupy the suit premises. Thus, the specific case that the leave and licence was granted in favour of the petitioner was reiterated in the deposition. In the cross examination, the respondent admitted that the petitioner s father-original 1 st defendant brought the petitioner with him in the suit premises since his childhood. It is pertinent to note that the documentary evidence produced on record by the petitioner and in particular the certificate of Head Master of the school dated 25 th June 1961 shows that the petitioner was occupying the suit premises in the year 1961. Even 6 going by the assertions made in the plaint, leave and licence was granted by the father of the respondent prior to the year 1973. The specific case made out in the plaint as well in the examination in chief is that the respondent s father granted leave and licence in favour of the petitioner. Taking this case as true, the alleged licence must have been created prior to 1973 when the petitioner was obviously a minor. Thus, if the case of the respondent is true, it will have to be held that the license was created in favour of the petitioner when he was a minor. The document at Exh.65 shows that the petitioner was occupying the suit premises along with his father at least from the year 1961. In the cross examination the respondent stated that the petitioner was brought by his father in the suit premises as a child. The case of the respondent is that the licence was created by his father in favour of the petitioner. As there is evidence on record to show that the petitioner was residing in the suit premises in the year 1961, the license must have been granted in the year 1961. It is highly immprobable and therefore it is very difficult to accept that the license could have been created in favour of the petitioner who was a very small child in the year 1961. In fact, the said case made out by the respondent is absurd. 9 There is another aspect of the matter. An eviction 7 proceedings initiated by the competent authority against the petitioner, respondent and petitioner s father was ordered to be dropped by order dated 15 th April 1976. The said order reads thus : Assistant Manager is present and also the contending parties. Unanimously it has been brought my notice that the bonafide tenant has resumed the possession of the suit premises. Under the circumstances I find no ground to proceed with the matter which stands dropped. However, the occupancy of any of the present occupants should not be disturbed. 10 The order is passed on 15 th April 1976. The suit filed in the July 1976. Two inferences can be drawn from the said order. One is that the respondents in the eviction proceedings viz. Petitioner, his father and the respondent hereinwere authorised occupants of the suit premises and the other conclusion is that the competent authority accepted the possession of the petitioner and his father as lawful tenants from the year 1973. It is obvious that on the date of passing the order and thereafter the petitioner was in possession. 11 The Appellate Court has recorded a finding in paragraph 16 of the Judgment that the respondent herein 8 had allowed the petitioner to reside in the suit premises as a licensee. The said finding is perverse in as much as the license could not have been created in the name of the boy who is about 4 to 5 years old in the year 1961. The Judgment of the Appellate Court based on such perverse finding which will have to be quashed and set aside and the Judgment of the trial court will have to be restored. 12 Hence I pass the following order : i) Impugned Judgment and Order dated 17 th August 1999 is quashed and set aside and the Judgment and order dated 8 th October 1996 is restored. ii)Rule is made absolute in above terms. No order as to costs. iii)The petitioner is permitted to withdraw the amounts deposited by him in this court on the basis of the impugned order. The petitioner is also entitled to interest, if any, accrued on the said amounts. iv)It is made clear that the withdrawal of the amounts will be permitted only after expiry of period of 8 weeks from today. JUDGE