-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.69 OF 1984 LETTERS PATENT APPEAL NO.69 OF 1984 LETTERS PATENT APPEAL NO.69 OF 1984 IN IN IN FIRST APPEAL NO.620 OF 1974 FIRST APPEAL NO.620 OF 1974 FIRST APPEAL NO.620 OF 1974 IN IN IN SPECIAL CIVIL SUIT NO.3304 OF 1962 SPECIAL CIVIL SUIT NO.3304 OF 1962 SPECIAL CIVIL SUIT NO.3304 OF 1962 Baban Mishra, .. Appellant (Orig.Defendant) Vs M/s Sonawala Industries Pvt Ltd .. Respondents (Orig.Plaintiffs) Mr Suresh Gole, for the appellant. None for the respondents. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 12/08/2008 DATE : 12/08/2008 DATE : 12/08/2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: (Per D.B.Bhosale,J.) (Per D.B.Bhosale,J.) (Per D.B.Bhosale,J.) 1. This Letters Patent Appeal is directed against the Judgment dated 18.7.1983, rendered by the learned Single Judge (Khatri,J.), by which First Appeal No.620 of 1974 filed by the respondents-plaintiffs, has been allowed. The plaintiffs had instituted a suit for recovery of their land admeasuring 6500 sq.ft., out of a plot of land admeasuring 42,885 sq.yds., known as "Sonawala Estate" and situate at Goregaon (Mumbai). The suit was dismissed. The cross-objections filed by the appellant-defendant also came to be dismissed by the impugned judgment. By the impugned judgment, the appellant-defendant was directed to -2- deliver vacant possession of the sites shown in the map-Exhibit-B by figures 1,2,3 and 4. He was given option to remove the structures or to apply to the lower court in execution to determine the compensation payable to him in lieu of the structures. A direction was also given under Order XX, Rule 12(1)(c) of the Code of Civil Procedure for determination of mesne profits in respect of the vacant sites from the date of the suit. 2. The case set up by the plaintiffs, in brief, is that out of a big plot admeasuring about 42,885 sq.yds, an area of about 1500 sq.ft. was given to the defendant on purely leave and licence basis in or about 1956 by their Manager Babubhai Patel. After about a couple of years, the defendant started encroaching upon the adjoining parts of the land. By 1961, the defendant had extended his encroachment to the additional 5000 sq.ft areas and unauthorisedly erected more structures thereon. The plaintiffs, therefore, served a notice on the defendant on 3.10.1961 revoking his licence and calling upon him to deliver vacant possession of both the pieces of land admeasuring 6500 sq.ft. The defendant, by his reply, denied that he was a licensee. Eventually, the plaintiffs filed the present suit for recovery of possession of the suit land. The defendant, on the other hand, contended that he had taken an area of 18,200 sq.ft on lease from -3- the plaintiffs’ Manager Chandulal in as early as 1944 on a monthly rent of Rs.10/-. The defendant alleged that the lease was for the purpose of building structures on the land and accordingly he erected structures on the land in or about 1944-45. The Manager of the plaintiffs had given him an oral assurance that he would not be disturbed for atleast 51 years and as such the plaintiffs were estopped from seeking eviction of the defendant. 3. The trial Court, upon scanning the evidence and having perused the pleadings, held that the plaintiffs had failed to prove the alleged licence in respect of 1500 sq.ft.or the encroached portion of 5000 sq.ft. It was observed that there was no enough material on record to precisely identify the areas of 1500 sq.ft. and 5000 sq.ft. in question. In view of the permanent structures erected by the defendant on the suit land after the alleged permission of Chandulal, the trial Court held that the defendant was protected under section 60(b) of the Indian Easement Act and the licence had become irrevocable and, therefore, the suit was dismissed. The First Appeal challenging the judgment of the trial court, however, has been allowed by the learned Single Judge by the impugned judgment dated 18.7.1983. 4. In this backdrop, we have heard the learned counsel for the appellant and perused the impugned judgment and -4- the other material placed before us. At the outset, Mr Gole, learned counsel for the appellant, submitted that he has instructions to confine his challenge to 1500 sq.ft.only. He then submitted that the City Civil Court had no jurisdiction to entertain the suit in view of the case set up by the plaintiffs that the defendant was inducted as a licensee of 1500 sq.ft. area out of the plot admeasuring 42,885 sq.yds. He submitted that in view of the well settled position of law, such suit would lie only before the Small Causes Court and hence the suit itself was not maintainable before the City Civil Court, Mumbai. He then submitted that the order impugned in the First Appeal was without jurisdiction and hence even the order impugned in this appeal deserves to be set aside. Mr Gole did not urge any other contention. 5. An issue of jurisdiction, as raised in the present appeal, was not raised before the trial Court. In the First Appeal, counsel for the defendant did urge that the City Civil Court had no jurisdiction to decide the issue of tenancy in view of the bar contained in Section 28 of the Bombay Rent Act. However, in view of the judgments of this court in Govindra Salamatrai Bachani Vs Dharameal Govindra Salamatrai Bachani Vs Dharameal Govindra Salamatrai Bachani Vs Dharameal Amarnath Puri, 1953 B.L.R. 386 and in Sarfraz Ali Vs Amarnath Puri, 1953 B.L.R. 386 and in Sarfraz Ali Vs Amarnath Puri, 1953 B.L.R. 386 and in Sarfraz Ali Vs Manek Reporter, 1978 BLR 704 Manek Reporter, 1978 BLR 704 Manek Reporter, 1978 BLR 704, counsel for the appellant conceded that the City Civil Court had jurisdiction to -5- decide the defendant’s tenancy one way or the other. It further appears that the advocate for the defendant, in the first appeal, did not challenge the finding of the trial Court that the defendant is not a licensee in respect of 1500 sq.ft. of area. This finding was not challenged by the plaintiffs also in the first appeal. The only contention urged before the learned Single Judge was that the defendant is a tenant in the suit land. Mr Gole fairly submitted before us that the defendant has no case to claim tenancy in the suit land. The learned Single Judge, while dealing with the case of tenancy in paragraph 7 of the Judgment, observed thus : "Coming to the question whether the defendant has proved his tenancy, we have his evidence alone in support of his plea. There are a number of circumstances in the face of which, it is difficult to upheld this plea. Although he claims to have paid rent to as many as four different managers of the plaintiffs he has not examined any of them. On his own showing he was not getting any receipts from them, although he had demanded the same from them. Apart from his word, the defendant has not adduced any documentary evidence in support of his averments like payment of taxes etc, since 1944. He claims that he had raised structures on the land as early as 1944. He could have examined some of the persons who had taken part in the construction work or atleast some neighbours. Then it is pertinent to note that in his reply to the plaintiffs’ notice, apart from a bold assertion that he had taken land admeasuring about 18200 sq.ft on lease, he has not given any particulars like the year of the alleged lease or even the rent. If the reply is read in conjunction with the plaintiffs’ original notice, the reader gets an unmistakable impression that the alleged -6- transaction of lease had taken place with Babubhai in the year 1956. It has come in evidence that the present plaintiffs had purchased the plot by a conveyance in 1945 (Ex.C) from their predecessors, namely, Sonawala Land and Investment Company Ltd, means that the transaction now relied upon by the defendant had taken place before the plaintiffs acquired the suit property. This position is inconsistent with his stand in the written statement that it was the plaintiffs manager who had granted the lease to him in 1944. In view of all these circumstances, no fault can be found with the learned trial Judge’s finding that the defendant had failed to prove the alleged lease in his favour. Shri Rele, appearing for him also did not seriously dispute this finding." Mr Gole did not challenge the aforesaid findings recorded by the learned Single Judge. 6. The suit was instituted by the plaintiffs in 1962 and since then they have been fighting this litigation to recover possession of the suit land. In our opinion, the issue of jurisdiction cannot be allowed to be raised in this Appeal for more than one reasons. Firstly, that such contention was not urged either before the trial Court or before the learned Single Judge, and secondly, neither the plaintiffs nor the defendant challenged the findings recorded by the trial Court holding that the plaintiffs had failed to prove the alleged licence in respect of 1500 sq.ft.area or subsequent encroachment of 5000 sq.ft. It is pertinent to note that the plaintiffs have based their claim not only on the sole allegation that the defendant was their licensee, but have also based it on title. The -7- title of the plaintiffs is not challenged by the defendant before us. It is thus clear that the present suit is not a suit between a licensor or a licensee simplicitor. The suit for recovery of possession is based on title. The learned Single Judge has rightly decreed the suit having observed that the plaintiffs have failed in making out a case of tenancy and that the plaintiffs have proved their title and, therefore, a decree of eviction should automatically follow in favour of the plaintiffs. It is against this backdrop, we find no merit in the instant appeal. The appeal is accordingly dismissed with costs. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.)