ash 1 fa-266.90 IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 266 OF 1990 Makhanlal Tundaram Agarwal, since deceaseed by his legal heirs: (a) Smt. Shantidevo Makhanlal Aggarwal, since deceased, 1-b. Mithilesh S/o. Makhanlal Aggarwal & Ors. .. Appellants. Vs Dr.Anant Moreshwar Patil. .. Respondent -- Shri S.R. Page for the Appellants. None for the Respondent. -- CORAM : A.S. OKA, J DATED : 9th FEBRUARY, 2011 ORAL JUDGMENT : . By this Appeal, the appellants who are the Original 2nd and 3rd Defendants have challenged the decree for possession passed by the Trial Court in a suit filed by the 1st Respondent. The suit relates to Room No.11 on the first floor of the building “Makka Manzil” more particularly described in paragraph 1 of the Plaint. It is alleged that the 1st Respondent/Plaintiff who is a Doctor by profession was running his ash 2 fa-266.90 dispensary in Shop Nos. 2 to 4 on the ground floor of the said building and Room No.11. The said room No.11 is hereinafter referred to as the “suit premises”. The 1st Respondent’s claim is on the basis of the Deed of Assignemnt dated 20th January, 1968 in respect of the suit premises as well as Shop Nos. 2, 3 and 4. According to the case of the 1st Respondent/Plaintiff, on the request made by the 1st Defendant ( 2nd Respondent herein) a leave and licence agreement dated 1st July, 1971 was executed by the 1st Respondent in favour of the 1st Defendant. A suit for ejectment was filed by the 1st Resondent against the 1st Defendant in the Court of Small Causes, Mumbai. A decree for possession was passed in the suit for ejectment. The decree was sought to be executed by the 1st Respondent-Plaintiff. At that time, the present Appellants obstructed. Therefore, a obstructionist notice was taken out by the 1st Respondent for removal of obstruction. In the obstructionist notice, the Appellants contended that they were the tenants in respect of the suit premises. In the obstructionist notice, the Small Causes Court held that the Appellants have established their plea of tenancy and therefore, the obstructionist notice was dismissed. Against the said decision, the 1st Respondent preferred an Appeal before the Appellate Bench of the Court of Small Causes which was numbered as a revision application. The said revision application was dismissed. The said ash 3 fa-266.90 order was challenged by the 1st Respondent by filing a Writ Petition No. 1304 of 1980. By an order dated 10th October, 1984, by setting aside the order passed on the obstructionist notice, the 1st Respondent was permitted by this Court to file the present suit filed by the 1st Respondent on title. The Appellants agreed to withdraw a standard rent application filed by them. This Court expedited the present suit. The present suit was filed on the ground that the Appellants have no right in respect of the suit premises and that they are tresspassers. A written statement was filed by the Appellants contending that they have been inducted in the suit premises on 11th February, 1972 under a leave and licence agreement dated 1st February, 1972. Therefore, the Appellants claimed that by virtue of Section 15A of the Bombay Hotel, Lodging & House Rates (Control) Act, 1947 ( hereinafter referred to as “the Bombay Rent Act”), they have become deemed tenants. The said plea is held as not substantiated by the Trial Court and accordingly, the impugned decree for possession was passed. 2. Learned counsel appearing for the Appellants has taken the Court through the pleadings, notes of evidence and other documents on record. He submitted that the possession of the Appellants has been admitted by the 1st Respondent. He submitted that the possession prior ash 4 fa-266.90 to 1st February, 1973 was established by the Appellants and it is the case of the Appellants that the leave and licence agreement of February,1971 was returned to the 1st Respondent to enable him to renew the same. He submitted that in the Small Causes Court, a plea of tenancy raised by the Appellants was established and the said finding is not upset by this Court. 3. I have given careful consideration to the submissions. In terms of the order passed by this Court in Writ Petition No.1403 of 1980, the order passed on the obstructionist notice taken out by the 1st Respondent was set aside and the Trial Court was directed to decide the present suit filed by the 1st Respondent expeditiously. As narrated earlier, in the present suit, the only defence of the appellants is that on 11th February 1972, they were inducted by the 1st Respondent under the leave and licence agreement dated 1st February, 1972. 4. The first Appellant stepped into the witness box and stated that the leave and licence agreement was executed on 10th February, 1971 and it was got typed by the first Respondent on the said date by a Typist at Bhoiwada Court. He stated that the agreement has been signed ash 5 fa-266.90 at the place of the said Typist. In Paragraph 3 of his examination-in- chief, the 1st Appellant has stated thus:- “3. In January, 1972 the plaintiff told me that the period of agreement was over and that I should get new agreement prepared. However, the plaintiff did not get new agreement prepared. When I inquired about the same the plaintiff asked me to continue to say in the premises and premises that he would get the new agreement prepared.” 5. It is pertinent to note that the execution of the said agreement was denied by the 1st Respondent. The appellants did not examine the Typist who typed the said document in whose presence the said agreement was allegedly executed. In the cross-examination of the 1st Respondent, there is not even a suggestion given that the agreement was typed on 10th February, 1971 in the premises of a Typist and both the parties have signed the said agreement at the place of the Typist. In fact, there is no suggestion given that both the parties were present at the place of the Typist and that they have signed the same. 6. The only right claimed by the appellants was by virtue of Sectioln 15A of the Bombay Rent Act. The right as a tenant on the basis of the Section 15A could have been claimed provided the Appellants ash 6 fa-266.90 were in possession of the suit premises on 1st February, 1973 under a subsisting licence. 7. In the present case, as per the case of the Appellants, the licence was allegedly in writing. Neither the original licence agreement nor a photocopy thereof has been admittedly produced. Even the Typist who allegedly typed the agreement has not been examined though, right from the beginning, the 1st Respondent has denied to execute such an agreement. Thus, the Trial Court rightly found that the appellants could not prove that they were inducted in February, 1972 on the basis of the leave and licence agreement executed by the 1st Respondent. In absence of proof of execution of the licence, the appellants cannot claim any right as they have admittedly not claimed any other right in respect of the suit premises. There is no dispute about the title of the 1st Respondent. Hence, the decree for possession must follow in the suit on title filed by the 1st Respondent. Accordingly, the Trial Court has rightly passed a decree. 8. Hence, there is no merit in the appeal and the same is accordingly dismissed with no orders as to costs. ash 7 fa-266.90 9. On the prayer made by the learned counsel appearing for the Appellants, it is directed that the decree for possession shall not be executed for a period of three months from today subject to condition that the appellants will not create any third party rights and will not part with possession of the suit premises. ( A.S. OKA, J )