1 fa1634-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1634 OF 2011 WITH CIVIL APPLICATION NO. 3042 OF 2011 Biharilal Yadav .. Appellant V/s. Kashibai Lalappa Metri .. Respondent ..... Mr. R. D. Mishra for the appellant. Mr. O. P. Yadav h/f. Mr. Suresh Dubey for the respondent. ..... CORAM : A.S.OKA, J. DATE : OCTOBER 18, 2011. P.C.: The submissions of the learned counsel appearing for the parties were heard on the earlier date. The appellant is the original defendant and the respondent is the original plaintiff. The appellant has annexed true copies of the pleadings, notes of evidence and written arguments filed before the trial Court. 2. The respondent filed a suit for possession of a room more particularly described in paragraph No.1 of the plaint. It is contended that the respondent was the original owner of the said room. It is contended that on the request made by the appellant, the respondent husband granted permission to 2 fa1634-11 the appellant to reside in a part of the suit room which part has been described as “the suit premises”. Reliance is placed on writing dated 9th November, 1999. After the demise of respondent's husband, the respondent called upon the appellant to vacate the suit premises. However, the suit premises was not vacated. The respondent filed a suit for eviction in the Court of Small Causes. However, the suit was dismissed by the Court of Small Causes by holding that the suit ought to have been filed in the City Civil Court. Accordingly the present suit was filed for possession. 3. The appellant contested the suit by filing the written statement. The contention of the appellant is that the suit filed in the Small Causes Court has been dismissed on merits. It is contended that the present suit was against a gratuitous licensee and, therefore, the City Civil Court had no jurisdiction to entertain the said suit. The main contention raised was that the respondent's husband by writing dated 25th February, 1993 agreed to sell half portion of the suit room to the appellant for the total consideration of Rs.23,000/-. It is alleged that the respondent's husband received a part consideration of Rs.17,500/-. It is contended that the balance amount was paid by the appellant to the respondent's husband against which he executed an affidavit dated 19th 3 fa1634-11 October, 1993 transferring his rights in respect of the suit premises in favour of the appellant. The appellant prayed for dismissal of the suit. 4. The parties adduced evidence by examining themselves as witnesses. By the impugned Judgment and decree, it was held that the appellant was a trespasser and, therefore, a decree for possession was passed in respect of the suit premises. 5. The learned counsel appearing for the appellant submitted that the respondent has no right, title or interest in respect of the suit premises and the land below the suit premises. He submitted that the land below the suit premises is vested in the State Government. He submitted that the suit was not maintainable in the City Civil Court and in fact the respondent had earlier filed a suit in the Small Causes Court which was dismissed on merits. He submitted that the appellant adduced evidence to show transfer of ownership by respondent's husband in his favour. He, therefore, submitted that the appellant could not have been held to be a trespasser. The learned counsel appearing for the respondent supported the impugned Judgment and decree. 6. I have given careful consideration to the submissions. 4 fa1634-11 It is not been disputed that in respect of the very premises, the respondent filed a suit for eviction against the appellant in the Court of Small Causes. Perhaps, by filing the said suit, the respondent invoked Section 41 of the Presidency Small Causes Courts Act, 1882 on the ground that the appellant was a gratuitous licensee. The suit was dismissed by the Court of Small Causes. It will be necessary to make a reference of the relevant finding recorded by the Court of Small Causes which reads thus: “17..... I find that the suit is not maintainable in the present form. The defendant failed to prove ownership. The plaintiff failed to prove that defendant is licensee. Therefore, it can be said that the plaintiff denied the defendant's right to remain in possession. Defendant became trespasser. Therefore, the plaintiff ought to have filed the suit for recovery of possession in City Civil Court.” (Underline added) 7. Thus, the finding recorded by the Court of Small Causes is that the respondent failed to prove that the appellant was a licensee. It was held that the appellant was a trespasser. The suit was dismissed on the ground that the same was not maintainable in the Court of Small Causes. 8. In the written statement filed by the appellant, it is admitted that the suit room/suit premises was owned by the husband of the respondent. In fact, the appellant has claimed 5 fa1634-11 ownership on the basis of a writing and the affidavit dated 19th October, 1993 allegedly executed by the deceased husband of the respondent. The respondent claimed ownership on the basis of the said documents. 9. Apart from the fact that the said writing and the said affidavit were not proved, in any case, there was no registered document executed in favour of the appellant by which the right, title and interest of the respondent's husband was transferred in his favour. Once, the appellant admits that the respondent's husband was the owner of the suit premises, now the appellant cannot deny the title of the respondent's husband. At highest the writing deated 25th February, 1982 can be an agreement for sale which does not create any interest in the property in view of Section 54 of the Transfer of Property Act, 1882. The appellant has not pleaded protection of Section 53-A of the Transfer of Property Act, 1882. In the affidavit in lieu of examination-in-chief of the appellant, he has merely stated that the husband of the respondent has agreed to sale the suit premises. There is no documentary evidence adduced of payment of entire agreed consideration. 10. Hence, no fault can be found with the finding of the 6 fa1634-11 trial Court that the appellant is a trespasser. A decree for possession has been accordingly passed. 11. No case is made out for interference. Appeal is accordingly dismissed. There is no order as to costs. 12. Decree for possession shall not be executed for a period of 12 weeks from today subject to condition that the appellant shall not create any third party rights and shall not part with possession of the suit property. 13. Civil Application No.3042 of 2011 is disposed of on the above terms with no order as to costs. (A.S.OKA, J.)