1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2605 OF 2010 (Shri Ramamurthy N. Reddy vs. Hotel Balbir Inn Pvt. Ltd.) and WRIT PETITION NO. 2606 OF 2010 (Shri Yogesh Hasoriya vs. Hotel Balbir Inn Pvt. Ltd.) with WRIT PETITION NO. 2607 OF 2010 (Shri Dilip D. Anandani vs. Hotel Balbir Inn Pvt. Ltd.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 23, 2010. Adv. Kiulkarni for Petitioners/Tenants. Adv. Gharote for Respondent Owner. Challenge in all these three writ petitions is to identical judgment dated 11/1/2010 delivered by District Judge-4 at Nagpur in Regular Civil Appeals 139 to 141/2008 respectively. The Appellate Court has upheld judgment & decree of eviction all dated 20/12/.2007 passed by the Addl. Judge, Small Cause Court, Nagpur in R.C.S. 338, 336, 342 of 2005. I have heard Adv. B.G. Kulkarni for Petitioners and Adv. A.G. Gharote for Respondent. Respective Counsel were heard on 8/6/2010 and then matter was heard again non 15/6/2010. Adv. Kulkarni contends that as Petitioners are tenants of the structure, the relationship of landlord & tenant exists between parties, the suits ought to have been under Maharashtra Rent Control Act,1999 and eviction is possible only on grounds envisaged therein. The Courts erred in treating the tenancy as of open 2 land only. In the alternative, he argues that “Plaints” as filed do not use the words “lessor lessee” anywhere and hence, Suits are not under S.26 of Provincial Small Causes Courts Act. Therefore the judgments & decrees of eviction are without jurisdiction. Last attack is the construction could not have been viewed as temporary structure & and determination of tenancy by notices under S. 106 of Transfer of Property Act is not legal. Adv. Gharote has disputed all these propositions and contends that exclusive jurisdiction conferred on Small Cause Court can not be allowed to be defeated by mere jugglery of words. The Petitioners never claimed tenancy also of structure before the Trial or Appellate Court. As tenancy or lease is of open land only, according to him nature of structure is not relevant at all. The Small Cause Court has rightly appreciated the situation and as there are concurrent findings on facts, this Court can not interfere in the matter. To show the application of Rent Control, sale deed dated 18/6/2003 between original owners and vendors of Respondent is relied upon to show that said vendors did purchase the structure also and very same schedule of properties is included in sale deed 30/9/2004 obtained by Respondent from said vendor. It is admitted position that the open piece was let out to Petitioners with leave to construct and Petitioners raised their respective structure of shop blocks. The parties have led evidence and findings in this respect recorded by the Courts are based on it. Hence by merely pointing out some sentence from such sale- 3 deeds, the inference that above mentioned admitted position underwent any change, can not be drawn. The agreed position can be changed only by consent of both parties and the Petitioners were duty bound to plead such agreement. This argument of learned counsel runs counter to Petitioners plea in paragraph 9 & 19/17 of written statements. In para 6 or 5 of respective W.S., Petitioners only dispute area of open land leased & claim permanent lease of more area of open land than pleaded in plaint. Moreover, Respondent has shown that number of structure mentioned in said sale-deeds and in paragraph 6/5 of written statement is again different. Petitioners have claimed ownership of the structure and no where plead that Respondent is its owner or the rent is being paid by him to Respondent or to any other person for that structure also. The argument of tenancy of premises ie. of open plot with structure thereon is by way of afterthought. In view of the legal proposition mentioned above, it is clear that the above contention of Petitioners is without any substance. Thus the lease is of open land with leave to construct and hence, nature of construction has got no bearing on notice under S. 106 of T.P. Act. Lease is already found to be not permanent by both the Courts. The Petitioners have not claimed any lease for manufacturing purposes. The effort to allege tenancy in relation to premises as defined in Maharashtra Rent Control Act runs contrary to plea in written statements & established facts. S.26 of Provincial Small Causes Courts Act 4 confer exclusive jurisdiction on Small Cause Court to try all disputes between the landlord & tenant or licensor & licensee. Notwithstanding anything contained elsewhere in said Act, but subject to provisions of sub-section (2), the court of small causes has jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property ' Advantage is being taken of the fact that said Section does not use words lessor & lessee to urge that here, as plaint uses the words lessor lessee (and not words landlord/tenant), Small Cause Court has no jurisdiction. Attention is being invited to Maharashtra Rent Control Act,1999 to show that it contemplates & defines landlord or tenant. Hon. Full Bench of this Court in 2007(5) Mah.L.J. 341--Prabhudas Damodar Kotecha & anr. Vs. Smt. Manharbala Jeram Damodar & ors. while settling the position that a gratuitous licensee needs to be evicted by taking recourse to S. 41 of Presidential Small Causes Courts Act, has found the concept of licensee as in Indian Easements Act is relevant and not under the Rent Acts. Said S.41 of Presidency Act is in pari materia with S.26 of Provincial Act. Concepts or logic employed in one legislation is found to be not decisive while interpreting similar phrases in other by Hon. Bench. The relationship of landlord & tenant or lessor & lessee is regulated by chapter V of Transfer of Property Act only. I am not in position to find any distinction between landlord or lessor and tenant or 5 lessee. There is no merit in the contention sought to be raised. No case is thus made out warranting any interference in concurrent judgments delivered by Trial Court and by District Court. Writ Petitions are without any merit. Same are accordingly rejected. No costs. JUDGE At this stage, Shri Kulkarni, learned counsel states that oral understanding between parties should be continued further for a period of four weeks. Shri Gharote, learned counsel is objecting to it. However, in the interest of justice, the possession of the petitioners is protected for a period of four weeks more from today. The order shall cease to operate automatically thereafter. JUDGE *dragon/GS.