Whether licence granted to the licensee is revoked on the filing of eviction suit?

Also, it is clarified that the plea of the defendant she had never received the legal notice dated 18.04.2015, has not been factored in this adjudication because in view of Section 61 of the Easements Act, 1882, the licence of the defendant to stay at the second and third floor of the suit property, stood definitely revoked, with effect from the day, when the defendant had received the summons for settlement of issues of this suit.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

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How to appreciate evidence if the plaintiff is pleading that defendant is gratuitous licensee and defendant is alleging that he is the tenant?

Two suits were tried together. In both the suits (suit for possession filed by the Appellants, and suit for permanent injunction filed by the first Respondent), the trial court framed issues placing the burden on both the Plaintiff and Defendants. The Appellants were required to prove whether the suit portions were given to second Respondent as a gratuitous licensee. The Respondents were required to prove that they were in occupation from 1982 as tenants, initially by paying ` 25/- per month as rent up to 1988 and thereafter at the rate of ` 60/- per month. These issues were proper as it was evident from the pleadings that Respondents were in possession of suit rooms, and Appellants claimed that the Respondents were licensees and Respondents claimed that they were tenants, but admitted that there was no document evidencing tenancy/lease or payment of rent. The entire evidence was analysed in detail by the trial court, leading to the findings that the Respondents were in occupation of the suit portions as gratuitous licensees and the Respondents failed to prove that they were tenants paying rent. In appeals filed by the Respondents, the court wrongly shifted the entire burden of proof on the Appellants and held that the Appellants had failed to prove that Respondents were gratuitous licensees and consequently dismissed the suit for possession filed by the Appellants. As noticed above, admittedly there was no lease deed or tenancy agreement to evidence the tenancy; nor were there any receipts for payment of any rent. The first Appellant had given evidence on oath that Respondents were gratuitous licensees and they had never paid any rent or other charges and his evidence was corroborated by a neighbour (PW2). In the circumstances, the burden was on the occupants (respondents) to establish that they were tenants and not licensees. But the first appellate court chose to wrongly place the burden upon the Appellants. The first appellate court failed to record any finding that the Respondents were the tenants. The documents produced by the Respondents which merely showed their possession were wrongly interpreted to hold that the Appellants failed to prove that Respondents were gratuitous tenants.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8400-8401 of 2011 

Decided On: 30.09.2011

 Dnyaneshwar Ranganath Bhandare  Vs. Sadhu Dadu Shettigar (Shetty)

Hon'ble Judges/Coram:

R.V. Raveendran and A.K. Patnaik, JJ.

Citation: (2011) 10 SCC 433,MANU/SC/1135/2011

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How to appreciate evidence in the suit between the licensor and gratuitous licensees?

From the aforesaid averments, it can be seen that it is the case of the plaintiff that the defendants being related to him were permitted to reside in the suit premises as there was a difficulty in finding a residential accommodation. It is not the case of the plaintiff that any rent was being paid by the defendants as consideration for permitting them to reside in the said premises. The pleadings in the plaint when considered as a whole indicate that in view of the permission granted by the plaintiff to the defendants to reside in the suit premises, the defendants came in its occupation. In other words, the plaintiff was the licensor and the defendants were licensees. Under section 41 of the said Act a suit between a licensor and licensee relating to recovery of possession of any immovable property can be tried only by the Court of Small Causes. The Honourable Supreme Court in Prabhudas Damodar Kotecha and Ors. (supra) considered the question as to whether a suit filed against' a gratuitous licensee would also lie before the Court of Small Causes under section 41 of the said Act. It was held that the term license would include a gratuitous license. It was held that in a suit between licensee and licensor relating to recovery of possession of any property situated in Mumbai, it is only the Small Causes Court that would have the jurisdiction. A licensee could also be a gratuitous licensee. In the light of this decision it becomes clear that a suit of the present nature can be entertained only by the Small Causes Court and not by the Civil Court.

10. As noted above the plaint averments clearly indicate that the defendants were permitted to reside in the suit premises gratuitously and in view of the permission granted by the plaintiff. It is on account of such license that the defendants came in possession. Thus the requirements of section 41 of the said Act stand satisfied in view of the fact that the suit as filed is between the licensor-plain tiff and licensee-defendants and a prayer is also made for possession of the suit premises by evicting the licensee.

The trial Court in paragraph 10 of its judgment has observed that despite the license in favour of the defendants being terminated, the defendants continued in possession. Infact they had no right to occupy the suit house and they were rank trespassers. Once it is found that the plaintiff had determined the license in question, the suit would be one between the licensor and licensee. Its cognizance in view of section 41 of the said Act could only be taken by the Small Causes Court. The civil Court had no jurisdiction to entertain the same. In the light of the aforesaid decision of the Honourable Supreme Court in Prabhudas Damodar Kotecha (supra), the decisions relied upon by the learned Counsel for the respondent do not support his contentions. Point (a) is answered by holding that the Civil Court had no jurisdiction to entertain the suit.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 1888 of 2007

Decided On: 28.11.2018

 Rajani Ramchandra Shinde  Vs. Moreshwar Vasant Chavan

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

 Citation: MANU/MH/3697/2018 

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Whether small cause court has jurisdiction to try the suit if the plaintiff takes inconsistent pleas of gratuitous licensee and trespasser?

Issue No. II:

Are there any contradictory pleas in the plaint to non-suit the plaintiff?

22. The petitioners here maintain that Vishala has taken contradictory pleas in the plaint. Those pleas are mutually destructive; they, in fact, denude the Small Cause Court of any jurisdiction to try the case.

23. First, I will refer to the authorities Vasanthi has relied on. In Prabhudas Damodar Kotecha, the Supreme Court has held that the Legislature having once conferred exclusive jurisdiction on one Court in all the suits between licensee and licensor, it would not have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. Let me consider the next one. In another case, the High Court declared a sub-tenant trespasser and ordered his eviction. In that context, in Hiralal Vallabhram, the Supreme Court has held that once an occupant is a trespasser, the Civil Court, not the High Court, has the jurisdiction to order his eviction.

24. Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. So held the Supreme Court in Chapsibhai Dhanjibhai Danad. Then, on facts, it has observed that the appellant did not attempt, during the trial, to establish accession by adverse possession. On the contrary, he wanted to make out a case of easementary rights by prescription. That plea, the Court held, was incompatible with the appellant's claim of adverse possession.

25. In Udhav Singh v. Madhav Rao Scindia [MANU/SC/0302/1975 : [1976] 2 SCR 246], the Supreme Court has held that any ingenious method of construction after compartmentalisation, dissection, segregation, or inversion of the language of the pleadings runs counter to the cardinal cannon of interpretation. In other words, a pleading must be read as a whole to ascertain its true import. It is not permissible to single out a sentence or a passage, and to read it out of the context--in isolation. Udhav Singh has further held that "it is the substance and not merely the form that has to be looked into."

26. In Ram Sarup Gupta (Dead) by Lrs. v. Bishun Narain Inter College [MANU/SC/0043/1987 : [1987] 2 SCC], the Supreme Court has further observed that the pleadings should receive liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

27. Coming back to the facts, I may note that in para 10 of the plaint, Vishala has pleaded that she moved to occupy the flat in February 1969. Her sister and brother-in-law followed her to the suit flat on the ground that their residence was uncomfortable and inadequate. Given their relationship, she could not object. Then, she pleads in para 26 that they are "in permissive occupation of the suit flat" along with her from 1969 to 1986, when Vishala sought their eviction.

28. In para 31, Vishala has pleaded that her sister turned dishonest and falsely advanced the benami-story. She again asserts that until "11.6.1986 the defendants were in permissive occupation. . . without any payment of charge." She has further pleaded that "from 11.6.1986, the defendants [have been] virtually trespassers in the suit flat and are hence liable to [be] vacate[d]."

29. True, when the suit was transferred, Vishala, it seems, added to the prayer clause that she is "the licensor and the defendants are the gratuitous licencees." This assertion, though, is not without foundation in the pleadings. Besides, Vishala has described her sister and brother-in-law as "virtual trespassers." In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [MANU/SC/1047/2004 : (2005) 1 SCC 705], the Supreme Court has held that "after determination of the tenancy, the position of the tenant is akin to that of a trespasser." Indeed, in that sense, Vishala has used the expression trespasser. This expression, I am afraid, neither contradicts nor confounds Vishala's pleas in the pleadings.

30. In Nagin Mansukhlal Dagli, the plaintiff pleaded that the licence granted to the defendant ended. So he contended that the defendant's possession was wrongful and illegal, and was "that of a trespasser." The plaintiff also wanted the court to declare the defendant a "trespasser." In this context, a Division Bench of this Court has examined whether a Small Cause Court has jurisdiction to entertain the suit for eviction.

31. Is the suit really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction? To answer this question, Nagin Mansukhlal Dagli has held that "it is the determination of the issue whether the licence has come to an end or not which would give the right to the plaintiff to obtain the relief of possession." The declaration sought does not, according to it, change the real nature of the suit. Finally, Nagin Mansukhlal Dagli has interpreted Section 41 of the Presidency Small Cause Courts Act, 1882, and held that this provision speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". Significantly, the words used in Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Then, it has concluded that despite the plaintiff's prayer for a declaration that the defendant is a trespasser, the Small Cause Court can try the suit.

32. After all, litigation is not mere logomachy--a fight over words; it is a fight over intentions. The intentions result in deeds, and the deeds get described in words. The words, as they describe the deeds, take their roots from the intentions.

33. An occupier may be a 'tenant', a licencee included, or a 'trespasser', one with a positive connotation and the other with a negative connotation. And 'occupier', on the other hand, is value neutral. Every word has a penumbral meaning, besides its core content. We do not, nor can we, always weigh words in the semantic scales; of course, they never remain in the prescriptive bounds, too. I may recall Anthony Burgess's coruscating comment on the imprecision of the language: Language has, in fact, many of the qualities possessed by the human beings themselves: it tends to be emotional when pure reason is required, it is sometimes unsure of what it means, it changes from meaning, sound. It is slippery, elusive, hard to fix, define, delimit.1 Glanville Williams classifies as a common error 'the idea that the words are somehow important of themselves, and irrespective their symbolic function."2 Edward de Bono may be right when he says "words [in a sense] are encyclopedias of ignorance because they freeze perceptions at one moment in history and then insist we continue to use these frozen perceptions when we should be doing better."3

34. So I hold that Vishala's suit pleadings are not contradictory; they do not denude the Small Cause Court of its jurisdiction, either. Vasanthi and others are not trespassers in the statutory sense, though they may be in the sense Atma Ram Properties used.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 36 of 2018

Decided On: 17.09.2019

Vasanthi Shridhar Bangera Vs. Vishala Bokapatna Laxman

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: AIR 2020 Bom 31

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Basic concept of Gratuitous licensee

Gratuitous licensee is a person who is permitted, though not invited, to enter another individual's property. A gratuitous licensee provides no consideration in exchange for such permission.

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Tests laid down by Supreme Court for determining whether alternative plea raised by plaintiff was permissible

 Reference may also be made to the decision of this
Court in J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and
Anr. (2002) 3 SCC 98 where this Court formulated the
following tests for determining whether the alternative plea
raised by the plaintiff was permissible:
“To sum up the gist of holding in Firm Sriniwas
Ram Kumar's case: If the facts stated and
pleading raised in the written statement, though by
way of defence to the case of the plaintiff, are
such which could have entitled the plaintiff to a
relief in the alternative, the plaintiff may rely on
such pleading of the defendant and claim an

alternate decree based thereon subject to four
conditions being satisfied, viz., (i) the statement of
case by defendant in his written statement amounts
to an express admission of the facts entitling the
plaintiff to an alternative relief, (ii) in granting such
relief the defendant is not taken by surprise, (iii) no
injustice can possibly result to the defendant, and
(iv) though the plaintiff would have been entitled to
the same relief in a separate suit the interest of
justice demand the plaintiff not being driven to the
need of filing another suit.”
18. The plaintiff-appellant in the case at hand had set up a
specific case that the defendant as also his legal
representative after his demise were occupying the suit
premises as licensees which licence had been validly
terminated. In the reply to the notice the case of the
defendants was that were in occupation of the suit premises
not as licensees but as tenants. The plaintiff was, therefore,
entitled on that basis alone to ask for an alternative relief of
a decree for eviction on the grounds permissible under the
Rent Control Act. Such an alternative plea did not fall foul if
any of the requirements/tests set out in the decision of this
Court in J.J. Lal’s case (supra). We say so because the
written statement filed by the defendant contained an
express admission of the fact that the property belonged to
the plaintiff and that the defendants were in occupation

thereof as tenants. At the trial Court also the question
whether the defendants were in occupation as licencee or as
tenants had been specifically put in issue thereby giving the
fullest opportunity to the parties to prove their respective
cases. There was no question of the defendants being taken
by surprise by the alternative case pleaded by the plaintiff
nor could any injustice result from the alternative plea being
allowed and tried by the Court. As a matter of fact the trial
Court had without any demurrer gone into the merits of the
alternative plea and dismissed the suit on the ground that
the plaintiff had not been able to prove a case for eviction of
the defendants. There was thus not only a proper trial on all
those grounds urged by the plaintiff but also a judgment in
favour of the defendant respondents. Last but not the least
even if the alternative plea had not been allowed to be raised
in the suit filed by the appellant he would have been certainly
entitled to raise that plea and seek eviction in a separate suit
filed on the very same grounds. The only difference may
have been that the suit may have then been filed before the
Court of Small Causes but no error of jurisdiction was
committed in the instant case as the finding recorded by the

Civil Court was that the defendants were licensees and not
tenants. Superadded to all these factors is the fact that the
appellate Court had granted relief to the appellant not in
relation to the alternative plea raised by him but on the
principal case set up by the plaintiff. If the plaintiff
succeeded on the principal case set up by him whether or not
the alternative plea was contradictory or inconsistent or even
destructive of the original plea paled into insignificance.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 50 OF 2014

Praful Manohar Rele Vs Smt. Krishnabai Narayan Ghosalkar 

T.S. THAKUR, J.
Dated:January 3, 2014

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Whether legal representatives of deceased licensee will inherit right in licensed premises?

 A mere license does not create any estate or interest in the property to which it relates. It only confers legality for an act which would otherwise become unlawful. A license may be purely personal, gratuitous or contractual. The first two classes of mere licenses are revocable, the third class is revocable or not revocable according to the express or implied terms of the contract between the parties. A license coupled with grant of an interest in nature of property is not revocable. Such a license is a right to enter on land and enjoy a profit a prendre or other fv incorporeal hereditament.

19. The learned Advocate for the appellant invited my attention to Section 56 of the Indian Easements Act, 1882 to contend that the license cannot be transferred by the licensee in view of Section 56 of the Easement Act. Original defendant Andrew died during the pendency of these proceedings on 4-5-1996 and is represented by LRs respondents No. 1 to 7 on record.

Admittedly, the first Appellate Court also recorded that the construction was carried out with muds and bricks. If that is so, it cannot be said that those three rooms were constructed of permanent character, as such the construction is purely temporary.

20. Therefore, the finding as to irrevocable license in para 14 of the impugned judgment appears perverse and is not at all sustainable. Considering the legal position that mere license does not create any estate or interest in the property; but only confers legality on acts which would otherwise be unlawful. A license may be purely personal, gratuitous or contractual. In the instant case, it appears that it was gratuitous at the instance of mother as one brother, who is owner of the suit plot, allowed his another brother to occupy a portion of the suit plot such license or permission being of gratuitous nature such license is revocable and not transferable in favour of the legal representatives, as it is purely personal right to enter on the land and enjoy the occupation, till the license is revoked.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 372 of 1993

Decided On: 01.07.2008

 Francis  Vs.  Andrew and Ors.

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Whether licensee can challenge title of licensor?

 Lastly, and on the same basis, is the finding that defendant 1 was inducted into the flat as a licensee by Sadashiv and was therefore estopped from questioning his licensor's title. The claim to protection under section 15-A of the Rent Act is not available to defendants 1 to 3. In fact defendant 1 does not make that claim in the proper sense of the concept for he has set up an adverse title to his licensor. A licensee recognises the superior title of his licensor and where the claim set up by him conflicts with the licensor's title, he is not a licensee or entitled to the benefit of section 15-A.

IN THE HIGH COURT OF BOMBAY

Suit No. 595 of 1976

Decided On: 16.04.1990

 Narayan Sadashiv Bhalerao Vs.  Navnitdas Narayandas Barshikar and Ors.

Hon'ble Judges/Coram:

S.M. Daud, J.

Citation: 1990(2) BomCR 483

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Whether person in possession of premises can be denied electric and water supply if his suit for tenancy declaration is pending?

If the Petitioners are in physical possession of the suit premises, which fact is accepted even before me by the learned Advocate for the Respondent during the course of the argument, then one fails to understand as to why they should be deprived of electricity and water supply which is absolutely bare necessity and essential for even the basic day-to-day life in the modern world. This aspect is completely overlooked by the learned Judges of the Appellate Court. Merely because the documents which were relied upon by the Plaintiffs at the time of hearing of the interim application were not sufficient to establish a plea of tenancy, the Appellate Court could not have overlooked the fact that the suit is yet to be tried and the evidence is yet to be led. At the prima facie stage, the material available on the record was sufficient to infer at least one thing that the Plaintiffs were in exclusive physical possession of the suit premises and also that the said possession of the Petitioners is not a forcible possession and even the Defendant has not raised a plea that just prior to the filing of the suit, the Plaintiffs have forcibly entered the suit premises. This being the state of affairs, in my opinion, learned Judges of the Appellate Court have committed a manifest error in interfering with the Judgment of the Trial Court. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7315 of 2011

Decided On: 18.10.2011

 Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta

Hon'ble Judges/Coram:

G.S. Godbole, J.

Citation: 2012(1) MHLJ730,2012(5) BonCR348,2012(1) AllMR 4

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Whether gratuitous licensee will acquire right in property by remaining in possession for long time?

Principles of law which emerge in this case are crystallized as under:

(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We therefore, allow the appeal, set aside the judgment under appeal and restore the Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit No.408 of 2013.

Reportable

Supreme Court of India

Behram Tejani & Ors vs Azeem Jagani on 6 January, 2017

Bench: Pinaki Chandra Ghose, Uday Umesh Lalit

Citation:2017(2) SCC 759

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What is distinction between contradictory pleas and alternative pleas?

Significantly, the decision rendered by the High Court
rests entirely on the fourth question extracted above. The
High Court has taken the view that while the plaintiff could
indeed seek relief in the alternative, the contentions raised
by him were not in the alternative but contradictory, hence,
could not be allowed to be urged. The High Court found that
the plaintiff’s case that the defendant was a gratuitous
licensee was incompatible with the plea that he was a tenant
and, therefore, could be evicted under the Rent Act. The
High Court observed:
“It is now well settled that a plaintiff may seek
reliefs in the alternative but in fact the pleadings are
mutually opposite, such pleas cannot be raised by

the plaintiff. There is an essential difference
between contradictory pleas and alternative pleas.
When the plaintiff claims relief in the alternative,
the cause of action for the reliefs claimed is the
same. However, when contradictory pleas are
raised, such as in the present case, the foundation
for these contradictory pleas is not the same. When
the plaintiff proceeds on the footing that the
defendant is a gratuitous licensee, he would have to
establish that no rent or consideration was paid for
the premises. Whereas, if he seeks to evict the
defendant under the Rent Act, the plaintiff accepts
that the defendant is in possession of the premises
as a tenant and liable to pay rent. Thus, the issue
whether rent is being paid becomes fundamental to
the decision. Therefore, in my opinion, the pleas
that the defendant is occupying the suit premises
gratuitously is not compatible with the plea that the
defendant is a tenant and therefore can be evicted
under the Rent Act.”
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 50 OF 2014

Praful Manohar Rele V Smt. Krishnabai Narayan
Ghosalkar & Ors.
Dated:January 3, 2014.

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Whether relative staying with gratuitous licensee can seek injunction against co-owners of property?

Said Notice of Motion No.344 of 2013 was dismissed by Bombay
City Civil Court vide Order dated 29.04.2013. While rejecting the prayer it
was observed as under:-
“It is specific submission of defendant that Noorbanoo herself
has no right in this premises. Only on sympathetic ground she is
allowed to occupy the premises. If such is fact, when plaintiff is
coming before Court claiming equitable relief like injunction,
he has to prima facie show some rights to claim relief. If
protection is asked for, one must clearly seek ascertaining his
legal rights. Defendant has rightly pointed out that plaintiff is
not submitting his legal right to possess the suit premises. He is
merely claiming that he is residing with Noorbanoo and if
Noorbanoo herself is not having right in the property, I am of
the view that such type of protection cannot be granted in
favour of plaintiff. Neither Noorbanoo is made party to the suit,
nor there is sufficient material to indicate that Noorbanoo has
any legal right to allow plaintiff to reside with her in the suit
property for and on behalf of her. I am of the view that there is
no any substantial right made out on behalf of plaintiff to entitle
him for such equitable relief like injunction.”
The matter was further elaborated in subsequent decision of this Court
in Maria Margarida (Supra) as under:
“97. Principles of law which emerge in this case are crystallized
as under:
(1) No one acquires title to the property if he or she was
allowed to stay in the premises gratuitously. Even by long
possession of years or decades such person would not acquire
any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in
the property irrespective of his long possession. The caretaker
or servant has to give possession forthwith on demand.
(3) The courts are not justified in protecting the possession of a
caretaker, servant or any person who was allowed to live in the
premises for some time either as a friend, relative, caretaker or
as a servant.
(4) The protection of the court can only be granted or extended
to the person who has valid, subsisting rent agreement, lease
agreement or license agreement in his favour.
(5) The caretaker or agent holds property of the principal only
on behalf of the principal. He acquires no right or interest
whatsoever for himself in such property irrespective of his long
stay or possession.”
14. Thus, a person holding the premises gratuitously or in the capacity as
a caretaker or a servant would not acquire any right or interest in the
property and even long possession in that capacity would be of no legal
consequences. In the circumstances City Civil Court was right and justified
in rejecting the prayer for interim injunction and that decision ought not to
have been set aside by the High Court. We therefore, allow the appeal, set
aside the judgment under appeal and restore the Order dated 29.04.2013
passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013
in Suit No.408 of 2013.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 150 OF 2017
(ARISING OUT OF SLP (CIVIL) NO. 35464 OF 2013)
Behram Tejani & Ors. 
V
Azeem Jagani 
Dated:January 6, 2017
Citation:(2017) 2 SCC759

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Whether Persons residing in Premises Gratuitously will Acquire Legal Right On The Property?

Having gone through the record, the submission of the appellants that the grand-mother of the respondent though did not have any right qua the premises was permitted to occupy purely out of love and affection is not without merit. The status of the grand-mother is thus of a gratuitous licensee and that of the respondent is purely of a relative staying with such gratuitous licensee.

Rame Gowda (supra) was a case in which two adjoining owners were claiming independent right of ownership in respect of a strip of land in between their holdings. That piece of land was in possession of the plaintiff and as such while dealing with the controversy, this Court held that a person in peaceful possession is entitled to retain his possession. However, while dealing with the concept of “settled possession” it was observed in paragraph 9 as under:

“The “settled possession” must be (i) effective, (ii) undisturbed, and

(iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” The matter was further elaborated in subsequent decision of this Court in Maria Margarida (Supra) as under:

“97. Principles of law which emerge in this case are crystallized as under:

(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We therefore, allow the appeal, set aside the judgment under appeal and restore the Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit No.408 of 2013.

Reportable

Supreme Court of India

Behram Tejani & Ors vs Azeem Jagani on 6 January, 2017

Bench: Pinaki Chandra Ghose, Uday Umesh Lalit
Citation: 2017(1) ALLMR 925 SC

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Whether a person who is permitted to reside as family member is gratuitous licensees?

 This being the broad definition of 'licence', it is difficult to exclude cases such as the present case. In fact such exclusion will be contrary to the legislative policy. The defendant was permitted to use the premises and he continued to do so. No consideration was exchanged. Defendant is neither a servant, customer or a trespasser. The distinction sought to be made that even though defendant otherwise fits the criterion of a gratuitous licencee, he cannot be held so as he was permitted as a member of family, has no legal basis. The only distinguishing factor in respect of the defendant is that he was related to the licensor. Once a consideration is not a criterion for treating a person as gratuitous licencee, then such occupation can be for variety of reasons such as love and affection, member of the family, being some of them.
Civil - Jurisdiction - Grant of Probate - Plaintiffs filed suit inspite of dismissal of Special Leave Petition, for grant of Probate in favour of Plaintiffs as executors of Will of deceased in view of non-cooperation of Defendant - Hence, this suit - Whether Defendant, who according to Plaintiff was allowed to use premises as family member, would be termed as gratuitous licensee, so as to oust jurisdiction of Civil Court - Held, gist of plaint was that mother of Plaintiffs, who had only life interest in property, permitted Defendant to use premises with her out of kindness - Defendant had continued to use it even after her death without there been any rights in his favour and without paying any amount - Defendant had been permitted to use flats as family member - There was permission to use premises or in general parlance, licence and there was no consideration involved - Thus it was theory of license and not of co-owner - Term 'licensee' includes 'gratuitous licensee' and consideration was not criteria for bringing person within ambit of 'gratuitous licensee' - Defendant was permitted to use premises and he continued to do so - No consideration was exchanged - Thus Defendant who was permitted to use premises would have to be considered as 'gratuitous licensee' on basis of averments made in plaint itself - Small Cause Court being only Court to try all such suits against gratuitous licensee, Civil Court would not have jurisdiction - Preliminary issue which was framed would have to be answered in favour of Defendant - Thus it held that Defendant had proved that High Court had no jurisdiction to try and dispose of suit - Hence notice of motion filed by Plaintiffs would not be taken up - Notice of Motion was rejected, as not maintainable and plaint was accordingly returned to be presented to proper Court - Suit disposed of.

Citation: 2013(6)ABR1009,2014(2) ALLMR 651 Bom

IN THE HIGH COURT OF BOMBAY

Suit No. 465 of 2011 and Notice of Motion No. 787 of 2011

Decided On: 15.10.2013

Appellants: John Francis Anthony
Vs.
Respondent: Colin M. Rebello

Hon'ble Judges/Coram:N.M. Jamdar, J.

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Whether small cause court mumbai has jurisdiction to order eviction of gratuitous licensee?

 We are of the considered view that the High Court has correctly noticed that the clubbing of the expression “licensor and licensee” with “landlord and tenant” in Section 41(1) of the PSCC Act and clubbing of causes relating to recovery of licence fee is only with a view to bring all suits between the “landlord and tenant” and the “licensor and licensee” under one umberalla to avoid unnecessary delay, expenses and hardship. The act of the legislature was to bring all suits between “landlord and tenant” and “licensor and licensee” whether under the Rent Act or under the PSCC Act under one roof. We find it difficult to accept the proposition that the legislature after having conferred exclusive jurisdiction in one Court in all the suits between licensee and licensor should have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. The various amendments made to Rent Act as well the Objects and Reasons of the Maharashtra Act XIX of 1976 would clearly indicate that the intention of the legislature was to avoid unnecessary delay, expense and hardship to the suitor or else they have to move from the one court to the other not only on the question of jurisdiction but also getting reliefs.1
We have elaborately discussed the various legal principles and indicated that the expression ‘licensee’ in Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expression ‘licensee’ used in the PSCC Act does not derive its meaning from the expression ‘licensee’ as used in Sub-section (4A) of Section 5 of the Rent Act and that the expression “licensee” used in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well.1

Supreme Court of India

Prabhudas Damodar Kotecha & Ors. vs Manharbala Jeram Dmodar & Anr. on 13 August, 2013

Citation;AIR 2013 sc 2959

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