VISHWANATH SAWANT Vs. GANDABHAI KIKABHAI

JUDGEMENT

(1.) WHETHER the defendant is a rank trespasser or a licensee, if he is a licensee whether his possession is protected under the Bombay Rent Act; whether the City Civil Court or the Court of Small Causes under section 41 of the Presidency Small Causes Courts Act or under section 28 of the Bombay Rent Act has jurisdiction are some of the questions which have been debated before me in the present Appeal.

(2.) THE present suit has been instituted by one Daulatrai Mohanlal Kothari acting as the Constituted Attorney of the plaintiff. By this suit, the plaintiff seeks to recover possession of the suit premises being Room No. 10, Noor Mahal, now known as Baughwala Mahal at 125/127, Sir Ratan Tata Road, Tardeo, Bombay - 400 034.

(3.) SHORTLY stated it is the case of the plaintiff that the defendant is in unauthorised use and occupation of the suit premises. The defendant however, claims to be the plaintiffs licensee in respect thereof. According to the plaintiff, the defendant had forcibly entered into the suit premises in or about 1979 and had refused to remove himself although called upon to vacate the same. According to the plaintiff, he is a tenant in respect of the said premises on the monthly rent of Rs. 14. 55 Ps. He was prohibited from sub-letting, transferring or otherwise parting with possession of the suit premises in any manner whatsoever including by way of leave and licence, both by reason of the terms and conditions of tenancy as also the provisions of the Bombay Rent Act which expressly forbid sub-letting of the demised premises by the tenant as also the grant of leave and licence by the tenant in favour of any person. Since the defendant had entered into possession in or about 1979 when the statutory prohibition against sub-letting and/or grant of licence was in force, the defendant was no better than a rank trespasser. He would be a trespasser even if it were to be assumed that he had entered in the suit premises by virtue of or under the permission of the plaintiffs Constituted Attorney D. M. Kothari as alleged by the defendant. This suit was filed in the City Civil Court at Bombay.