JUDGMENT - ASHOK AGARWAL, J.:---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 plaintiff's 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 plaintiff's Constituted Attorney D.M. Kothari as alleged by the defendant. This suit was filed in the City Civil Court at Bombay.

4. The defendant by his Written Statement denied the aforesaid allegations contained in the plaint. He, inter alia, contended that the suit was between a Licensor and Licensee and this relation between the Licensor and Licensee will have to be decided by the Court of Small Causes which alone had the exclusive jurisdiction. The City Civil Court had, therefore, no jurisdiction to entertain and try the suit. According to him, even if there was a dispute in regard to the relationship of Licensor and Licensee, the same was required to be tried exclusively by the Court of Small Causes under the Presidency Small Causes Courts Act. On merits, the defendant averred that in or about the year 1967 D.M. Kothari himself and on behalf of the plaintiff granted to him Leave and Licence in respect of the suit premises and put him in exclusive occupation of the same. In or about the year 1979 the said D.M. Kothari agreed to transfer the suit premises in the name of the defendant by accepting a sum of Rs. 25,000/- as Pagadi. The defendant paid the plaintiff the sum of Rs. 25,000/- in the presence of Shri Ashok Naik, a friend of the defendant. He, however, subsequently dishonestly backed out and avoided to transfer the tenancy rights. According to him, since 1979 till January 1981 the aforesaid Constituted Attorney of the plaintiff kept quiet till 3rd January, 1981 and allowed the defendant to continue to stay as a rank trespasser. The said Constituted Attorney has been accepting rent from the defendant at the rate of Rs. 25/- per month and in turn paid the same to the landlord. The defendant reiterated that he was in possession as a licensee since the year 1967 and was consequently protected. He contended that the suit of the plaintiff was liable to be dismissed with costs.

5. Before adverting to the evidence led by the contending partie

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