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IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
Conrad Dias .... Appellant.
Versus
Joseph Dias .... Respondent.
First Appeal No. 826 of 1994, decided on 26-10-1994.
Advocates appeared :
Anand Grover with S.P. Shirekar and Ms. Firdaus Mehta i/by M/s. Haresh Thakar Co., for the appellant.
V. Y. Sarglikar. for the respondent.
See Presidency Small Cause Courts Act, 1882, Sections 41 & 45.
Order 6, Rule 2-Plea-Not pleaded in plaint or W.S.-Cannot be taken up in appeal.
Section 52-Licensee-Definition of.
What Section 52 of the ,aid Act says is that if one person grants to another a right to do something on an immovable property of the grantor, then such a right is called "licence", That means it is a transaction between one person and another where some permission is granted to do something. In the present case, we are not concerned with any such two persons at all. Here we are concerned with a father and a son who are members of one family. A son gets into the family by birth and resides with the parents.
Can it be said that when a child is born and lives with the parents he is a licensee within the meaning of Section 52 of the Act? Certainly not. A child and latter a son or a daughter resides in the house with the parents not as a licensee or in any other legal capacity but only as members of the family. Nobody can claim a licence by birth. In the present case, admittedly, the father and children including the appellant were residing together in 1962 when the house was purchased. In 1962, the appellant was a minor boy. It may be in Course of them the appellant became a major and he is continuing to resides in the same premises.
It may be that the father who was working at Bombay in Reserve Bank of India got a transfer to Bangalore and was staying there. It does not make the appellant a licensee or a person having any independent legal right to stay in the premises except as a member of the family viz. being the san of the plaintiff in this case. Held, a person who is residing with the parents in the house cannot claim any legal character much less, the character of a licensee as defined in Section 52 of the Easements Act, but he is residing simplicities as a member of the family and nothing more and nothing less.
2. This is an appeal involving dispute between a father and a son. The father, who is respondent to this appeal, filed a suit in the trial Court for injunction restraining the appellant-defendant from entering or remaining in the suit premises. His case is that he is the owner of the suit property which is called as "Brazvilla" situated at Dadar. It is stated in the plaint that the plaintiff and the defendant are residing in second floor of the suit premises. The plaintiff was working in the Reserve Bank of India and on transfer was forced to stay at Bangalore. He had authorised his uncle to look after the suit property. The uncle was unwell and died in 1982. Hence in 1982 the plaintiff had given a power of attorney to the defendant to look after the maintenance of the suit property. Since the defendant was playing mischief and was attempting to alienate the property, the power of attorney was revoked. There is strained relationship between the father and son. The plaintiff does not want to have anything to do with the defendant. Hence he does not want the defendant to continue in the suit premises. The defendant has no manner of right or interest in the suit property except staying there gratuitously as a son of the plaintiff. He, therefore, wants an order of injunction against the defendant and the members of his family to restrain them from entering or remaining on the suit premises.
The appellant is the son, who was the defendant in the Court below, filed a written statement contesting the suit on many grounds. It is stated that the suit is not maintainable. That defendant is in possession of the suit premises under an understanding with the plaintiff in 1970-71 under which defendant could occupy the suit premises as a tenant under the plaintiff. The consideration for this understanding was that the defendant should assign his LIC policy in favour of the plaintiff and the defendant should pay the taxes for the suit property, look after its maintenance etc. Accordingly, the defendant endorsed the LIC policy in favour of the plaintiff who in turn assigned it to one J.M. Parekh. The defendant has been paying taxes on the suit property. Once defendant had sent rent to the plaintiff by money order, but it was refused by the plaintiff. That the defendant is in possession and enjoyment of the house in his own right. It is further pleaded that the defendant has perfected the title to the suit property by adverse possession for more than 12 years. Plaintiffs title is also denied. It is denied that the plaintiff is residing in the second floor of the building. It is asserted the plaintiff has been residing permanently at Bangalore since 1974. The defendant has been looking after repairs to the suit property. Giving of power of attorney by the plaintiff in favour of the defendant and subsequent cancellation are
admitted. That the plaintiff is not entitled to the relief of injunction. It is, therefore, prayed that the suit be dismissed with costs.
3. The learned trial Judge framed the following issues :-
1. Does the plaintiff prove that he is the owner of the suit premises?
2. Does the plaintiff prove that defendant has no right, title or interest in the suit premises?
3. Does the defendant prove that he is staying in the suit premises as of right?
4. Whether the plaintiff proves that he was in joint possession of the suit premises with the defendant at the time of filing of the suit?
5. Does the defendant prove that he is the owner of the suit premises by virtue of his adverse possession as alleged in paragraph 3 of his written statement?
6. Does the defendant prove that the suit is not maintainable?
7. Does the plaintiff prove that he is entitled to permanent injunction aga
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