B.N. SRIKRISHNA, J.:---Notice of Motion No. 2127 of 1998 in Suit No. 2747 of 1998 was directed to be placed before this Bench by an order of the Hon'ble Chief Justice in exercise of the powers under Rule 28 of the High Court of Judicature Original Side Rules, 1980 for the said notice of motion could be more advantageously heard by this Bench along with Letters Patent Appeal Nos. 112 of 1998 and 121 of 1998 for deciding a common question of law which has arisen in all of them.

2. Though the facts in the two Letters Patent Appeal's and the Notice of Motion are different, the common question of law which arises for our consideration, and which would affect the outcome of all these proceedings, is formulated by us as under :

"Whether a suit by a licensor against a gratuitous licensee is tenable before the Presidency Small Causes Court under section 41 of the Presidency Small Causes Courts Act, 1882 or should such a suit be filed before the Civil Court ?

FACTS IN LPA NO. 112 OF 1998

3. This Letters Patent Appeal is directed against the order of the learned Single Judge in Writ Petition No. 5986 of 1997. The respondent original petitioner is the owner of the Flat No. 10 in Building No. 4, Navjivan Society, Lamington Road, Mumbai 400 008. The respondent purchased the said flat from her own funds in October 1970. Her husband living with her passed away in June 1983. The respondent has two sons, namely, Shashi and Ramesh. Ramesh is the appellant in this Letters Patent Appeal. Both the sons were permitted to live in two separate rooms in the said flat as licensees, without payment, by the respondent. They misbehaved and even made complaints against the respondent to the police. Therefore, the respondent served a notice upon them to vacate the premises licenced to them. No reply was sent by any of them. They refused to vacate. Hence, the respondent filed ejectment application under section 41 of the Presidency Small Cause Courts Act, 1882 in May 1990 for recovering possession of the two rooms from them. Suit No. 106 of 1990 filed against Shashi came to be decreed in June 1992. Appeal filed by Shashi came to be dismissed by the Appellate Bench of the Small Causes Court in June 1993. Similarly, Civil Revision Application filed by him in this Court also came to be dismissed. He left the said room. The defence raised in the said suit was that he was a joint owner of the flat along with his brother (present appellant) and their father. It was alleged that all of them had contributed to the purchase of the said flat. The appellant herein had deposed supporting the case of Shashi. The said case was not accepted. A contention was also raised by Shashi that he was a "gratuitous licensee" and that the Small Cause Court had no jurisdiction. But, the said contention was also rejected by the Appellate Court. In 1994, Suit No. 119 of 1990 filed against the respondent was taken up for hearing. The appellant had also raised similar defence of joint ownership. The trial Court held that the appellant was not the joint owner of the flat and that he was residing as a gratuitous licensee and that the license was terminated. It was held that the suit under section 41 of the Presidency Small Cause Courts Act, 1882 was maintainable. In the appeal filed by the appellant, namely, Appeal No. 75 of 1995, the Appellate Bench of the Small Causes Court, by an order dated 6th October, 1997, confirmed the finding that the appellant was not the joint owner of the flat. It was held that the Small Causes Court had no jurisdiction to decide the suit. Hence, the order came to be passed returning the plaint for presentation to the proper Court. Against the said judgment, the respondent herein preferred Writ Petition No. 5986 of 1997 before this Court. The said writ petition was allowed by the Judge dated 13th/15th April, 1998. Aggrieved by the said order, the appellant herein has preferred the present Letters Patent Appeal.

FACTS IN LPA NO. 121 OF 1998

4. The suit premises