The court affirmed that a licensee cannot claim protected tenancy without proving exclusive possession as of 1 February 1973 under Section 15A of the Bombay Rent Act.

JUDGMENT :

(Sandeep V. Marne, J.)

1) Petitioner-Defendant No.1 has filed this petition challenging the judgment and decree dated 23 July 1997 passed by the Appellate Bench of the Small Causes Court allowing Appeal No.491/1988 filed by Plaintiff No. 2 and setting aside the judgment and decree dated 30 June 1988 passed by the Small Causes Court in L. E. & C. Suit No. 41/50 of 1978. The suit was instituted seeking eviction of legal heirs of Chhaganlal Motilal Patel, who according to the Plaintiffs, was a mere licensee in respect of the suit premises. The Small Causes Court had dismissed the suit by decree dated 30 June 1988. The Appellate Bench has reversed the decision of the Small Causes Court and has decreed L. E. & C. Suit No.41/50 of 1978 directing the Defendants to vacate the suit premises with liberty to the Plaintiffs to apply for future mesne profits from the date of the suit by filing separate proceedings under Order 20 Rule 12 of the Civil Procedure Code (Code).

2) Brief facts of the case, as pleaded in the Plaint, are that Harjivan Sunderji Mistry (Plaintiff) was a monthly tenant in respect of Gala-5A admeasuring 23 ft. X 10 ft. (230 sq.ft.), 6 th Kharva Cross Lane, Trimbak Parshuram Street, Bombay-400 004 (suit premises). Plaintiff was carrying on carpentry business in the suit premises and allowed Chhaganlal Motilal Patel and Suryakant Shivlal Parmar to occupy some undivided and undemarcated portion of the suit premises to carry on their respective business. Accordingly, Chhaganlal Patel installed two lathe machines in the southeast portion of the suit premises and operated the same with the help of his son. Shri. Suryakant Parmar worked on his own machines installed in other portion of the suit premises. Plaintiff used to open the suit premises at 8.30 a.m. and shut the same at 5.30 p.m. Plaintiff alleged that in August 1977, Chhaganlal Motilal Patel installed one more drilling machine besides the original lathes without the consent of the Original Plaintiff, which led to Plaintiff serving notice dated 6 September 1977 on Chhaganlal Motilal Patel and terminated his license/permission and called him upon to remove his machines. Chhaganlal Motilal Patel gave reply dated 21 September 1977 of denying the contents of the notice. Original Plaintiff sent Rejoinder dated 13 October 1977.

3) Plaintiff accordingly instituted L. E. & C. Suit No.41/50 of 1978 on 20 April 1978 seeking recovery of southeast portion of the suit premises from the Defendant-Chhaganlal M. Patel. In the plaint, original Plaintiff pleaded that that the Defendant-Chhaganlal Patel had failed and neglected to pay monthly compensation at the rate of Rs.180/- per month from 1 August 1977 to 31 January 1978. He further pleaded that the Defendant did not have right to remain in possession of the southeast portion of the suit premises after termination of the license/permission. This is how the suit was filed for eviction of the Defendant-Chhaganlal by branding him as a mere licensee.

4) Defendant-Chhaganlal Patel filed Written Statement contesting the suit and taking a position that he was a protected tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) and that therefore Plaintiff is not entitled to recover possession of the suit premises from him. Defendant pleaded that Plaintiff had sublet the entire shop bearing Gala No.5A to him in 1953 and that he exclusively possessed the same. During pendency of the suit, Suryakant Parmar, who according to the Plaintiff, was also permitted to use balance portion of the suit premises to operate his machines, purchased the business of the original Plaintiff-Harjivan Sunderji Mistry by Indenture of Assignment dated 2 January 1981 together with stock-in-trade, fittings, fixtures, implements, machinery with goodwill, business etc and accordingly started claiming tenancy rights in respect of the suit premises bearing Gala No.5A.

5) Plaintiff No.1 took out Injunction