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2025 Supreme(Online)(Bom) 1735
BOMBAY HIGH COURT
Sharmila U. Deshmukh, J
Mahendra Kumar Chunilal Tailor – Appellant
Versus
Smt. Parvatiben Rathod, since deceased through his legal heirs: Nirmala Mehta – Respondent
FIRST APPEAL NO. 1056 OF 1997 | LC Suit No. 5929 of 1987
For the Appellants/Petitioners: Mr. V. Y. Sanglikar, Ms. Payal Chheda
For the Respondents: Mr. Saeed Akhtar
The court held that mere permission to occupy cannot confer tenancy rights and that forcible dispossession constitutes trespass, allowing the plaintiff to reclaim possession under Section 6 of the Specific Relief Act.
Headnote:(A) Specific Relief Act, 1963 - Section 6 - Tenancy rights and forcible dispossession - The trial court decreed the plaintiff's suit, declaring the defendant as a trespasser and granting possession of the suit premises to the plaintiff - The court emphasized that permission granted to the defendant to sleep at night did not create a licensor-licensee relationship and that evidence of forcible dispossession was overwhelming. (Paras 29, 60, 62)
(B) Jurisdiction - The trial court maintained that the suit was maintainable in civil court under Section 6 of the Specific Relief Act as the plaintiff alleged forcible dispossession without due process of law, differentiating it from landlord-tenant conflict. (Paras 30, 36)
Facts of the case:
The plaintiff alleged the defendant was a trespasser who forcibly occupied part of the room without consent after initially being permitted to stay as a guest. The defendant's claim of a tenancy was contradicted by evidence. (Paras 2, 4, 60)
Findings of Court:
Evidence substantiated that the defendant constructed permanent structures in the suit premises, amounting to forcible dispossession, and the court reaffirmed the plaintiff's rights to the premises based on ownership and prior possession. (Paras 59, 61)
Issues: The primary issues were whether the defendant was a gratuitous licensee or a tenant, whether the plaintiff was forcibly dispossessed, and whether the suit was maintainable under Section 6 of the Specific Relief Act. (Paras 28, 30)
Ratio Decidendi: The court ruled that permission for temporary accommodation did not confer tenancy rights, and as the defendant's possession was through permission, his subsequent actions amounted to trespass. The jurisdiction of the civil court was upheld, emphasizing the nature of the suit as one for recovery based on forcible dispossession. (Paras 30, 62)
Result: First Appeal partly allowed, with certain clauses of the impugned judgment set aside.
| Table of Content |
|---|
| 1. overview of the case and suits. (Para 1 , 2 , 3) |
| 2. details of complaints and actions leading to lawsuit. (Para 4 , 6 , 12) |
| 3. disputes on tenancy and license issues. (Para 7 , 8 , 33) |
| 4. plaintiff's deposition related to tenancy. (Para 9 , 10 , 11) |
| 5. defendant's claims and evidence of occupancy. (Para 13 , 14 , 50) |
| 6. court's analysis of procedural adherence. (Para 19 , 40 , 61) |
| 7. nature of possession and rights established. (Para 30 , 31 , 56) |
| 8. significance of forcible dispossession. (Para 39 , 59 , 63) |
| 9. outcome of the judgment and orders made. (Para 64 , 65 , 66) |
JUDGMENT :
1. The First Appeal impugns the Judgment dated 28/29th July, 1997 passed by the City Civil Court at Mumbai in LC Suit No. 5929 of 1987 decreeing the suit declaring the Defendant as trespasser and ordering him to restore possession of the suit premises to the Plaintiff. For sake of convenience parties are referred to by their status before the Trial Court.
2. L.C.Suit No. 5929 of 1987 was instituted seeking declaration that the Defendant is trespasser and has no right, title and interest in respect of portion delineated by orange boundary in the sketch annexed to the plaint and for recovery of vacant and peaceful possession of the suit premises. The suit premises is portion of Room No 22 situated at Purshottam Dayabhai Chawl, Nanabhai Laxman Cross Road, Malad, Mumbai.
3. The Plaintiff came with a case of being a tenant of Room No 22 which tenancy was subsequently converted into ownership. In or about about 1978 the Defendant, who was the neighbour’s son, approached the Plaintiff for permission to sleep at night in the Plaintiff’s room, which was allowed by the Plaintiff, without any monetary compensation. In order to give privacy to the Defendant and his wife at night while sleeping, she allowed the Defendant to put up a temporary and ordinary plywood partition up to the height of 5 ft. In or about 1985, the Defendant put up a false claim in respect of the portion, where the Defendant used to sleep, by filing RAD Suit No. 1797 of 1985 claiming to be tenant of the Plaintiff. In the said suit, the Injunction Notice No.2679 of 1985 filed was discharged by order dated 24th June, 1987. Thereafter the Defendant filed Suit No. 5226 of 1986 in the City Civil Court seeking protection against dispossession in which interim relief was refused.
4. On 30th July, 1987, as the Defendant brought some construction material near Defendant’s father room, N.C. Complaint No. 7483 was lodged by Plaintiff. On 3rd August, 1987, the Defendant attempted to raise height of the walls upto the ceiling which was prevented by the Plaintiff and she again lodged complaint bearing 7627 of 1987. However the police failed to take action and on 3rd August, 1987, the Defendant constructed walls on two sides of the front portion, constructed an entry on one side of Plaintiff’s room and brought his household articles in the suit premises, thereby dispossessing the Plaintiff from the suit premises. Hence the suit came to be filed on 13th August, 1987.
5. Vide order dated 14th August, 1987, Court Commissioner was appointed who visited the suit premises on 14th August, 1987 at 8.15 pm and submitted his report.
6. As no written statement was filed, the suit proceeded without written statement. The Plaintiff examined herself and was cross examined by Defendant in person. The suit was decreed by judgment dated 24th/26th December, 1996, which was challenged before this Court and was remanded with permission to Defendant to file written statement.
7. Upon remand, the Defendant by his written statement dated December 1996, objected to the jurisdiction of the Civil Court pleading existence of landlord tenant relationship. The case pleaded was that in 1978-1979, the Defendant approached the Plaintiff and she gave portion of Room No 22 admeasuring 10’x 10’ which was independent unit on monthly tenancy of Rs.18/-. By handwritten portion, it is pleaded that sum of Rs.2,000/ was paid as deposit.
