907 WP-6413-2022.doc

BDP-SPS-TAC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 6413 OF 2022

Shri Pradeep Baburao Shirsad

…. Petitioner.

V/s

Shri Ranjit Yashvant Shinde

…. Respondent.

Mr. Balasaheb R. Deshmukh for the Petitioner.

CORAM: NITIN W. SAMBRE, J.

DATE: JULY 27, 2022

P.C.:-

1]

This Petition is by the tenant-licensee, questioning the judgment

dated 21/4/2018 delivered by the Small Causes Court in L.E. Suit

No.152 of 2009 which was confirmed in Appeal No.234 of 2018 on

23/3/2022.

2]

Facts necessary for deciding present Petition are as under:-

3] Respondent/Plaintiff initiated aforesaid suit in respect of Room

No.19/B/E, Ground Floor, Anand Nagar, Chembur, Sion, Bombay. It is

claimed that suit premises consists of 15 X 25 sq.ft which is situated

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BHARAT

DASHARATH

PANDIT

Digitally signed

by BHARAT

DASHARATH

PANDIT

Date: 2022.08.25

13:12:51 +0530

907 WP-6413-2022.doc

on the plot of land bearing CTS No.336/53.

4]

Respondent/Plaintiff claims that suit premises are situated at

Little Malbar Hill Co-operative Housing Society, Anand Nagar, S.T.

Road, Chembur, Mumbai – 400071. It is also claimed that suit

premises i.e. independent room is assessed as Room No.19(AE) in the

name of the Plaintiff by the Bombay Municipal Corporation, that the

aforesaid room is part of structure consisting of five rooms standing in

the name of Mrs. Sushila Yeshwant Shinde. According to the

Respondent, Petitioner/Defendant is a son-in-law of sister of his wife

and as such was inducted as gratituous licensee.

5]

Since the Petitioner failed to vacate the premises, suit was

brought into action, seeking possession. The said suit was decreed on

21/04/2018 with direction to the Petitioner to handover peaceful and

vacant possession of premises bearing Room No. 19-B/E, Anand

Nagar, Sion-Trombay, Mumbai – 400071. Petitioner’s prayer in appeal

for setting aside the said judgment came to be rejected on 23/3/2022.

As such, this Petition.

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907 WP-6413-2022.doc

6]

Contentions of Mr. Deshmukh, learned Counsel appearing for

the Petitioner are, claim of the Respondent that Petitioner is a

gratituous licensee is out and out incorrect. According to him,

Respondent/Plaintiff has failed to establish his title over the suit

property as he has not produced the document i.e. affidavit dated

29/01/1998 executed by his mother, thereby permitting him to use

the premises. He would urge that State Government is a necessary

party, as the suit premises were allotted to Co-operative Society by the

State Government. According to him, provisions of Section 53 of the

Indian Easement Act are required to be appreciated under which,

license alleged could not have been granted by the Respondent.

According to him, there is absence of leave and license agreement.

That being so, embargo under sub-section 21 of Section 41 of the

Provincial Small Causes Courts Act will operate, as the suit is not

maintainable. According to him, status of the Petitioner is that of

encroacher. In this background, in the absence of agreement to the

contrary, question of termination of same does not arise. He would

urge that no cause of action is pleaded and as such both the

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907 WP-6413-2022.doc

judgments impugned are liable to be set aside. In addition, contention

of the Petitioner is, Sushila, mother of Respondent, was blessed with

three sons and a daughter. It is claimed that suit property is part of an

independent house allotted to father of the Respondent after whose

death Sushila succeeded to the said property. It is claimed that

property in question is not only occupied by three sons or Shushila,

including the Respondent but also other relatives. Mr. Deshmukh

would urge that property which is in possession of the Petitioner is

part of the government land which he has encroached and