Bombay High Court
Adi S. Mehta vs Adil. G. Illava on 4 March, 1997
Equivalent citations: AIR1998BOM107, 1997(3)BOMCR178, AIR 1998 BOMBAY 107, (1997) 4 ALLMR 698 (BOM), 1997 (4) ALL MR 698, (1998) 1 CURCC 193, (1997) 3 BOM CR 178
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. The plaintiff has filed this suit for a declaration that the defendant is a trespasser in respect of the suit flat and has no right, title or interest therein or to continue to use the same. He further prayed that, the defendant be ordered to forthwith quit and vacate the suit flat, remove his belonging lying there, and 16 hand over the same to the plaintiff. A claim for recovery of Rs. 7 lakhs as mesne profits is also made. It is further prayed that the defendant be directed to pay a sum of Rs. 20,000/- per month from February, 1995 onwards as mesne profits till the date the vacant possession is handed over to the plaintiff. Appointment of Receiver of the suit flat is prayed for as an interi in measure. A prayer for injunction is also made.
2. This Notice of Motion has been taken out to the appointment of a Receiver of the suit flat with power to take possession of the flat from the defendant and put the plaintiff in possession of the suit flat on such terms as this Court deems fit and proper. Prayer for injunction as against the defendant is also made. Claim of mesene profits in the sum of Rs. 20,000/- has also been made.
3. In the year 1950 one Shavaksha became the tenant of the suit premises. He passed away on 13th January, 1968. He was residing in the said flat along with his wife and his son (plaintiff). His wife Goolbanoo thereafter became the tenant of the suit flat. She also passed away on 2nd October, 1987. The plaintiff is the son of Shavaksha and Goolbanoo. He migrated to England in the year 1958. Although he was in England the rent has been paid by him since 1990. In the year 1969/70 the mother of the plaintiff also went to England. Whilst she was staying there she requested Jerbanoo to look after the flat. Jerbanoo is the sister of Goolbanoo. She is the maternal aunty (Mausi) of the plaintiff. At that time Jerbanoo was a widow, her husband Kaikobad having passed away on 1st July, 1966. Jerbanoo and Kaikobad had four children. Two of them who are relevant for the purpose of this Notice of Motion are Kushroo (son,) and Katie (daughter) Kushroo has migrated to Germany and Katie is in India. Katie was married to one Godrej Illava. Katie and Godrej Illava had two children being Adil. G. Illava (son) and Dhunna (daughter). Adil is presently in occupation of the suit flat. He is the defendant in the present suit. Dhunna was also staying in the suit flat for some time but is now living elsewhere after marriage.
4. The flat admeasures 900 sq. ft. It consists of a common verandah, one hail, one bed room, kitchen, bath room, W.C. There is a rear passage in between the kitchen, bath room, W.C. on the one side and the hall and the bed room on the other side. There are connecting doors between the hall and the rear passage as also between the bed room and the rear passage. On 20th Feb. 1986 defendant along with the grandmother Jerbanoo, mother Katie and sister Dhunna executed a declaration before the Notary Public. This declaration is on stamp paper in the sum of Rs. 5/-. The declaration is written on both sides of the stamp paper and continues on to page 3 which is on ledger paper. The signatures of all the deponents appear on page No. 3. They are identified by Mr. K.R. Kampani, Advocate, High Court, Bombay. Notary, P.H. Talsania, who has also appended his signature at the bottom. All the deponents have thereafter signed the register of the Notary.
5. According to the plaint, the plaintiff decided to return permanently to Bombay in or about June, 1991. Therefore, in February, 1992 he requested the defendant, his mother Katie and sister Dhunna to vacate the suit premises. The defendant refused to vacate the said premises. The plaintiff again came on a visit to Bombay in November, 1994. By his Advocate's letter dated 21-1-1995, he once again called upon the defendant to vacate the suit flat. Defendant, however, has not vacated the suit flat. The mother, however, is living with her husband Godrej Illava. Thus the only person presently in occupation of the suit flat is the defendant. It is stated that the defendant is a trespasser in the suit flat and is not entitled to stay therein or to use the same. It is stated that it should be ordered and decreed that the defendant should quit and vacate the suit flat forthwith, remove all his belongings lying therein, and hand over physical possession of the suit flat to the plaintiff forthwith.
6. Relying on these averments, Counsel for the plaintiff has submitted that clearly a prima facie case has been made out for the appointment of Receiver. It is submitted that the defendant's grandmother Jerbanoo had been invited into the flat for care-taking. Jerbanoo lived in the said flat until she passed away on 20th May, 1991. The mother Katie also used to reside in the said flat" when she was not staying with Illava. She frequented Bombay in order to look after her ailing mother. Defendant came to occupy the said premises sometime after finishing his studies in Baroda. As stated earlier, Dhunna, the sister, left the premises upon marriage. Pointing to the declaration, Exhibit-B, Counsel submits that these facts are actually admitted on oath by the defendant and the other persons mentioned therein. A perusal of the said declaration shows that Jerbanoo states that she is residing in the suit flat. She came to reside in the suit flat in or about the year 1974. The flat is tenanted in the name of Shavaksha A. Mehta who died in the year 1968. The furniture and fitting in the flat belong to the father and mother of the plaintiff under the care of Jerbanoo: Goolbanoo and the plaintiff are the widow and the son of the original tenant Goolbanoo is the sister of Jerbanoo. It is further stated that on the request of Goolbanoo the plaintiff permitted Jerbanoo to occupy the said flat in the year 1974 as care-taker without any compensation due to the said relationship. It is further stated that for some time Kushroo, her son, also resided in the said flat. He is now permanently residing in Germany. The next clause states as follows.
"I say that I have had no claim of any nature whatsoever in the tenancy rights of the said flat and I do not desire to claim any right, title or interest or claim of tenancy in the said flat. My said son Kushroo has also no interest or claim in respect of the tenancy right of the said flat."
"I had invited my co-deponents Katie Godrej Illava, Adil Godrej Illava and Dhanna Godrej Illava to reside with me who are my daughter, grandson and grand-daughter respectively to help me in my old age. They have no right title or interest or claim in the tenancy right of the said flat."
This declaration is further reinforced when all the parties have stated that "We are residing with her to help her in her old age". The next recital states further "We jointly and severally state that we have no claim of any nature whatsoever in the tenancy of the flat No. 55 in G Block of Cusrow Baug, Colaba, Bombay-400 005 and we do not desire to claim any such right in future". The declaration further states that the affidavit has been made on her own free will and accord and to put on record the correct and true facts. Counsel for the plaintiff has also brought to my notice certain letters written by the defendants family. Copies of these letters are attached with the affidavit filed by the plaintiff on 24th April, 1995. Exhibit-E is the letter written by the sister of the defendant to the mother of the plaintiff. In this letter it is stated that the defendant will do the needful. It is further stated everybody including Dhunna, sister, feel that morally what granny promised holds true. She was reassured not to have any qualms. The letter further states that the defendant has started working and will be in Bombay for a month or so after which he will be posted elsewhere. Letter dated 10th September, 1987 is written by the father of the defendant in which it is reassured that Dhunna has given an undertaking to the plaintiff to vacate as and when the plaintiff desires. Letter dated 4th July, 1987, Exhibit-G, is again written by the father of the defendant to the mother of the plaintiff and the plaintiff. In this letter it is stated that there were certain articles belonging to Kushroo lying in the flat which is described as "your flat". It is stated that those articles had been removed. The letter further states "Now I advise you to come as soon as possible and do whatever you want to". Exhibit-H is the letter dated 22nd August, 1987 written by Dhunna (sister of defendant) to the plaintiff and his mother. It is stated in the letter "I always felt that whenever you come you can always have the flat". "Anyway if you feel that me staying here would jeopardise your chances of gaining access to the flat, do let me know. I am anyway looking out for something and if any thing comes up I will let you know. "The other letters are also in the same vein. Relying on these documents counsel has submitted that the defendant No. 1 is a rank trespasser. He has no right to stay in the premises after he was asked to vacate the said premises by the Advocate's letter dated 21st Jan. 1995. Consequently it is submitted that the plaintiff is entitled to the reliefs prayed for in the Notice of Motion. I see considerable force in the submissions made by the Counsel, for the Plaintiff. Since the year 1974 the defendants grandmother was permitted to look after the flat. It was done out of goodness of the heart of the plaintiff's mother. She did not ask for any consideration for the use and occupation of the flat. Prima facie I am of the view that the plaintiff is entitled to the reliefs prayed for in the Notice of Motion.
7. Counsel for the Defendant however has contended that the defendant is not a trespasser in the suit premises. Grandmother of the defendant was invited to occupy the suit flat. The only circumstance which goes against the defendant is the declaration which has been relied upon by the plaintiff. This declaration, it is submitted, was got signed by the plaintiff under coercion. Alternatively it is pleaded that the declaration was in fact not signed as stated in the declaration. The defendant had merely signed on a blank stamp paper. Subsequently the statement is changed to say that the signatures were obtained only on blank paper. Counsel submits that whatever may be the status of this particular document, the same is irrelevant for the purposes of the decision of this Notice of Motion. I am not impressed with the arguments of the counsel for the defendant. The contents of the declaration make it quite clear that the defendants had accepted the case as pleaded by the plaintiff. They had also made a voluntary statement to the effect that the declaration is being executed voluntarily. Having made such a declaration, it would not be possible to accept at this stage that the document is in any manner flawed by any illegality. Counsel for the defendant has further submitted that in fact the plaintiff has been paid a certain amount of money as consideration. He has relied upon letter dated 15-4-74. This letter, to my mind, does not show that any money was paid as consideration for the occupancy of defendant of the said flat. Counsel for the defendant has, however, laid much stress on the point that this Court has no jurisdiction to entertain the present suit. Counsel refers to the Presidency Small Cause Courts Act, 1882. It is submitted that initially under Section 19(d) the Small Cause Court had no jurisdiction to entertain suits for the recovery of immoveable property. Thereafter, however, exceptions were carved out in Chapter VII. Power was given to the Small Causes Court to entertain and try suits relating to the recovery of possession of any immovable property. However, the orders passed by the Small Causes Court were not to be termed as "decree". Therefore, such orders could only be challenged by filing a substantive suit. This situation was rectified by the Maharashfra State Amendment in Chapter VII. This amendment invested power in the Small Causes Court to try suits for recovery of immoveable property. Counsel has invited my attention to Section 41 of the said Act. Section 41 reads as under.
"41. Suits or Proceedings between Licensors and Licensees or landlords and tenants for recovery of possession of immoveable1 property and licence fees or rent, except to those to which other Acts apply to lie in Small Cause Court :--
(1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of Sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immoveable property situated in Greater Bombay, or relating to the recovery of the licence fee, or charges or rent therefor, irrespective of the value of the subject-matter of such suits or proceedings.
(2) Nothing contained in Sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or changes or rent thereof, to which the provision of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing: Board Act, 1948 or any other law for the time being in force, applies."
Counsel has relied on a Division 'Bench judgment of this Court in the case of Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel, . In that case counsel for the defendant had argued that even after the amendment there was concurrent jurisdiction vested in the Small Cause Court and the City Civil Court or the High Court on its Original Side. Rejecting this argument it was held that this argument overlooks two very important statutory provisions viz. the amendment to Clause 12 of the letters patent of the High Court and Section 3 of the Bombay City Civil Court Act. The extent and limits of original civil jurisdiction of the High Court are prescribed by the said Clause 12. As originally enacted the said Clause 12 empowered this High Court in the exercise of its ordinary original civil jurisdiction to receive, try and determine suits of every description if the conditions prescribed by the said Clause 12 were satisfied. It was held that after the amendment in Clause 12 of the Letters Patent, High Court had no jurisdiction to entertain and try any suit which is cognizable either by the Presidency Small Causes or the Bombay City Civil Court. In view of the amendment to Clause 12 of the Letters Patent, it is now not open to any party to contend that where the suit is cognizable either by the Bombay City Civil Court or by the Presidency Small Causes Courts High Court would have concurrent jursidiction to try such suit. In this case the plaintiff was a monthly tenant of a flat on the ground floor of premises. The plaintiff granted to the defendant leave and licence to occupy the said flatiupon terms and conditions contained in the agreement. The said licence was for a period of 11 months commenqing from June 15, 1968 and the licence fee mentioned therein was a sum of Rs. 400/- per month. By Clause 14 of the said agreement the defendant covenanted that on the termination of the said licence he would remove himself quietly and peacefully along with his family members and servants. On the expiry of this agreement, a fresh agreement was arrived at between the plaintiff and the defendant on July 4, 1969. The said licence was renewed for a further period of 11 months on the same terms and conditions except that the monthly licence fee was reduced to Rs. 375/-. On April 14, 1978, the plain tiff-called upon the defendant to vacate the premises. However, by his Advocate's reply dated May 17, 1978 the defendant alleged that before the expiry of the second agreement an oral agreement was arrived at between the plaintiff and the defendant under which it was agreed that the defendant would continue as a licensee so long as he desired. It was stated that the said licence was subsisting on February 1, 1973 on which date by reason of the amendment of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 by Maharashtra Act XVII of 1973 the defendant became a protected licensee within the meaning of the said Act. The plaintiff therein filed a suit stating that the leave and licence granted to the defendant came to an end by efflux of time. Thus the occupation of the defendant of the suit premises was wrongful and illegal and is that of a trespasser. Thereafter the plaintiff took out a Notice of Motion for appointment of Receiver. The defendant therein contended that only the Presidency Small Causes Court at Bombay had been conferred jurisdiction to try suits of a licensor and licensee relating to the possession of an immoveable property situate in Greater Bombay and, therefore, the High Court had no jurisdiction to entertain or try the suit.
Further it was pleaded that in view of the provisions of Section 9A inserted in the Civil Procedure Code the issue of jurisdiction should be tried as a preliminary issue. Upon these pleadings the following issue was framed.
"Whether by reason of the provisions of Section 41 of the Presidency Small Cause Courts Act, 1882, as substituted by the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975 (Maharashtra Act XIX of 1976), this Court has jurisdiction to entertain and try the suit.?"
On the facts of that case this Court came to the conclusion that before termination there was a valid licence and, therefore, the suit could only be entertained by the Small Causes Court.
8. In accordance with the submissions of the counsel for the defendant 1 am also disposing of the preliminary point of jurisdiction raised in this suit. The issue reproduced above which was framed by the Division Bench may be treated as the issue framed in this case. No doubt if it is held that the defendant was a licensee then the Suit could only be entertained by the Small Causes Court. Counsel for the plaintiff has relied on number of decisions in reply to the submissions made by the counsel for defendant No. 1. It is submitted by the counsel for the defendant that for the purpose of the determination of the issue of jurisdiction the same has to be determined with reference to the averments made in the plaint. A reading of the plaint shows that the word licensee/licensor do not appear throughout. As noticed above, it is stated that defendant is a rank trespasser. Apart from this counsel has again referred to the declaration in which the defendants themselves have stated that they have no right, title or interest in the property. In these circumstances counsel has submitted that this suit has been filed for recovering possession from a trespasser. That being so, this Court has the jurisdiction to entertain and try this suit. Reference in this connection may be made to the judgment of the Supreme Court given in the case of Abdulla Bin Ali v. Galappa, . In paragraph 5 and 6 of the judgment it is held as under :
"5. There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement.
On a reading of the plaint as a whole it is evident that the. plaintiffs-appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellant. Now a suit against the trespasser would lie only in the Civil Court and not in the Revenue Court. The High Court, however, took the view, that the plaintiff-
appellants had not claimed a declaration of title over the disputed plots and all that has been set up by them in the plaint is the relationship of landlord and tenant.
6. In our opinion the High Court was not quite correct in observing that the suit was filed by the plaintiffs-appellants on the basis of relationship of landlord and tenant. Indeed, when the defendants denied the title of the plaintiffs and the tenancy the plaintiffs filed the present suit treating them to the trespassers and the suit is not on the basis of the relationship of landlord and tenant between the parties. It is no doubt true that the plaintiffs had alleged that the defendant No. 2 was a tenant but on the denial of the tenancy and the title of the plaintiffs-appellants they filed a suit treating the defendant to be a trespasser and a suit against a trespasser would lie only in the Civil Court and not in the revenue Court."
The observations quoted above clearly support the submission made by the counsel for the plaintiff. Counsel for the plaintiff has also referred to the case of Vishwanath Sawant v. Gandabhai Kikabhai, reported in 1990 Mah LJ 1145. In this, judgment after noticing the lengthy facts the learned single Judge has observed as follows, "20. This takes me to the consideration of the nature of possession of the defendant in respect of the suit premises. In my view, a distinction will have to. be drawn between the grant of a licence contemplated either under the Indian Easements Act or under the Bombay Rent Act and a mere permission to occupy. The owner may permit his servant to sleep in one of the rooms in his bungalow. He may invite a friend resident abroad to his hospitality. He may give his house for painting. In this case he may withdraw from possession and hand over possession to the painter for completing the turnkey project. One may encourage his wife's brother at his education and permit his residence as a member of the family. Can it be said that these possessions are the possessions which are sought to be protected by the Legislature? I should think not.
21. A licence may be of two kinds, namely, a bare licence which is purely a matter of personal privilege and a licence coupled with a grant or interest. A bare licence without more is always revocable at the will and the pleasure of the licensor and is not assignable. On the other hand, if a licence is coupled with a grant or interest then the grantor cannot in general revoke it so as to defeat the grant to which it is incident. A mere licence does not create any estate or interest in the property to which it relates. It only confers legality on an act which would otherwise become unlawful. A licence may be purely personal, gratuitous or contractual. The first two classes are of mere licences which are revocable, the third class whether is revocable or not would depend upon the express or implied, terms of the contract between the parties. A licence coupled with grant of an interest in the property is not revocable. Such a licence has been described as a right to enter on land and enjoy a profit a prendre or other incorporeal hereditament. To understand the true nature of the relationship between the licensor and the licensee, the decisive consideration is the intention of the parties. Where there is no formal document embodying the terms of agreement, the intention is to be inferred from surrounding circumstances and the conduct of the parties. A licence is personal both to the grantor as well as the licensee. It is a personal right granted to a person to do something upon the immovable property of the grantor and does not amount to the creation of an interest in the property itself. It is purely a permissible right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is, therefore, revocable except in certain circumstances expressly provided for in the Indian Easements Act itself. The licence has no other effect than to confer a liberty upon the licensee to go upon the land which would otherwise be unlawful. Even the tenancy rights are immovable property of the tenant. In order to grant licence a man need not be its owner. The tenancy rights of an immovable property are also the immovable property of the tenant and, therefore, he can well grant the licence- But by virtue of Section 53 of the Act he can obviously grant licence subject to the limitation and the extent to which he may be able to transfer his interest, viz. the tenancy rights. Whether the Act which is allowed to be done is a bare licence or something more than a licence would depend on the terms of the transaction. If a person is allowed to do something on the land without interfering with the nature of the land or without taking any profits from it, it could be described to be case of a bare licence. Thus if A is allowed just to pass over the land of B, such an interest can properly be described as a bare licence. A merely walks over the land. He has no right to occupy it. He does not take any profits out of it. He does not enjoy the land'or its profits in any way. He is merely allowed to do an act on the land which, but for the permission, would be unlawful. The position, however, would be quite different if B allows A not only to pass over his land but also to take exclusive possession of the same to plant trees over it or to s'et up cattle troughs or to prepare cowdung cakes on it or to put up constructions of a permanent nature on it to cultivate it by carrying on agricultural operations on the same on payment of rent in respect of it. The interest carved out in this fashion cannot be termed to be a bare licence or a licence pure and simple. It is an interest of a complex nature comprising within itself composite features both of a licence as well as of a grant. In so far as it allows the licensee to do some act on the land it partakes of the character of a licence. In so far however as it further allows the licensee to hold exclusive possession of the land, to use it for his own personal enjoyment, to plant trees on the same, and to benefit himself by the fruits of the said trees to construct a house and reside therein and to carry on agricultural operations on the said land and enjoy its usufruct or produce the transaction presents the features of a grant. A transaction like this may be described as a licence-cum-grant.
22. Applying the aforesaid principles to the facts of the present case, I find that what was granted to the defendant was a mere personal gratuitous licence to occupy the suit premises. The same was not coupled with any grant. Such a licence can be revoked at any time at the whims and fancies of the grantor and without assigning any reasons. Once such a licence is revoked the nature of the continued occupation by the defendant is nothing but that of a trespasser. Such a person cannot continue to claim to be a licensee entitled to any protection whatsoever either under the Easements Act or under the Bombay Rent Act. He is a rank trespasser."
Thereafter in paragraphs 29 and 38 it is held as under :
"29. In my judgment, the ratio laid down in the above case can have no application to the facts of the case at hand. The plaint in that case recited that the plaintiffs were in possession as a licensee. As against that in the present case, the plaint recites that the defendant is a rank trespasser. The plaint as it stood was properly triable by the City Civil Court. On a perusal of the evidence, I have given my finding that the possession of the defendant after revocation of the licence was not that of a licensee but of a rank trespasser. The licence which was granted to him was a mere temporary gratuitous permission uncoupled with a grant or interest. On the. revocation of this licence, the continued possession of the defendant was nothing else but that of a trespasser. Hence, the City Civil Court would have the jurisdiction to entertain and try the suit.
38. If regard is had to the aforesaid decisions, in my view, it will be the City Civil Court which has the jurisdiction to entertain and try this Suit. In my judgment, the possession of the defendant is not that of a licensee but of a mere temporary gratuitous permission. On revocation of this permission his possession is that of a rank trespasser. The plaint recites that the defendant is a trespasser. On an appraisal of the evidence, I have found that the defendant is a trespasser. Consequently, the provisions of Section 41 of the Presidency Small Cause Courts Act or of Section 28 of the Bombay Rent Act are not attracted. Hence, the City Civil Courthas the jurisdiction to entertain and try the suit." This judgment has been subsequently followed in the case of Vijay K. Divekar v. D.J. Gandhi, 1994 Bom RC 47. In this case also it is held that possession can be recovered from a gratuitous licensee by way of filing a suit either in the City Civil Court or in the High Court. The judgment goes on to state that :
"I am fortified in this view by the judgment of my brother Agarwal, J. in Vishwanath Sawant v. Gandabhai Kikabhai, reported at 1990 Maharashtra Law Journal 1145, therein it has been held that a gratuitous licence to occupy premises not coupled with any grant can be revoked at any time at the whim and fancy of the grantor without assigning any reasons and that possession of the defendant after revocation of licence would be that of a rank trespasser and not of a licensee and therefore provisions of Section 41 of the Presidency Small Cause Courts Act or of Section 28 of the Bombay Rent Act are not attracted and further that the City Civil Court in such a case can entertain and try a suit. In the instant case, although it is proved that the appel lant had been put in exclusive possession of the suit premises and he continued to remain in possession of the suit hall under a licence which was subsisting on 1 st February, 1973 as I have found that the appellant was a gratuitous licensee, the jurisdiction of the City Civil Court did not stand barred. By notice dated 14th February, 1975 (Exh.F. Colly.) the plaintiff revoked and cancelled the licence of the appellant without admitting that any licence was created in his favour and on the assumption that if there be any licence in existence that was revoked. Not only that but the plaintiff stated that the appellant was no more than a trespasser, pure and simple, having no privity of contract with the plaintiff who has become the owner of the premises. The plaintiff was not required to state any more grounds and it was sufficient for him to state that as he no longer desired the appellant to continue to remain on the premises, he should himself remove from the premises."
In my view, the observations quoted above in the judgment of the Supreme Court and the two judgments of the High Court, clearly support the case put forward by the plaintiff. Thus I am of the opinion that the objection taken by the defendant to the jurisdiction of this Court deserves to be rejected. It is to be noticed that it was the defendant's grandmother who was permitted to stay in the flat. The defendant came to stay in the flat temporarily. This is patent from one of the letters written by the defendant's sister where it is mentioned that the defendant would be residing in the flat temporarily. It also mentions that he has now secured employment and he would soon be transferred out of Bombay. Under no circumstances could it be held, at least at this stage, that he was a licensee of the plaintiff. The declaration which has been earlier referred to, speaks volumes against the case put forward by the defendant. This is a document voluntarily executed. The recitals of the declaration reproduced clearly show that right from the inception the possession of Jarbanoo, was as a caretaker, without any consideration. There is a complete disclaimer of any right, title or interest in the suit premises by all the signatories. They are grandmother, mother, defendant and his sister. Applying the principles culled out in paragraphs 20 and 21 of 1990 Mah LJ 1145 I am of the opinion that the defendant is a rank trespasser. Therefore, I am of the view that prima facie the plaintiff has made out a case for interim relief, At this stage the counsel for the defendant has stated that the plaintiff is not really in need of these premises. It is submitted that he is permanent resident of England. He has filed the suit merely to take possession of the suit premises. This Court is not concerned as to whether or not the premises are genuinely needed by the plaintiff or the defendant. This is not a litigation under the Bombay Rent Act where the landlord has to prove bona fide necessity for seeking eviction. Herein the plaintiff is simply seeking possession of the suit premises, in which he has a proprietary right to deal with the suit premises at his discretion.
9. When this Notice of Motion had come up for hearing on the last occasion, at the request of the Court, parties had agreed to make efforts for an amicable settlement. On the last date of hearing this Court was informed that perhaps on the next date of hearing (i.e. today) agreed consent terms would be filed. Today, however, counsel for the defendant has stated that there is no possibility of a settlement. Counsel for the plaintiff, however, has brought to my notice the consent terms which had been drafted. I have gone through the consent terms. In view of the fact that the parties have not been able to reach a settlement it is ordered as follows.
(a) The Court Receiver, High Court, Bombay is appointed as Receiver of the suit flat. Both the parties have agreed to accept the agency of the Receiver. The Receiver would permit the parties to use and occupy the suit flat. The agency shall be on the following terms and conditions.
(i) The plaintiff will be in exclusive possession in one room of the suit flat i.e. the room described as bed room in the plan, Exhibit-A to the pla'int. The defendant shall have exclusive possession of one room in the flat marked as "Hall" in the said plan.
(ii) The kitchen, bath room, W.C., passages and verandah of the suit flat will be used in common by the plaintiff and the defendant.
(iii) The plaintiff and the defendant will both have one set of keys each to the latch of the locks to enable them to enter the suit flat. The suit flat will have the name plate only of the original tenant.
(iv) The Receiver will have the right to temporarily block the intervening door in the wall dividing the hall and the bed room.
(v) The Receiver shall be entitled to a royalty of Rs. 3000/- from each of the parties per month.
(b) The ad-interim order dated 27-1-1995 shall continue till the Receiver takes possession of the flat.
(c) Notice of Motion made absolute in the above terms with no order as to costs.
(d) Receiver to act on an ordinary copy of the order duly certified by the Associate of this Court.
(e) Certified copy expedited.
10. At this stage counsel for the defendant has prayed for stay of the order. It is not necessary to stay the order. However, the Receiver is directed not to take possession of the premises for a period of two weeks.