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Whether son or daughter residing with parentsare tenant or licensee?

I am inclined to observe that the term “licensee” evenas contemplated under the Indian Easement Act and/or under theRent/Small Cause Courts Act, has no way extended to cover thedispute between the two heirs who are occupying the premises as amember of the family. There is no question to declare the occupationas a licensee. By birth, such person even cannot be treated as alicensee and/or in any other such capacity. A son or a daughter getsinto a family by birth and resides with the parents, such residenceand/or permission to reside in the premises, in no way can be treatedto be a relationship which falls within the ambit of Section 41/45 ofthe Small Cause Courts Act. The learned Judge, completely

overlooked this relationship and by relying on the cases between thelicensor and licensee and/or even gratuitous licensee, extended the

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proviso of Small Cause Court Act and pass the impugned order.

IN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE SIDE CIVIL JURISDICTIONAPPEAL FROM ORDER NO. 710 OF 2010WITHCIVIL APPLICATION NO. 1628 OF 2011INAPPEAL FROM ORDER NO. 710 OF 2010Manohar Sahadev Shinde,

Vs.Yashwant Sahadev Shinde,

CORAM : ANOOP V. MOHTA, J.DATE : 15 OCTOBER 2013.

Citation; 2014(4) MHLJ 52 Bom

Heard finally.2 The present Appeal from Order is filed by the AppellantoriginalPlaintiff, as the learned Judge of the City Civil Court, Mumbaiby order dated 10 September 2009, returned the plaint to the plaintiff,to file the same before the proper Court. This is on a foundation ofpreliminary issue that the Court has no jurisdiction to entertainand/or try the Suit.3 Admittedly, the Plaintiff is residing in the premises ownedby the father along with his brother. The Suit is filed to evict theDefendantbrother.The Civil Court is the only remedy/forum to takesuch action. The Plaintiff prayed to declare that the Defendant has noright, title or interest in the property and also prayed for mandatoryinunction for eviction, apart from the permanent injunction fromdisturbing the Plaintiff's possession, occupation and enjoyment of theSuit property. These prayers and the contents/averments made in theSuit, in my view, also show that there exists no relationship oflandlord and tenant and/or licensor or licensee, which are basicelements for invoking the jurisdiction under Section 41 of the

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Presidency Small Cause Courts Act, 1882 (for short, “the Small CauseCourts Act”).4 The learned Judge, in my view, committed an error inextending the definition of licensee to this extent, whereby the personwho is in possession of the premises the son and/or the legal heirs ofthe owner of the property and thereby returning the plaint to presentthe same in an appropriate forum for getting the evictionorder/decree. This, in the present facts and circumstances, isimpermissible. I am inclined to observe that the term “licensee” evenas contemplated under the Indian Easement Act and/or under theRent/Small Cause Courts Act, has no way extended to cover thedispute between the two heirs who are occupying the premises as amember of the family. There is no question to declare the occupationas a licensee. By birth, such person even cannot be treated as alicensee and/or in any other such capacity. A son or a daughter getsinto a family by birth and resides with the parents, such residenceand/or permission to reside in the premises, in no way can be treatedto be a relationship which falls within the ambit of Section 41/45 ofthe Small Cause Courts Act. The learned Judge, completely

overlooked this relationship and by relying on the cases between thelicensor and licensee and/or even gratuitous licensee, extended theproviso of Small Cause Court Act and pass the impugned order.5 Therefore, in view of the above legal position, which isalso discussed and settled in Conrad Dias Vs. Joseph Dias 1 , the case ismade out by the Appellant to interfere with the order so passed. Theorder, therefore, liable to be quashed and set aside.6 In a similar type of dispute between the familymembers/heirs of the deceased tenant, I have held that such suit ismaintainable in Civil Court. (Arun Bhaskar Adarkar Vs. MinaSrinivasan Krishnan & Anr. 2 ) The relevant observations are asunder:“11 ...…....The Suit is not between the landlord andtenant/licensor or licensee. The same is not initiatedby the landlord. The landlord is not a party to thisproceeding, initiated by the heirs of the deceasedtenant to protect their respective rights and thepossession. It nowhere related to the recovery of rent

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or possession of the tenanted premises.12 This Suit is not barred by the provisions of the1 1996 (2) Mh.L.J.2082 2012 (3) Bom. C.R. 17

Maharashtra Rent Control Act, 1999.13 The Suit, as filed in this Court, is maintainable. Theissue is answered accordingly. Place the Notice ofMotion before regular Bench for hearing on merits.”7 Resultantly, the following order:ORDER(a) Impugned order dated 10 September 2009 isquashed and set aside.b) The Appeal from order is allowed.c) The learned Judge to proceed with the Suit inaccordance with law.d) The Civil Application is also disposed of accordingly.e) There shall be no order as to costs.(ANOOP V. MOHTA, J.)

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