Case Note & Summary
The dispute pertains to Room No.2 (2-A) admeasuring 290 sq.ft on CTS No. 185 situated at 1st Floor, Kumud Villa, 321, Vithalbhai Patel Road, Paper Mills Lane, Opera House, Mumbai-400 004. The respondent/original plaintiff, Trilochan Singh Sant Singh Sahney (since deceased, through his legal heir Harshbeena Sahney Zaveri), is the undisputed owner of the suit premises. The petitioners/defendants are Bhau Raoji Shelar (since deceased, through his LR Laxman (Balu) Bhau Shelar), Jayant Balkrishna Lonandkar, Santosh Balkrishna Lonandkar, and Laxman (Balu) Bhau Shelar. The plaintiff alleged that defendant No.1 (Bhau Raoji Shelar) was his employee and was permitted to reside in the suit premises free of charge as a gratuitous licensee. The defendants claimed that a monthly tenancy was created in favor of defendant No.1 since 1972. The plaintiff further alleged that defendant No.1 unlawfully permitted one Moti Maharaj to carry on business and later transferred possession to defendant Nos.2 and 3. The plaintiff filed a police complaint and then instituted L.E. Suit No. 55/72 of 2010 before the Small Causes Court seeking recovery of possession. The Small Causes Court decreed the suit on 6 August 2015, holding defendant No.1 as a gratuitous licensee and directing delivery of possession within three months, along with an enquiry into mesne profits under Order XX Rule 12 CPC. The defendants appealed to the Appellate Bench of the Small Causes Court (P. Appeal No. 438 of 2015), which dismissed the appeal on 14 December 2023. The petitioners then filed the present writ petition. The main contention of the petitioners was that the plaintiff did not personally depose and the constituted attorney (Major Bhagwan Singh) admitted lack of personal knowledge about the employment of defendant No.1 and the use of premises. The court analyzed that the plaintiff's ownership was undisputed, and the burden to prove tenancy was on the defendants, which they failed to discharge by not producing any rent receipts or documentary evidence. The court held that the constituted attorney's lack of personal knowledge does not invalidate the suit when the plaintiff's title is admitted and the defendant fails to prove tenancy. The court also noted that the defendants did not examine themselves to prove tenancy. The petition was dismissed, confirming the eviction decree and the direction for mesne profits enquiry.
Headnote
A) Civil Procedure - Constituted Attorney - Evidence - Suit for possession filed through constituted attorney - The plaintiff's constituted attorney admitted lack of personal knowledge about the defendant's employment and use of premises - However, the plaintiff's ownership of the suit premises was undisputed - The defendant failed to prove creation of tenancy - Held that the suit is maintainable and the decree for possession is sustainable despite the constituted attorney's lack of personal knowledge, as the burden to prove tenancy lies on the defendant (Paras 7-10). B) Property Law - License vs. Tenancy - Burden of Proof - The defendant claimed monthly tenancy but failed to produce any rent receipts or documentary evidence - The plaintiff's case of gratuitous license was supported by the defendant's own admission of being an employee - Held that the defendant failed to discharge the burden of proving tenancy, and the courts below correctly held the defendant as a gratuitous licensee (Paras 11-13). C) Civil Procedure - Mesne Profits - Order XX Rule 12 CPC - The trial court directed an enquiry into mesne profits under Order XX Rule 12 CPC - The appellate court confirmed this direction - Held that the direction for enquiry into mesne profits is proper and in accordance with law (Para 14).
Issue of Consideration
Whether the Small Causes Court and its Appellate Bench erred in decreeing possession in favor of the plaintiff/respondent when the plaintiff did not personally depose and the constituted attorney lacked personal knowledge of the facts.
Final Decision
The High Court dismissed the writ petition, confirming the judgment and order dated 14 December 2023 of the Appellate Bench of Small Causes Court and the decree dated 6 August 2015 of the Small Causes Court. The petitioners are directed to deliver possession of the suit premises to the respondent within eight weeks from the date of the order. The enquiry into mesne profits under Order XX Rule 12 CPC is upheld.
Law Points
- Gratuitous license
- burden of proof
- tenancy
- constituted attorney
- personal knowledge
- Order XX Rule 12 CPC
- Section 41(h) Presidency Small Cause Courts Act
- 1882
