PETER ALEX D SOUZA Vs. PRITHI PAUL SINGH

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 4-11-1997 passed by the learned Single Judge in Suit No. 556 of 1976 dismissing the suit. The suit was originally filed by two brothers Joe D Souza and Peter D Souza. During the pendency of the suit, plaintiff No. 1, Joe D Souza died and, therefore, his name came to be deleted and the suit is continued by plaintiff No. 2, Peter DSouza, hereinafter referred to as the plaintiff. The suit was filed by both the plaintiffs in the capacity as executors named in the last Will and Testament dated 17-9-1966 of their late mother Milagrina D Souza who died at Mumbai on 27-7-1968. The property in dispute consists of a cottage and a garden situated at Chapeal Road, Bandra, Mumbai and was jointly owned by Milagrina D Souza and her husband Diego D Souza and after death of her husband Milagrina alone became entitled to the said property. Under an agreement of leave and licence dated 25-5-1965 the defendant Prithi Paul Singh came to be inducted as a licensee in the aforesaid property on payment of monthly compensation of Rs. 600. The said leave and licence agreement came into effect from 1-6-1965 and the term was for 11 months. On the expiry of 11 months of the said agreement dated 25-5-1965, the defendant requested deceased Milagrina to reduce the amount of compensation from Rs. 600 to Rs. 425 per month and to allow the defendant to use the same and occupy as a licensee for a further period of 11 months from 1-6-1966 and licence period was extended on the terms set out in the leave and licence agreement dated 25-5-1966. On the expiry of 11 months the defendant once again requested deceased Milagrina to grant leave and licence and use and occupy the said property for a further period of 11 months from 1-6-1967 on payment of compensation of Rs. 425 and in addition he offered to pay the electricity charges. Accordingly an agreement for leave and licence came to be entered into by and between the parties on 25-5-1967 for a period of 11 months on the same terms and conditions. Thereafter a further agreement of leave and licence was made on 25-5-1968 for 11 months on the same terms and conditions.

(2.) MILAGRINA expired on 27-7-1968. The leave and licence period granted by deceased Milagrina to the defendant under the last agreement dated 25-5-1968 expired on 30-4-1969 and thereafter neither the deceased Milagrina nor any person on her behalf extended the period of licence granted to the defendant nor granted the defendant any fresh licence or authority or permission to enter upon or use or occupy or continue to use or occupy the suit property. By their Advocates letter dated 23-10-1972 the plaintiffs revoked the leave and licence granted to the defendant and called upon him to remove himself and pay the arrears of compensation due in respect of the property forthwith. This letter was not replied to by the defendant. Therefore, by another letter dated 24-11-1972 the defendant was called upon to pay the arrears of compensation. The defendant by his letter dated 27-12-1972 claimed that he was a tenant of the deceased Milagrina and called upon the plaintiffs Advocate to inform the names of the legal heirs of Milagrina. Thereafter there was further exchange of correspondence between the parties. As the defendant failed to comply with the notices and vacate the premises the plaintiff brought present suit for possession.

(3.) THE defendant filed his written statement wherein he admitted execution of the leave and licence agreements and also correspondence exchanged referred to above. However, according to the defendant, he was inducted in the suit premises as a tenant in pursuance to the agreement entered into between him and the deceased Milagrina and the agreements were sham and colourable. The real intention was to create the tenancy in his favour. In the alternative the defendant contended that even if he is held to be a licensee under the leave and licence agreement, he continued to be in the suit premises on 1-2-1973 while the leave and licence agreement was still subsisting and, therefore, he has become deemed tenant by virtue of section 15-A of the Bombay Rents, Hotel, and Lodging House Rates (Control) Act, 1947, hereinafter referred to as the Bombay Rent Act, and therefore this Court has no jurisdiction to grant reliefs in the above suit. Upon the respective pleadings of the parties, issues came to be framed. Oral as well as documentary evidence was led by the parties and on consideration of this evidence the learned Single Judge rejected the case of the defendant that the agreement of leave and licence was colourable and sham and was not to be acted upon. It was also held by the learned Judge that the licence was not subsisting on 1-2-1973 and therefore, the case of the defendant that he became deemed tenant under section 15-A of the Bombay Rent Act was not accepted. The learned Judge, however, held that the intention of the parties was to create a lease and not a licence. Having arrived at the conclusion that there is relationship of landlord and tenant between the parties the learned Judge held that the suit is not maintainable as the remedy of the plaintiff is to file a suit in the Court of Small Causes.