SMITA RAJEEV SAH Vs. ROOP NARAIN SAH

JUDGEMENT

(1.) This appeal arises from an order of a learned Single Judge dated 16 March 2012 deciding a preliminary issue of jurisdiction.

(2.) The first Appellant is the widowed daughter-in-law of the first and second Respondents. The second Appellant is the daughter of the first Appellant. The Respondents were 68 and 63 years of age respectively when the suit was instituted in 1995. The suit is for a declaration that the First Respondent is the lawful and rightful owner of flat A-51 together with a garage in a building known as Meherina, situate at Plot no.C-51, Napean Sea Road, Mumbai 400 026. The Respondents seek a declaration that the Appellants are trespassers and have no right, title or interest in the flat. Among the prayers is a prayer for possession, styled as a mandatory order and decree requiring the Appellants to remove themselves from the flat. The suit proceeds on the basis that the flat was purchased under an agreement for sale dated 11 June 1965 by the First Respondent for a consideration of Rs.1.80 lakhs and that the share certificate stands in the name of the First Respondent. The First Appellant and her spouse, who was the son of the Respondents, got married in 1982 and it has been stated that the Respondents permitted their son to reside with them as a member of the family. After he died in an accident on 29 October 1994 it has been stated that the First Appellant "is now wrongfully claiming ownership/or share" in the said flat belonging to the First Respondent. For the purpose of these proceedings, it is not necessary to refer to the genesis or details of the dispute or the allegations of harassment made by the Respondents.

(3.) Issues were framed in the suit on 10 January 2011. On 22 February 2012 when the suit reached hearing, the Appellants asserted that in view of the decision of a Full Bench of this Court in Prabhudas D. Kotecha & Anr. v. Manharbala J. Damodar & Ors., 2007 5 BCR 1 the Court of Small Causes has exclusive jurisdiction to entertain and decide a suit against a gratuitous licensee. Hence, it was urged that the jurisdiction of this Court would be barred. In view of this defence, the following issue was framed as a preliminary issue:-