ANINHA DCOSTA Vs. PARVATIBAI M THAKUR

JUDGEMENT

(1.) THIS is an appeal by the defendant who has failed in both the courts is a suit which arose out the occupation of the suit premises by the defendants apparently as licensee. The plaintiff is the owner of the flat in suit situate in the Churchgate Co - operative Housing Society Ltd. On the 15th of the November 1959, the defendants was let in the possession of the her agreeing to execute a document of leave and license and the document was actually executed between the parties on the 6th November 1959. The documents is at exhibit a. It purported to be for a period of 11 months. In terms of the document an attempt was made to obtain forcible possession without resort to court, but the plaintiff did nonsuccess, with the result that the present suit was filed in the city civil court at the Bombay as short causes suit for recovery of the possession from the defendants on the basis of that the license was ended to terminated. The relieves claimed were endear to the terminated. The relief claimed were those a mandatory inject and court - fee and was paid on the footing that the suit was one for mandatory inject contending that the was tenant, that the premises were let out to her as the tenant and that court has no jurisdiction as the dispute was one between landlord and tenant. She contended that the amount charged for the occupation was excessive and the she had already filled and application an the under the Rent Act for determination of standard rent before the court of small causes at Bombay. She objected to the frame of the suit contending that suit for mandatory injunctions was not maintainable. The learned of trial judge constructed the agreement between the parties a agreement of leave and license. He negative the contentions of the defendants and decreed the suit. Against his judgment the defendants the come in appeal this which was heard by Mr. Justice Naik sitting singly. He agreed with the conclusion of the learned judge of the city civil court and dismissed the appeal. Before him, three point were argued by the Advocate for the defendants viz. . , (1) that the frame of the suit was improper and it wasn't therefore maintainable (ii) that on proper valuation of being made the court would have a jurisdiction of the being to deal with the suit was (iii) that the agreement between the suit parities and one of tenancy and therefore the plaintiff and wasn't entitled an to any relief. All these three contentions were negative byte learned judge.

(2.) THE learned Advocate for the defendants is this appeal has urged the same three contentions before us. His first contention is that the suit for injunction as prayed for by the plaintiff is not maintainable as inasmuch has the defendants was in exclusive possession of the premises and the plaintiff remedy was therefore to ask to plaints possession of the property. I this contention he s supported by a judgment of the Division Bench of this court (in which I was a member) I the case of the Lakhiram v. Vidyut Cable and the Rubber Industries, 65 Bom LR 604, But in the that case we also pointed out that the court would be entitled to contour the plaint and if on a conclusion of the that was really intended the plaint was claim to possession, then the suit ought not to be dismissed only on the ground the court - fee had been paid as on an injunctions. In view of this judgment of Naik j. Constructed the plaint was and directed the plaintiff to pay the court - fee which she would have been bound to pay as on a suit for possession on the basis of the valve of the property affixed by him. In our ,view the learned judge was right in the course that the adopted in the matter. These contention therefore ought to fail.

(3.) THE next question is about the market value of the property. Mr. . patel for the appellant invited out attention to the decision oft Division Bench consisting of myself and S. M. Shah J. , dated 3-4-1963 In L. P. A. No. 3 of 1963 {bom} Where we held hat ordinarily the market valve of the property could be arrived by taking the licenses fee as the return of the property, and multiplying it by 12 1/2 i. e. , at 12 1/2 years purchases. While adopting that rules, we mad some basis assumptions which we thought would be appreciated by most. But it seems necessary to amplify the reasons for our doing so.