RAMCHANDRA VITHOBA MORE Vs. SHAMRAO SITARAM DALVI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 11th August, 1987 passed by the City Civil Court, Bombay, in S. C. Suit No. 4012 of 1971.

(2.) THE respondent-plaintiff filed the suit for a declaration that the appellant-defendant is a trespasser in respect of the suit premises and for a mandatory injunction, directing the defendant to remove himself, his servants and agents from the suit premises and for a decree directing the defendant to hand over possession of the suit premises to the plaintiff and also for recovery of arrears of licence fee or compensation from the defendant at the rate of Rs. 375/- per month. It is the case of the plaintiff that he was carrying on business in charcoal in the suit premises for a number of years. He is the tenant of the suit premises, paying a monthly rent of Rs. 27. 30. It is the case of the plaintiff that the defendant approached him for grant of leave and licence to use the suit premises for a period of eleven months on monthly compensation of Rs. 375/- and accordingly a leave and licence agreement was entered into on 1st July, 1970 between the plaintiff and the defendant. Accordingly, a portion of the suit premises was given to the defendant as per the terms and conditions of the said agreement. The plaintiff kept the other portion of the premises for his charcoal business. Under the agreement, the defendant was allowed to use the suit premises for his business. Further, the defendant was to hand over the suit premises on expiry of the said licence i. e. on 31st May, 1971. On 29th April, 1971 the plaintiff sent a notice through his Advocate to the defendant, calling upon him to hand over the suit premises to him, the plaintiff, on or before 1st June, 1971. The defendant did not give any reply to the said notice nor he paid the licence fee for the month of May 1971. According to the plaintiff, the defendant committed breach of the terms and conditions of the agreement by allowing third party viz. , one F. Pareira to use the suit premises. It reveals from the record that instead of giving possession of the suit premises, the defendant filed a false criminal complaint against the plaintiff on 31st May, 1971 and the defendant changed the lock of the premises, thereby preventing the plaintiff from entering into the suit premises. A counter criminal complaint was filed by the plaintiff against the defendant. In the said circumstances, the plaintiff filed the instant suit against the defendant.

(3.) THE defendant filed his written statement denying that the suit premises was given on leave and licence basis. The intention of the parties was to create sub-tenancy and to have exclusive use and occupation of the suit premises. It was contended that as the defendant is a sub-tenant of the suit premises, the Civil Court has no jurisdiction to hear this suit.