Smt. Jijabai Prakash Ghodmare vs Narendra alias Natthu S/o Ambadas Bhusari & Ors.

Heard the learned Counsel for the parties and perused the record.

Being aggrieved by the judgment and decree dated 22.11.2021 passed by the learned Ad-hoc District Judge-1, Nagpur in Regular Civil Appeal No.581 of 2017 whereby the appeal preferred by the appellant (original defendant) came to be dismissed and the judgment and decree dated 11.09.2017 passed by the learned 7^th Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.2317 of 2012 (Old Special Civil Suit No.1068 of 2010) came to be confirmed.

The present proceedings arise out of Regular Civil Suit No.2317 of 2012 (Old Special Civil Suit No.1068 of 2010) instituted by the respondent (original plaintiff), Narendra alias Natthu S/o Ambadas Bhusari, before the Court of learned 7^th Joint Civil Judge, Junior Division, Nagpur seeking possession of the suit property, declaration of ownership and mesne profits against the appellant (original defendant) Smt. Jijabai Prakash Ghodmare. According to the respondent (original plaintiff), he is the exclusive owner of House No.112, Plot No. 122/1, Ward No.3, near Gajanan Mandir, Shivaji Colony, Nagpur. It was his specific case that the appellant (original defendant) had approached him with a request to permit her to occupy a portion of the second floor of the suit house, admeasuring approximately 950 square feet, for a temporary period of one year, to enable her to secure alternative accommodation either by purchasing a house or by obtaining premises on rent.

The respondent (original plaintiff) contended that, acting in good faith, he permitted the appellant (original defendant) to occupy the suit premises. However, according to him, even after the expiry of the agreed period, the appellant (original defendant) neither vacated the premises nor made any arrangement for alternative accommodation. It was further alleged that she failed to pay electricity and water charges, as well as other expenses incurred in relation to the suit property. The respondent (original plaintiff) repeatedly requested the appellant (original defendant) to vacate the premises. Since those requests allegedly yielded no result, he issued a legal notice dated 25.06.2010, calling upon her to hand over vacant possession of the suit premises.

The appellant (original defendant) replied to the said notice on 26.07.2010. In her reply, she asserted that she is the legally wedded wife of the respondent (original plaintiff) and that the respondent (original plaintiff) had executed a Gift Deed dated 09.10.2009 in her favour, thereby transferring ownership of the suit property to her. She further claimed that she had become the owner and lawful possessor of the property and that she had been paying electricity charges and other expenses in that capacity. The respondent (original plaintiff) denied the allegations made in the notice reply and asserted that he had never transferred the suit property to the appellant (original defendant).

The learned Counsel for the appellant submits that the respondent (original plaintiff) instituted the suit seeking declaration, possession and mesne profits, specifically pleading that the appellant was occupying the suit premises as a ‘permissive occupier’ for a period of one year. It is submitted that the very foundation of the suit was the specific pleading that the appellant was a ‘permissive occupier’.

The learned Counsel for the appellant further submits that the appellant, by filing her written statement at Exhibit 17, specifically denied the allegations contained in the plaint and asserted that she was the legally wedded wife of the respondent. It is contended that their marriage was solemnised at Sant Gajanan Maharaj Mandir, Shivaji Colony, Nagpur, in the presence of relatives and friends and that thereafter both parties resided together in the suit premises as husband and wife.

The learned Counsel further stated that the respondent voluntarily executed a Gift Deed dated 09.10.2009 (Exhibit 35) in favour of the appellant in respect of the suit property. According to the appellant, the said Gift Deed was accepted and acted upon and, therefore, she acquired ownership and lawful possession of the suit premises.

The learned Counsel for the appellant further submitted that the appellant was residing in the suit premises not merely as a ‘permissive occupier’ but as the wife of the respondent and as the beneficiary under the Gift Deed executed in her favour. It is contended that the respondent, after voluntarily permitting the appellant to reside in the premises and after executing the Gift Deed, subsequently attempted to dispossess her by instituting the proceedings. It is further submitted that the appellant has been in continuous possession of the suit premises for almost fifteen years and that her possession has remained uninterrupted throughout the pendency of the litigation.

The learned Counsel further contends that the respondent is likely to execute the decree during the pendency of the present Second Appeal, which would result in the dispossession of the appellant and cause irreparable injury to her. It is, therefore, submitted that the appellant has raised several substantial questions of law concerning the jurisdiction of the Civil Court, the nature of her possession, the evidentiary value of the Gift Deed and her right to continue in occupation of the suit premises.

The learned 7^th Joint Civil Judge, Junior Division, Nagpur by judgment and decree dated 11.09.2017 passed in Regular Civil Suit No.2317/2012 (Old Special Civil Suit No.1068/2010) decreed the suit in favour of the respondent (original plaintiff). While considering the Gift Deed dated 09.10.2009 (Exh.35), the learned Trial Court observed that although the execution of the document was disputed, the respondent (original plaintiff), during his cross-examination, had admitted its execution and, therefore, the execution of the document stood proved. However, relying upon Section 17(1)(a) of the Registration Act, 1908 and Section 123 of the Transfer of Property Act, 1882 the learned Trial Court held that a gift of immovable property could be effected only through a registered instrument and that the unregistered Gift Deed could not legally transfer ownership in favour of the appellant (original defendant). The learned Trial Court further relied upon the decision in Smt. Gomtibai v. Mattulal through legal heirs (AIR 1997 SC 127) and concluded that the appellant had failed to establish her title over the suit property. The Court also considered the appellant's contention that she was the legally wedded wife of the respondent and was residing in the suit premises in that capacity. However, it held that the photographs produced on record were insufficient to establish a valid marriage in the absence of any supporting documentary evidence.

The learned Trial Court further observed that the respondent himself had pleaded that he had permitted the appellant to occupy the premises for a limited period and, since the appellant had failed to prove either the alleged marriage or her ownership under the Gift Deed, it accepted the respondent's case. By judgment and decree dated 22.11.2021, the learned lower Appellate Court dismissed the appeal and affirmed the findings of the learned Trial Court by holding that the unregistered Gift Deed was incapable of transferring ownership, that the alleged marital relationship between the parties had not been proved, that the appellant had failed to establish any ownership rights in the suit property and that her possession was merely permissive in nature.

The substantial questions of law raised in this appeal are:-

The appeal mainly rests on the question of ‘permissive possessor or a gratuitous licensee’. Here, the question is that if the recovery of possession is asked for from the gratuitous licensee before an ordinary Civil Court, whether dispute would fall within the exclusive jurisdiction of the Court of Small Causes? To decide this question, the Court requires to consider first Section 41 of the Presidency Small Causes Courts Act, 1882 (for short “Act of 1882”) which governs the issue and reads thus:-

Section 41 must be understood in light of Section 52 of the Indian Easements Act which defines ‘license’ as follows:-

Plain reading of Section 41 of the Act of 1882 demonstrates that the provision begins with non obstante clause thereby vesting exclusive jurisdiction upon the Court of Small Causes. The Legislature intentionally employed the expression ‘all suits and proceedings’ and had not made distinction between different categories of licence. The Legislature’s intention in introducing Chapter VII of the Act was to provide the specialized Forum for disputes between the licensor and licensee to avoid multiplicity of proceedings.

The essential components of a ‘licence’ under Section 52 of the Indian Easements Act, 1882 are that there must be permission granted by the owner to any other person to do an act upon the owner’s immovable property, the act would otherwise be unlawful in absence of said permission and must not create either an easement or any other interest in the property. Thus, it is clear that Section 52 does not require any consideration for licence.

The appellant has placed reliance on the judgment in case of Prabhudas Damodar Kotecha V/s. Manharbala Jeram Damodar [(2013) 15 SCC 358] wherein the Hon’ble Supreme Court has observed that a gratuitous licensee is a person who is permitted to occupy another person’s property without paying any consideration in writing for such permission. The Court further held that the consideration, whether material or otherwise, is not an essential ingredient of a licence under Section 52 of the Indian Easements Act, 1882. Thus, a licence may exists even in the absence of any licence fee or contractual payment.

After going through the observations made by the trial Court and the Appellate Court it is not disputed that the appellant is a ‘permissive occupier’. The plaintiff himself has admitted that he has given said premises for a limited period without any rent or licence fee and the defendant is a permissive occupier.

In Bhagirathi Lingawade V/s. Laxmi Silk Mills the Bombay High Court has held that the provisions of Bombay Rent Act were irrelevant while interpreting Section 41 of the Act of 1882. The Court further observed that the jurisdiction conferred by Section 41 was independent and that the restrictive definition contained in another Statute could not be imported into the Act of 1882. The Full Bench in Prabhudas Damodar Kotecha (supra) undertook a detailed examination of legislative history of Chapter VII of the Act of 1882 and concluded that the object of Legislature was to create a single Forum for adjudicating disputes between licensors and licensees and between landlords and tenants. It is further observed by the Hon’ble Full Bench that the Legislature deliberately used the expression “all suits and proceedings” and did not create any distinction between a licensee who paid consideration and licensee who occupied the premises gratuitously. It is observed that if the Legislature had intended to exclude gratuitous licensees from the ambit of Section 41, it would have expressly incorporated such an expression in the Statute. The Court also relied upon Section 52 of the Indian Easements Act, 1882 and concluded that since consideration was not an essential requirement for the creation of a licence, the expression “licensee” in Section 41 could not be restricted only to a person paying a licence fee.

In case of Mansukhlal Dhanraj Jain V/s. Eknath Vitthal Ogale [(1995) 2 SCC 665] the Hon’ble Supreme Court held that two conditions must be satisfied (i) the dispute must be between a licensor and licensee or between a landlord and a tenant and (ii) the suit must relate to the recovery of possession or the recovery of licence fees, charges, or rent. Once these conditions are satisfied, the Court of Small Causes acquires exclusive jurisdiction over the dispute.

In Sitaram Borikar V/s. Leelabai Borikar the plaintiff pleaded that the defendant was occupying the property with his permission and therefore, he is a permissive possessor. In said case the Court held that such a dispute would fall within the scope of Section 41 and the ordinary Civil Court lacks jurisdiction. The Court has set aside the judgment of the Courts below and directed the plaint to be returned for presentation before the competent Court.

In this case, the trial Court and the Appellate Court have not considered this issue. This issue has cropped up for the first time before this Court. It appears that the Courts below have passed the judgments without jurisdiction.

The Hon’ble Supreme Court in Harshad Chiman Lal Modi V/s. DLF Universal Ltd. [(2005) 7 SCC 791] has held that where a Court lacks jurisdiction over the subject matter because of a statutory bar it cannot entertain the suit. Any decree passed by such a Court is nullity and neither consent, waiver or acquiescence can confer jurisdiction upon the Court that inherently lacks it. The Court further held that the decree passed without jurisdiction is nonest and coram non judice, and its invalidity can be challenged at any stage of the proceedings, including execution proceedings and collateral proceedings. This principle is directly applicable to the dispute falling under Section 41 of the Act of 1882 because if the Statue confers exclusive jurisdiction upon the Court of Small Causes, an ordinary Civil Court cannot assume jurisdiction. Any decree passed by such a Court would be void and liable to be set aside even in a second appeal.

In the case in hand the appellant has pleaded that she is a wife of the respondent. The respondent has not denied that they stayed as husband and wife. It is the case of the appellant that she is owner of the property as the respondent has gifted it to her. The gift deed is filed on record but it is not proved as it was not registered. From the observations made by both the Courts below and as the respondent has himself admitted that the appellant was living there with his permission, though he has stated that it was for limited period, he has admitted that he was staying there with her. Therefore, when it is proved that she is living in said suit property as a gratuitous licensee, as per the settled position of law the gratuitous licensee is included within the expression ‘license’ under Section 41 of the Act of 1882. As the suit is instituted by a licensor seeking recovery of possession it is exclusively triable by the Court of Small Causes and the jurisdiction of ordinary Civil Court is expressly barred under Section 41 of the Act of 1882.

As the substantial questions of law arise under Section 100 of the Code of Civil Procedure regarding jurisdiction of the Courts below interference at the hands of this Court is warranted. Hence, I pass the following order.

The appeal is allowed.

The judgment and decree passed by the trial Court and the Appellate Court are set aside.