1999(3) ALL MR 430
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.K. DESHMUKH, J.
Maruti Shankar Magre & Ors. Vs. Sanjay Kumar Krishna Dolas
Writ Petn. No. 2923 of 1999,Writ Petition No. 2924 of 1999
17th June, 1999
Petitioner Counsel: Mr. B.K. RAJE
Respondent Counsel: Mr.V.T.WALAWALKAR with Mr. R.D. SURYAVANSHI
(A) Presidency Small Causes Courts Act (1882), S.41 - Suit for possession on ground that eviction was unlawful - Contention that Government was not made a party though land was owned by Govt. - Held objection about non-joinder of necessary party is not one relating to jurisdiction and because suit was filed under S.41 of the Act, S.4 of the Bombay Rent Act was not attracted - Moreover plaintiff was not a licensee of the Government but of the landlord who had taken land on lease from the Government. (Para 2)
(B) Constitution of India, Art. 227 - Concurrent finding about possession - High Court will not interfere. (Para 2)
2. The dispute is about one room tenement, which admittedly was occupied by the Respondent, who is a medical practitioner by profession. Admitted position appears to be that in 1993 the Petitioner had given possession of these premises to the Respondent. According to the Petitioner, the Respondent was a licensee for a period of 5 years. It is the case of the Petitioner that in 1998, the Respondent voluntarily handed over the possession of the premises to him. And thereafter, the Respondent filed a suit in the Small Causes Court. In that suit, he preferred an application for restoration of the possession of the premises to him alleging that he has been illegally evicted from the premises by the landlord. He also claimed temporary Injunction for protecting his possession. The trial court passed both the orders -in his favour, which have been confirmed on appeal by the Appellate Court. The learned Counsel for the Petitioner, first, submitted that an objection was raised that as the land belongs to the State Government, the State Government should have been joined as a necessary party. In the submission of the learned Counsel, this objection should have been decided by the Court first. In my opinion, the learned Counsel is not right. Firstly, the objection about nonjoinder of the necessary party is not an objection relating to the jurisdiction of the Court. Second objection according to the learned Counsel for the Petitioner, that was raised is that because the land belongs to the Government, under Section 4 of the Bombay Rent Act the provisions of the Bombay Rent Act are not applicable. I really do not understand why this objection was raised. Because the suit is not filed under the Bombay Rent Act. It is filed under Section 41 of the Presidency Small Causes Court Act. However, It is the case of the landlord himself that the land belongs to the Government. He is a lessee of the Government and that he has put up a structure. Therefore, the Respondent would a lessee or licensee of the structure and therefore he will not be a licensee of the Government and therefore Section 4 of the Bombay Rent Act will not apply. Thereafter, the learned Counsel submitted that under Section 41 of the Presidency Small Causes Court Act, the Suit simplicitier for injunction is not maintainable. But the learned Counsel is not able to substantiate this contention. Lastly, he submitted that as on the date of the suit, the Respondent was not in possession, the possession of the premises should not be restored to the Respondent. This relates to the facts of the case. Both the Courts below appreciating the material on record have found that the Respondent is entitled to the mandatory order of restoration of possession. Considering the limited jurisdiction of this Court under Article 227 of the Constitution of India to reappreciate the evidence on record, in my opinion, this Court would not be justified in interfering with the finding on facts concurrently recorded by the Courts below. In nut shell, both the petitions have no substance. They are liable to be rejected. Hence, both the Petitions are rejected.
Certified Copy expedited.