MR.HARISH CHANDRA SINGH GOURversusMRS JULIANA SERPHIS

Neeta Sawant                                                     SA 40 OF 1998


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                        CIVIL APPELLATE JURISDICTION

                        SECOND APPEAL NO. 40 OF 1998




Mr. Harish Chandra Singh Gour                              …..Appellant
           : Versus :
Mrs. Juliana Serphis
(since deceased through legal heirs)                       ….Respondents



Mr. Chaitanya Nikte with Mr. Prajit Sahane for the Appellant.

None for the Respondent.


                                   CORAM : SANDEEP V. MARNE, J.

                                   JUDG. RESD. ON : 01 September 2026.

                                   JUDG. PRON. ON : 16 September 2026.

JUDGMENT:



1)               The present Appeal is preferred by the Appellant challenging
the judgment and decree dated 2 March 1996 passed by the 9 th Additional
District Judge, Pune allowing Civil Appeal No. 720 of 1989 and setting
aside the decree passed by the Trial Court in Regular Civil Suit No. 2272 of
1984. The Trial Court had decreed the suit filed by the Appellant/Plaintiff
by directing the Defendant to handover vacant possession of the suit
premises with further directions to recover future mesne profits from the
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Neeta Sawant                                                     SA 40 OF 1998


date of institution of the suit by conducting an inquiry under Order XX
Rule 12 of the Code of Civil Procedure, 1908 (the Code).


2)             A garage admeasuring 10 ft x 20 ft situated at Plot No.4,
Survey No.78, Divyanagar, Wanowrie, Pune-40 is the ‘suit premises’.
Plaintiff is the owner of land bearing Plot No.4, Sector No. 78,
Divyanagar, Wanowrie, Pune-411040, on which he built the main
bungalow, a servant’s quarter and a garage. Plaintiff was away from Pune
most of the times in a year and constituted his wife Mrs. Dagma Gour as
his attorney for looking after the suit premises and the bungalow.
Plaintiff’s wife is distantly related to the Defendant and her family. The
Defendant was required to leave her previous residence in Netajinagar,
Wanowrie, Pune and therefore she requested Plaintiff’s wife to occupy the
suit premises temporarily. Relying on the representation, Plaintiff’s wife
permitted the Defendant to occupy the suit premises temporarily. This is
how Defendant started occupying the suit premises from 9 September
1984. On 24 October 1984, Plaintiff came to Pune and visited the premises
along with his wife in connection with the complaint received from their
servant who was being prevented from using the bathroom and the
lavatory. Plaintiff approached the suit premises and requested the
Defendant’s children: Wallace, Dorothy and Lincoln not to obstruct
Plaintiffs servants from using the bathroom and the lavatory. According
to the Plaintiff, children of the Defendant abused and assaulted the
Plaintiff. On 28 October 1984, Plaintiff issued notice to the Defendant
calling her upon to vacate the suit premises along with her children.



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Neeta Sawant                                                     SA 40 OF 1998


However, Defendant refused to act on the notice and issued a reply
claiming that they were tenants of the suit premises.


3)             In the above background, Plaintiff instituted Regular Civil
Suit No. 2272 of 1984 in the Court of Civil Judge Junior Division, Pune.
The Defendant appeared in the Suit and filed Written Statement resisting
the same. She claimed having paid amount of Rs.17,500/- to the wife of
the Plaintiff towards deposit and claimed monthly tenancy at the rate of
Rs.125/-. Based on pleadings, the Trial Court framed the issues and the
parties went to trial. Plaintiff examined himself and his wife. The
Defendant examined herself and one Maddi Ahmed to prove payment of
amount of Rs.17.500/-. After evaluating the evidence, the Trial Court
rejected the theory of the Defendant being the monthly tenant and held
her to be a mere gratuitous licensee. The Trail Court decreed the suit by
judgment and order dated 19 November 1988 directing the Defendant to
handover possession of the suit premises within 3 months with further
direction for conduct of inquiry into mesne profits from the date of
institution of the suit.


4)             The Defendant preferred Civil Appeal No. 720 of 1989 before
the District Court. By judgment and order dated 2 March 1996, the
District Court allowed the appeal setting aside the decree passed by the
Trial Court.


5)             Aggrieved by the decree of the Appellate Court dated 2 March
1996, the present Appeal has been filed by the Original Plaintiff. By order

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Neeta Sawant                                                       SA 40 OF 1998


dated 19 February 1998, the Appeal has been admitted on following
substantial question of law:


           “Whether the Appellant proves that the Respondent was allowed to
           reside in the suit premises as gratuitous licensee.”


6)               During    pendency    of   the   Appeal,   Respondent-original
Defendant passed away and her children were brought on record as legal
heirs. The legal heir, Wolley Serphis also passed away during pendency of
the appeal and accordingly, Mrs. Nagarathnamma Serphis and Mr. Keith
Serphis were brought on record. When the Appeal came up for final
hearing, this Court noticed that notices to the legal heirs of Respondent
No.2 were not issued for want of spare copies. Therefore, this Court
directed issuance of fresh notices in addition to private service. Since the
service report in respect of the notices issued to Respondent Nos. 2(a) and
2(b) was not received, this Court issued fresh notices to Respondent
Nos.2(a) and 2(b) by order dated 14 March 2024. This time, the notices got
served on Respondent Nos. 2(a) and 2(b) and there is an office report to
that effect. However, this Court once again directed issuance of notices
on Respondents Nos. 1, 2(a), 2(b) and 3 by order dated 19 July 2024.
Respondent No. 3 was found to be dead and the order dated 9 August
2024 records that Respondent Nos. 1, 2(a) and 2(b) were served with the
notice of final hearing of the appeal. However, none appeared on behalf of
Respondent Nos. 1, 2(a) and 2(b). One more opportunity was granted to
them by deferring final hearing of the appeal by order dated 30 August
2024. Since none appeared, the appeal was heard and closed for orders on

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Neeta Sawant                                                     SA 40 OF 1998


13 September 2024. However, this Court observed by order dated 2
December 2024 that daughter, Dorothy and son-Wallace were not brought
on record as legal heirs and clarifications were sought. It was informed to
the Court that Mr. Wallace Charles and Respondent No.1-Lincoln Serphis
are the same.


7)             Mr. Nikte, the learned Counsel appearing for the Appellant
has submitted before me that only Respondent Nos. 2(a) and 2(b) are
actually occupying the suit premises and therefore he does not desire to
bring on record legal heirs of Respondent No. 1. This was recorded by
order dated 13 February 2025.


8)             The appeal was fixed for final hearing on 1 September 2026
and has accordingly been heard. Though not required, the Appellant has
served private notices on Respondent Nos. 2(a) and 2(b) indicating the
date of hearing of the appeal as 1 September 2026. The private notices are
also duly served on the Respondents. Affidavit of service dated 1
September 2026 to that effect is placed on record. Thus, despite grant of
repeated opportunities, none has appeared on behalf of Respondent
Nos.2(a) and 2(b), who are reportedly occupying the suit premises.
Accordingly, this Court has proceeded with final hearing of the Appeal,
which is pending for the last 28 long years.


9)             Mr. Nikte, the learned counsel appearing for the Appellant
submits that the Appellate Court has grossly erred in reversing the well
considered decree of the Trial Court. That the Defendant did not produce

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Neeta Sawant                                                     SA 40 OF 1998


any documentary evidence in support of the claim for creation of tenancy.
That the Appellate Court erred in assuming that Plaintiff’s wife allowed
the Defendant to occupy the premises behind the back of the Plaintiff,
who was at Karnataka and that therefore his evidence was irrelevant and
only the wife’s evidence was relevant. That the Appellate Court
unnecessarily raised a query as to why Plaintiff’s wife allowed the
Defendant to occupy the premises for a temporary period. That the
Appellate Court erroneously held that the time gap arrangement after
leaving previous premises did not exist. That the Appellate Court
erroneously relied on letter at Exhibit 28 for concluding that there was
payment of deposit by the Defendant.


10)            Mr. Nikte further submits that there is absolutely no proof of
payment of Rs.17,500/-. Admittedly, no rent receipt was ever issued by
the Plaintiff or his wife. That the defence raised by the Defendant was
wholly improbable and was not supported by any evidence. That this is a
case of a pure gratuitous license, which is erroneously assumed by the
Appellate Court as tenancy. On the issue of jurisdiction, Mr. Nikte
submits that Chapter-IV-A1 in the form of Section 26 was introduced in
the Provincial Small Causes Court Act,1887 w.e.f. 1 January 1985, whereas
the suit was instituted in the year 1984. That therefore the suit was filed
well within the jurisdiction of Small Causes Court. He prays for setting
aside the decree of the Appellate Court.


11)            I have considered the submissions. I have gone through the
findings recorded by the Trial and the Appellate Courts. I have also

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Neeta Sawant                                                     SA 40 OF 1998


perused the evidence, as well as the documents on record. The Plaintiff
approached the Trial Court with the case that the Defendant was
permitted to use and occupy the suit premises temporarily. On the other
hand, it was the Defendant’s case that she had been inducted as a tenant
in respect of the suit premises upon payment of a sum of Rs.17,500/- and
at a monthly rent of Rs.125/-.


12)            In the present case, there is no documentary evidence in the
form of tenancy agreement or rent receipt. Since the Defendant came
with the case of creation of tenancy, the burden was entirely on the
Defendant to prove existence of such tenancy. The Trial Court held that
the defense of the creation of a tenancy raised by the Defendant was
unbelievable and upheld the contention of the Plaintiff that the
Defendant had been granted a mere gratuitous license. The Appellate
Court has reversed the finding and has accepted the defence of the
Defendant of creation of tenancy. Perusal of the findings recorded by the
Appellate Court would indicate that it completely misdirected itself while
conducting the inquiry. Rather than recording positive findings supported
by evidence, the Appellate Court went on raising surmises. To illustrate,
in para-13 of the judgment, the Appellate Court has raised a surmise ‘the
material point is why she has allowed to stay the defendant in the premises
for a temporary period’. On the basis of such an irrelevant question, the
Appellate Court proceeded to uphold the defence of creation of tenancy
raised by the Defendant.




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Neeta Sawant                                                             SA 40 OF 1998


13)            The Appellate Court has grossly erred in ignoring the
evidence of the Plaintiff, who is the owner of the suit premises. It is
Plaintiff’s case that he granted permissive use of the suit premises to the
Defendant. However, merely because the Plaintiff was posted at
Karnataka and his wife was maintaining and looking after the suit
premises, the Appellate Court has totally ignored the evidence of the
Plaintiff. This is clear from the following findings in paragraphs 11 and 12
of the judgment of the Appellate Court:

               11.The evidence of the wife of the plaintiff and the defendant is most
               material. Admittedly there is no documentary evidence in the form of
               agreement in relation to the suit premises. Only the oral evidence of the
               plaintiff's wife and the defendant is on record.

               12. What P.W.2 Damareita, who is the wife of the plaintiff has deposed
               that previously the defendant was residing in Netaji Nagar, Pune.
               Defendant requested her to allow her to occupy the suit premises for a
               period of two months and accordingly she permitted or allowed the
               defendant to occupy the premises without any charge. As against this,
               the defendant has deposed that she has occupied the suit premises on
               1.9.84 rent of Rs.125/-p.m. Before that she paid Rs.17500/- in presence
               of D.W.2 Meddi Ahmed, at the house of mother of P.W.2.



14)            The above findings recorded by the Appellate Court are
clearly unsustainable. Merely because the owner of the premises is posted
at outstation in relation to job/occupation/business, it does not mean that
he cannot have any personal knowledge about creation of licence. The
licence is always granted by the owner. There is nothing on record to
indicate that Plaintiff was totally oblivious about presence of the
Defendant in the suit premises. That there is no evidence of the Plaintiff’s
wife solely creating license/tenancy in favour of the Defendant. In my
view, therefore, the Appellate Court has grossly erred in discarding the
evidence of the Plaintiff and holding that the evidence of the Plaintiff’s
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Neeta Sawant                                                             SA 40 OF 1998


wife alone could be taken into consideration. The manner in which the
Appellate Court has conducted the inquiry was itself faulty, resulting in
recording of egregiously erroneous conclusions.


15)            The Appellate Court has rejected the case of the Plaintiff
about permitting Defendant to occupy the suit premises as a time gap
arrangement by holding in paragraphs 13 and 14 as under:



               13. The evidence of the plaintiff's wife shows that she allowed the
               defendant to stay in the suit premises. for two months, without charge.
               Admittedly before coming to reside in the suit premises, the defendant
               was staying in tenanted premises at Netajinagar, Pune. The evidence of
               P.W.2 shows that the defendant was allowed to stay in the suit premises
               for a temporary period. The material point is why she has allowed to stay
               the defendant in the premises for a temporary period. The pleadings of
               the plaintiff shows that as the defendant and her family members had to
               leave their earlier tenanted premises they require the premises
               immediately for residence. By this pleading, the plaintiff means to say
               that as the defendant was forced or was compelled to leave her tenanted
               premises and had no other place to stay, she was accommodated for a
               limited period in the suit premises. Now let us scrutinise this evidence
               from all possible angles in order to find out whether the case of the
               plaintiff is regard to permitting the defendant to stay in the suit
               premises for a limited period is probable or not.

               14.It appears from the evidence of the wife of the plaintiff that a time
               gap arrangement was made and in pursuance thereof, the defendant was
               temporarily allowed to stay in the suit premises. This sort of time gap
               arrangement takes me to the circumstances existed before occupying the
               premises by the defendant. The inquiry in regard to those circumstances
               in necessary in order to find out whether there existed circumstances
               which required the plaintiff's wife to make a time gap arrangement for
               the residence of the defendant being her sister, Nowhere it has come in
               the evidence of the plaintiff's wife that the defendant had to vacate the
               premises suddenly and no place to stay and therefore, she being a sister
               was required to make an time gap arrangement for the residence of the
               defendant. If at all such was the case or the case that the defendant
               before occupying the premises had no roof over her head and no suitable
               place for residence, then allowing the defendant to stay in the suit
               premises for a limited period would be a probable . Thus I find that the

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Neeta Sawant                                                           SA 40 OF 1998


               circumstances leading to make a time gap arrangement for the residence
               of the defendant in the suit premises are totally missing.


16)            The above findings are again perverse to the core. The
Appellate Court has gone on the principle of probabilities for the purpose
of holding that there was no possibility of permitting the Defendant to
occupy the suit premises as a time gap arrangement. In my view, whether
there was a time gap arrangement or not is totally irrelevant. The
Defendant’s reason for entry into the premises may also not be of much
relevance so long as it is established that a             gratuitous license was
granted. In absence of existence of any document and in the light of
defence raised by the Defendant about creation of tenancy, the Appellate
Court was only required to verify whether the tenancy was indeed created
or not. Why and how the Defendant was put in occupation is not of much
relevance. If there is a rent receipt or a rent agreement or concrete
evidence of creation of tenancy, the purpose for which entry was made in
the premises takes a back seat. The relevant inquiry is about grant of
license or creation of tenancy.


17)            Coming to the aspect of defence of the Defendant about
creation of tenancy, it appears that no positive finding is recorded by the
Appellate Court that Defendant was inducted as tenant. Without
recording a positive finding as to whether Defendant is a tenant, the
Appellate Court has proceeded to discard the theory of gratuitous license
by invoking the principles of probabilities. Once again, it is held in
paragraph 16 of the judgment as under :



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Neeta Sawant                                                              SA 40 OF 1998


               16.There is not a single circumstance on record to show that the
               defendant was compelled to vacate her earlier premises and because of
               that she was required to take help from the Plaintiff's wife in regard to
               her residence. In the absence of this circumstance, it is improbable that
               the defendant would go for time gap arrangement. Similarly, there is no
               circumstance on record to show that the defendant had decided to shift
               herself outside Pune. Therefore, time gap arrangement was made. If that
               is so, then the defendant had intention to stay permanently at Pune.
               Assuming that the defendant decided to vacate her tenanted premises
               and particularly when she had intention to stay in Pune itself, then
               normally she would go for a place where she can stay for number of
               years to come. The normal and natural conduct of any person, who is
               required to vacate the tenanted premises, would be to find out a place
               where he or she can stay for number of years to come. The said person
               would not normally go for time gap arrangement. Considering the
               probabilities from this angle, it is improbable that the defendant would
               go for this time gap arrangement and further would agree to stay in the
               suit premises for a temporary period and that too for two months. For
               this reason, I find that the case of the dependent that she agreed to take
               the suit premises on rent becomes more probable.



18)            Coming to the document in the form of letter at Exh-28, the
same is relied upon by the Defendant to prove payment of
amount/deposit of Rs.17,500/-. I have gone through the said letter and
the same does not indicate in any manner that Rs.17,500/ was paid to the
Plaintiff or his wife towards deposit. The evidence of the witness, Gajanan
Balkrishna Dabhade, also does not establish any nexus between the
refund of the deposit of Rs.20,000/- by him and the alleged payment of
Rs.17,500/- to the Plaintiff. Gajanan Balkrishna Dabhade was apparently
the landlord in respect of the premises earlier occupied by the Defendant.
He was examined to prove that he had returned deposit of Rs.20,000/- for
the purpose of proving that Rs.17,500/- out of the same were paid to the
Plaintiff. However, mere return of deposit by Mr. Dabhade does not
automatically prove demand of Rs.17,500/- by the Plaintiff. The letter at
Exh-28 refers to earlier ‘landlady’ who owned the flat, whereas Mr.
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Neeta Sawant                                                     SA 40 OF 1998


Gajanan Dabhade is a gentleman. Thus, Exh.-28 does not support the
attempt on the part of the Defendant to link the said letter with the
deposit allegedly refunded by Mr. Dabhade. Even otherwise, Mr. Dabhade
has contradicted himself by admitting that he had not issued any rent
receipts to the Defendant. He was not even able to state the name of the
Defendant but was able to identify her by her face. Thus, admissions in
the cross clearly makes evidence of DW4- Gajanan Balkrishna Dabhade
unbelievable.


19)            Defendant also examined Mr. Maddi Ahmad to prove that
Rs.17,500/- was paid to the Plaintiff in his presence. However, while cross
examination the Plaintiff or his wife, suggestion was never put to them
that Mr. Maddi Ahmad was present at the time of payment of deposit of
Rs.17,500/-. The witness was subsequently introduced to fill up the gaps
in the evidence. When Defendant did not make a suggestion to Plaintiff’s
witness about presence of Maddi Ahmad at the time of alleged deposit of
Rs.17,500/, introduction of D.W.2 clearly appeared to be an afterthought.
D.W.2 in his deposition stated that he was a family friend, which
suggestion was denied by D.W.1. This contradiction makes the evidence
of D.W.2 unbelievable. Furthermore, D.W.2 himself claimed that he was
residing in Plaintiffs bungalow. The Trial Court had rightly held that
when the case involved close relatives dealing with alleged transaction,
presence of D.W.2 (complete stranger) was quite unnecessary. Thus, the
evidence of D.W.2-Maddi Ahmad does not inspire confidence.




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Neeta Sawant                                                     SA 40 OF 1998


20)            In my view, once the Defendant attempts to demolish the
claim of gratuitous licensee by setting up a theory of creation of tenancy,
the entire burden is on the Defendant to prove such defence. For proving
creation of tenancy, proof of payment of rent is must. Additionally, one
must also produce additional supporting documents such as tenancy
agreement etc. However, in absence of tenancy agreement also, creation
of tenancy can be inferred if payment of rent is proved. Ordinarily, the
best document to prove tenancy is to produce the rent receipts. In a case
where landlord deliberately does not issue rent receipts, payment of rent
can be proved by other means such as money order, cheque, bank
statements etc. In rare circumstances, where the documentary evidence
does not exist to prove payment of rent, such payment can also be proved
by leading oral evidence of witnesses.


21)            In the present case, there is no iota of evidence that
Defendant ever paid rent to the Plaintiff. The Defendant thus thoroughly
failed to prove creation of tenancy. Mere attempt made to prove payment
of Rs.17,500/- is not sufficient. What must also be proved is that the rent
was demanded and the rent was paid. In the present case, even payment
of deposit is not proved by the Defendant. Thus, the Defendant has
thoroughly failed to prove her defense of creation of tenancy.


22)            The first Appellate Court erred in not appreciating the
position that failure to prove creation of tenancy, automatically proves
the case of creation of gratuitous license. There is no denial to the fact
that Defendant is related to Plaintiff's wife. If the case does not involve

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Neeta Sawant                                                     SA 40 OF 1998


creation of tenancy, the same would naturally involve the case of
permissive use granted by one relative to another. Without appreciating
this position, the Appellate Court went on believing the theory of
probabilities and disbelieved the case of the Plaintiff of grant of
gratuitous license. In my view, Plaintiff clearly proved permissive use by
the Defendant in respect of the premises. She had no authority to remain
in possession of the suit premises, the moment gratuitous license, as well
as permission was withdrawn. Her continued presence in the premises,
after withdrawal of the permission/licence, amounted to unauthorized
occupation. The Trial Court had rightly decreed the suit of the Plaintiff
and the Appellate Court has egregiously erred in reversing the decree of
the Trial Court by recording findings, which are clearly unsustainable.


23)            The issue of jurisdiction was not involved either before the
Trial Court or before the first Appellate Court. Mr. Nikte, has sought to
clarify the issue of jurisdiction since the law has been subsequently
developed where only a Court of Small Causes can decide the issue of
eviction of a gratuitous licensee. Chapter-IV-A1 was inserted in the
Provincial Small Causes Court Act,1887 w.e.f. 1 January 1985 i.e. after the
date of institution of the suit. Under Section 26 of the Amended Act, the
suits between licensor and licensee for recovery of possession of
immovable property now lie before the Court of Small Causes Court.
However under Section 26C, it was provided that all suits cognizable by
the Small Causes Courts under Chapter-IV-A1 pending in Civil Courts
shall be continued and disposed of by the Civil Courts. This Court
subsequently     clarified   in   Prabhudas    Damodar    Kotecha    Versus.

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            Neeta Sawant                                                            SA 40 OF 1998


          Manharbala Jeram Damodar and ors.1 that the Presidency Small Causes
          Court Act, 1882 gives the Small Causes Court exclusive jurisdiction to
          entertain eviction suits filed by a licensor against a gratuitous licensee. In
          the present case, since the suit was instituted before coming into force of
          the Amending Act, in my view, the jurisdiction is rightly exercised by the
          Civil Court.


          24)                    The question of law is accordingly answered by holding that
          the Plaintiff has proved that Defendant was permitted to reside in the suit
          premises as a gratuitous licensee.


          25)                    Appeal accordingly succeeds and I proceed to pass the
          following order:


                        (i)      Judgment and decree dated 2 March 1996 passed by the 9 th
                                 Additional District Judge, Pune in Civil Appeal No. 720 of
                                 1989 is set aside.
                        (ii)     The decree of the Trial Court dated 19 November 1988 passed
                                 in Regular Civil Suit No. 2272 of 1984 is confirmed.


           26)                   The Appeal is allowed with costs in above terms.

NEETA
SHAILESH
SAWANT
Digitally signed by
NEETA SHAILESH
SAWANT                                                             [SANDEEP V. MARNE, J.]
Date: 2026.09.16
19:29:36 +0530




          1           2007 (5) Mh.L.J. 341
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