Leave-and-Licence or Lease? Jurisdiction, Court Fee and Adverse Possession in a Pune Eviction Suit

The bar goes to jurisdiction and is never waived. Section 9 CPC confers jurisdiction on civil courts in suits of a civil nature unless it is expressly or impliedly barred. Section 33 of the Maharashtra Rent Control Act, 1999 excludes the civil court from deciding questions that the Rent Court / Competent Authority is empowered to decide. A decree passed by a court lacking inherent jurisdiction is a nullity, so the absence of an Order VII Rule 11 application is not fatal. In any event, the plaint on its own averments (a leave-and-licence agreement) discloses no bar, so rejection under Rule 11(d) was never available.

Frame a preliminary issue on the nature of the transaction. The label used by the parties is not conclusive. Apply the substance test:

• exclusive possession granted to the occupant;
• a fixed term with a payment that is in truth rent;
• whether any services (cleaning, furniture, maintenance) were provided;
• the intention to create an interest in immovable property;
• the conduct of the parties after every renewal.

Consequences:

• If it is a licence, the civil court has jurisdiction; the licence stands determined on expiry of the term or notice, and possession must be decreed.
• If it is a lease of premises covered by the Act, the bar operates and the proper course is to dismiss the suit for want of jurisdiction (or return the plaint for presentation to the proper forum) - not to dismiss it on merits.

Order XIV Rule 2 requires the jurisdictional issue to be decided first, notwithstanding that evidence on the merits has already been recorded; evidence already on record may be used to decide it.

Separate the two objections, which are often confused.

1. Valuation for jurisdiction - decides which court can hear the suit. Here the Joint Civil Judge (Junior Division) has pecuniary limits; if the suit is really valued above that limit, the plaint must go to the court competent to try it.
2. Valuation for court fee - a matter between the plaintiff and the State, but the defendant is entitled to raise it so that the suit is not tried on an underpaid plaint.

The fee for possession of immovable property is computed on the basis prescribed by the Maharashtra Court Fees Act, 1959 (market value or other statutory basis), and mesne profits are valued separately. An arbitrary self-assessment of Rs 2,00,000 for a flat worth far more is not a valuation at all.

The correct procedure:

• Decide the valuation question judicially, before the decree, on the material available.
• Direct the plaintiff to pay the deficit within a fixed time. Rejection under Order VII Rule 11(b) is a last resort, available only where the plaintiff fails to comply after being given the opportunity; Section 149 CPC permits the court to allow the fee to be paid at any stage, and on payment the plaint is treated as valid from the date of presentation.
• If the valuation also affects pecuniary jurisdiction, the plaint must be returned under Order VII Rule 10 for presentation to the competent court, and the delay is not to be visited on the plaintiff if the plaint was bona fide valued.

On these facts: the court should call for the true value, permit the plaintiff to make up the deficit, and record a finding on valuation; only on default should the plaint be rejected, and then with liberty to file afresh.

Not sustainable.

Possession which commences under a permissive arrangement - a leave-and-licence or a lease - can never be adverse unless the occupant first renounces the permissive character by an open, hostile assertion of title that is brought home to the owner.

• Adverse possession requires possession nec vi, nec clam, nec precario - not by force, not in secrecy, not by permission. Here the origin of possession is admitted permission.
• The written statement is silent on the date and manner in which permissive possession turned hostile. A plea of adverse possession without a specific date of the hostile assertion is not a plea at all.
• Under Article 65 of the Limitation Act, 1963, time runs only from the date the possession becomes adverse; the defendant must plead and prove that date with precision, and seven years is in any event short of twelve.
• Section 116 of the Evidence Act estops a licensee or lessee from denying the landlord's title during the continuance of the relationship.

Frame the issue as: 'Whether the defendant has proved that he asserted a hostile title openly and to the knowledge of the plaintiff, and if so, on what date, and whether twelve years elapsed thereafter?'

Finding: the issue must be answered against the defendant. Long permissive possession, however long, does not extinguish the owner's title and does not mature into ownership by mere lapse of time.