1. This is a suit against a trespasser.
2. The plaintiff is the sole surviving trustee and executrix of the will of one Rahim Valimahomed, and as such claims to be the owner of a bungalow known as Rahim Mansions situate at Poona. Her case is that by an agreement executed in Bombay and dated 6-3-1948, she agreed to allow and permit the defendant to use and occupy the bungalow on the basis of leave and licence and on terms and conditions contained in that writing. The period agreed upon was eleven months and the license was to expire on 28-2-1949. There was correspondence between parties in the course of which the defendant took up the attitude that he was not a mere licensee but a tenant of the plaintiff. He declined to vacate the premises and hence the suit.
3. The reliefs sought 'inter alia' are (a) that the defendant, his family, dependants, servants and agents may be ordered to remove themselves from the said premises together with all their belongings, (b) that the defendant, his family, dependants, servants and agents may be restrained by an order and injunction of this Hon'ble Court from entering upon the said premises or any part thereof, and (c) that the defendants may be ordered and decreed to pay Rs. 225 per month as from 1-3-1949, till the injunction claimed in prayers (a) and (b) above becomes effective.
4. It was the plaintiff's case that the agreement having been executed in Bombay a part of the cause of action arose in Bombay. She, therefore, asked for and obtained leave under Clause 12 of the Letters Patent to file this suit in this Court.
5. The defendant denies that he occupied the suit premises as a licensee at any time. According to him the real agreement between the parties was to create a tenancy in his favour and that after the expiry of the period of eleven months mentioned in the agreement he has continued to be in occupation of the premises as a statutory tenant entitled to protection under the Bombay Rents, Hotel and Lodging House Rates control Act (57 of 1947). His case, therefore, is that he is not a trespasser; and the suit according to him being a lessor's action against a lessee to Quit and vacate is liable to be dismissed. He further contends that the suit is, in any case, a suit for land, and this Court has no jurisdiction to entertain the same.
6. The two main questions which I have to determine are, firstly: Whether this is a suit for land; and secondly; Whether the defendant was a licensee as alleged by the plaintiff. At the instance of learned counsel for the defendant I tried the question as to jurisdiction as a preliminary issue.
7. Clause 12 of the Letters Patent which defines the original jurisdiction of this High Court runs as follows:
'12. And we do further ordain that the said High Court of Judicature at Bombay, in the exerciseof its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immoveable property such !and or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits;......'
8. Mr. Advani, learned counsel for the defendant, contends that this is 'a suit for land' within the meaning of Clause 12 of the Letters Patent of this High Court. The expression 'suit for land' has been interpreted and re-interpreted, explained and re-explained and there is a wealth of judicial exposition and opinion on the subject, as the same expression is to be found also In the Letters Patent of the Calcutta and Madras High Courts. There was no usage of legal phraseology at the date of the grant of the Letters Patent of the three High Courts which would have limited the phrase to suits of any particular nature. The result of all this has been that there has been a radical diversity of judicial opinion on the interpretation and the scope of this expression, not only between the different High Courts, but also in our own High Court where the expression has been considered and discussed in a number of decisions including two full bench decisions. I am not aware of any other legal phrase which has been the subject matter of judicial exposition of this nature except some phrases in the Statute of Frauds in England. It has been stated that lawyers have run throughevery word contained in that short enactment with a carriage and four. Something of a similar nature has happened in connection with this phrase 'suit for land.'
9. Learned counsel for the defendant has argued this question of jurisdiction before me at considerable length and drawn my attention to various passages from a number of decided cases. I shall refer to some of these later on in my judgment.
10. Strictly confining myself to a consideration of the decisions of the Bombay High Court and certain judgments of their Lordships of the Federal Court, I find that the expression 'suit for land' has been given one of the following three different meanings: (1) suit for recovery of land; (2) suit substantially relating to land; and (3) suit relating to or concerning land. The latest case inwhich the question has been considered is the 'Khandesh Mills' case to which I shall immediately turn. After referring to the latest full bench decision of our Court in --'Hatimbhai v. Framroz Dinshaw', AIR 1927 Bom 278 (A), the learned Chief Justice observed in -- 'Khandesh Mills Co. v. Moolji Jaitha & Co.', AIR 1948 Bom 272 (B) as follows (p. 273):
'....It will be noticed that to give it the first meaning would be considerably to widen the jurisdiction of this Court by excluding from its competence only a very limited kind of suits. To give it the third meaning would be unduly restricting the jurisdiction of this Court, because that meaning would be wide enough to embrace a large number of suits which are not strictly suits for land. Therefore, this Court has steered the middle course and has taken the view that a suit for land is a suit substantially relating to land.'
The learned Chief Justice at page 277 of the same report further observed:
'....the Court must in each case ascertain what is the primary object or the leading purpose of the suit. If that object or that purpose does not directly involve a question of title or right to land, then the suit is not a suit for land, and further questions which may incidentally arise relating to title to land do not necessarily make the suit a suit for land, and Courts may even give a declaration as to title to land if it becomes necessary for the purpose of effectuating the main purpose of the suit, provided, as I have said, such main purpose does not directly involve a question of title or right to land.'
Now, I may immediately point out that the main question to be decided by the appeal Court in the -- 'Khandesh Mills' case (B)' was not as to what was the meaning of the words 'suit for land' in Clause 12 of the Letters Patent, but was whether the jurisdiction conferred upon the Bombay High Court by that clause is similar to the equity jurisdiction exercised by the English Courts in connection with rights to property situated abroad, and the last mentioned observations were made in the course of the discussion of the main point that was under consideration.
11. There was an appeal to the Federal Court from the decision of the appellate Court in the --'Khandesh Mills' case (B)'. The Federal Court ultimately disposed of the appeal on a different ground and did not decide the question of what may be described as the equitable jurisdiction of this High Court within the ambit of Clause 12 of the Letters Patent. While it cannot be said that the Federal Court finally decided the question of the true meaning to be attributed to the expression 'suit for land' it would certainly appear from the separate judgments delivered in the appeal that their Lordships of the Federal Court took the view that the expression meant 'suit substantially relating to land.' The judgments in the appeal before the Federal Court appear in -- 'Moolji Jaitha and Co. v. K. S. & W. Mills Co. Ltd.', AIR 1950 PC 83 (C). Kania C. J. at p. 89 observed:
'... .It is sufficient to say that taking the suit as a whole, one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly.'
12. Patanjali Sastri J. (now Chief Justice ofIndia) observed (p. 97):
'....the words in question, besides obviously covering claims for recovery of possession or control of land, are apt to connote also suits which primarily & substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein.'
Mahajan J. observed (p. 105):
'....where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immoveable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression. In each case the Court has to determine the true nature of the suit and then to say whether the suit is in substance a suit which affects land or immovableproperty or whether it falls in the category of 'other cases'. Cases can be visualised where no dispute as to title is raised but compensation is claimed for trespass or for any wrong done to immovable property, or where a mortgagee abandons the security and claims a money decree in respect of a mortgage debt. All such cases will be outside the definition because though they may have reference to land or immovable property, no dispute as to title to such property has to be decided in them and the relief does not directly operate on the land.'
Mukherjea J. observed (p. 119):
'Having regard to the scope and object of Clause 12, Letters Patent, it seems to roe that the proper interpretation to be put upon' the words 'suits for land' would be to take them to mean a suit for establishing title to land or any interest in the same or for possession or control thereof; and the decree sought for must be intended 'proprio vigore' to be enforceable against and binding on the land itself.'
13. These passages clearly indicate that the view taken by the Bombay High Court was approved and that the Federal Court was committed to a substantially similar opinion. It also appears from the judgments of their Lordships of the Federal Court that no attempt was made to find a comprehensive definition as it was probably felt that any such definition would create further complications, it may also be observed that no judicial decision has attempted to give an exhaustive enumeration of the suits covered by the expression. A note of warning has also been sounded that in view of the fact that the illuminating pages of six out of the seven judgments in the full bench case of -- 'Hatimbhai v. Framroz Dinshaw (A)', contain opinions, which although worthy of respect, are no more than 'obiter', any temptation to add another 'obiter' should be resisted. I shall try and do so.
14. The principal question that arises' for my determination, therefore, is whether a claim for trespass by a licensor against a licensee on the ground that after the expiry of the allotted period of the grant the licensee is in unlawful occupation of the property makes the suit 'substantially a suit relating to land'; or to put it differently, can it be said that having regard to the true nature of the suit the primary object or the leading purpose of the suit directly involves a question of title or right or interest in land and the decree sought is intended 'proprio vigore' to be enforceable against and binding on the land itself.
15. The plea of want of jurisdiction in the Court raised in this suit is a plea by way of demurrer, and I have to determine the question having regard to the case as set out in the plaint and from the substantial nature of the suit. It is true that, here, no question of equity acting 'in personam' or the equitable jurisdiction of the Court within the ambit of Clause 12 of the Letters Patent arises. It is also true that I have not to allow myself to be influenced merely by the prayers or only the ostensible nature of the suit. Neither skill in drafting nor legal ingenuity can be permitted to cloud or alter the real nature of the suit. I accept the argument of learned counsel for the defendant that the mere fact that the plaint does not contain any prayer for possession or that no declaration is asked for should not determine the specific nature of the suit.
Whether a suit is a 'suit for land' cannot be decided merely by having regard to the frame of the suit. Question is not one of applying merely a formal test; regard must be had to the substance of the suit. The reliefs, however, soughtin the present suit appear to me to be quite in order. In a suit against a trespasser, and a licensee in occupation of the premises after the expiration of the period of the grant is no different than a trespasser in unlawful occupation, the proper relief to be asked for is by way of an injunction. In such a case a declaration that the defendant is in wrongful occupation may or may not be asked. It is not incumbent on the plaintiff to do so. Mr. Advani has strongly urged that the relief to be asked for in such a suit must be one 'to quit and vacate'. I do not agree. Moreover, as I have already observed, it is not the ostensible form of the suit or the nature of the relief asked for that matters. I am principally concerned with the substance of the suit. Both in form as well as in substance the suit before me is one by a person claiming to be a licensor against the licensee after the expiration of the period of the grant.
16. Now, a license is a purely personal privilege; it merely enables the licensee to do, or continue to do, in or upon the property of the grantor, something which would, in the absence of such right, be unlawful. Such a right does not confer' on the licensee any interest whatsoever in the property. It is a personal right and the grant only creates a personal relation. This being the essential nature of the right set up in the plaint and the suit being of the nature stated by me, I have no doubt that the suit is not 'substantially a suit relating to land.'
17. I should have thought these considerations sufficient to dispose of the plea as to jurisdiction; but learned counsel for the defendant has strenuously urged that he is fortified by a number of decisions and sought to reinforce his arguments by relying' on certain passages from judgments in decided cases. Reliance was also sought to be placed on a statement of Sir Dinshah Mulla in his commentary on the Civil Procedure Code, 11th Edn., p. 1393. That statement is as follows: 'A suit for damages for trespass on land is a suit for lend.' More reason for holding therefore, so Mr. Advani argues, that a suit for injunction restraining trespass on land is a suit for land. Now, there is a clear difference between the view taken by this High Court and the view of the Calcutta High Court on the meaning of the words 'suit for land' in Clause 12, and the view preferred by the learned commentator is the view of the Calcutta High Court as against that of the Bombay High Court. That being so I do not deem it necessary to discuss the statement of Sir Dinshah Mulla or the decisions of the Calcutta High Court relied on by Mr. Advani. Another decision relied on by learned counsel for the defendant was --'Vaghoji v. Camaji', 6 Bom L R 958 (D). An examination of the facts of that case clearly shows that there was in that case a dispute as 1o title to certain immovable property and as observed by Sir Lawrence Jenkins C. J. at p. 966 of the report, the leading purpose of the suit was to establish a title to possession of land to secure that possession from molestation. That decision is, therefore, clearly distinguishable.
18. Reliance was strongly placed by learned counsel for defendant on a decision of the House of Lords in -- 'British South Africa Co. v. Companhia De Mocambique', (1893) AC 602 (E), where it was held that the Supreme Court of Judicature in England has no jurisdiction to entertain an action to recover damages for a trespass to land situate abroad. It was also conceded in that case that the Court could not grant an injunction to restrain trespass on land situate abroad. Now, the Courts in England have always placed certain barriers on the exercise of its jurisdiction; onesuch barrier being that it will not entertain a suit in case of a local matter occurring outside the realm. This has given rise to the distinction between transitory and local actions, that is, between those in which the facts relied on as foundation of the plaintiff's case have no necessary connection with a particular locality and those in which there is such a connection.
Various other considerations, which I need not go into here, have weighed with Courts in England while determining the extent and scope of their jurisdiction. The test applied there is not whether the suit is one substantially relating to land. Courts in England have refused to exercise jurisdiction in all matters relating to or concerning land situate abroad, except in limited cases where on equitable principles they have invoked their jurisdiction to act 'in personam'. I am only concerned in this case with the question of determining what is the principal object or main purpose of this suit, and under the decisions already referred to by me at the beginning of my judgment am bound to apply the tests there laid down. Moreover, it would be unsafe to interpret a clause in the Letters Patent or to 'determine its application by relying on the extent and scope of the jurisdiction exercised by Courts in England.
19. In my opinion the present suit is not a suit substantially relating to land; nor is the decree sought intended 'proprio vigore' to be enforceable against and binding on the premises in suit. I, therefore, hold that this Court has jurisdiction to entertain this suit, in the result the preliminary issue must be decided against the defendant.
(Note:--After the hearing had proceeded for some time and some evidence recorded the parties compromised the suit).
20. Order accordingly.