1. This is a suit by landlady filed under somewhat unusual circumstances against a person who is in occupation of Room No. 2 on the second floor. The landlady was, at all material times, in possession of the flats on the fourth and fifth floors of Gopal House situated at Kumbhar-wada Crass Lane, as also a room on the second floor thereof and she occupied them with her son one Gopalji.
In May 1951 the plaintiff went out of Bombay, leaving Gopalji in occupation of the premises. She says that when she returned in July 1951, she found Room No 2 on the second floor occupied by the defendant in this suit and the fourth and fifth floors occupied by the defendant in Suit No. 137 of 1952. These persons claim to be tenants of the premises respectively by them. They paid rent to the said Gopalji and rely on the rent receipts given by him.
The plaintiff's case is that her son Gopalji had no authority to let out the premises to any one and therefore the defendants in this case as well as in Suit No. 137 of 1952 are trespassers. One would have expected that with these averments the plaintiff would pray for a decree for possession, but instead the prayers in the plaint are a declaration that the defendant is not entitled to reside in the Room No. 2 on the second floor and for a mandatory injunction directing the defendant to remove himself from the said premises.
As the prayer for an injunction falls within Section 7(iv)(c), Court-fees Act, the plaintiff has valued the claim in suit at above Rs. 25,000/- so as to give Jurisdiction to this Court. The rent of these premises does not exceed Rs. 30/- per month, and it is common ground that if this is not a suit for an injunction, but a suit for possession, this Court will have no Jurisdiction to try the suit.
2. Now, in my judgment in Suit No. 1875 of 1948 dated 10-2-1949 I held :
'The plaintiffs cannot by merely so drafting their prayers as to exclude or include reliefs which can or cannot be granted by a Court, confer on the Court jurisdiction to try the suit. It is necessary to consider what the cause of action in the plaint is and what is the substantive relief which the plaintiffs would be entitled to if they succeed in the suit, in order to determine whether the Court has jurisdiction, irrespective of what prayers the draftsman has thought fit to put in the plaint.'
I have therefore to look at the plaint to discover what is the true nature of the suit. It is obvious that upon the averments in the plaint, the defendant is in possession and since it is alleged that he is a trespasser, obviously the appropriate prayer is a prayer for possession and that is the relief to which the plaintiff would be entitled, if she succeeds.
There can be little doubt that the ingenuity of the draftsman of the plaint has been utilised in an attempt to give this Court jurisdiction by exclu-ding such a prayer which is the proper prayer and by including a prayer for injunction. No precedent from any of the recognised text books on pleadings has been produced that in a suit of this nature, the proper relief to be prayed for is not a prayer for possession, but prayer for a mandatory injunction. This is not all.
In the case of -- 'Burjor Pestonji v. Nariman Minoo', : AIR1953Bom382 , a Division Bench of this Court has held that if the plaintiffis in possession, then alone he can sue for an injunction restraining some one from interfering With his possession by way of trespass or otherwise. The learned Chief Justice at page 383 observed:
'It is obvious that it is only a party in possession that can claim the relief of injunction. If a party is not in possession, then the only relief he can claim is the relief of possession'.
And it is admitted in the present case by the plaintiff that she is not in possession and therefore the only relief she could claim is the relief of possession and not of injunction. I have therefore no hesitation in holding that this suit is a suit for possession, notwithstanding the fact that the learned draftsman of the plaint has thought fit not to include a prayer for possession and has included a prayer for mandatory injunction requiring the defendant to remove himself from the premises. It is common ground that this is a suit for possession, the suit is not within the jurisdiction of this Court.
3. On behalf of the plaintiff, reliance has been placed upon a judgment of my learned brother Desai J., in -- 'Bai Shirinbai v. Narayandas' : AIR1954Bom38 . The learned Judge was dealing with a suit filed against the licensee on the ground that after the expiry of the license the licensee was in unlawful occupation. The prayer in the suit was for an injunction restraining trespass on the property of the plaintiff, and the question that the learned Judge was called upon Co determine was whether this was a suit for land.
In the course of the arguments, it was urged that although only a prayer for an injunction has been put in, it was substantially a suit for possession of land outside jurisdiction arid therefore it being a suit for land, the Court has had no jurisdiction to entertain it. The learned Judge negatived this contention although the learned Judge accepted the argument of learned counsel for the defendant that the mere fact that the plaint did not contain any prayer for possession or that an injunction was asked for, should not determine the specific nature of the suit.
The learned Judge held that the relief sought in that particular case was quite in order. Mr. Vimadalal for the plaintiff urges that this case stands exactly on the same footing as the present case and the prayer for injunction is the appropriate prayer; but I must read the judgment of my learned brother in the context of the fact of that case.
In the first instance quite obviously the plaintiff in that suit could not possibly sue for possession of land outside jurisdiction in this Court, and if the defendant was within jurisdiction he would equally sue the defendant for any personal order against him. Moreover, and this to me appears to be the real ratio of the decision of my learned brother, the Learned Judge held that a license was a purely personal privilege which enabled the licensee to remain on the property and did not confer on the licensee any interest in the property and since the licence created a personal relation, the right that accrues to the owner of the land after the cessation of the personal relation is a personal right against the licensee and not any right relating to the property.
Therefore, in my opinion, the learned Judge decided that the prayer for injunction was quite in order in the contest of the fact of that case. It is not a decision that a normal suit for possession can be converted at the will of the draftsman of the plaint, into a suit for injunction by asking for a mandatory injunction requiring the defendant to remove himself from the premises instead of inserting a prayer for possession. I see there- fore nothing in the judgment of my learned brother which is contrary to the view that I have taken.
4. The result therefore is that in my opinion this Court has no jurisdiction to entertain the suit. The suit will therefore be dismissed with costs.
5. Suit dismissed.