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2001 DIGILAW 476 (CAL)

Susama Paul v. Manick Shaw

2001-08-03

JOYTOSH BANERJEE

body2001
JUDGMENT Joytosh Banerjee, J. 1. The present second appeal arises out of an appellate decree passed by Assistant District Judge, Sealdah through his judgment dated 19.2.97 in Title Appeal No. 7/95, through which the learned appellate court below, allowed the appeal, set aside the judgment and decree passed by the Munsif, 3rd Court, Sealdah in T.S.619/84 and ultimately passed a decree for eviction against the defendant/respondent from the suit premises. 2. The respondent/plaintiffs filed the suit before the trial court against the defendant/appellant alleging, inter alia, that during the life-time of the predecessor-in-interest of the plaintiff/respondents, late Pran Krishna Paul, the defendant was allowed to use and occupy the suit shop room at a monthly licence fee of Rs. 70/- payable according to English calender month and an agreement was entered into on 31.5.78 for the aforesaid purpose. It was stipulated in the agreement that the defendant/tenant would quit and vacate the suit shop room only on 7 days verbal notice. It was further alleged that on 20.4.80, the said Pran Krishna Paul permitted the defendant to instal a fresh electric meter in his own name (name of the defendant) by a written agreement. It is further alleged that on 5th October, 1982 the said Pran Krishna Paul revoked the licence but on request of the defendant he allowed the defendant to continue to occupy the suit shop room. It is further alleged on 6th of October, 1982 there was a second agreement. Then on 24th of February, 1984, the said Pran Krishna Paul died and thereby the said leave and licence came to an end. After the death of the said Pran Krishna Paul his legal heirs who are the plaintiffs of the suit did not grant any further licence to the defendant and when inspite if the aforesaid revocation of the licence and the notice to quit the defendant /tenant failed to vacate, they were constrained to file the suit. The defendant contested the suit on a written statement denying that he was a mere licensee. The defendant contested the suit on a written statement denying that he was a mere licensee. On the basis of the pleadings, the trial court raised certain issues including the issue touching the question whether the defendant was a mere licensee or a tenant and in his judgment, the said court indicated that he carefully scrutinised the materials on record to find that the defendant was given exclusive possession of the suit property and there was nothing to show that the plaintiffs landlord retained legal possession of the same, and ultimately came to a finding that the defendant was not a licensee but a tenant and thereafter dismissed the suit. In appeal the learned appellate court reversed the judgment of dismissal and indicated in the judgment impugned that relying on Exts.2 and 3 together with other documents like counter foils of the rent receipts, intention of the predecessor-in-interest of the appellants was clear that he intended to create a licence and not a tenancy. Ultimately relying on those documents together with the surrounding circumstances involved came to a finding that the respondent was a licensce and was not a tenant. On the basis of the same, set aside the judgment and decree of the trial court and decreed the suit. 3. At the time of admission of the appeal, a Division Bench of this court merely indicated that appeal would be heard without formulating the substantial question of law. In this back-ground, before hearing the appeal, after going through the judgments of the courts below and the Memo of Appeal and also after hearing the learned counsel for the appellant I take the following question as the substantial question of law involved in this appeal: Whether the document. Ext.2 created a lease of licence in favour of the defendant/appellant. 4. The learned Advocate for the respondent has submitted that in view of the specific provisions contained in section 100 in clauses (3) and (4), the present appeal is not maintainable since the order of admission has failed to indicate that this court is satisfied, that the present appeal involves a substantial question of law. Furthermore as required under sub-section (3), the Memo of Appeal has failed to state precisely the substantial question of law involved in the appeal. Furthermore as required under sub-section (3), the Memo of Appeal has failed to state precisely the substantial question of law involved in the appeal. In support of his contention to this effect, the learned Advocate has relied on a decision of the Apex Court in Ram Kumar Agarwal & Anr. vs. Thawar Das (Dead) Through LRs., reported in (1999) 7 SCC 303 . The learned counsel has specially referred the relevant portion from paragraph 7 of the Apex Court judgment, which runs as follows: "In our opinion, the judgement of the High Court suffers from serious infirmities. It also suffers from the vice of exercise of such jurisdiction as did not vest in the High Court under the law, under section 100 CPC (as amended in 1976) the jurisdiction of the High Court to interfere with the judgment of the courts below is confined to hearing on substantial questions of law. Interference with the findings of fact by the High Court is not warranted if it involves re-appreciation of evidence. The High Court did not frame any substantial question of law as contemplated by sub-section (5) of section 100 CPC. It has not even discussed any evidence. No basic finding of fact recorded by the courts below has been reversed much less any reason assigned for taking a view to the contrary still the finding on the question of readiness and willingness to perform the contract which is a mixed question of law and fact has been upset." But after carefully going through the decision of the Hon'ble Court I do not find anything from there which can indicate that if at the time of admission, the High Court failed to formulate the substantial question of law involved in the appeal, the appellant will be out of court and such admission order will be in effect void. The Hon'ble Court as seen from above, indicated that the second appeal should be heard on the basis of the substantial question raised by the court and in such second appeal, the High Court can not and should not re-appreciate the evidence and should not reverse the judgment of the courts below without reversing the basic findings of such courts and without discussion of the evidence. In the instant appeal before proceeding with the same, I have already formulated the substantial question of law which touches the question of the interpretation of a particular document, namely, Ext.2. 5. It transpires that the learned Munsif after examining Ext. 2 found that the document was defective since it did not bear the signature of the landlord. But inspite of that, taking into consideration that the defendant was put in exclusive possession of the suit shop room wherein he had been carrying on business for a long time, the learned trial court came to a conclusion that the status of the defendant was that of a tenant. In other words, the plaintiff granted lease in favour of the defendant and not a licence as alleged by the plaintiff. The appellate court considered Ext.2 dated 1.6.78 and found that the agreement in such document clearly indicated that the defendant/respondent before him was a licensee, with a licence fee of Rs.75/- per month. For coming to such a conclusion, the learned Judge of the appellate court gave stress on clause 6 of Ext.2, which contained an agreement and undertaking on behalf of the licensee to quit and deliver the khas possession of the suit room to the owner/first party, if such owner in future required the same for any addition, alteration or re-building or for his own occupation. Through the Memo of Appeal the defendant/appellant contended that the learned Judge of the court of appeal below after construction of the document Ext. 2 should have held that there had been a grant of lease in favour of the defendant/appellant. So both parties have relied on the document Ext.2 and in deciding the question at issue, the same should be considered. 6. On carefully going through Ext. 2 I find that through such agreement, the first party, namely, the defendant/appellant agreed that he would not transfer the suit room to any other person in future, he would not instal any machinery or would not start any factory in the suit room, he would not start any partnership business in such suit room and finally he would vacate the suit room if the landlord wanted to re-build the house by demolishing the suit shop room. Coupled with these terms in the agreement, it is an admitted position that the defendant/appellant was given an exclusive possession over the suit room and he was even allowed to take the electric meter in his own name. The question therefore is whether in these facts and circumstances, the agreement evidenced by Ext.2 should be taken on its face value as a licence or the court would come to a conclusion about the status of the defendant/appellant on consideration of the entire facts and circumstances. In the Associated Hotels of India vs. R.N. Kapoor, (1960) 1 SCR 383: AIR 1959 SC 1262 . The Hon'ble Apex Court has indicated the distinction between a lease and a licence in the following words: "There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest of land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets the right to the exclusion of the lessor." In the case of B.M. Lal vs. Dunlop Rubber & Co. Ltd., reported in (1968)1 SCR 23 , 27: AIR 1968 SC 175 . The Hon'ble Court described the distinction between the two concepts in the following manner : "A lease.... is the transfer of a right to enjoy the premises; whereas a licence is privilege to do something on the premises which otherwise would be unlawful.... The transaction is lease, if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land." In the case of Smt. Rajbir Kaur & Anr. vs. M/s. S. Chokesiri & Co., reported in (1989) 1 SCC 19 , the question before the Hon'ble Apex Court was whether the tenant sublet a portion of his tenancy or not. When the plaintiff made such an allegation, the defence plea was that the person in possession was a mere licensee. vs. M/s. S. Chokesiri & Co., reported in (1989) 1 SCC 19 , the question before the Hon'ble Apex Court was whether the tenant sublet a portion of his tenancy or not. When the plaintiff made such an allegation, the defence plea was that the person in possession was a mere licensee. In that reported case, the Apex Court noted the aforesaid decisions of the court to bring out the distinction between the two concepts, namely, lease and licence. In that reported case, the observation of the Hon'ble Court in the case of Mrs. M. N. Clubwala vs. Fida Hussain Saheb, AIR 1965 SC 610 : (1964) 6 SCR 642 , 652 was quoted and such observation for the purpose of deciding the only question here, is relevant. It runs as follows: "Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement." The Division Bench of our High Court in the case of Shyam Sundar Ganeriwail & Etc. vs. Delta International Ltd. & Anr. With approval quoted an earlier observation of a Division Bench of this court, which pointed out in what way, the court should decide the question whether there was a tenancy or licence granted in favour of a party through the following observation : "Exclusive possession of a property would prima facie constitute a tenancy subject of course to the intention of the parties which has to be gathered not only from reading the contentions of the agreement as a whole, the circumstances attending thereto but also the conduct of the parties. From the decisions referred to here in before it would appear that even the conduct of the parties contrary to the term of the agreement has been taken into consideration for the purpose of arriving at the real intention of the parties." It is to be noted here that the learned Judges of the Division Bench at that time considered the decision of Smt. Rajbir Kaur vs. S. Chokesiri & Co. (supra), Vallabh Das vs. Madanlal, reported in AIR 1970 SC 987 , Roop Chand vs. Gopi Chand, reported in AIR 1989 SC 1416 . 7. (supra), Vallabh Das vs. Madanlal, reported in AIR 1970 SC 987 , Roop Chand vs. Gopi Chand, reported in AIR 1989 SC 1416 . 7. In the instant case, it is to be pointed out that besides the terms of agreement, in Ext.2 of which I have already mentioned in this judgment and which undoubtedly indicate favourably with the assertion of the defendant/appellant that a lease was actually created in favour of him through the document in question Ext.2, which further goes to show that the defendant/appellant intended to occupy the suit room for the purpose of running a shop. There was a consideration at the rate of Rs.75/- per month for the occupation of such room. Through para-5 of the agreement Ext.2, it was specifically mentioned that the defendant/appellant would not transfer the suit room to anybody. All these would indicate, a conduct of the parties which is contrary to the concept of licence. 8. Thus considering the terms of agreement, and the relevant surrounding circumstances I find that through the agreement in question actually a tenancy was created and such intention of the parties is evident from the terms of the agreement Ext.2 and the circumstances of which I have mentioned. 9. In the result, the present appeal must be allowed. Accordingly, the appeal is allowed. Judgment and decree passed by the learned appellate court are hereby set aside. The Judgment and decree passed by the learned Munsif are restored. In view of the facts and circumstances of the case, I make no order as to cost. Appeal allowed.