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2002 DIGILAW 184 (JHR)

B. P. Agarwalla & Sons Limited v. Vidya Devi

2002-02-14

VIKRAMADITYA PRASAD

body2002
Order This appeal is directed against the' order dated 19.12.2001 passed in Title Suit No. 11 of 2001, by Sub-Judge-I, Khunti, whereby the learned Sub-Judge refused the prayer made under Order 39, Rules 1 and 2 of the Code of Civil Procedure. 2. Plaintiff-appellant had filed the aforesaid suit for a declaration that the plaintiff is a month to month tenant of the disputed premises and also for restraining the respondent-defendant permanently from dispossessing or creating any hindrance in order to dispossess the plaintiff-appellant from the suit land. 3. Shortly stated the case of the plaintiff is that he had obtained a licence from the Chief Controller (Explosive) Government of India for transportation, distribution and storage of the explosive and he had taken four Magazines from the defendant-respondent at the rental of Rs. 2000/- each, per month; out of them three Magazines were taken with effect from 1.11.1980 to 31.10.1985 for five years on lease (Patta). Thereafter, the period of the said leases expired and subsequently the same was renewed for 5 years and thereafter again it was renewed for 10 years, which expired on 31.10.2001. The 4th Magazine was taken for 5 years on 1.2.1989 at rental of Rs. 2000/- per month, which also expired on 1.2.1993 that lease was extended for further five years and that also lapsed on 1 .2.1999 then after expiry of the lease in order to dispossess the plaintiff-appellant from those Magazines, the defendant-respondent are creating problem by making trench, ploughing etc. on the way which reaches to the Magazines. Besides that the plaintiff-appellant was also being threatened by the defendant through criminals. The further case of the plaintiff-appellant is that defendant knew that the deed of lease was not registered and, therefore, in the eyes of law it was not admissible as a deed of lease. Yet for the purpose of record the month to month tenancy between plaintiff and defendant was given in form of lease and the lease period was to be extended, though, in fact, it was not a deed of lease, rather it was an agreement of the tenancy between the parties. The plaintiff-appellant further stated that he had been paying the rent regularly month to month and even after the filing of the suit and he has tendered the rent through cheque and the defendant has got it encashed. The plaintiff-appellant further stated that he had been paying the rent regularly month to month and even after the filing of the suit and he has tendered the rent through cheque and the defendant has got it encashed. The floor of the house of Magazine is a pucca, which is used for storage of the Magazine and, therefore, it falls within the definition of building and, therefore, the provisions of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 will apply and, therefore only under section 11 of the said Act the defendant can evict the plaintiff and not before that. 4. The defendant-respondent had appeared and admitted that all the four Magazines were of the defendant, but all those were given to the appellant-plaintiff for a fixed period of rent. It is also admitted that the period of the agreement expired and, thereafter, there has been no renewal. It was further stated that as per one 6f the terms of the agreement, the plaintiff had to obtain a licence and to use that licence only for the storage and distribution of the explosive and the premises will not be used for any other purpose. 7. It was further stated that the licence in favour of the plaintiff had not been renewed rather a proceeding has been initiated by the Chief Controller of Explosive, Govt. of India for cancelling the licence. Therefore, the prayer for temporary injunction should not be grantee. It was also denied by the defendant that the plaintiff was a month to month tenant. 8. The learned Court below found that there was no prima-facie case in favour of the plaintiff. The learned Court below further found that all the documents were unregistered and in the first agreement with regard to three Magazines, the plaintiff has been declared as licensee and the defendant as licensor. Subsequently, after the expiry of that when extention of the period was done in those documents the plaintiff was declared a tenant and the defendant as land-lady. Similarly in the case of 4th Magazine when the agreement was entered into the plaintiff was said to be the tenant and the defendant was said to be the land-lady. 9. Subsequently, after the expiry of that when extention of the period was done in those documents the plaintiff was declared a tenant and the defendant as land-lady. Similarly in the case of 4th Magazine when the agreement was entered into the plaintiff was said to be the tenant and the defendant was said to be the land-lady. 9. The learned Court below also gave a finding that the Chief Controller of Explosive also took those documents i.e., the deed of agreement as lease and has communicated to the plaintiff that as the lease deed expired and thereafter, the plaintiff had not given any information to the Controller of Explosive and as he was informed by the defendant that the lease had expired and its period had not been extended, therefore, on the disputed Magazines, the storage of the explosive and distribution thereof would not be in the safety of the people. Consequently, he directed the appellant-plaintiff to return the licence. 10. The learned Court below came tc a finding that though under section 107 01 the Transfer of Property Act, a lease for a period of more than one year has to be compulsorily registered but in the instan1 case the unregistered agreement for 2C years, the defendant gave the possession of Magazines to the plaintiff and on the basis Chief Controller of Explosive also construed that document for 20 years as c document of lease and on that basis licence was granted to the plaintiff. The learned court below further came to c finding that now in the aforesaid situation the plaintiff cannot be allowed to dispute the existence of the lease in his own interest on the ground that the defendant respondent knew from very beginning that an unregistered document cannot be admissible in law and it was created for the purpose of record and the' plaintiff is the month to month tenant of the defendant. On this basis the learned court below came to finding that the plaintiff-appellant has no prima facie case. 11. The learned Court below further found that the land in dispute was to be exclusively used for the purpose of storage etc. On this basis the learned court below came to finding that the plaintiff-appellant has no prima facie case. 11. The learned Court below further found that the land in dispute was to be exclusively used for the purpose of storage etc. of the explosive and for being that premises used for this purpose there is need of licence under the provisions of Explosive Substance Act, 1983, and as the proceeding for cancelling the licence, because of lapse of the period of lease for which the Magazines were given in the occupancy of the plaintiff is going on and as the plaintiff had not produced any licence, which would make it clear that till when the licence was valid. So, in absence of any licence if the permission to use that Magazine was allowed, then it will be against the interest of public safety and consequently the balance of convenience does not lie in favour of the plaintiff. The third ground with regard to the irreparable loss, the learned court below concluded that since now the plaintiff has no licence to do business in explosive, in such a situation he is not going to suffer any irreparable loss. 12. The learned trial Court has considered the question of prima facie case and has come to a finding that there is no prima facie. The main ground of such a finding is that the deed of lease was unregistered deed and, therefore the same is not admissible in evidence. 13. In paragraph 8 (supra), the existence of various documents have been discussed and it has been found that in the first document the words used are Licensee and Licensor to establish the relationship between the plaintiff and defendant in the suit. Subsequently, in subsequent document, the words tenant and land-lady was used to establish the relationship between the plaintiff and defendant. There was no document meant as lease of deed but it is also a fact that none of the documents were registered document, though occupancy was created for a period of more than one year in favour of the plaintiff, but it is not at all disputed that the plaintiff was/is not in exclusive possession of the suit land. Therefore, the intentions of the parties are to be gathered from the entire circumstances and the establishment of the relationship between them has to be determined on those circumstances. Therefore, the intentions of the parties are to be gathered from the entire circumstances and the establishment of the relationship between them has to be determined on those circumstances. The person, who are in possession of a property under unregistered lease deed, are not tres-passers but merely a tenant and a lessor is entitled to recover rent from them. If a person relying on an unregistered patta is admitted in possession, he is entitled to refer to unregistered patta for the purpose of explaining that yet there was his possession as a tenant. Thus, total interpretation will lead to a conclusion that there was a relationship of land-lord and tenant between the parties. 14. The learned counsel for the appellant relying on a decision reported in A.I.R. 1924 Privy Council 144, argued that even a licensee cannot be evicted from a premises in a way other than prescribed by law. This case, which was referred to and relied upon deals with co-sharers of the property. In this case there is nothing like co-sharer. So in my view that decision does not apply in this case. Even a tenant whose tenancy lapsed is therefore, threatened with dispossession by the land lord then a tenant will be• entitled to bring a suit against the attempts of dispossession by means other than prescribed by law. From this angle it appears that the plaintiff appellant has got a prima facie case. 15. The learned counsel for the respondent relied on a decision reported in A.I.A. 1999 Orissa 49, in which it has been held that if the existence of prima facie case, factors of irreparable loss and balance of convenience in favour of defendant then the interlocutory injunction cannot be granted. The learned counsel for the respondent also relied on a decision reported in A.I.R. 1991 Patna 273 and submitted that the question of interference by the appellate Court into such matters as is the subject matter of this judgment is not justified. 16. From finding of the Court below it is clear that the licence of the plaintiff appellant has been suspended and he has been asked to return the licence. 16. From finding of the Court below it is clear that the licence of the plaintiff appellant has been suspended and he has been asked to return the licence. In that circumstance, the plaintiff-appellant is not going to sustain any irreparable loss and the balance of convenience consequently is not against him because in absence of any licence granted by the Chief Controller of Explosive, Government of India, he cannot store the explosive or can deal with it. If he deals in absence of such a licence then it will be prejudicial for the safety of the people. Thus, on these two scores, tile finding of the learned trial Court cannot be disturbed. 17. Consequently, there is no merit in this Miscellaneous Appeal, which is, accordingly, dismissed.