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2003 DIGILAW 533 (CAL)

RAMKRISHNA MISSION v. PARIMAL BIKASH BISWAS

2003-10-31

GORACHAND DE

body2003
GORACHAND DE, J. ( 1 ) PARIMAL Bikash Biswas (hereinafter referred to as PBB for brevity) filed Title Suit No. 225 of 1985 before the First Court of Munsif at howrah on 22. 8. 1985 praying for declaration that he is a tenant in respect of a flat on holding No. 212 (A) G. T. Road, Belur, P. S. Bally, District - Howrah (hereinafter referred to as the suit premises), for permanent injunction restraining the defendants from disturbing and/or interfering with the possession of the plaintiff in the suit property and for other reliefs. ( 2 ) THE specific case of PBB is that he was appointed as lecturer in Ramkrishna mission Sarada Pith on 1st August, 1959. At the time of his initial appointment he was occupying another flat at 13/1, Temple Road as a monthly tenant under a private person on payment of rent of Rs. 60a. Since there was no condition of service as regards allotment of any official quarter to PBB, he hired the suit flat as a monthly tenant under Ramkrishna Mission Sarada Pith on payment of rent of Rs. 65/- and water charges of Rs. 5/- and the tenancy was started in october 1960, In March 1967 PBB was forced to sign a typed paper produced before him in which his declaration was taken to the effect that he is occupying the suit premises as a licensee and not as a tenant. PBB had no other alternative than to sign the said declaration at the instance of his employer and not on his freewill. But in spite of signing of the paper PBB went of occupying the said suit premises as a tenant on payment of usual monthly rent after enjoying all the rights, privileges and amenities as a tenant. On the question of superannuation from his service there was a dispute between the employer and PBB for which this Hon'ble Court was moved by PBB and thereby an order was obtained in his favour restraining his employer not to disturb his possession in respect of the suit premises But in spite of the order passed by the Hon'ble Court the employer threatened to oust PBB forcibly through his agents and accordingly finding no other alternative the suit was filed praying for the relief hereinabove mentioned. ( 3 ) THE plaint was subsequently amended on 20th September, 1985 by way of adding the different office bearers of Ramkrishna Mission Sarada Pith as defendants in place of Ramkrishna Mission Sarada Pith. The defendants who were the office bearers of Ramkrishna Mission Sarada Pith (hereinafter referred to as RKM for brevity) contested the suit after filing a written statement on 5th july, 1988 denying all the material allegations made in the plaint. ( 4 ) PRIOR to that the RKM filed Title Suit No. 197 of 1986 before the First court of Munsif at Howrah on 29th August, 1986 praying for eviction of PBB from the suit premises and also for mesne profits etc. mainly on the ground that PBB was brought into the suit premises as a licensee as early as in 1960, that due to mistake rent receipts were issued, that this mistake was detected towards 1967 when written undertakings from all the occupants of the flats including PBB were taken to the effect that the occupation of the flats including the suit premises was on the basis of licences granted, that in terms of the said written undertakings receipts showing the payment of licence fee with water charges were issued from March 1967, that the occupation of the suit premises had to be terminated immediately after the superannuation of PBB from the service, that in spite of such termination of the licence PBB did not vacate the suit premises for which the suit for eviction was filed for reliefs hereinabove mentioned. ( 5 ) THE case made out in the written statement filed by RKM in T. S. No. 225 of 1985 is the same as made out in their plaint in T. S. No. 197 of 1986 and accordingly the defence case of RKM in the suit of PBB is not separately analysed. Similarly the written statement of PBB in T. S. No. 197 of 1986 depicts the same fact situation as spelt in the plaint of T. S. No. 225 of 1985 and accordingly it is also not described separately. Similarly the written statement of PBB in T. S. No. 197 of 1986 depicts the same fact situation as spelt in the plaint of T. S. No. 225 of 1985 and accordingly it is also not described separately. ( 6 ) BY an order passed on 30th August, 1993 by this Court both the suits were withdrawn from the Howrah Court and transferred to this Court for trial and accordingly T. S. No. 225 of 1985 was renumbered as EOS No. 39 of 1993 and T. S. No. 197 of 1986 was renumbered as EOS No. 42 of 1993. By an order dated 20th July, 2001 both the suits were taken up for analogous hearing and accordingly issues in both the suits were framed on 24th September, 2001 which are as hereunder :- issues 1. Are the suits maintainable in the present form and frame ? 2. Is the suit of Parimal Bikash Biswas barred by limitation ? 3. Was Parimal Bikash Biswas inducted as tenant in the year 1960 in respect of the suit premises ? Is Parimal Bikash Biswas entitled to get a decree for declaration of his tenancy - right as prayed for ? 4. Was Parimal Bikash Biswas a licensee in respect of the suit premises as alleged by Ramkrishna Mission? 5. Is Ramkrishna Mission entitled to get a decree for recovery of possession from Parimal Bikash Biswas as a licensee ? 6. Is the Ramkrishna Mission entitled to get a decree for mesne profits ? ( 7 ) TO what other relief/reliefs are the parties entitled? 7. All the issues are taken up together for convenience of discussion and also for brevity. ( 8 ) AT the very outset it is to be mentioned that PBB deposed in this case for proving his case of tenancy. He also relied on certain documents which were marked as Exts. A, B, C, D and E. On the other hand one accountant was examined for proving the case of RKM. RKM also relied on certain documents which were marked as Exts. 1 to 12. So after going through the oral and documentary evidence it is to be noted that following facts are either admitted or proved in this case :1) PBB was appointed as a temporary lecturer of RKM Siksha Mandir under ramkrishna Mission Sarada Pith on 22nd June, 1959. RKM also relied on certain documents which were marked as Exts. 1 to 12. So after going through the oral and documentary evidence it is to be noted that following facts are either admitted or proved in this case :1) PBB was appointed as a temporary lecturer of RKM Siksha Mandir under ramkrishna Mission Sarada Pith on 22nd June, 1959. He was confirmed in the service after two years. 2) PBB started occupying the suit premises of RKM from the month of october, 1960 for which rent receipts were issued. 3) On 12. 02. 1967 PBB signed a typed letter addressed to the Secretary, rkm Saradapith disclosing that he was accepting the condition of occupation of the suit premises as a licensee so long he will serve the institution (Ext. 1 ). 4) From March, 1967 monthly payments were made by PBB but in place of usual rent receipts, receipts were issued indicating that licence fee with water tax being realised. 5) On 30. 06. 1985 PBB retired from his service but he filed a writ petition before this Court praying for extension of his service with a prayer not to disturb his possession in the suit premises and on 27. 06. 1987 this Court was pleased to pass an order of status quo for four weeks from the date of reopening of the institution. 6) On 22. 08. 1985 PBB filed the Title Suit No. 225 of 1985 (renumbered on transfer as EOS No. 39 of 1993 ). 7) On 23. 08. 1985 RKM issued notice to PBB directing him to hand over the vacant possession of the suit premises (Ext. 8 ). 8) RKM filed the Title Suit No. 197 of 1986 on 29. 8. 1986 (renumbered on transfer as EOS No. 42 of 1993 ). ( 9 ) AFTER perusal of the pleading of the parties as was referred to by the learned counsel for both the parties in course of their arguments it is sufficiently clear that the case of PBB is based on his claim that he was inducted as a tenant in respect of the suit premises in October. 1960 and as such, without termination or surrender of the said tenancy in 1967 the alleged licence in favour of PBB could not be created in respect of suit premises for which he was regularly paying rent. 1960 and as such, without termination or surrender of the said tenancy in 1967 the alleged licence in favour of PBB could not be created in respect of suit premises for which he was regularly paying rent. So the gist of PBB's case is that once a tenant always be a tenant and during the continuation of the tenancy he could not be evicted without due process of law. ( 10 ) ON the other hand, the case of RKM is that PBB was given the suit premises as he was in service of RKM and there was no intention to create any tenancy. But due to mistake and ignorance rent receipts were issued in respect of the flats under occupation of the employees of RKM and this mistake was detected in 1967 for which a decision was taken that the mistake is to be rectified after taking declaration from the occupants. Accordingly, such declaration was taken from all the employees of RKM including PBB and subsequently on consent of all the receipts showing licence fee were issued. ( 11 ) THIS change in nomenclature of the occupation done in 1967 was never questioned or challenged by anybody including PBB. Only on the verge of his retirement, PBB started fighting with RKM for extension of his service and also for continuation of possession in respect of the suit premises. However, he duly retired from his service, but he continued to occupy the suit premises in spite of retirement from the service and termination of his licence in respect of suit premises. Accordingly, the suit for eviction was filed against PBB. ( 12 ) FROM the submission of the learned counsel of both sides and also from the materials on record it can be said that the fate of the suits are dependant on the decision of the question as to whether a tenancy was created in 1960 or a licence was created in 1960. If it is proved that in 1960 the licence was created, pbb is required to vacate the suit premises. On the other hand, if it is proved that tenancy was created in 1960 the question would require for judicial consideration as to whether the said tenancy can be construed to be a licence on the basis of letter of declaration signed by PBB on 12. 02. 1967 (Ext. 1 ). On the other hand, if it is proved that tenancy was created in 1960 the question would require for judicial consideration as to whether the said tenancy can be construed to be a licence on the basis of letter of declaration signed by PBB on 12. 02. 1967 (Ext. 1 ). So let it be considered how far the parties have been able to prove their respective case of licence or tenancy. ( 13 ) IT is already indicated that PBB himself deposed in this case for proving his case of tenancy. On the other hand, the RKM produced their accountant mr. Samar Roychowdhury, who joined RKM Siksha Mandir College in the year 1967, as the only witness for proving the case of RKM. It is admitted by Mr. Samar Roychowdhury that he has no personal knowledge about the state of affairs prevailing in RKM before his joining the institution in February, 1967. But, in cross-examination he clarified that he ascertained many of the facts from the official documents of RKM. ( 14 ) PBB on production of the rent receipts (Ext. 'b' series) narrated how he joined RKM as a temporary lecturer on 22. 6. 1959 and was confirmed in the service after two years. He also proved that he came to the suit premises on october 1, 1960 and he started paying rent with water charges from that month and rent receipts were issued by RKM. He also clarified in cross-examination that he came to the suit premises from another tenanted flat and that the rent assessed for the suit premises was almost the same that was paid in his previous tenanted flat. It appears that there was a difference of only Rs. 5/- towards the rent and this was tried to be explained by the learned counsel for PBB that his previous tenancy was in the ground floor and the present tenancy was in the first floor. So on the basis of the evidence adduced by PBB and placing reliance on the rent receipts (Ext. 'b' series) and the circumstances a forceful argument was made on behalf of PBB that the tenancy was created in respect of the said premises with effect from 1st October, 1960. So on the basis of the evidence adduced by PBB and placing reliance on the rent receipts (Ext. 'b' series) and the circumstances a forceful argument was made on behalf of PBB that the tenancy was created in respect of the said premises with effect from 1st October, 1960. ( 15 ) THE learned counsel for PBB further tried to point out that if there was no intention to create a tenancy in respect of the suit premises PBB could not have ventured to vacate the erstwhile private tenancy for an uncertain occupation as a licensee in the suit premises. It is also pointed out that in 1960 the law of tenancy was sufficiently clear and as such PBB being satisfied that the tenancy was being created in respect of the suit premises, he left the old tenanted occupation for the new one. ( 16 ) THE learned counsel for PBB further pointed out that the only witness of rkm, Mr. Samar Roychowdhury practically had no knowledge about the state of affairs prevailing in October, 1960 and as such, he is not competent to say that a licence was created in respect of the suit premises. It is also pointed out that none from RKM having knowledge of the occupation of the suit premises of PBB from October, 1960 has come forward to disprove the creation of tenancy. Accordingly the learned counsel concluded that when the tenancy was created in October, 1960 in respect of the suit premises, PBB cannot be evicted therefrom on the ground that the said tenancy was converted into a licence in 1967. It is also contended that the conversion of a tenancy into a licence having not been proved by RKM it is not clarified as to how a tenant can be evicted from the suit premises without due service of notice under section 13 of the West Bengal premises Tenancy Act. ( 17 ) ON the other hand the learned counsel appearing on behalf of the RKM made a forceful argument pointing out the licence agreement dated 12. 2. 1967 (Ext. ( 17 ) ON the other hand the learned counsel appearing on behalf of the RKM made a forceful argument pointing out the licence agreement dated 12. 2. 1967 (Ext. 1) that PBB signed that paper knowing fully well about the contents and purport thereof and thereafter PBB went on paying the charges of occupation from March, 1967 onwards for the self-same premises and accepted the receipts from RKM in which it was specifically described that the charges were paid towards licence fee and water charge's (Ext. C series ). ( 18 ) IT is also pointed out that during the period from March, 1967 before the filing of the title suit on 22. 8. 1985 PBB never challenged the writings in Ext. 1 or the licence receipts (Ext. C series ). On the other hand, he accepted the contents of these documents including his status of a licensee from 1960 and acted on it, and as such, he is estopped from challenging the contents of these documents after a lapse of 25 years. It is also argued that the claim of coercion as regards the writing of Ext. 1 is also hopelessly barred by the law of limitation. ( 19 ) FINALLY, it is also argued that the issuance of rent receipts (Ext. B series) cannot prove the tenancy. It is argued that the intention of the parties is to be looked into in this regard specially keeping in view that RKM is a non- profiteering organisation for the service of the mankind and all the occupants in the building in which the said flat is located accepted the change of description of their occupancy as licensee in 1967. It is also pointed out that all the occupants were serving RKM in different capacities and their occupation were restricted to the period of their service. So as soon as the service of PBB was over on superannuation he was asked to vacate the premises as a licensee. But PBB opted to challenge his position before this Court in the writ jurisdiction and prayed for extension of his service as well as for an order of injunction restraining the RKM from disturbing his possession in the suit premises. But PBB opted to challenge his position before this Court in the writ jurisdiction and prayed for extension of his service as well as for an order of injunction restraining the RKM from disturbing his possession in the suit premises. However, his prayer for extension of service was turned down by this Court and consequently the order of status quo in respect of the suit premises that was in vogue for a limited period also expired. So it is argued that PBB is not competent to challenge his status as a licensee from the very beginning of his occupation since 1960 after a lapse of such a long period. Specially after the end of his service on superannuation. ( 20 ) THE learned counsel for the RKM also pointed out that since PBB has challenged the contents of the writings from 1967 including his own writings and signatures the onus heavily fall upon him to prove the facts tried to be made out in these suits. But no evidence has been adduced in this regard and the onus has not been discharged. It is also pointed out that giving up of the erstwhile private tenancy by PBB cannot ipso facto prove the acceptance of the occupation of the suit premises as a tenancy inasmuch as other comparable factors have not been proved. It is also pointed out that the fact situation prevailing at the time of occupation of the suit premises and its future after 25 years could not be thought of by PBB and he was satisfied to take the occupation of the suit premises in 1960 as it is admitted that it was close to the institution in which PBB used to teach. Other facilities of the erstwhile private tenancy and the suit premises having not been supplied or proved, it would not be possible to come to the conclusion that giving up of the erstwhile tenancy is to be construed to be strong circumstance in favour of creation of a tenancy in the suit premises. ( 21 ) IT is also argued that all the occupants of the premises of Ramkrishna mission are placed as licensees and as soon as the term of service is over, they are required to vacate the premises for accommodating the newcomers. ( 21 ) IT is also argued that all the occupants of the premises of Ramkrishna mission are placed as licensees and as soon as the term of service is over, they are required to vacate the premises for accommodating the newcomers. PBB was also aware of the situation and as such, in 1967 when Ramkrishna Mission detected the mistake that in place of licence-receipts rent-receipts were to be issued, all the occupants approved rectification of such mistake, and in fact the occupants without any protest readily helped the RKM to rectify the defect. So, it is contended that the licence was created in 1960 and such creation was ratified in 1967 and as such, after the end of the service on superannuation pbb was bound to vacate the suit premises which he was occupying as a licensee like the other occupants, who at the end of their respective service readily vacated their premises. ( 22 ) AT the close, it was also argued that PBB was not a truthful witness as can be ascertained from the evidence adduced by him before this Court, and as such, from his conduct he should not be construed to be a reliable witness. It is also pointed out that there is no direct proof of coercion for getting his signature on Ext. 1. On the other hand, the story of interference by Swami Avjajananda being a matter of fact and having not been specifically pleaded should be brushed aside. There is no indication in the plaint of PBB that at the time of signing ext. l, or the other connected papers at the time of enhancement of the licence fees, he had any occasion to counteract with Swami Avjajananda. No attempt was also made to bring Swami Avjajananda as a witness during his lifetime. However, Swami Avjajananda was not available at the time of the trial of the suit before this Court. But the fact remains that the story of assurance given by swami Avjajananda at the time of signing of Ext. 1 as regards continuation of the existing tenancy is a new one not pleaded in the plaint and as such it is argued that no reliance would be placed on the said evidence. But the fact remains that the story of assurance given by swami Avjajananda at the time of signing of Ext. 1 as regards continuation of the existing tenancy is a new one not pleaded in the plaint and as such it is argued that no reliance would be placed on the said evidence. ( 23 ) AFTER a due consideration of the submissions made on this point and keeping in mind that this important fact about the assurance of Swami avjajananda having not been pleaded, I deem it proper not to rely on the facts touching Swami Avjajananda and to proceed on the basis of other evidence adduced in this case by the parties. ( 24 ) IT is already stated above that Ext. 'b' series are the rent receipts upto february, 1967 and Ext. 'c' series are the receipts showing the payment of licence fee from 1st March, 1967. The Ext. 1 is a pre-typed letter placed before the occupants of different flats including the suit flat. In the said letter it is indicated that PBB was writing to the Secretary of Ramkrishna Mission Sarada pith pointing out that he was an employee of the Ramkrishna Mission Siksha mandir for which he was permitted to occupy the suit flat as a licensee on condition of occupation of the same so long he serves the institution. PBB duly signed the said typed letter and it was forwarded to the Secretary, Ramkrishna mission Sarada Pith by the head of the institution. Ext. 7 is a notice dated 18th january, 1978 in which all the occupants including PBB was intimated that due to phenomenal increase of monthly expenses the licence fee was required to be enhanced. PBB duly signed this notice and went on paying the enhanced licence fees for which receipts were issued. Similar notices were issued in february, 1978, October, 1979 and July, 1983 and those were duly accepted by pbb and other occupants (Ext. "7" series ). So, the Ext. 1 indicates that PBB accepted that he had been occupying the suit premises as a service holder of ramkrishna Mission Siksha Mandir and his occupation was in nature of a licensee. There is no ambiguity in the Ext. 1. Similarly, there is no ambiguity in the other notices as regards increase of licence fee (vide Ext. 7 series ). ( 25 ) IN Ext. There is no ambiguity in the Ext. 1. Similarly, there is no ambiguity in the other notices as regards increase of licence fee (vide Ext. 7 series ). ( 25 ) IN Ext. 8, which is a letter addressed to PBB on 23. 8. 85, it is indicated that PBB was occupying the suit premises as a licensee against his application dated 12. 2. 1967. Ext 12 is a copy of the Resolution No. 2 passed by the Governing body of Ramkrishna Mission Sarada Pith in its meeting held on 20th July, 1967. In that meeting a resolution was taken that licence fee would be collected from the staff quarters belonging to Ramkrishna Mission Sarada Pith and that the Secretary was authorised to give effect to the licence retrospectively with effect from 1. 3. 1967. It is argued on behalf of PBB that this resolution having been taken on 20. 7. 67 by the Ramkrishna Mission Sarada Pith in its Governing body "meeting, it is sufficient to indicate that there was no resolution of considering the occupants of the staff quarters as licensees and that for the first time a decision was taken in favour of treating the occupants as licensees with effect from 1. 3. 67. It is pointed out that no other resolution of the RKM has been produced to show or indicate that any authority was given prior to 1. 3. 67 to treat the occupants as licensees. Accordingly, it is tried to be argued that the occupation of PBB from October, 1960 cannot be construed to be the occupation of a licensee. On the other hand, the evidence adduced by PBB and the Ext. 'b' series are sufficient to prove that PBB was a tenant and not a licensee from 1. 3. 67 or from 1st October, 1960. The creation of any licence prior to 1. 3. 67 cannot be conceived of inasmuch as there was no such decision taken by the Governing Body of RKM Sarada Pith. ( 26 ) IN reply it is argued that there is nothing on record to show or indicate that any authority was there to induct tenant in respect of the suit premises. The records are sufficient to indicate that since the occupation of the flats were given to the service holders of RKM during the tenure of their services, the occupants were to be treated as licensees. The records are sufficient to indicate that since the occupation of the flats were given to the service holders of RKM during the tenure of their services, the occupants were to be treated as licensees. The Sadhus of RKM who were not experts in legal affairs erroneously issued rent receipts in the general way, though the understanding was that PBB was to occupy the same as a licensee. In fact the mistake was detected in 1967 and attempts were made to correct the same through the Ext. 1 and Ext. 12, and subsequent enhancements of licence fees were also made on the basis of different notices (Ext. 7 series ). So, it is contended that the status of PBB is to be construed as a licensee and not a tenant. ( 27 ) THE learned counsel appearing on behalf of PBB, however, repudiated this claim by pointing out that occupation of the suit flat or any other flat of rkm was not a condition precedent of employment in the institution of RKM and as such, there is nothing in the appointment letter or in the service condition authorising PBB or other occupants to occupy the suit flat as a licensee during the tenure of the service. It is also pointed out that the occupation of PBB was started in October, 1960, i. e. long after the acceptance of the service and as such, it cannot be said that the occupation of the suit flat was within the condition of service. ( 28 ) REPLYING on this point, it was argued on behalf of RKM that PBB was fully aware from the very beginning that his possession was of a licensee, and as such, he not only singed the Ext. 1 and accepted the change in the nomenclature, but also constructed his own house during the tenure' of his service. Before the expiration of his service period he prayed for extension of his service, and as, such a prayer was turned down, PBB with some ulterior motive took a new plea of tenancy for the first time and for keeping the possession of the suit premises prayed before the Writ Court for continuation of possession and started to deposit rent with the Rent Controller. The evidence on record indicates that from 1967 till the end of the service of PBB no rent was accepted but he started to deposit rent with the Rent Controller which was not only unauthorised but has no binding force in the eye of law. ( 29 ) HOWEVER, the learned counsel of both sides were in agreement with the legal proposition that intention of the parties is the main factor for deciding the nature of possession of PBB. Practically, the learned counsel appearing on behalf of PBB readily accepted the principle enunciated in the decisions reported in Booker vs. Palmer, reported in 1942 (2) All ER 674, and COBB and Anr. vs. LANE, reported in 1952 (1) All ER 1199. Intention as well as conduct of the parties are required to be taken into consideration for finding out the truth in this case. Admittedly, there was no written agreement at the entry point of pbb in the suit premises in 1960. But receipts were issued indicating that rents were collected for the occupation. It is rightly pointed out that witness competent to clarify the position of 1960 has not been examined on behalf of the RKM. So evidence on record indicates that in 1960 rent receipts were issued to PBB in respect of the suit flat. ( 30 ) BUT it is a settled principle of law that mere issuance of rent receipts cannot prove a tenancy and the learned counsel on behalf of the RKM rightly placed reliance in H. S. Rikhy and Ors. vs. New Delhi Municipality, AIR 1962 SC 554 . It was decided by the Apex Court that transfer of interest by landlord in favour of the tenant is required to be proved for the purpose of establishing the fact of creation of a tenancy. In AIR 1968 Supreme Court 933, Associated Hotels of India Ltd. vs. S. B. Sardar Ranjit Singh, the Apex Court also laid down the test of a licensee and a tenant. The learned counsel appearing on behalf of the rkm scanning the evidence on record contended that the later agreement signed by PBB proves the intention of the parties and acceptance of receipts showing payment of licence fee from 1967 to 1985 are sufficient to clarify the intention as well as the conduct of the parties. The learned counsel appearing on behalf of the rkm scanning the evidence on record contended that the later agreement signed by PBB proves the intention of the parties and acceptance of receipts showing payment of licence fee from 1967 to 1985 are sufficient to clarify the intention as well as the conduct of the parties. It is also contended that for such a long period, no objection was raised by PBB and virtually accepted the nomenclature without any protest. ( 31 ) ATTEMPT was made on behalf of PBB to show that Swami Avjajanandaji practically assured that the change of nomenclature will not affect the tenancy right. But it is already explained above that this was neither pleaded by PBB nor any evidence is adduced in corroboration of such a claim though Swami avjajanandaji was alive in 1985. So it is rightly argued by the learned counsel on behalf of the RKM relying on the celebrated judgment of the Privy Council in Atta Mohammad vs. Emperor, AIR 1930 PC 57, that no amount of evidence can be looked into upon a plea which was never put forward. The story of coercion upon PBB at the time of change of nomenclature is also not believed being unreliable. Moreover, the allegation of coercion as tried to be made out in the plaint of PBB after expiry of about 18 years is hopelessly barred by limitation. On the other hand, it is rightly argued on behalf of the RKM that PBB conciously and wilfully accepted the change of nomenclature and went on occupying the suit premises as a licensee on payment of licence fee. From such a conduct of pbb it is sufficiently clear that at the time of occupation of the suit premises, the intention of the parties, were to create a licence and not a tenancy. ( 32 ) THE learned counsel on behalf of PBB, however, contended that section 52 of the Indian Easement Act, 1882 defined a licence. So it was contended that so long the right to occupy on payment of rent in respect of the suit premises existed, there was no question of giving any further right in the form of licence for the purpose of continuance of the possession. So it was contended that so long the right to occupy on payment of rent in respect of the suit premises existed, there was no question of giving any further right in the form of licence for the purpose of continuance of the possession. But it is already clarified that the intention of the parties from the very beginning was to create a licence and not a tenancy which PBB readily accepted without any protest as early as in 1967 and as such, the agreement which was not entered into in 1960 at the time of occupation of the suit premises was actually entered in 1967. So it is not correct to say that the creation of licence in 1967 was without any consideration and was void in law. It is to be noted that if the defendant did not sign the Ext. 1 and did not agree to the proposal of the RKM as regards the change of the nomenclature, the question of consideration etc. could arise. But the ratification of a past act of 1960 in the year 1967 was sufficient to indicate the intention of the parties and as such, the principle on which the learned counsel of PBB relied upon and reported in AIR 1988 SC 1845 , Rajbir Kaur and anr. vs. S. Chokosiri and Co. , is not applicable in the facts and circumstances of the present case. The evidence on record is sufficient to indicate that PBB started occupying the suit premises as a licensee and he accepted his such status by signing the Ext. 1 and other subsequent papers in 1967. Moreover, he accepted the change without any protest, and went on paying the licence fee, including the increased licence fee, month by month. All such activities on the part of pbb are sufficient to indicate that his possession in respect of the suit premises was that of a licensee and not as a tenant. ( 33 ) THE learned counsel on behalf of PBB, however, tried to point out that without surrender or termination of the tenancy of 1960, the licence in respect of the self-same premises could not be created in 1967. It is also submitted that the Ext. ( 33 ) THE learned counsel on behalf of PBB, however, tried to point out that without surrender or termination of the tenancy of 1960, the licence in respect of the self-same premises could not be created in 1967. It is also submitted that the Ext. 1 cannot be construed as a letter of surrender and as such, the story of creation of a licence in 1967 is neither possible in law nor it is proved on the basis of evidence. But the learned counsel appearing on behalf of the RKM rightly pointed out that since the intention of the parties was to create a licence from the very inception in 1960, the question of surrender of the tenancy does not arise. It is also clarified that the Sadhus of the RKM having no legal knowledge collected occupation charges as usual, and issued rent receipts in lieu of licence fee. But subsequently the mistake was detected and rectified by issuing receipts showing collection of licence fee. By Ext. 1 such rectification was made and PBB readily accepted the change thereby consenting to the change. It is also to be noted that at the time of signing the Ext. 1 or thereafter, pbb never raised any objection. So this conduct of PBB is sufficient to indicate the intention of the parties that a licence was created in respect of the suit premises in 1960 and that factum was brought on record on the basis of Ext. 1 in 1967. ( 34 ) THE learned counsel appearing on behalf of PBB, however, tried to point out that only in 1967 the Board of RKM took the decision that the occupants of the flats were to be treated as a licensee and in fact, the receipt showing collection of licence fee was started from 1. 3. 1967. So prior to that the Board never took any decision in favour of creating a licence in 1960. But this point is also clarified by the learned counsel appearing on behalf of the RKM pointing out that the mistake created in 1960 was detected in 1967 and then and there, the Board took the decision to rectify the mistake. In fact, by such an action of the Board, the intention of the parties was not changed as can be ascertained from the ext. 1 and the subsequent conduct of the parties. In fact, by such an action of the Board, the intention of the parties was not changed as can be ascertained from the ext. 1 and the subsequent conduct of the parties. It is rightly argued by the learned counsel of both sides that the intention of the parties is the main factor. The Apex Court in Rajbir Kaur and Anr. (supra) also clarified the situation and observed that there is no single simple litmus test to distinguish lease from the licence. But in the last analysis turns on the operative intention of the parties. The Ext. 1 and the conduct of PBB till 1985 are sufficient to indicate the intention of the parties and as such, it is established in this case beyond any reasonable doubt that PBB started occupying the quarter of the RKM as a licensee in 1960 and not as a tenant, and as such, the question of surrender of the tenancy for converting it into a licence in 1967 does not arise. ( 35 ) THE subsequent action of PBB further clarifies the position. He prayed for protection of his occupation in respect of the suit premises after filing a writ petition when the Board of RKM denied to extend the service of PBB. The evidence adduced by PBB, along with his demeanour as noted by this Court, indicate that he tried to suppress many of the facts for which his veracity can be doubted as is rightly argued by the learned counsel appearing on behalf of the RKM. Be that as it may, it is established on the basis of evidence that only in 1985, PBB, for the first time, took up the plea of tenancy and filed the Title suit on 22. 8. 1985 praying for declaration of his tenancy right in respect of the suit premises. This action was taken as soon as he was required to vacate the suit premises on superannuation from the service of RKM. The circumstances tried to be explained by the learned counsel appearing on behalf of PBB are not at all convincing. A question was raised as to why PBB would accept the occupation of the suit premises as a licensee after leaving his rented flat, if the entry in the suit premises was not construed to be a tenancy. The circumstances tried to be explained by the learned counsel appearing on behalf of PBB are not at all convincing. A question was raised as to why PBB would accept the occupation of the suit premises as a licensee after leaving his rented flat, if the entry in the suit premises was not construed to be a tenancy. But the answer is available in the evidence adduced that the suit premises was very close to the institution in which PBB was delivering lectures as an employee of the RKM. It is also on the evidence that during the service period PBB constructed his own house, so the fact of vacating the previous tenancy for the occupation of a licence cannot prove any case of tenancy. It is also clarified by the learned counsel on behalf of the RKM that RKM was not a profit making institution and as such, creation of tenancy for the purpose of profit making is to be ruled out. It is also clarified analysing the evidence on record that all the occupants of the flats under the control of the RKM were mere licensees and as soon as the service period was over they voluntarily left those premises. The only exception is PBB who on the basis of an unreliable story of internal arrangements tried to set up a case of tenancy in respect of the suit premises. It is already discussed that such an attempt actually failed being not specifically pleaded and not convincingly proved. The evidence on record and circumstances explained in this case conclusively establish that PBB was a mere licensee, and not a tenant, in respect of the suit premises. ( 36 ) IN view of the above discussion, PBB is not entitled to get a decree for declaration as prayed for. The claim as raised by PBB is hopelessly barred by limitation and as such, the present suit is not maintainable in the present form and frame. He is not entitled to get any relief in his suit. On the other hand, the rkm having proved the licence in respect of the suit premises is entitled to get a decree for recovery of possession of the suit premises from PBB. The suit of rkm is also maintainable in its present form and frame. The RKM is also entitled to get a decree for mesne profits, and full costs of their suit. The suit of rkm is also maintainable in its present form and frame. The RKM is also entitled to get a decree for mesne profits, and full costs of their suit. The above issues are decided accordingly. ( 37 ) COURT-FEES paid in both the suits are sufficient. It is, accordingly, ordered that No. EOS No. 42 of 1993 (TS No. 197/1986) be and the same is decreed on contest with cost. The plaintiffs in the suit do get a decree for recovery of possession in respect of the suit premises from Parimal Bikash Biswas. Parimal bikash Biswas is directed to vacate the suit premises within three months from this date, failing which these plaintiffs shall be at liberty to put the decree into execution for recovery of possession. ( 38 ) THESE plaintiffs also do get a decree for mesne profits from the date of filing of this suit from 29th August, 1986 till the recovery of possession. The quantum of such mesne profits will be ascertained in an inquiry under Order 20 Rule 12 of the Code of Civil Procedure. For the present the plaintiffs do get a decree for mesne profits for the amount for which Court-fees has been paid in this suit and the balance amount of mesne profits shall be payable to the plaintiffs on payment of additional Court-fees. ( 39 ) THE EOS No. 39 of 1993 (TS No. 225/1985) is hereby dismissed on contest, but without cost since cost is awarded in EOS No. 42 of 1993. ( 40 ) THIS judgment do govern the fate of both the suits. Decrees in both the suits be drawn up expeditiously. ( 41 ) AFTER delivering of judgment the learned counsel appearing on behalf of the Parimal Bikash Biswas prays for stay of operation of the judgment. The learned counsel appearing on behalf of the Ramkrishna Mission, however, opposes the prayer. Since three months time has been given to Sri Parimal bikash Biswas for vacating the suit premises from this day, the prayer for stay is rejected. EOS 42/93 decreed with cost. EOS 39/93 dismissed.