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2004 DIGILAW 4 (KER)

Mammu v. Gopalan

2004-01-06

P.R.RAMAN

body2004
1. The defendant in a suit for recovery of possession of the plaint schedule property in O.S. No. 83/98 of Munsiff Court, Nadapuram is the appellant. The Trial Court decreed the suit and confirmed in appeal by the appellate court, against which the appeal is preferred. Since the respondent filed a caveat, both sides were heard at the time of admission and disposed of the matter. 2. The plaint schedule is a shop room in a building which originally" belonged to one Kunhikanaran, which was taken on lease by the plaintiff and he was conducting a hotel business there. While so, he entrusted the shop room and the plaint B schedule movables to the defendant as per licence agreement dated 2.3.1995. Thereafter the defendant was conducting the hotel business in the plaint A schedule property as the licensee under the plaintiff. Licence Fee was fixed at Rs.150/- per day. From 1.11.1997 the defendant defaulted in payment of the licence fee. The period of licence was over by February, 1997. The plaintiff demanded surrender of plaint A and B schedule property with arrears of licence fee. It was denied by the defendant. Whereupon, the suit was filed for recovery of possession of plaint A and 5 schedule property with arrears of licence fee. 3. The defendant contended that he is neither a tenant nor a licensee under the plaintiff. He also denied the execution of the agreement dated 2.3.1996. According to him, there is no stipulation to pay Rs. 150/- by way of licence fee to the plaintiff. He set up a tenancy right over plaint A and B schedule property under the landlord Kunhikanaran. He also contended that the building is situated in an area where the Buildings (Lease & Rent Control) Act applies. He denied the possession of the plaintiff over plaint A and B schedule property. According to him, the property belonged to one Kunhikanaran, a close relative of the plaintiff. Since Kunhikanaran is a Government employee, the licence was taken in the name of the plaintiff for running the hotel. According to him, the plaint schedule building and the movables were entrusted directly to the defendant in the year 1972 on a rent of Rs. 4.50 per day and since then the defendant was doing the business in the building as a tenant under Kunhikanaran. According to him, the plaint schedule building and the movables were entrusted directly to the defendant in the year 1972 on a rent of Rs. 4.50 per day and since then the defendant was doing the business in the building as a tenant under Kunhikanaran. There was a subsequent enhancement of rent under the mediation of one Moosakutly Haji and an agreement was written and executed on 7.1.1979. The said agreement was executed between the plaintiff and the defendant, since Kunhi Kanaran was a Government servant. According to him, the suit is bad for non joinder of the necessary parties and prayed for dismissal of the suit. 4. PWs 1 to 3 and Exhibits Al to A56 were marked on the side of the plaintiff. DW 1 and Exhibits Bl to B24 were marked on the side of the defendant and Exhibit X1 was marked as a third party document. The Trial Court, after appreciating both oral and documentary evidence, found that the defendant was a licensee under the plaintiff and decreed the suit as prayed for. The appellate court also after reappreciating the entire evidence, came to the same conclusion. 5. The appellate court raised the question as to whether the defendant was a licensee under the plaintiff and in respect of plaint A schedule shop room? After referring to the agreement Exhibit Al and the oral testimony of DW 1, came to the conclusion that he is only a licensee. The appellate court also found that Exhibits Al and A2 were admitted by the defendant. Thus, the induction of the defendant to the plaint schedule property was admittedly done as per Exhibits A1 and A2. Exhibit A1 is a document incited as a licence issued by the plaintiff in favour of the defendant. Though, on the expiry of the licence period, further renewal of the licence was given by Exhibits A3 to A6, this was denied by the defendant. In this regard, the oral testimony of DW 1 specifically admit the fact that he was put in possession of the plaint schedule property as per the agreement executed in the years 1978 and 1979 and that he is bound by the terms contained in those agreements. Therefore, the finding that the defendant had admitted that he was holding the building under Exhibits Al and A2 by the Trial Court is perfectly correct. 6. Therefore, the finding that the defendant had admitted that he was holding the building under Exhibits Al and A2 by the Trial Court is perfectly correct. 6. The appellate court also found that the hotel business was being run under the licence issued to the plaintiff and no separate licence was taken by the defendant and that the defendant also denied the knowledge as to whether any Panchayat licence was obtained for carrying on the business? The business was carried on as per the licence issued in favour of the plaintiff and the court below was right in holding that there is no illegality or irregularity, in the decree passed by the Trial Court and there was no ground to interfere with the case. 7. The learned counsel for the appellant, however, contended that the plaintiff can succeed in the suit only if he establishes title over the plaint schedule property. According to him, Exhibit X1 is an unregistered lease based on which the plaintiff cannot claim any title and as such he cannot seek recovery of possession merely based on the weakness of the defendant's case. In this connection, it has to be noticed that, admittedly, entrustment of the shop room in question for running the hotel business was by virtue of the licence issued in favour of the defendant as evidenced by Exhibits A1 and A2. Though the defendant had contended that he was a lessee under the original owner KunhiKanaran, no evidence was adduced in support of the same. So long as the defendant had failed to establish any independent right over the property in question either as a lessee or under any other right under the original owner of the property and on facts, when it is admitted by the defendant that he was only claiming right under Exhibits A1 and A2, he is estopped from raising a contention disputing" the title of the plaintiff, who had permitted him to carry on the business as a licensee. In K.S.M. Guruswami Nadar v. N.G. Ranganathan ( AIR 1954 Mad. 402 ) a Division Bench of the Madras High Court considered the principle of estoppel under S.116 of the Evidence Act and its application in similar situations. It was held that the estoppel under S.116 is restricted to the denial of the title at the commencement of the tenancy. In K.S.M. Guruswami Nadar v. N.G. Ranganathan ( AIR 1954 Mad. 402 ) a Division Bench of the Madras High Court considered the principle of estoppel under S.116 of the Evidence Act and its application in similar situations. It was held that the estoppel under S.116 is restricted to the denial of the title at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder. It was also held that there was a distinction between suits based upon tenancy and suits based upon title. If the suit is based upon tenancy alone the question of title cannot be gone into in such an action and the estoppel operates. The tenant cannot defeat the title of the landlord by showing that since the beginning of the tenancy he had voluntarily acquired title of the property. But, the position is totally different where the suit is based upon title. 8. It was also held following the decision in AIR 1937 Preview Council 251 that the scope of application of the Principle of estoppel under S.116 of the Evidence Act and observed that it does not deal or profess to deal with all kinds of estoppels, which may arise between a landlord and his tenant. It was held: "that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor any one claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property." The basis of the estoppel is the contract. If for example, a tenant obtains a lease for a period of 21 years but subsequently finds that the landlord had only five years' title, it is not open to him after the expiry of the period of five years to set up against the landlord 'jus tertil'. This principle was accepted by the Madras High Court in the aforesaid decision. 9. This principle was accepted by the Madras High Court in the aforesaid decision. 9. From the above principles, it could be seen that the appellant after admitting that he was inducted into the property under Exhibits A1 and A2, he is estopped from raising the contention disputing the plaintiff's right over the property as a lessee. In this case, the plaintiff has instituted the suit claiming himself to be a lessee under the original landlord and he has not claimed any paramount title over the property. In Anthony v. K.C.Itoop & Sons 2000 (6) SCC 394 ) the apex court had occasion to consider as to whether a tenancy inducted based on an unregistered lease deed would continue as a lessee and whether the landlord could seek recovery of the possession of the property contending that it was based on an unregistered lease and therefore, it cannot create any valid lease? In that context, it was held that the lease deed relied on in that case was intended to be operative for a period of five years. It was an unregistered instrument. It could not create a lease on account of the inhibiting provisions of S.107 of the Transfer of Property At and S.17(1) and 49 of the Registration Act. Therefore, so far as the instrument of lease is concerned, there was no scope for holding that the appellant therein was a lessee by virtue of the said instrument. But, it was further held that the above said finding does not exhaust the scope of the issue whether the appellant was a lessee of the building. A lease of immovable property is defined in S.105 of the TP Act, A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. Such a transfer can be made expressly or by implication. Once , there is such a transfer or tight to enjoy the property, a lease stands created. Thus, when a lease is a transfer of right to enjoy the property and such transfer can be made expressly or by implication, an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such a deed. Thus, when a lease is a transfer of right to enjoy the property and such transfer can be made expressly or by implication, an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such a deed. Ultimately, it was held that since the appellant was inducted into possession of the building by the owner thereof and was paying monthly rent or had agreed to pay rent in respect of the building, the legal character of the appellant's possession has to be attributed to a jural relationship between the parties. Such a relationship cannot be placed anything different from that of lessor and lessee failing within the purview of the second para of S.107 of the TP Act. 10. In this case, according to the defendant, the area is covered as per the notification issued under the Buildings (Lease & Rent Control) Act. If that be so, there is an additional factor that even after the expiry of the lease deed, the original lessee would be a statutory tenant under the said Act. Any way, it is not necessary for this Court to determine such an issue. For the limited purpose of the case, it is suffice to say that when Exhibits A1 and A2 are intrustments, evidencing the arrangement between the parties on a licence, the defendant is estopped from raising a contention disputing the right or title of the plaintiff, under whom alone, as rightly found by the Trial Court, he was continuing with the arrangement. In such circumstances, I do not find any Substantial question of law in this case. The findings entered by the Trial Court are confirmed and the appeal is dismissed. The learned counsel appearing for the appellant, however, sought indulgence from this Court to grant him at least six months' time to give vacant possession of the premises and has agreed to pay the arrears of licence fee as per the decree of the Trial Court and confirmed by the appellate court within a period of one month from today. The learned counsel appearing for the respondent however submitted that this Court may not be inclined to grant any such lengthy period for vacating the premises. The learned counsel appearing for the respondent however submitted that this Court may not be inclined to grant any such lengthy period for vacating the premises. Considering the submissions, I direct that in case the appellant files an undertaking before the Execution Court to give vacant possession of plaint A schedule property and return the movables mentioned in plaint B schedule within a period of three months and also pays the arrears of licence fee as decreed by the Trial Court within a period of one month and continues to pay the licence fee until the premises is vacated, the execution proceedings will stand deferred by a period of three months. Such an undertaking shall be filed by the appellant before the Execution Court within a period of two weeks from today. In default or compliance of any of the aforesaid conditions, it will be open to the respondent herein to proceed with the execution without waiting for the lapse of three months period as directed above.