Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 62 (CAL)

Tarak Nath Manna v. Nityananda Saha

2013-02-05

TARUN KUMAR GUPTA

body2013
JUDGMENT TARUN KUMAR GUPTA, J. The defendant is the appellant against this judgment of affirmation. The respondent as the plaintiff filed a suit being Title Suit No.214 of 1994 praying for eviction of the defendant being a licensee from the suit premises. The plaintiff’s case, in short, is that he was the trustee to the Estate of Durga Rani Saha in respect of premises No.19/H/1, Dum Dum Road, P.S. Chitpur, Calcutta – 30 (suit property) and that after demise of Durga Rani Saha he became the sole trustee of said Estate. Under repeated request of the defendant, the plaintiff permitted the defendant to occupy the suit premises as a licensee with effect from 1st May, 1992 of payment of Rs.700/- (Rupees seven hundred only) per month as licence fee and Rs.400/- (Rupees four hundred only) per month as maintenance charges. A formal agreement of licence was executed between the parties in presence of witnesses. Though as per terms of said agreement the licence expired on 30th April, 1993 but plaintiff permitted the defendant to occupy the same for three months under same terms and conditions as per request of the defendant. As defendant did not vacate the suit premises even expiry of said extended period of three months plaintiff revoked the licence and also sent a notice to quit dated 22nd March, 1994 under Registered Post as well as Under Certificate of Posting. In spite of sending of those notices defendant did not vacate the suit premises and hence was the suit. The appellant/defendant contested the suit by filing a written statement denying material allegations of the plaint and contending, inter alia, that defendant was inducted in the suit premises by the plaintiff as a tenant with effect from 1st May, 1993. It is further case that at the request of the plaintiff the defendant put his signature on the formal deed of agreement which was couched as a document of licence. The defendant also paid Rs.10,000/- (Rupees ten thousand only) to the plaintiff as security deposit on account of said tenancy. The plaintiff sent monthly electric bill to the defendant in the covered envelope addressing the defendant as a tenant. The plaintiff received monthly rent for few months but thereafter refused to accept the same and the defendant was compelled to deposit the same in the office of the Rent Controller, Calcutta. The plaintiff sent monthly electric bill to the defendant in the covered envelope addressing the defendant as a tenant. The plaintiff received monthly rent for few months but thereafter refused to accept the same and the defendant was compelled to deposit the same in the office of the Rent Controller, Calcutta. The defendant being a tenant is governed by the provisions of West Bengal Premises Tenancy Act, 1956 and the present suit for eviction of a licensee is liable to be dismissed. Learned Trial Court framed several issues and decreed the suit for eviction treating the defendant a licensee and not a tenant in respect of the suit premises. The appeal being Title Appeal No.22 of 2006 preferred by the defendant, was also dismissed by the impugned judgment and decree after contested hearing. At the time of admission of this second appeal the following substantial questions of law were formulated:- (a) Whether the learned Court below committed substantial error of law in treating Exhibit 4 containing the terms and conditions of the alleged licence as a document creating licence by totally overlooking the fact that the parties were not relations, that exclusive possession of self-contained flat was handed over to the appellant, that there was provision for increase of occupational charge at the rate of 5% at the end of every year, that the electric charge was liable to be paid by the appellant and that maintenance, repairing, whitewashing etc. are all required to be done by the appellant, which indicated that the agreement was really one for a tenancy; (b) Whether the learned Courts below committed substantial error of law in holding that the relation between the parties was that of licensor and licensee by not following the well-accepted tests, which are required to be applied in ascertaining the real intention of the parties; Mr. Koushik Dey, learned advocate for the appellant /defendant, submits that evidence on record clearly shows that the appellant / defendant –tenant was in exclusive possession of the suit premises and was also enjoying electricity therein from an electric meter taken by him in his own name. He further submits that the defendant was neither any relation nor any known person to the plaintiff. He further submits that as per terms of the agreement (Ext.4), it came out that there were clauses for renewal, enhancement of fees etc. He further submits that the defendant was neither any relation nor any known person to the plaintiff. He further submits that as per terms of the agreement (Ext.4), it came out that there were clauses for renewal, enhancement of fees etc. to show clearly that it was indeed an agreement of tenancy in the garb of an agreement of licence. In this connection, he submits that learned courts below were influenced by the nomenclature of the agreement (Ext.4) and did not apply correct legal test to ascertain the true nature of said agreement. In support of his contention, he refers a case law reported in (2004) 12 SCC, 368 (Achintya Kumar Saha vs. Nanee Printers and others) to impress upon this Court that the intentions of the parties and not the nomenclature of the document should be considered to ascertain the correct nature of the document. Mr. Bidyut Banerjee, learned advocate for the plaintiff / respondent, on the other hand, submits that the agreement (Ext.4) clearly reveals that the defendant was granted leave and licence to occupy the suit premises on payment of fees and that actual control of the same remained with the plaintiff –licensor. He further submits that the defendant being a highly educated person executed the agreement (Ext.4) in presence of a witness after knowing its contents. According to Mr. Banerjee, the defendant is now practically estopped to claim any title better than that of a licensee in the suit premises. Mr. Banerjee next submits that whether a person is a tenant or licensee in a premises is a question of fact. According to him both the courts came to a concurrent finding of fact on that issue on the basis of materials on record and that this Court while hearing a second appeal should not interfere with the same. In this connection, he refers case laws reported in AIR 1963 Supreme Court, 361 (Shri Raja Durga Singh of Solon vs. Tholu and others) and AIR 1959 Supreme Court, 57 (Deity Pattabhiramaswamy vs. S. Hanymayya and others). Mr. Banerjee further submits that mere exclusive possession of the suit premises by itself does not show the creation of a tenancy in the suit premises. In this connection, he refers a case law reported in AIR 1965 Supreme Court, 610 (Mrs. M. N. Clubwala & another vs. Fida Hossain Saheb & others). Mr. Banerjee further submits that mere exclusive possession of the suit premises by itself does not show the creation of a tenancy in the suit premises. In this connection, he refers a case law reported in AIR 1965 Supreme Court, 610 (Mrs. M. N. Clubwala & another vs. Fida Hossain Saheb & others). He next submits that defendant failed to produce any document to show that any tenancy was created in his favour in the suit premises either on the strength of the agreement (Ext.4) or on the strength of any other document. According to Mr. Banerjee, learned Rent Controller also refused to accept rent from the defendant in respect of the suit premises as the defendant failed to establish his alleged tenancy right in the suit premises and that the defendant did not take any step to move any higher forum against said decision of the learned Rent Controller. According to Mr. Banerjee, learned courts below came to the concurrent findings of fact on the basis of entire evidence on record and the prevailing circumstances. As such, he submits, this Court of second appeal should not interfere with the same and the instant second appeal should be dismissed with cost. The admitted position of the case as it appears from the submission of learned counsels of the parties as well as from materials on record may be summarized as follows:- (1) The appellant came into possession of the suit property on 1st of May, 1992. (2) An agreement for leave and licence under certain terms and conditions was executed between the parties on 12th May, 1992 having effect from 1st of May, 1992. (3) The defendant appellant was in exclusive possession of the suit premises though as per terms of the agreement plaintiff respondent kept legal possession of the same with him. (4) The plaintiff respondent did not enter the suit premises after giving possession to the defendant appellant though a right to that effect was kept reserved in the document. (5) The defendant appellant was consuming electricity in the suit premises through an exclusive electric meter on payment of electric charges. (6) The defendant appellant is a highly qualified person and entered into the agreement after knowing its contents. (7) There was no relation between the parties. (8) There was provision of enhancement of licence fee in the agreement. (5) The defendant appellant was consuming electricity in the suit premises through an exclusive electric meter on payment of electric charges. (6) The defendant appellant is a highly qualified person and entered into the agreement after knowing its contents. (7) There was no relation between the parties. (8) There was provision of enhancement of licence fee in the agreement. (9) There was a bar in the agreement for assigning sub-letting or granting further licence by the licensor. There is no denial that the finding as to status of the defendant appellant in the suit premises is a finding of fact. Admittedly, both the courts came to a concurrent finding of fact that the status of the defendant appellant in the suit premises was that of a licensee and not of a tenant. At the time of hearing of a second appeal there is hardly any scope of interfering with any finding of fact made concurrently by the Courts below, however, gross the error may be. But it is now settled law that if concurrent findings of fact were based on no evidence, or were based on extraneous matters, or were based on misinterpretation of settled principles of law then the Court of second appeal can interfere to said finding of fact treating the same as perverse, by invoking Section 100 of the Code of Civil Procedure. Admittedly, the defendant appellant’s possession of the suit premises is governed by the terms of the agreement dated 12.05.1995 (Ext.4). Said agreement on plain reading creates only a licence in favour of the defendant appellant. However, it is now settled law of the land that whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor or licensee has to be decided from the intention of the parties. This intention has to be ascertained on consideration of the relevant provisions of the agreement and other circumstances. Though exclusive possession by itself is not a ground for treating the possession of the person in possession as that of a tenant, the Court should consider all the relevant circumstances of the case. In terms of Section 92 of the Indian Evidence Act the terms of a written agreement cannot be varied by oral evidence unless the exceptions mentioned therein are fulfilled. In terms of Section 92 of the Indian Evidence Act the terms of a written agreement cannot be varied by oral evidence unless the exceptions mentioned therein are fulfilled. But in spite of said legal dictum the Hon’ble Apex Court held in various cases that when a document of licence is executed between landlord and an occupier, the Court should not be influenced by the nomenclature of the document and should ascertain the actual status of the occupier from the overall circumstances of the case as there was a tendency on the part of the landlords to create tenancy in the garb of granting of licence. Before entering into the merit of the case and deciding the true nature of the agreement (Ext.4) it will be worthy to note the background under which the Hon’ble Apex Court made said observations as stated above. Since after independence there was a trend of urbanization. People flocked to the cities and towns in search of job and callings. The demand of houses including residential houses increased many-fold. There was shortage of houses and there was a boom in the business of letting of houses. With passage of time the demand increased and at the same time the gulf in between demand and supply widened. On the basis of simple economic theory of demand and supply letting of houses became a very profitable business. The landlords had upper hand in the matter of letting out houses to the tenants. In order to protect the tenants from arbitrary eviction by the landlords the rent laws were enacted. After enactment of rent laws landlords are not in a position to evict a tenant from his house as per his whim. Now, he can evict a tenant only on fulfilling the conditions mentioned in the rent laws. After coming into operation of those rent laws landlords often grant a tenancy in the garb of a licence to avoid the regours of the rent laws. The person in need of an occupation has no option but to agree to the proposal of landlord of taking occupation under a licence agreement though in effect he will be a tenant in the premises. The person in need of the accommodation has little choice as he will not be provided with accommodation if he does not agree to be a party to a document of licence. The person in need of the accommodation has little choice as he will not be provided with accommodation if he does not agree to be a party to a document of licence. In Achintya Kumar Saha’s case (supra) as referred by learned counsel for the defendant appellant the person was in need of accommodation and hence he had to sign the agreement of licence though in reality he was a tenant in that premises. But aforesaid case law has no application in the facts of this case. In this case the defendant came into possession of the suit premises on 1st of May, 1995. The agreement with retrospective effect from 1st of May, 1995 was executed only on 12th of May, 1992. As such, at the time of the execution of said agreement (Ext.4) the defendant appellant was not under any threat of not being provided with accommodation if he did not execute said agreement (Ext.4). It also came out that the defendant appellant is a highly educated person and that he executed said agreement dated 12.05.1992 (Ext.4) after knowing its contents. A person cannot be permitted to back out from an agreement which he executed knowing its contents and having no threat of not to be provided with the accommodation if said agreement was not executed by him. It also came out that the defendant tenant approached Rent Controller to accept rent claiming his occupation in the suit premises as that of a tenant but the Rent Controller in absence of any document of tenancy refused to accept rent and he did not move to any higher forum against said order of refusal of Rent Controller. It is true that the defendant appellant was found to possess said residential flat exclusively by enjoying electricity but this by itself along with other circumstances as pointed out by the learned counsel for the defendant appellant cannot negate the clear terms of licence agreement which was voluntarily executed by the defendant after knowing its contents and after coming into possession of the suit premises. It is true that there was perhaps scope of treating the possession of the defendant/appellant in the suit premises as that of a tenant from the surrounding circumstances by treating the agreement (Ext.4) as an agreement of tenancy in the garb of licence provided said agreement was executed prior to handing over possession of the suit premises to the defendant/appellant. In view of the discussions as made above, I am of the opinion that the concurrent findings of fact of learned Courts below that the agreement (Ext.4) between the parties was an agreement of licence being based on evidence and peculiar circumstances of the case, does not call for any interference by this Court of second appeal. As a result, this appeal is hereby dismissed on contest. However, I pass no order as to costs. Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.