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2015 DIGILAW 264 (CAL)

Prasanta Sett v. Alo Mookerjee

2015-03-19

NISHITA MHATRE, R.K.BAG

body2015
JUDGMENT :- R.K. Bag, J. 1. This appeal is at the instance of the defendant in a suit for declaration, eviction of licensee, recovery of possession and recovery of arrears of licence fees and is directed against the judgment and decree dated 30th July, 2005 passed by Learned Judge, 6th Bench, City Civil Court at Calcutta in Title Suit No.535 of 2003, by which Learned Judge of the Court below decreed the suit. 2. The brief facts of the case made out by the respondents as plaintiffs of the suit is that the predecessor-in-interest of the plaintiffs, one Rash Behari Mookerjee since deceased was the absolute owner of premises no.33/B, Nanda Mullick Lane, Kolkata-700006 (hereinafter referred to as suit premises). Rash Behari Mookerjee inducted the appellant/defendant as licensee in the suit premises on execution of a deed of agreement on 27.07.1998. The defendant was permitted to occupy and use the suit premises for 120 months commencing from 01.08.1998 for business purpose, subject to payment of licence fees @ Rs.2,200/- per month on condition that the said licence fees would be enhanced @ 10% after completion of 60 months from the date of induction of the defendant as licensee in the suit premises. The defendant paid the licence fees till the month of April, 2000, but failed to pay the licence fees for use and occupation of the suit premises from the month of May, 2000, in spite of repeated request and reminders by the plaintiffs. The plaintiffs sent advocate’s letter dated 17th February, 2003 to the defendant calling upon him to make payment of arrears of licence fees along with interest, but the defendant refused to receive the said letter sent by registered post with AD. The defendant started negotiating with the brokers of the locality for parting with the possession of the suit premises in favour of the third party and started shifting the materials kept by the defendant in the suit premises for the purpose of business. According to the plaintiffs, the licence of the defendant stood terminated as the defendant stopped making payment of rent for use and occupation of the suit premises from the month of May, 2000. The plaintiffs, therefore, instituted the suit for declaration, eviction of the defendant as licensee, recovery of possession of the suit premises and recovery of arrears of licence fees along with interest accrued thereon and other consequential reliefs. 3. The plaintiffs, therefore, instituted the suit for declaration, eviction of the defendant as licensee, recovery of possession of the suit premises and recovery of arrears of licence fees along with interest accrued thereon and other consequential reliefs. 3. The appellant being the defendant of the suit contested the suit by filing written statement whereby the defendant denied and disputed the material allegations made in the plaint. The specific case made out by the defendant in the pleading is that the defendant was inducted in the suit premises by the predecessor-in-interest of the plaintiffs as tenants on execution of deed of agreement dated 27.07.1998. The defendant paid the rent of the suit premises to the plaintiffs regularly up to the month of May, 2000. Thereafter, the plaintiffs refused to accept the rent of the suit premises from the defendant against proper rent receipt and as such the defendant stopped paying rent from the month of June, 2000. The defendant has claimed his right in the suit premises as tenant under the plaintiffs at a monthly rental of Rs.2,200/-, and the agreement executed between the parties on 27.07.1998 is virtually agreement of tenancy. 4. The Trial Court decreed the suit on contest and granted decree of eviction of the defendant from the suit premises as licensee. The defendant was also directed to make payment of arrears of licence fees along with interest to the tune of Rs.1,18,105/- from the month of May, 2000 to February, 2003. The defendant was also directed to make payment of damage for use and occupation of the suit premises from the date of filing of the suit till the date of delivery of possession @ Rs.2,200/- per month along with interest. The said judgment and decree is challenged by the defendant/appellant in the instant appeal. 5. Mr. Jiban Ratan Chatterjee, Learned Senior Counsel appearing on behalf of the appellant contends that the intention of the predecessor-in-interest of the respondents and the appellant was to create a tenancy in the suit premises, though they have been described as licensor and licensee in the deed of agreement dated 27.07.1998. Mr. Chatterjee has pointed out from the deed of agreement dated 27.07.1998 that the terms “licensor” and “licensee” used in the agreement included their heirs, executors and legal representatives and thereby the intention of the parties was to create an interest of the appellant in the suit premises in perpetuity. Mr. Chatterjee has pointed out from the deed of agreement dated 27.07.1998 that the terms “licensor” and “licensee” used in the agreement included their heirs, executors and legal representatives and thereby the intention of the parties was to create an interest of the appellant in the suit premises in perpetuity. Mr. Chatterjee has also pointed out that the period of licence was 120 months and the appellant was permitted to use and occupy the suit premises for business purpose. Mr. Chatterjee submits that the appellant was granted permission to make construction on the suit premises and to arrange for his own electric connection and water connection. The specific contention of Mr. Chatterjee is that the appellant was given exclusive possession of the entire suit premises for long period of time for the purpose of business and thereby the intention of the parties was to create tenancy of the appellant in the suit premises under the predecessor-in-interest of the respondents, particularly when permission was granted by the predecessor-in-interest of the respondents to make construction in the suit premises and arrange for electricity and water connection by the appellant. Mr. Chattejee has relied on Single Bench decision of our High Court in the case of “M/s. Naanee Printers and others V. Shri Achintya Kumar Saha and others” reported in 1998 (4) ICC 512, which was affirmed by the Supreme Court in the case of “Achintya Kumar Saha V. Naanee Printers and others” reported in (2004) 12 SCC 368 in support of his above contention. 6. Ms. Sabita (Mukherjee) Roy Chowdhury, Learned Counsel appearing on behalf of the respondents contends that the deed of agreement between the predecessor-in-interest of the respondents and the appellant on 27.07.1998 is for leave and licence and not for creating tenancy. Ms. Roy Chowdhury has pointed out from the deed of agreement that the right of superintendence of the suit premises is vested exclusively in the licensor i.e. the predecessor-in-interest of the respondents. Ms. Roy Chowdhury has also pointed out from the deed of agreement that both parties specifically agreed that the appellant would never claim right of tenancy in the suit premises and that he would remain all along as mere licensee. Ms. Ms. Roy Chowdhury has also pointed out from the deed of agreement that both parties specifically agreed that the appellant would never claim right of tenancy in the suit premises and that he would remain all along as mere licensee. Ms. Roy Chowdhury has referred to the said agreement and submits that the predecessor-in-interest of the respondents handed over the suit premises to the appellant along with the structure thereon and as such the claim of the appellant about construction of the building is contrary to facts. Ms. Roy Chowdhury further submits that the appellant agreed to vacate the possession of the suit premises in favour of the respondents on expiry of the period of licence i.e. after 120 months from the date of execution of the deed of agreement. Ms. Roy Chowdhury has urged this Court to consider that the period of validity of the licence was till July, 2008, but the respondents had to institute the suit for eviction of the appellant from the suit premises and for recovery of arrear licence fees and damages, as the appellant failed to make payment of licence fees after April, 2000. Ms. Roy Chowdhury has relied on Single Bench decision of our High Court in the case of “Tarak Nath Manna V. Nityananda Saha” reported in AIR 2013 Cal 181 and the decision of the Supreme Court in the case of “C. M. Benna and another V. P. N. Ramachandra Rao” reported in (2004) 3 SCC 595 in support of her contention that the deed of agreement was executed for creating leave and licence and not for creating tenancy. 7. In “M/s. Naanee Printers and others V. Shri Achintya Kumar Saha and others” reported in 1998(4) ICC 512 the Hon’ble Single Judge held the agreement between the defendant no.1 and the defendant nos.2 and 3 as agreement of tenancy though the language used by the parties was of licence. In the said case the defendant no.1 who entered into the agreement with the defendant nos. 2 and 3 in respect of the premises in question had acquired life interest in the suit premises without any right of alienation of her life interest on the basis of will executed by the husband of the defendant no.1. In the said case the defendant no.1 who entered into the agreement with the defendant nos. 2 and 3 in respect of the premises in question had acquired life interest in the suit premises without any right of alienation of her life interest on the basis of will executed by the husband of the defendant no.1. The son of the defendant no.1 who would have acquired title in the said premises after death of the defendant no.1 as per terms of the will sold out the said premises to the plaintiff who instituted the suit for eviction of the defendant nos.1, 2 and 3 after declaration that the possession of those defendants in the suit premises is unauthorised. The decision of Hon’ble Single Judge in this case was affirmed by the Supreme Court in the case of “Achintya Kumar Saha V. Naanee Printers and others” reported in (2004) 12 SCC 368 . The facts of this case as discussed above are clearly distinguishable from the facts of the present case where the predecessor-in-interest of the respondents entered into an agreement with the appellant and the respondents instituted the suit for eviction of the appellant as licensee for violation of the terms of the deed of licence before expiry of the period of licence. Accordingly the ratio of the decision reported in 1998(4) ICC 512 and the decision reported in (2004) 12 SCC 368 will not be applicable in the facts of the present case. 8. The proposition of law laid down by the Hon’ble Single Judge in Paragraph 14 of the case of “Tarak Nath Manna V. Nityananda Saha” is as follows: “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.” 9. The criteria for deciding the agreement between the parties as licence or tenancy are laid down by the Supreme Court in Paragraphs 8 and 9 in the case of “C.M. Beena and another V. P.N. Ramachandra Rao” reported in (2004) 3 SCC 595 , which are as follows: 8) “The crucial issue for determination is as to whether there is a lease or licence existing between the parties. Though a deed of licence may have been executed it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it as outwardly styled as a deed of licence to act as a camouflage on the rent control legislation. “Lease” is defined in Section 105 of the Transfer of Property Act, 1882 while “licence” is defined in Section 52 of the Indian Easements Act, 1882. Generally speaking, the difference between a “lease” and “licence” is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful…………... 9) A few principles are well settled. User of the terms like “lease” or “licence”, “lessor” or “licensor”, “rent” or “license fee” is not by itself decisive of the nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intention.” 10. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intention.” 10. With the above proposition of law laid down by the Apex Court, we have to decipher the intention of the parties from the terms of the deed of agreement dated 27.07.1998 and other surrounding circumstances for deciding the moot point whether the said agreement is an agreement of licence or an agreement of tenancy. There is no dispute that the predecessor-in-interest of the respondents entered into an agreement with the appellant on 27.07.1998 for the purpose of inducting the appellant in the suit premises with effect from 1st August, 1998. It is also not disputed that the appellant agreed to make payment of Rs.2,200/- per month to the predecessor-in-interest of the respondents for use and occupation of the suit premises from the month of August, 1998 for a period of 120 months for the purpose of carrying out the business. 11. On close scrutiny of the terms of the deed of agreement dated 27.07.1998 (Exhibit no.1) we find that there was a structure on the suit premises when the appellant was inducted in the suit premises by the predecessor-in-interest of the respondents. It appears from the evidence on record that the appellant took electric connection and water connection in the suit premises for which permission was granted in the deed of agreement. The appellant was also granted permission in the deed of agreement to make alteration of the internal structure for his convenience without causing any damage to the suit premises and thereby the appellant constructed the boundary wall and one shed for use and occupation of the suit premises. The contention made on behalf of the appellant that the appellant made construction of the building in the suit premises for exclusive use and occupation of the suit premises is not substantiated from the evidence on record. The terms of deed of agreement point out that the ownership and the right of superintendence of the suit premises is vested in the predecessor-in-interest of the respondents. By the terms of agreement the appellant is prohibited from assigning his interest as licensee in the suit premises in favour of any third party. The terms of deed of agreement point out that the ownership and the right of superintendence of the suit premises is vested in the predecessor-in-interest of the respondents. By the terms of agreement the appellant is prohibited from assigning his interest as licensee in the suit premises in favour of any third party. By the terms of agreement the appellant had agreed to vacate and deliver up peaceful possession of the suit premises in favour of the predecessor-in-interest of the respondents on completion of the period of licence i.e. after 120 months from the date of execution of the deed of agreement. Moreover, the parties had agreed that the appellant would not claim any right of tenancy in the suit premises and that the status of the appellant would always remain as licensee in the suit premises. Apart from the above intrinsic evidence reflected in the terms of the deed of agreement, we have to look into the surrounding circumstances like institution of the suit by the respondents before expiry of the period of deed of agreement for non-payment of licence fees by the appellant after the month of April, 2000. The cross-examination of the appellant/defendant before the trial court reveals that the appellant could not make payment of licence fees from the month of May, 2000 due to precarious financial condition after closure of his business. Thus, the terms of deed of agreement dated 27.07.1998 and other surrounding circumstances unerringly point out that predecessor-in-interest of the respondents had no intention to create any interest of the appellant in the suit premises as tenant. The intention of the parties was only to create a right of the appellant for use of the suit premises for carrying out the business, while the predecessor-in-interest of the respondents retained the right of ownership and supervision over the suit premises and thereby only a licence was created in favour of the appellant. The intention of the parties was only to create a right of the appellant for use of the suit premises for carrying out the business, while the predecessor-in-interest of the respondents retained the right of ownership and supervision over the suit premises and thereby only a licence was created in favour of the appellant. By applying the proposition of law laid down by the Supreme Court in the case of “C.M. Beena and another V. P N. Ramachandra Rao” reported in (2004) 3 SCC 595 in the facts of the present case as pointed out hereinabove, we have no hesitation to hold that the intention of the predecessor-in-interest of the respondents and the appellant was to create an agreement of leave and licence for use and occupation of the suit premises by the appellant for the fixed tenure. Since the appellant failed to make payment of licence fees to the respondents after April, 2000, the licence of the appellant was duly terminated and the appellant is liable to be evicted from the suit premises as held by learned court below. In view of our above findings we cannot persuade ourselves to interfere in the judgment and decree passed by Learned Court below. The appeal is, thus, dismissed. The judgment and decree passed by Learned Judge of the Court below in Title Suit No.535 of 2003 is hereby affirmed. Let a copy of this judgment and order be sent down to the Learned Court below along with lower court records for favour of information.