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2017 DIGILAW 1 (GUJ)

Kantaben v. Sarojben Jashubhai Patel

2017-01-05

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present First Appeal is filed by the Appellant/Original Plaintiff being aggrieved with the impugned judgment and order in Civil Suit No. 5440 of 1985 by the City Civil and Sessions Court, Ahmedabad dated 31.3.1992 dismissing the suit filed by the Plaintiff on the grounds stated in the memo of Appeal inter alia that the court below has misread and misinterpreted the agreement dated 1.4.1972. The court below has erred in holding that it has no jurisdiction to try and decide the suit except Issue No. 1 that the deceased Dhirajben was a licensee or not. The court below has misread the agreement dated 1.4.1972 and also erred in ignoring Clause Nos. 1 and 4 reading without other clauses to arrive at the conclusion that the agreement is not a rent note or license. The court below having observed that Ambalal Maneklal Parikh had expired in 1978 and fresh agreement of leave and license at Exh. 82 was executed between the deceased husband of the Plaintiff and the deceased mother of the Defendant, has erred in coming to the conclusion that the relationship between the parties was that of tenant and not that of licensee. The court below has also erred in holding that whatever may be the exception and intention which may be gathered from the documents, unless it is reflected in the conduct of the parties, in actual practice, such intention expressed on papers would lose all the meaning and and convert the so-called agreement of leave and license into lease. 2. Heard learned Advocate Shri Amar N. Bhat for the Appellant. Though served, as the Respondents/Original Defendants were not served, the efforts were made for substituted service, and thereafter, as the places were not found in view of the report of the Bailiff, they were served by public notice. Learned Advocate Shri Bhatt referred to the issues and submitted that Clause No. 4 of the agreement and the issue about the lease or license was required to be examined in light of the other issues as well as the two documents Exh. 62 and Exh. 82. Learned Advocate Shri Bhatt referred to the agreement and submitted that Clause 4 and 24 of the agreement clearly suggest that it was an agreement for leave and license. 62 and Exh. 82. Learned Advocate Shri Bhatt referred to the agreement and submitted that Clause 4 and 24 of the agreement clearly suggest that it was an agreement for leave and license. He pointedly referred to Clause 4 and 24 of the agreement which reads as follows: "4. That by this Agreement no exclusive possession of the premises is given to the Licensee and that this Agreement does not create any tenancy rights or any other rights, interest or relationship excepting that of Licensor and Licensee. 24. On the expiry of the period of this Licence, the Licensee may be given preference in case of the renewal of the licence to use the said premises or part thereof for any further period on such terms and conditions that would be laid down by the Licensor." 3. Learned Advocate Shri Bhatt referred to the background of the facts referring to the averments in the plaint of Civil Suit No. 5440 of 1985 and submitted that the Plaintiff in the averment has stated that the Plaintiff and her husband as well as the parents of the Defendants Ambalal M. Parikh and Dhirajben Ambalal Parikh were residing in the premises. It is averred that as the parents of the Defendants were known to the husband of the Appellant/Original Plaintiff - Kantaben, and as the Plaintiff and her husband were residing alone in the bungalow, due to relations, four rooms on the first floor of the bungalow were permitted to be used by the parents of the Defendants by leave and license agreement which was executed between Ambalal Parikh and the husband of the Plaintiff. Thereafter, again, leave and license agreement was entered into between Dhirajben and the husband of the Plaintiff on 14.10.1980. Thus, a leave and license agreement was executed, by which the mother of the Defendant Dhirajben was permitted to use the same. However, learned Advocate Shri Bhatt submitted that though it was a leave and license agreement, it is specifically averred in the plaint by the Plaintiff in Civil Suit No. 5540 of 1985, the court below has erroneously interpreted the same as lease without even the averments and/or the supporting evidence. However, learned Advocate Shri Bhatt submitted that though it was a leave and license agreement, it is specifically averred in the plaint by the Plaintiff in Civil Suit No. 5540 of 1985, the court below has erroneously interpreted the same as lease without even the averments and/or the supporting evidence. Learned Advocate Shri Bhatt submitted that the court below on one hand has stated that it has no jurisdiction and has answered Issue No. 1 in negative and on the other hand, the rest of the issues are undecided. Again, learned Advocate Shri Bhatt strenuously submitted that the findings and conclusions arrived at are self-contradictory. Learned Advocate Shri Bhatt pointedly referred to the observations made in paragraph 24 of the judgment and emphasized the observations made therein; "I repeat and reiterate that whatever may be the intention at the inception and the intention which may emerge from the documents, unless it is reflected in the conduct of the parties in actual practice, such intention expressed on papers would lose all meaning and would be so called agreement of leave and license to lease." 4. Learned Advocate Shri Bhatt therefore submitted that in spite of the specific agreement regarding leave and license, it is evident from the recitals of the Agreement Exh. 62 and Exh. 82 that the court has proceeded on the assumption to interpret the same as lease, which was not even the case of the Respondents/Original Defendants. In fact the clauses in the agreement would make it clear that it was an agreement for leave and license and the use of the premises was a permissible use. Learned Advocate Shri Bhatt also referred to the other evidence to contend that even the possession was retained by the Plaintiff when the keys were also with the Plaintiff as well as some portion of the first floor was in possession and occupation of the Plaintiff which was used in common. In spite of this specific clause in the agreement, on one hand the court gives a finding that it is not a license but it is an agreement of lease whereas the rest of the issues are left undecided. Learned Advocate Shri Bhatt further submitted that as the observations which have been quoted herein above are not known to the law and are totally contrary to the settled principles of law. Learned Advocate Shri Bhatt further submitted that as the observations which have been quoted herein above are not known to the law and are totally contrary to the settled principles of law. He emphasized that the intention has to be gathered from the documents and there cannot be two stages like at the inception and/or subsequently by conduct of the parties it has to be considered. Learned Advocate Shri Bhatt pointedly referred to the deposition of Gopalbhai at Exh. 62. He referred to the evidence of Sarojben - witness examined for the Defendant at Exh. 96 and strenuously submitted that even she has admitted that it was given by the husband of the Plaintiff to her parents. She has admitted in her cross-examination that she does not have any documentary evidence to establish that they were residing as a tenant. She has further admitted that when her father had retired, he had to vacate the bungalow given by the Mill, and as he knew the husband of the Plaintiff, it was given to her father at his request. She has admitted that the agreement of leave and license was entered into between the husband of the Plaintiff and her mother after the death of the father. In the next breath she has also denied for which even the court has made a note of it. Learned Advocate Shri Bhatt submitted that considering the documents except Exh. 62 and Exh. 82 as well as the oral evidence, it would be clear that it was an agreement of leave and license and there is no term or duration, for which, it was granted by way of lease. Again, learned Advocate Shri Bhatt referred to Clauses 4 and 24 of the Agreement to support his submission. He emphasized that Clause 4 makes it clear that the agreement does not create any tenancy right and it is given as and by way of license. Similarly Clause 24 of the Agreement referred to the aspect that it is purely a contractual agreement and it will not give any right. Learned Advocate Shri Bhatt therefore submitted that the premises was given as a permissive use. He has referred to and relied upon the judgment of the High Court of Gujarat in case of Ashok Thadharam Chawla v. Mahabali Bogha Shetty and Ors. Learned Advocate Shri Bhatt therefore submitted that the premises was given as a permissive use. He has referred to and relied upon the judgment of the High Court of Gujarat in case of Ashok Thadharam Chawla v. Mahabali Bogha Shetty and Ors. reported in 1991 (1) GLH 601 and submitted that in similar circumstances the observations have been made which have been sought to be distinguished by the court below. Learned Advocate Shri Bhatt emphasized that a close scrutiny of the facts of this case would reveal that both are similar cases. Learned Advocate Shri Bhatt referred to the judgment more particularly Head Note 'D' and submitted that the basic test to determine whether any interest in the immovable property is created or not, is discussed, which has not been appreciated. He referred to the observations made in paragraph 23 of the judgment and submitted that the Clause in the agreement would make it clear that it was leave and license agreement, and the interpretation which is sought to be given, is purely on the basis of conjuncture and surmises, ignoring the necessary material and evidence on record. Learned Advocate Shri Bhatt submitted that there is no evidence to suggest that the lease was granted. The document itself would suggest that it is a leave and license agreement, which is even found in the averments as well as the deposition of the witnesses including the witnesses examined on behalf of Defendant Sarojben. Learned Advocate Shri Bhatt submitted that the judgment is erroneous. 5. Learned Advocate Shri Bhatt again emphasized that if the Issue No. 1 is license then the court below has committed an error in construing both the documents of lease and license. He referred to the observations in paragraph 24 and 28. Learned Advocate Shri Bhatt submitted that under the Transfer of Properties Act, the lease has a different connotation. He also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Maria Margarida Sequeira Fernandes and Ors. v. Erasmo Jack De Sequeira (Dead) through LRs reported in (2012) 5 SCC 370 and emphasized that even if the possession is believed, the court has clearly observed laying down the guidelines that mere possession or occupation as a permissive use gratuitously or the possession as a servant or the watchman would not give any right, title, interest. v. Erasmo Jack De Sequeira (Dead) through LRs reported in (2012) 5 SCC 370 and emphasized that even if the possession is believed, the court has clearly observed laying down the guidelines that mere possession or occupation as a permissive use gratuitously or the possession as a servant or the watchman would not give any right, title, interest. He therefore submitted that, as it was given as and by way of permissive use by specific agreement of leave and license for 11 months only, the interpretation, which has been given by the court below, treating as an agreement of lease without any supporting material and evidence, and dismissal of the suit of the plaintiff on that reasoning, may be quashed and set aside. 6. Though served, no one has remained present for the Respondents/Original Defendants. 7. It is required to be stated that earlier learned Advocate Shri Arun H. Mehta was appearing and thereafter learned Advocate Shri K.H. Baxi has stated that he will take instructions and thereafter he has stated that he does not appear as he has no instructions. 8. After the Notice was issued learned Advocate has remained present. Therefore again the notices were issued. However, in view of the endorsement, Civil Application No. 5924 of 2016 was filed for substituted service. However, the report of the Bailiff in different Civil Application No. 9483 of 2016 as well as Civil Application No. 11072 of 2006 clearly suggest that Respondent No. 1 had returned the notice, and as the place was not traceable with the change in the location and the construction of the flats in the area, they were sought to be served by public notice, which was allowed. Thus, the Court has no option but to proceed with the matter. 9. The provisions of the Code of Civil Procedure obliges the party to intimate to the court about the change of address than it was in the cause-title at the relevant time. Therefore, the court has to proceed hearing learned Advocate Shri Amar Bhatt for the Appellants. 10. As could be seen from the background of the facts, the husband of the Plaintiff and the father of the Defendants were known to each other. Therefore, when the father of the Respondents Shri Ambalal Parikh retired, he had to vacate his premises given by the Mill Compound. 10. As could be seen from the background of the facts, the husband of the Plaintiff and the father of the Defendants were known to each other. Therefore, when the father of the Respondents Shri Ambalal Parikh retired, he had to vacate his premises given by the Mill Compound. Therefore, at his request, the husband of the Plaintiff permitted the use of the first floor of the bungalow i.e. the premises in question on the basis of leave and license, for which, an agreement for leave and license for 11 months was executed between the deceased father of the Respondents and the husband of the Plaintiff. The recitals in the said agreement of leave and license at Exh. 62, which has been referred to by learned Advocate Shri Amar Bhatt clearly refer to this aspect that it was an agreement for leave and license and the father of the Respondent was permitted to use and occupy as and by way of permissive use pursuant to such agreement of leave and license for a period of 11 months. The recitals in the clause make it very clear that it should not be treated as any tenancy right or lease. It has been made clear that it may be subject to this agreement. After the death of Ambalal i.e. the father of the Respondents/Original Defendants, another leave and license agreement was executed between the husband of the Appellant and the mother of the Respondents which is at Exh. 82. This agreement also again leaves no doubt that it is an agreement to leave and license where recitals in the agreement and different clauses make it very clear reflecting about the intention of the parties. Thus, the intention of the parties which is required to be gathered from the background and the documents, itself clearly suggest that it was a leave and license agreement for a period of 11 months. Only with the further riders it could not be said to be a lease agreement. The Court below while answering the Issue No. 1 that it is a lease agreement or it should be interpreted as lease agreement, left the other issues undecided for whatever reasons. Only with the further riders it could not be said to be a lease agreement. The Court below while answering the Issue No. 1 that it is a lease agreement or it should be interpreted as lease agreement, left the other issues undecided for whatever reasons. Again, in order to come to the conclusion that it was a lease agreement, there was no evidence, and therefore the court below could not jump to the conclusion about the lease contrary to specific recitals in the agreement which was an agreement of leave and license for 11 months only. However, as discussed above, the court below has committed an error while construing the document suggesting that it could be a document at inception and at a later stage which is a novel way not accepted legally to construe the same document that at the inception it was indicating one intention and at a later stage the same document could be construed differently on the basis of reflection of the conduct of the parties. While construing the document and for the purpose of gathering the intention of the parties, which could be culled out from the conduct as reflected from material and evidence, the document could be interpreted and construed as a whole. Thus, the intention of the parties could be gathered from the document, and if the document is silent or some link is missing, the surrounding circumstances, material and evidence including the conduct of the parties could be considered. Thereafter, on totality of the facts and relevant material, the document could be construed or interpreted, by which the intention of the parties is culled out or the intention is gathered for the purpose of interpretation. However, in the facts of the case not only the agreement but the conduct of the parties does not reflect anything by which such a conclusion could be arrived at that it was a lease agreement. It would be total disregard to the specific covenant and the clause in the agreement which indicate about the leave and license agreement specifying the limit also. Again indicating the intention of the parties, if disregarding the same without any justification, the court below has jumped to a conclusion that it was a lease agreement. There appears to be some misconception with regard to the concept of license and lease. Again indicating the intention of the parties, if disregarding the same without any justification, the court below has jumped to a conclusion that it was a lease agreement. There appears to be some misconception with regard to the concept of license and lease. The Transfer of Property Act has clearly made a distinction between the license and lease. The lease has to be for a specific period and admittedly the document placed on record clearly in the recitals state that it is an agreement for leave and license. Therefore, there was no reason or material that it could be interpreted as a lease agreement when it was for a specific period of 11 months only. The duration of the agreement also would be relevant inasmuch as normally the lease would be for a longer period. Further, when the parties having agreed and accepted in recital of an agreement that it should be a leave and license agreement with further riders and recitals in the agreement itself making it an agreement of leave and license, the court below could not have come to conclusion that it was an agreement of lease without any basis or the evidence for such conclusion. A close look at the evidence on behalf of the Plaintiff as well as on behalf of the Defendant particularly the evidence of the daughter of the Defendant Sarojben is also required to be considered. She has admitted in the cross-examination that she does not have any document that there was any tenancy right. She does not dispute the leave and license agreement executed between the parties. Therefore, if the document is accepted, it is more than evident that the document itself suggest that it was for leave and license particularly when it is construed in background of the admitted facts, which is even supported by Sarojben in her deposition. Sarojben in her deposition has admittedly stated the circumstances in which the premises was given by the husband of the Plaintiff to her parents at the request of her father. This leaves no doubt that it was given as and by way of permissive use for which leave and license agreement was executed at the relevant time between the husband of the Plaintiff and the father of the Respondents. This leaves no doubt that it was given as and by way of permissive use for which leave and license agreement was executed at the relevant time between the husband of the Plaintiff and the father of the Respondents. Thereafter also, on the death of the father of the Respondents, leave and license agreement was executed between the husband of the Respondents with similar recitals making it clear that it was an agreement for leave and license for 11 months only. The discussion to distinguish the judgment of the Hon'ble High Court in case of Ashok Thadharam Chawla v. Mahabali Bogha Shetty and Ors. (supra) requires a close scrutiny and it would be evident that the distinction sought to be made is without any basis and the facts were more similar to the facts of the case. 11. The another facet of the submission that the Respondents are in possession and therefore it should be termed as lease, is without any basis. It is well accepted that the possession by itself would not be sufficient as it is relevant that how the possession and occupation is with the persons who claim. The Hon'ble Apex Court while referring to this aspect of possession or the possessory title in a judgment in case of New Bus-Stand Shop Owners Association v. Corporation of Kozhikode And Another reported in (2009) 10 SCC 455 has elaborately discussed and laid down the broad guidelines in paragraph 23. It has been clearly observed that long possession by itself would not be sufficient and if the possession is given gratuitously no right could be claimed. Similarly, if the possession is given as a caretaker or a person to look after, it would not give any right to continue the possession. Similarly, in the facts of the case, the possession which was given initially by way of leave and license would be a valid or authorized possession in view of the agreement of leave and license for the duration of 11 months. After the period of 11 month is over, the license would get terminated and the possession and occupation would remain unauthorized though it may not be illegal, but on expiry of the period of license, it would be unauthorized. After the period of 11 month is over, the license would get terminated and the possession and occupation would remain unauthorized though it may not be illegal, but on expiry of the period of license, it would be unauthorized. The person who continues could be said to have been holding over the same without any authority of law which would entitle the original owner to claim it back. In any view of the matter, once the possession is unauthorized, it would give the right to the other side to get the possession back. As discussed herein above, the court below while construing the leave and license agreement as a lease agreement committed a gross error and therefore it could not be sustained and deserve to be allowed. The impugned judgment and order passed in Civil Suit No. 5440 of 1985 by the learned City Civil and Sessions Court, Ahmedabad dated 31.3.1992 is hereby quashed and set aside. The Respondents/Original Defendants are directed to hand over the vacant and peaceful possession within a period of three months failing which the Appellant - Original Plaintiff shall be entitled to recover the possession. The decree to be drawn up accordingly.