Calcutta High Court
Nihar Ranjan Mukherjee vs Juthika Dutta And Ors. on 30 January, 2004
Equivalent citations: (2004)2CALLT116(HC), 2004(3)CHN300
JUDGMENT Gorachand De, J.
1. This Second Appeal is directed against the judgment and order dated 27.8.1998 passed by the learned Civil Judge (Senior Division), 1st Court at Alipur in Title Appeal No. 295 of 1998 by which he affirmed the Judgment and Decree dated 31st May, 1996 passed by the learned Munsif, 2nd Court, Alipore in Title Suit No. 126 of 1996. The trial Court by the said judgment dismissed the suit filed by the plaintiff.
2. The plaintiff filed a suit on 19.9.1988 for declaration that the plaintiff was a tenant under the defendant in respect of the suit premises along with further declaration that the notice dated 31.8.1988 sent by the defendant being vague and unfounded is not binding on the plaintiff and that the agreement for leave and licence dated 1.12.1986 was never executed between the parties. A prayer was also made for permanent injunction restraining the defendant and her men and agents from disturbing the peaceful possession of the plaintiff in the suit property.
3. The defendant contested the suit after filing a written statement on 3.11.1989 denying the material allegations made in the plaint and it is specifically stated that the plaintiff was a mere licensee in respect of the suit premises for a limited period. Accordingly, the prayer was made for dismissal of the suit.
4. The learned Munsif on the basis of the respective pleadings framed as many as four issues. The plaintiff examined himself as the P.W. 1 and produced a draft of agreement along with few receipts and money order coupons and a letter dated 24.8.1988 sent by the Advocate or the plaintiff to the defendant. No other evidence was adduced by the plaintiff. However the defendant produced the agreement dated 1.12.1986 and a letter dated 30.3.1989 written by the husband of the defendant to the learned advocate. The defendant also examined herself as D.W.1 and one Ashoke Roychowdhury as D.W.2 in support of the defence case. The learned Munsif after hearing both parties and on perusal of the materials on record and the decisions relied upon by the learned counsel of both sides came to a conclusion that the plaintiff miserably failed to prove the case of tenancy and accordingly, the suit was dismissed with cost.
5. Being aggrieved by and dissatisfied with the said judgment of dismissal the plaintiff preferred the First Appeal and the first appellate Court also took into consideration the evidence on record and concurred with the finding of the learned Munsif. Hence, the appeal was dismissed without cost and the judgment and decree of the trial Court were confirmed.
6. The plaintiff accordingly filed this Second Appeal on 24th March, 1999. During the pendency of this appeal one Provat Kumar Sent was added as respondent No. 3 by a Division Bench of this Court by an order dated 11.10.1999. By the said order the following two substantial questions of law were also formulated for the purpose of hearing of this Second Appeal:
"1. Whether the Courts below erred in law substantially in not applying the test laid down by the Apex Court of our country on the question whether the plaintiff was a tenant or licensee in respect of the disputed premises or not.
2. Whether the appellate Court misread and misconstrued Exhibit 'Ka 1' and erred in law substantially in relying upon the form of the document overlooking the basis principle that to ascertain whether a document creates a licence or a lease, the substance of the document must be preferred to the form and whether the document creates any interest in the property or not."
7. In course of hearing of this Second Appeal, Mr. Barun Roy Chowdhury appearing on behalf of the appellant/plaintiff contended that the scope of the Second Appeal centres round the construction of the agreement between the parties. It was also argued that for the purpose of such construction it is necessary to ascertain whether the Courts below applied the tests laid down by the Apex Court on the question as to whether the plaintiff was tenant or a licensee. So Mr. Roychowdhury scanning the agreement (Ext. Ka-1) contended that the clauses indicating not to allow others to occupy the suit premises and the responsibility given to the plaintiff to bear the cost of electric, water charges and necessary repair are sufficient to indicate that an interest was created in respect of the suit property in favour of the plaintiff and accordingly, the agreement between the parties is to be construed as a tenancy agreement. In support of the contention Mr. Roy Chowdhury placed reliance on the Apex Court judgment in Associated Hotels of India Limited v. R.N. Kapoor, . Mr. Roy Chowdhury also placed reliance on another judgment of the Apex Court in Capt. B.V. D'Souza v. Antonio Fausto Fernandes, , which was also cited before the first appellate Court by the appellant.
8. On the other hand Mr. Sunil Kumar Chakraborty, appearing on behalf of the respondent placed reliance on the decisions (Smt. Mina Ghose v. Daulatram Arora and Ors.), 82 CWN 695 (Ram Awatar Singh v. Khajan Singh Punjabi), (Tarab Ghosiv. Smt. Laxmi Agarwal and Anr.) and also on the principles adopted by the Apex Court in Capt. B.V. D'Souza (supra). It is contended that all the tests laid down by the cited decisions were taken into consideration by the trial Court as well as by the first appellate Court and thereafter construed the agreement as an agreement of licence. So, it was argued that the points raised in this appeal having been appropriately discussed by the Courts below, there is no reason to interfere with the concurrent findings of the Courts below. The learned counsel in this regard also pointed out the scope of a Second Appeal and contended that since the concurrent findings of fact are in favour of the respondents/ defendants, there is no reason to interfere with the said finding and accordingly, the Second Appeal is liable to be dismissed.
9. It is to be pointed out that the plaintiff appellant admitted that the defendant respondent was the landlord owner in respect of the disputed premises. At the very outset, it is to be pointed out that in paragraph 8 of the plaint, it is specifically stated that the defendant landlord manufactured the deed of licence of 1986 after annexing the last page of the agreement of 1985. But the document as proved in course of evidence belied this statement Inasmuch as the last page of the deed of licence bears the dated signature of the defendant. So the deed of 1986 has specifically indicated to be a deed of licence and subsequently the receipts (Ext. 2 series) which were issued on receipt of the licence fee also indicated that those were receipts showing payment of licence fee. The evidence on record as analysed by the Courts of fact indicate that all along the possession of the plaintiff was construed to be the possession of a licensee. Practically from the factual point of view, it is already settled by the final Court of facts that the plaintiff was a mere licensee in respect of the suit premises.
10. As regards the legal aspect, it is already indicated hereinabove that the learned counsel for the appellant placed much reliance on the construction of the impugned document. It is a settled principle of law as discussed in the case of Smt. Mina Ghosh (supra) relying on ILR (1966)2 Cal 119 (Dunlop Rubber Company of India Lid. v. R. Dutta) that the question whether a document is a lease or licence turns on the actual intention of the parties inspite and irrespective of exclusive possession of the grantee under the particular document. The evidence on record is sufficient to indicate that the owner of the property gave occupation of the suit property to the plaintiff. Section 105 of the Transfer of Property Act contemplates a transfer of a right to enjoy the property in consideration of a price paid or promised to be paid. To prove that a person is a tenant, he should be shown to be in exclusive possession of the property. In Turab Ghost's case (supra), the Lucknow Bench of the Allahabad High Court took into consideration the ingredients of Section 105 of the Transfer of Property Act and took the view that if a person cannot even plead consistently or establish the period of time since when he is in occupation of a premises, it will be very difficult to hold in law that he has established his possession over the property. It was also viewed that 'mere occupation' is not 'possession', although every actual physical possession is occupation. Possession is a legal concept and one of the ingredients which is essential to it is a specification of actual period of time when an act of possession, as possession, commenced not merely as an act of occupation.
11. In the plaint, the plaintiff failed to specify the exact time when his possession over the property commenced. In course of evidence, the plaintiff on production of a draft of agreement dated 1.11.1985 (Ext. I) tried to say that the agreement was from 16.11.1965 till October 1987. The defendant denied the fact. It is specifically stated that the plaintiff was a licensee for 11 months from 16.11.1985 and (hereafter, w.e.f. 1st December 1986 an agreement was executed whereupon occupation of the suit premises was handed over to the plaintiff on condition of payment of Rs. 9900/- as charges for such temporary accommodation for 11 months which was to be paid @ Rs. 900/- per month on or before the seventh of every English calendar month. So the second term of occupation started from 1st December 1986. The defendant in his cross-examination admitted that all along the receipts were issued to him showing as licence fee. So the Courts below duly considered this aspect and rightly came to the conclusion that the occupation of the suit property by the plaintiff was as a licensee. In fact, there is nothing on record to show or indicate that any unrestricted or unconditional use or possession of the property was given to the plaintiff. On the other hand, there are sufficient materials to show that the possession or use of the suit property by the plaintiff confined to the occupier's obligation to stay for 11 months and thereafter to quit. No option was given to him to renew the licence. Such a power was kept by the owner defendant. No power to sublet or part with the suit property was given to the plaintiff. The user of electricity from the earmarked meter of the owner and petty repairs of the flat did not give any unrestricted or uncontrolled user of the property in the occupation of the plaintiff. All these factual aspects are sufficient to interprete the deed as well as the intention of the parties in favour of creation of a licence rather than a tenancy. The agreement itself (Ext. Ka-1) and the evidence adduced are sufficient to indicate that the principles adopted in Captain B.V. D'Souza's case (supra) is not applicable in the present case specially when there are sufficient indication that no interest in the property was created in favour of the plaintiff appellant.
12. The surrounding circumstances and the intention of the parties were also taken into consideration by the Courts below. All the provisions of the agreement clarify the intention of the parties that a licence was being created for 11 months and the parties, especially the plaintiff, were debarred from claiming the transaction as a lease. In Smt. Mina Ghosh's case (supra), this Court also discussed all these circumstances and thereafter concluded that the giving of premises for a period of five years with an option to renew it for another such period did not represent the transaction as a lease within the meaning of Section 105 of the Transfer of Property Act. So it was viewed that the provision of the West Bengal Premises Tenancy Act, 1956 for fixation of fair rent was not applicable.
13. In the present case immediately after the expiry of the period of 11 months the plaintiff went on paying the licence fee for another 11 months and thereafter an attempt was made to claim tenancy in respect of the suit premises. Subsequently money orders were also sent with view to that end. But when the tests laid down by the Apex Court for ascertaining the question whether the plaintiff was a tenant or licensee in respect of the suit premises were applied, the only result available is that the plaintiff was a licensee and not a tenant. I am of the view that the trial Court as well as the first appellate Court took into consideration all the required tests as well as the facts and circumstances and thereafter came to a just decision that the plaintiff was a mere licensee in respect of the suit premises under the defendant. I fully agree with the conclusion arrived at by the Courts below and accordingly the substantial question of law framed hereinabove are decided accordingly in favour of the respondent defendant. The principle enunciated in Associated Hotels of India Ltd. and also in Captain B.V. D'Souza's case (supra) are not applicable in the fact situation of the present case. Practically no interest in the property was created in favour of the present plaintiff either by the agreement itself or by the subsequent conduct. It is finally concluded that the plaintiff is a mere licensee in respect of the suit property and as such, he is not entitled to get any relief as prayed for in the plaint. Accordingly, the findings of both the Courts below are hereby affirmed.
The appeal is accordingly dismissed on contest. The judgment ant, decree of both the Courts below are hereby affirmed. There will be no order as to cost so far as this Court is concerned.
Later The prayer for stay of operation of this judgment is refused. Urgent xerox certified copy of this judgment be given to the parties, if applied for on usual undertaking.