Delhi High Court
Hanuman Dutt Bajpai vs Budha Singh on 9 July, 1997
Equivalent citations: 1997VAD(DELHI)85, 68(1997)DLT414, 1997(43)DRJ18, (1997)117PLR25, 1998 A I H C 25, (1997) 43 DRJ 18, (1998) 1 CIVILCOURTC 713, (1997) 117 PUN LR 25, (1997) 2 RENCR 593, (1998) 1 RENTLR 360, (1997) 68 DLT 414
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
JUDGMENT M.S.A. Siddiqui, J.
(1) This appeal is directed against the judgment dated 19-7-1982 passed by the Adj, Delhi in Rca No. 97 of 1981 arising out of judgment dated 30-4-1981 passed by the Sub-Judge 1st Class, Delhi in C.S. No. 557/74.
(2) It is undisputed that the plaintiff/appellant is the owner of the plot of land measuring 200 sq. yards of Khasra No., 11 of Mauza Chauhan Bangar illaqa Shahdra, Delhi now known as B-17, Brahmpuri, Harijan Colony, Gonda, Shahdra, Delhi (hereinafter referred as the disputed property). The disputed property has been assessed by the Municipal Corporation, Delhi for property tax. The defendant/respondent had been in occupation of the disputed property since 6-4-1969. The receipts (Ex. P-X/1, Ex P-X/2, Ex P-X/3, Ex P-X/4, Ex P-X/5) and the letter dated 6-4-1969 (Ex. P-X/6) bear signatures of the defendant.
(3) Briefly stated, facts giving rise to this appeal under Section 100 Civil Procedure Code are that by an agreement dated 6-4-1969, the appellant employed the respondent to look after his nursery, which was being maintained by him on the disputed property. Respondent's remuneration was fixed at Re 1.00 per month and he was permitted to occupy the disputed property on the terms and conditions enumerated in the said agreement. In December, 1973, the appellant noticed that the respondent had been using the disputed property for carrying on business of milk dairy and he, therefore, orally terminated the licence. Thereafter, appellant served the registered notice (Ex DW2) on the respondent revoking the licence and asking him to vacate the disputed property. Appellant's suit was resisted by the respondent on the ground that he was in occupation of the disputed property as the appellant's tenant at a monthly rent of Rs. 25.00 and as such the suit was barred under the provisions of the Delhi Rent Control Act. It was averred that the documents produced by the appellant were fabricated on blank papers got signed by the respondent on the pretext that they were required for the purpose of income tax. The Trial Court held that the respondent was only a licensee and not a tenant and decreed the suit. In appeal filed by the respondent, the learned Additional District Judge by the impugned judgment held, on an analysis of the facts and circumstances, that the respondent had been in occupation of the disputed property as the appellant's tenant and as such the appellant's suit for possession was barred under the provisions of the Delhi Rent Control Act. He also held that the documents produced by the appellant are mere camouflage to avoid rigours of the tenancy law. Consequently, the judgment and decree of the Trial Court was set aside and the appellant's suit was dismissed.
(4) At the time of admission, the substantial question of law formulated by this Court is as follows:- "Whether the lower appellate Court had jurisdiction to hold that the admitted documentary evidence of the appellant was camouflaged to avoid rigours of the tenancy law, in view of the absence of such a plea in the written statement of the respondent."
(5) The main question involved in this appeal is whether the respondent was a licensee or a tenant and also incidently the question whether the Trial Court had jurisdiction to entertain the suit filed by the appellant. It is well settled that in determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties. It was averred in the plaint that the respondent was inducted in the disputed property as a licensee under the agreement dated 6-04-1969 (Ex. P-X/6. The document (Ex. P-X/6) is an undertaking given by the respondent to the appellant. This document is as follows :- "SHRIH.D. Bajpai, B-18/24, Dev Nagar, Karol Bagh, New Delhi Dear Sir, I have taken your premises bearing Municipal No. B-17, Brahm Puri, Harijan Colony, Village Ghenda Chohan Bangar, Ilaqa Shahdara consisting of 200 sq. yds. with a shed constructed thereon on care-taker basis on 6-4-1969 on the following terms and conditions :- 1. That I will faithfully and carefully look-after the said premises its fittings & fixtures and see that any fittings and fixtures are not burgled, stolen, and the premises are not unauthorisedly occupied by anyone or in other words no person trespass into the premises. 2. That the legal and real possession of the premises mentioned above remains with you. I being only a care-taker of the said premises. 3. That I shall be charging Re 1.00 only p.m. as my dues for looking after the said premises w.e.f. 6.4.1969 upto the time of my disowning the responsibility of the care taker-ship a due notice of which commencing at least a week before shall be given to you by me. 4. That you have paid me in advance a sum of Rs. two only being dues for the period from 6.4.69 to 30.4.69 and 1.5.69 to 31.5.69 and will go on paying my dues @ Re. 1.00 p.m. by the 7th of every following month w.e.f. 1.6.69 and onward. 5. That I shall be responsible to reimburse you all losses, damages, charges, expenses, for any damage caused to the premises on account of any neglect on my part or theft or house trespass. 6. That I shall have no interference in your possession of the premises any time and remove my articles/belongings etc. on your giving me even an oral notice of 24 hours. Yours faithfully Budha Singh"
(6) Respondent has admitted his signatures on the said document (Ex P-X/6). This document can hardly be described as a deed of licence but it certainly contains an admission of the respondent that he was employed by the appellant as a care-taker for the purpose of security of the disputed property at a monthly remuneration of Re 1.00 and he was permitted by the appellant to occupy the disputed property on the terms and conditions enumerated therein. Thus, Ex P-X/6 is an undertaking duly executed by the respondent as per the terms of which he was permitted by the appellant to occupy the disputed property. The appellant has also produced receipts (Ex P-X/1, Ex P-X/2, Ex P-X/3, Ex P-X/4 and Ex P-X/5) to prove payment of remuneration to the respondent for the period from 1-12-1969 to 31-8-1972. Respondent has admitted his signatures on the said receipts. The respondent contended in his written statement that the said documents were fabricated on blank papers got signed by him on the pretext that they were required for the purpose of income tax. Strangely enough, he has stated nothing in his evidence-in-chief in support of the said contention. It appears that the respondent has abandoned the said story in the witness box. Surprisingly, it was not even suggested to the appellant (Public Witness 1) in his cross examination that he had fabricated the aforesaid documents. In this view of the matter, it cannot be held that the aforesaid documents were fabricated by the appellant. It is well settled that proof of execution of a document is not proof of the truth of the contents of the document. The truth of the facts stated in the document, if denied, is to be proved by admissible evidence. (Rawji Dayawala & Sons (P) Ltd. Vs. Invest Import ). Admittedly, the aforesaid documents have been produced from proper custody. Section 61 of the Evidence Act provides that the contents of a document may be proved either by primary evidence i.e. the document itself or by secondary evidence. The use of the word `contents' in Sections 59 and 61 of the Evidence Act leaves no room for doubt that when a document is proved in the manner laid down by the Evidence Act, the contents of a document are also proved.
(7) In the instant case, Ex P-X/6 is an undertaking duly executed by the respondent as per the terms of which he was permitted to occupy the disputed property. His only case is that the document is fabricated on a blank paper got signed by him. As stated earlier the respondent has stated nothing in his evidence in support of the said contention. On the contrary, appellant (Public Witness 1) has stated in his evidence that he had employed the respondent as a caretaker at a monthly remuneration of Re. 1.00 . On this point, his testimony finds ample corroboration from the undertaking (Ex P-X/6) executed by the respondent. The appellant (Public Witness 1) further stated that he had obtained receipts for the amount of remuneration paid to the respondent. The receipts (Ex P-X/1 to Ex P-X/5) have lent material corroboration to the testimony of the appellant (Public Witness 1). Thus, on the evidence adduced in the case, I am satisfied about the truth of the contents of these documents. I am, therefore, of the opinion that the evidence of the appellant (Public Witness 1) read alongwith the aforesaid documents clearly proves that the respondent occupied the disputed property as a licensee.
(8) The case of the respondent is that he was in possession of the disputed property as a tenant. The burden is undoubtedly upon the respondent to establish the said relationship between him and the appellant. The law of evidence enjoins upon the party to prove the fact which he relies on and in that sense, an obligation is cast upon the party and if he fails to discharge that obligation, adverse consequences will follow and will have to face the repercussions of the same. It is significant that in para No. 3 of the written statement, the respondent pleaded that on 6-4-1969, he occupied the disputed property as a tenant at a monthly rent of Rs. 15.00 . On the contrary, he stated in his examination-in-chief that on 4-11-1969, the disputed property was let out to him. Thus, there is variance between proof and pleading with regard to the date of commencement of the alleged tenancy. That apart, there is no document on record evidencing the relationship of landlord and tenant between the parties. The respondent (DW2) stated in his evidence that he did not get any receipt for any rent ever paid by him to the appellant. The respondent (DW2) further stated in his evidence that the appellant had refused to give rent receipts to him. Surprisingly, there is not even whisper of a suggestion in the cross-examination of the appellant (Public Witness 1) in this regard. Moreover, the claim of the respondent with regard to the alleged contract of tenancy was bellied by the admitted documentary evidence of the appellant. Those were the formidable circumstances against the respondent which actuated the Trial Court to arrive at the conclusion that the respondent was in occupation of the disputed property as a licensee. The learned lower appellate Court without closely scrutinizing the evidence has disagreed with the said finding of the Trial Court and held that the respondent was in occupation of the disputed property as a tenant. The learned lower appellate Court proceeded on the basis that exclusive occupation of the disputed property was given to the respondent and further the respondent had constructed a room on the said property. The test of exclusive possession is not conclusive (1. B.M. Lall (dead) by his legal representatives 2. R.N. Dutta, Appellants V. M/s Dunlop Rubber Co. (India) Ltd. and another (In both the Appeals), Respondents. and Associated Hotels of India Ltd., V. R.N. Kapoor ), though it is a very important indication in favour of tenancy. The fact that exclusive possession was given was no longer enough of itself to negative the relationship of licensor and licensee. As stated earlier, the evidence of the appellant (Public Witness 1) read along with the receipts (EX P-X/1 Ex P-X/5) and the undertaking (Ex P-X/6) executed by the respondent clearly proves that the respondent was employed by the appellant as a caretaker for the purposes of safety of the disputed property and he was permitted to occupy the disputed property for the said purpose. A service occupation is a particular kind of licence whereby a servant is required to live in the premises for better performance of his duties. It appears from the undertaking (Ex P-X/6) executed by the respondent that he was permitted to occupy the disputed property. It gives only a personal privilege or licence to the servant to occupy the premises for greater convenience of his work.
(9) It is pertinent to mention that it was not even pleaded by the respondent that the undertaking (Ex P-X/6) executed by him was merely a facade or a devise calculated or designed to conceal the real intent and object of the transaction in question, yet the learned lower appellate Court took a wholly erroneous view that the admitted documentary evidence of the appellant was camouflaged to avoid rigours of the tenancy law. To say the least, this finding is based on misconception and not supported by any acceptable evidence. The lower appellate Court in re-appreciating the evidence and reversing the finding of the Trial Court on this point went beyond its jurisdiction. No part of the evidence was misread by the Trial Court. Therefore, there was no justification for the lower appellate Court to reverse the finding recorded by the Trial Court that the respondent was in occupation of the disputed property as a licensee and that on termination of the licence the appellant was entitled to remain in possession thereof.
(10) In view of the aforesaid premises the judgment of the lower appellate Court cannot be sustained.
(11) Resultantly, the appeal succeeds and the same is allowed. The judgment and decree of the lower appellate Court are set aside and those of the Trial Court are sustained and restored. The respondent shall pay costs of the appellant and bear his own. Counsel's fee Rs. 5000.00