JUDGMENT
1. This is defendant's second appeal against the judgment and decree dated 25-9-1985 of the Civil Judge, Roorkee whereby he dismissed the first appeal filed by the defendant against the judgment of the trial Court, decreeing the plaintiffs suit for mandatory injunction directing the defendant to vacate the house in his occupation, and restraining him from using the same. The late plaintiff respondent-Shitalpuri filed the suit in the trial Court alleging therein that he is permanent lessee of a plot situate in Mohalla Subhasganj of Roorkee town described and bounded at foot of the plaint. In the eastern portion, thereof there is a room belonging to the plaintiff. The said room was lying vacant and locked, as the plaintiff lives elsewhere. Some time ago the defendant with certain influential persons acquainted with the plaintiff approached him and requested to allow him to reside in aforesaid room as licensee. The plaintiff accordingly gave a right to the defendant to occupy this room as a licensee with condition that as and when he was allotted a departmental quarter he will vacate the same. This promise was also repeated subsequently as and when plaintiff enquired as to when the defendant will vacate the room. Since the plaintiff wanted to construct a house over his plot after demolishing the existing room, a few days before filing the suit he requested the defendant to vacate the room but he refused to do so. Ultimately by notice dated 29-9-1981 duly served on the defendant the licence was revoked. The defendant instead of complying gave a false reply to it hence the suit was filed for permanent injunction and Rs. 200/- per month as pendente lite and future damages. The possession of the room it is further alleged always remained with the plaintiff who paid at all the taxes and the defendant was only given privilege of residing in the said room.
2. The defendant appellant in his written statement denied the allegation that he is a licensee and pleaded that he is a tenant of the room in question on Rs. 35/- per month rent. Originally it was the land which was vacant, was let out to defendant on Rs.70/- per month as rent and the defendant at his cost constructed the room in question in a portion. It was agreed between the parties that so long the defendant shall be paying rent, he will not be liable to ejectment. In 1981 about half of the open land was got released by the plaintiff room tenancy and rent of the remaining portion was reduced to Rs. 35/- per month. Since the defendant is regularly paying the rent he is entitled to the Protection of Act 13 of 1972. The suit is cognisable by J.S.C.C. and a suit for permanent injunction is not maintainable and is also barred by Ss. 39 and 41 of the Specific Relief Act, it is under-valued and the Court-fee paid is insufficient.
3. The findings recorded by the learned trial Court were to the effect that the defendant is a licensee and not lessee of the disputed room. The said room has not been constructed by the defendant. The defendant is not entitled to the Protection of Act 13 of 1972. The suit for mandatory injunction to deliver possession after termination of licence is maintainable, accordingly he decreed the suit. The learned 1st Appellate Court while dismissing the appeal confirmed the aforesaid findings of the trial Court. It further held that the Court-fee has rightly been paid according to law on 1/5th of the market value of the property in suit.
4. The substantial questions on which second appeal has been admitted are to the following effect :
i) Whether in the circumstances of the case the accommodation was given on lease or licence?
ii) Whether the S. 7(v) of the Court-Fees Act applied to the case and the Court-fee should have been paid on the relief of possession and not injunction?
iii) Whether the relief of injunction could be granted in such a case when, the appellant was in exclusive possession?
iv) Whether the appellant was entitled to the Protection of U.P. Act No. 13 of 1972?
5. The learned counsel for both the parties have been heard and the record has been perused.
6. The moot question upon which will depend the fate of this appeal, is whether the defendant appellant is a licensee or a tenant of the accommodation in dispute. Upon a decision of this question will depend the answer of the questions Nos. 2 to 4 relating to the maintainability of the injunction suit, payment of Court-fee and the applicability or otherwise of the U.P. Act No. 13 of 1972.
7. The contention of the learned counsel appearing on behalf of the plaintiff-respondent is that, a finding of fact recorded by the 1st appellate Court is final and cannot be reopened in a second appeal. In the instant case the lower appellate Court, and for that matter even the trial Court, having come to a concurrent finding that the defendant-appellant was a licensee and not a tenant of the accommodation in question, the same cannot be reagitated before this Court. It is contended on the other hand by the learned counsel for the defendant-appellant that the jurisdiction of this Court in the matter of questions of fact is not altogether barred and there can be interference if the findings and conclusion of the Court below is totally against the weight of evidence on record and is also vitiated by an error of law. Secondly the question as to whether on the facts established relationship between the parties was of a licensor and licensee, or a lessor and lessee, is a question of law which can be gone into by this Court in second appeal.
8. As to the power of interference by a Court hearing second appeal, it would be found that there is no blanket bar in law to such power. While as a normal, rule the finding of fact recorded by the lower appellate Court, even if the appreciation of evidence made by it is patently erroneous and the finding recorded in consequence is grossly erroneous, has to be accepted in a second appeal, the High Court where it is satisfied that the lower appellate court has ignored the weight of evidence on record altogether, it would be justified in reappraising the evidence and giving its own conclusion. This view finds support from the observations of the Supreme Court in Hira Lal v. Gajjan, reported in AIR 1990 SC 723.
9. In Mohd. Kasim Khan v. Ram Lagan, reported in 1989 All LJ 428 it has been observed that where the finding of fact is not demonstrated to be vitiated by any error of law the High Court would not review the same in a second appeal. In other words, a review would be permissible if the finding was vitiated by any error of law.
10. Now applying the above test to the present appeal it would be found that the finding and conclusions of the two Courts below to the effect that the defendant-appellant was a licensee, and not a tenant, of the building in question, is totally against the weight of evidence on record and also suffers from an error of law.
11. Admittedly in this case the transaction between the parties, be it a licence or a lease, was oral. In these circumstances, there was no option but to fall back upon oral evidence of the parties, to determine the real nature of the transaction and relationship between parties qua that property in suit. Admittedly the property of the plaintiff on the spot comprises of a larger piece of land and the disputed premises is situated in the eastern portion of the said plot. The western portion is admittedly now in the possession of the plaintiff. The controversy thus is in relation to the room and the covered sehan situated in the eastern part of the plot, as shown and bounded in the map part of the plaint. Admittedly the defendant-appellant is in exclusive possession over the disputed premises.
12. It would be found on a perusal of the judgments of the two Courts below that the main factor which weighed in their conclusion about the status of defendant being a licensee, was the non-production of any rent receipt by the defendant and certain contradictions in the statement of the defendant Ajab Singh and his witness D.W. 2 Munna regrding the exact year when the premises was let out. In fact the whole tenor of the judgment of the lower appellate Court on this point would show as if the burden is this regard was on the defendant and not on the plaintiff. Even the merits of the oral evidence led on behalf of the plaintiff-respondent were not discussed by the learned lower appellate Court. The trial Court no doubt went into the evidence of the plaintiffs witnesses also on this question but its conclusion regarding creation of a licence and not a lease, appears to be obsessed mainly with the finding that the room in question was constructed by the plaintiff and not the defendant. The mere fact of the failure of the defendant to prove this fact however would not go to the extent of establishing that his status was of a licensee within the meaning of S. 52 of the Eastement Act, and not of a lessee within the meaning of S. 105 of the Transfer of Property Act. What was required to be considered was whether it was a transfer of a right to enjoy the premises or was merely grant of a right to remain in possession, which in the absence of such grant would be unlawful.
13. In the instant case undisputedly the parties were not in any way related to each other rather were total strangers. The contention of the plaintiff was that in the year 1977 shortly after the construction was made, the defendant with some influential persons acquainted with the plaintiff, approached him for allowing to reside in the room as a licensee, on the undertaking that he will vacate the room very soon on a quarter being allotted by the telegrah department where he was employed. The plaintiff acceded to this request and granted temporary licence to the defendant. In this evidence the late plaintiff Shital Puri (P.W. 1) stated that he gave this premises on licence to the defendant on the recommendation of one Dr. Sohan Lal because a litigation regarding alleged encroachment was pending between him and the Irrigation Department and the defendant was expected to look after and protect the property. The other consideration was that he will get pure milk from the defendant who had a buffalo. The P.W. 2 Dr. Sohan Lal, however, stated that the defendant had requested him for getting-land for tethering his buffalo. Since the plaintiff had already requested him arrange for a person to look after his room and land, the transaction was finalised.
14. In his cross-examination however, the plaintiff himself admitted that the litigation with the irrigation department had ended and he had obtained possession before the defendant's induction in this premises. This went to completely demolish the theory of the room in question being given on licence to the defendant to guard against encroachment by the irrigation department. So much so that the plaintiff also admitted in cross-examination that in the criminal case preceding this Civil litigation, by compromise the defendant left the land (western portion) on which he has now constructed house. This goes to prove the truth of the defence version that initially the defendant was a tenant of the entire land @ Rs. 70/- per month as rent and when he agreed to vacate the western open portion the rent was reduced to Rs. 35/- per month. The fact of non-production of the copy of compromise filed in Criminal Court, by plaintiff, also goes to indicate that had it been filed, it would not have supported the plaintiffs version of licence. The learned Courts below committed a grave error of law in ignoring these material aspects of the evidence, and in placing reliance on relatively inconsequential factors for their conclusion regarding absence of lease and creation of licence.
15. In fact all the above circumstances in this case indicate the creation of interest in, and a right of exclusive possession and enjoyment of the property in suit, by the defendant-appellant, and not merely a grant of right to remain in permissive possession.
16. That, the theory of licence is a mere afterthought and product of imagination, is also borne out from the fact that according to plaintiff himself he had to, time and again ask the defendant as to when he would vacate the premises and the defendant each time paid no heed to it. Had it been a licence, on the defendant's first refusal itself steps to revoke the same and demand possession, would have been immediately and promptly taken by the plaintiff, and he would not have,waited for the dispute to culminate into a criminal litigation.
17. So far as P.W. 2 Sohan Lal is concerned, he himself admitted that he merely introduced the parties to each other and the final transaction was not settled in his presence. Finally he stated that he does not know whether or not, the disputed property was given to the defendant on rent. This state of evidence also goes to show that the theory of licence has no legs to stand and it cannot be held established without traversing in the forbidden arena of surmises, as has been done by the Courts below.
18. It is true that there are some contradictions in the statement of D.W. 1 Ajab Singh and D.W. 2 Munna about the exact period of letting, but the same losses significance in the context of the failure of the plaintiff himself to establish the theory of licence by any cogent evidence. The plaintiff having failed in discharging the burden of proof in this regard, the question of the defendant-appellant not successfully rebutting the same did not arise.
19. The authorities cited on behalf of the parties may now be considered. In B. M. Lal v. Dunlop Rubber Company India Ltd., reported in AIR 1968 SC 175, a limited company which owned certain premises and was under obligation to provide free accommodation to its staff officers by virtue of an agreement, filed a suit for recovery of possession of certain flats which were in occupation of tenants, for accommodating the staff officers. The suit was filed under U.P. Premises Tenancy Act, providing for eviction of a tenant where the premises was reasonably required by the landlord for his own occupation. Construing the terms of the agreement required to be executed by the Officers provided with accommodation by the Company, the Supreme Court held that the agreement on its true construction read in the light of the surrounding circumstances operate as a licence and not a tenancy. It created no interest in the land and gave only personal privilege or licence to the servant to occupy the premises for the greater convenience of his work. He being licensee his occupation would be on behalf of the Company and the requirement would be for its own occupation. The facts of the present case as found above however, stand on a different footing, in so far as the evidence shows that an interest was created in favour of the defendant-appellant to enjoy the property and it was not merely transfer of privilege or licence to occupy the premises in question.
20. The cardinal distinction between a lease and a licence is that in the former there is a transfer of interest in immovable property to enjoy, whereas in the latter case there is no transfer of interest in immovable property at all. An important feature of the lessee's right is his right to possession and enjoyment of the demise to the exclusion of the lessor. Applying these principles the position of the defendant-appellant is of a lessee and not a licensee, in view of his right to exclusive possession and enjoyment of the disputed property, and circumstances indicating a transfer of interest in the property to enjoy.
21. On behalf of the appellant, the case Durga Devi v. District and Sessions Judge, reported in 1976 All WC 661 : (1977 All LJ 134) has been cited. The said authority however, is in respect of the possession of a caretaker and lays down that possession of a caretaker of a room or any portion of a building or premises cannot amount to his occupation of the building as required by Cl. (b) of S. (1) of U.P. Act 13 of 1972, providing for deemed vacancy of a building if a landlord has allowed it to be occupied by any person who is not a member of his family. No benefit from these principles can be derived by the plaintiff-respondent, in the instant case in view of the fact that the theory of the possession of the premises having been delivered to the defendant-appellant by way of care-taker has been found to be untenable.
22. In Miss. Asha Lata E. Rahim v. Radha Swami Satsangi Sabha Dayal Bagh Agra, reported in (1982) 2 All Rent Cas 528 : (1982 All LJ 1237), the principle laid down is to the effect that to determine the nature of occupation, as licensee or tenant, it is the substance of the contract between the parties which is to be seen. Mere mention of rent, or licence fee in rent receipt is not material. In the present case as stated above there being no document evidencing nature of transaction, the nature of occupation has to be determined on the basis of oral evidence and circumstances which as said above clearly indicate the creation of lease and not licence.
23. In view of all above discussed facts and legal position, therefore, it can unhesitatingly be held that the defendant-respondent is a tenant and not a licensee of the disputed premises. The suit accordingly could not be filed for recovery of possession or mandatory injunction treating him to be a licensee without terminating his tenancy in accordance with law. The conclusions of the Courts below to the contrary being unsustainable, deserve to be set aside and the suit dismissed.
24. Coming to the questions regarding payment of Court-fee and maintainability of the suit for injunction it would be found that the plaintiff has admittedly paid Court-fee on 1/5th of the total valuation, as provided for injunction suits, under S. 7(iv-B)(b) of the Court-fees Act. The plea of the defendant-appellant however, is to the effect that after termination of licence, only a suit for recovery of possession and not mandatory injunction would lie and consequently Court-fee payable would be on full valuation of the property under S. 7(v) of the Court-Fees Act.
25. The plea that only a suit for possession and not mandatory injunction would lie against a person in occupation of the property as licensee after termination of licence is, however, unsustainable. The possession of the licensee for all practical purposes being of owner himself, once the licence is terminated the licensee is bound to restore the possession to the owner and in the event of default, the owner is entitled to mandatory injunction to direct delivery of possession. In Sam Lal Jain v. Autar Singh, reported in 1985 All CJ 563 : (AIR 1985 SC 857), the law on this point has been laid down by the Supreme Court in the following terms (at p. 859 of AIR) :--
"After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under S. 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict the licensee has always been held to be maintainable....... where a licensor approached the Court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licensor causes huge delay, the Court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and in that case, the licensor will have to bring a suit for possession which will be governed by S. 7(v) of the Court-Fees Act."
26. Once it is held that a suit for mandatory injunction for delivery of possession against a licensee if brought without undue delay is maintainable, the Court-fee payable would be under S. 7(iv-B)(b) of the Court-Fees Act and not S. 7(v) of the Court-Fees Act. On the allegations of the plaint and nature of relief sought, therefore, the Court-fee paid in the suit was sufficient and the defendant-appellant's plea that the plaint should have been rejected as insufficiently stamped was rightly turned down by the Courts below.
27. In view of the fact that the plaintiff's suit is liable to fail on other grounds, the question regarding protection or otherwise of Act 13 of 1972 to the defendant-appellant becomes academic. It also need not be adjudcated in this case least it may prejudice any future proceedings between the parties.
28. In consequence of the findings above, therefore, the present appeal deserves to be allowed. The judgment and decree passed by the two Courts below deserve to be set aside. The plaintiff's suit is liable to be dismissed.
29. The appeal is accordingly allowed, the judgment and decree of the Courts below is set aside and the plaintiff's suit is dismissed.
30. No order as to costs is made.
31. Appeal allowed.