JUDGMENT B.K. Rathi, J.
1. The respondent No. 1 filed Suit No. 250 of 1980 against the appellant and respondent Nos. 2 and 3 for eviction from the disputed shop and recovery of damages. In brief, the case of the respondent No. 1 is that he was tenant of two adjoining shops of premises No. 46, Rail Bazar, Kanpur Nagar on monthly rent of Rs. 315 per month of Sri Prakash Chandra Agarwal. That in one shop, he was carrying on the business of sale of medicines and other articles. That another shop was given by him to the appellant on licence of Rs. 100 per month as licence fee to use it for running the clinic. That the appellant is doctor by profession and running her clinic in the said shop as licensee. That she has not vacated the shop. Therefore, the suit was filed.
2. The trial court dismissed the suit. Aggrieved by it, the respondent No. 1 preferred Civil Appeal No. 309 of 1983 which has been allowed and suit for eviction of the appellant from the disputed shop and for recovery of damages has been decreed. Aggrieved by it, the present second appeal has been preferred.
3. I have heard Sri S. N. Verma, learned senior advocate, assisted by Sri Sharad Malviya. learned counsel for the appellant and Sri A. K. Gupta, learned counsel for the respondent No. 1.
4. The deed dated. 25.9.1968, which is alleged by the plaintiff-respondent No. 1, to be the licence-deed was executed between the parties which has been filed as Annexure-1 to the affidavit. The material conditions of the deed are that the respondent No. 1 will continue to be the tenant of the shop and the appellant will have no tenancy rights and she will pay Rs. 100 per month for sitting in the shop in the morning and evening for private practice.
5. It is contended by Sri S. N. Verma, learned senior advocate that it is the intention of the parties which is material as the distinction between the lease and licencee is a very thin. That the word 'lease' was not used as respondent No. 1 himself was tenant of the shop and had he admitted subtenancy in deed, it would have resulted in the eviction of the respondent No. 1. That the evidence shows that exclusive possession was transferred and the appellant was using the shop regularly and continuously. That the possession of the shop by the respondent No. 1 was totally withdrawn. That, therefore, the intention is clear that it was a lease and not a licence. That the lease has not been terminated and, therefore, the first appellate court has erred in decreeing the suit. It has been argued that after the commencement of U. P. Act No. XIII of 1972, lease in favour of the appellant has been regularised and the suit for eviction was not maintainable in the trial court.
6. I have considered the arguments. It appears that the arguments of the learned counsel is beyond the pleadings of the parties. The copy of the written statement filed by the appellant in the suit has also been filed, which is Annexure-4 to the affidavit. A perusal of this written statement show that the appellant pleaded that she and respondent No. 1 were co-tenants of both the shops of premises No. 46, Rail Bazar, Kanpur Nagar on monthly rent of Rs. 315 per month and Sri Prakash Chandra Agarwal is the landlord. It appears that this case was later on given up by the appellant and it has been argued that she is tenant of respondent No. 1. This argument being beyond pleadings and, therefore, cannot be accepted.
7. It has been further argued by Sri S. N. Verma, learned senior advocate that the falsity of the allegation made in the written statement is not material ; that the suit of the plaintiff cannot be decreed for the reason that the allegations made in the written statement are false or for the reason that the defendant is not able to establish the allegations of the fact mentioned by him in the written statement. It is true that it is a general law that the plaintiff could stand on his own legs and the suit of the plaintiff can be decreed only if he is able to prove his case. The case of the plaintiff cannot be decreed on the weakness of the defence.
8. However, the general principle of law cannot be applied in this case. In this case, the appellant is admittedly in possession of the disputed shop. The question is regarding the nature of possession. Where the question is as to whether the possession is as owner, tenant, licensee or trespasser has to be decided on the basis of the pleadings only which are binding on parties. The respondent No. 1 has alleged that the appellant is the licensee. The appellant, on the other hand, alleged that she is co-tenant of Sri Prakash Chandra Agarwal with the respondent No. 1. This case of appellant according to herself is not correct. Therefore, the Court cannot make out a new case for the appellant. The Court can only accept either of the two versions, namely, whether the appellant is a licensee of respondent No. 1 or whether the appellant is co-tenant with the respondent No. 1 of Sri Prakash Chandra Agarwal. Therefore, the case of the respondent No. 1 has to be accepted that the appellant is licensee.
9. In the result, no substantial question of law aroses for decision in this appeal. The appeal, therefore, fails and is hereby dismissed.