This is the defendant's second appeal which has been preferred against the judgment and decree dated 6th of May, 1982 passed in Regular Suit No.447 of 1981 by which the suit of the plaintiff-respondent was decreed. The regular civil appeal preferred by the defendant-appellant bearing No.134 of 1982 has been dismissed by means of judgment and decree dated 23rd of November, 1982. Against the concurrent judgments the instant second appeal was admitted by this Court by means of order dated 05.09.1986 on substantial questions of law, which are reproduced herein after:-
A. Whether the defendant-appellant could be held to be a licencee of the building in question even after the commencement of the U.P. Act XIII of 1972 and specially in view of Section 14 of the said Act as he was recorded as a tenant in the municipal records as well as in the record of the Electricity Department?
B. Whether in view of Section 2-A read with Section 14 of U.P. Act XIII of 1972 the suit for possession in respect of the building in question which was an old building and covered by U.P. Act XIII of 1972 could be filed in the Court of Munsif in contravention of the provisions contained in U.P. Act XIII of 1972?
The Court has heard Shri Zafaryab Zilani, learned Senior Advocate assisted by Ms. Rafat Farooqui for the appellant and Shri Mohd. Arif Khan learned Senior Advocate assisted by Shri Prashant Jaiswal for the respondent.
Briefly the facts giving rise to the instant second appeal are being noticed first; The plaintiff-respondent instituted a suit seeking eviction and damages for wrongful use and occupation against the defendant-appellant before the Court of Munsif, (now known as Civil Judge (Junior) Division), Gonda registered as Regular Suit No.447 of 1981.
The plaintiff-respondent had filed the aforesaid suit with the averments that the plaintiff was given the disputed premises on licence sometime in the year 1971-1972 through the care taker Gomti Prasad. It was pleaded that the defendant and his father had requested the plaintiff through the care taker to take the premises on licence as the father of the defendant used to take care of the garden and field of the plaintiff. Relying upon the defendant and his father, the premises was given on licence to the defendant with the clear understanding that whenever the plaintiff required the said premises, the defendant would vacate the same and handover it the vacant possession to the plaintiff.
It was further pleaded that the defendant was asked to vacate the premises for which he had sought time but did not comply, accordingly a notice was issued to the defendant dated 24.11.1980 terminating his licence. Despite the same the defendant did not vacate and contrary to his status as a licencee, he carried out material alteration and damaged the premises in question and carved a shop. In the aforesaid backdrop, the relief for possession as well as damages of Rs.1100 up to the date of filing of the suit and thereafter Rs.100 per month was claimed by the plaintiff.
The defendant-appellant contested the above suit and denied the allegation in the plaint. The defendant set up the case that he was not the licencee of the premises rather he was let out the premises on rent at the rate of Rs.30/- per month. He further pleaded that he was occupying the premises since last more than 17 years on rent. The defendant had opened a shop at the lower floor of the premises from where he was conducting the business of running a laundry thereafter he changed his business and was now engaged in the sale of seeds and pesticides.
It was further pleaded that prior to 1971 the defendant was working as a contractor in District Sitapur and it is falsely alleged by the plaintiff that the defendant was residing in the premises since 1971-72 on the basis of licence.
In paragraph-19 of the written statement, it was specifically pleaded that since the defendant was occupying the premises in question as a tenant of Rs.30/- per month since last 17 years, hence the suit was not maintainable.
On the basis of the pleadings, the trial court framed four issues. The first issue related to the fact whether the defendant was a licencee as per averment of the plaintiff and if so whether he was liable to be evicted. The second issue was whether the defendant was a tenant of the premises and if so its effect. Issue no.3 related to the damages sought by the plaintiff and issue no.4 was whether the suit was maintainable as stated by the defendant in his written statement.
The trial court while considering issue no.4 noticed that the defendant did not press the aforesaid issue nor he had led any evidence in respect of the said issue, accordingly the said issue no.4 regarding maintainability of the suit was decided against the defendant.
As far as issue nos.1 and 2 were concerned, the same were taken up together and after considering the evidence led by the plaintiff as well as the defendant, the trial court recorded a finding that the defendant could not establish that he was residing in the premises in question as a tenant. However, considering and believing the evidence as well as the statement of the witnesses of the plaintiff being more credible held that the status of the defendant in the premises was that of a licencee. In view of the aforesaid, the suit came be to decreed by means of judgment and decree dated 06.05.1982.
The aforesaid judgment and decree was assailed in Regular Civil Appeal No.134 of 1982 wherein the First Appellate Court also considering the submission as well as appraising the evidence led by the parties affirmed the finding of the trial court and dismissed the appeal. It is in this backdrop that the defendant preferred the second appeal which as noticed above was admitted on two substantial questions of law as enumerated herein above first.
The submission of the learned Senior Counsel for the appellant is that both the courts have committed a manifest error in failing to appreciate the difference between a lease and a licence. It has been submitted that from the evidence available on record, it was not established that the plaintiff had retained any control over the premises in question. On the contrary, the defendant was found to be in possession prior to 1971 and thus the basis on which the plaintiff had instituted the suit was false and this aspect of the matter has been ignored by the two courts which has resulted in grave miscarriage of justice.
The learned Senior Counsel further submits that since the defendant was a tenant and the two courts have given a contrary findings while ignoring to consider the decision rendered by the Apex Court which clearly brought out the difference between a lease and a licence. The test laid down by the Apex Court in the said cases have also been ignored, consequently the finding returned by the two courts being erroneous as well as being against the weight of the evidence on record renders them as perverse, hence the same can be assailed and be set aside by this Court in exercise of power under Section 100 CPC.
The learned Senior Counsel for the appellant has relied upon the decision of the Apex Court in the case of (i) Associated Hotels of India Ltd. Vs. R. N. Kapoor reported in AIR 1959 SC page 1262, (ii) Mrs. M. N. Clubwala & another Vs. Fida Hussain Saheb and others reported in AIR 1965 SC page 610, (iii) Sohan Lal Naraindas Vs. Laxmidas Raghunath Gadit reported in 1971 (1) SCC page 276, (iv) Smt. Rajbir Kaur and another Vs. M/s. S. Chokesiri and Co. reported in 1989 (1) SCC page 19, (v) Capt. B. V. D'souza Vs. Antonio Fausto Fernandes reported in 1989 (3) SCC page 574 and (vi) Pradeep Oil Corporation Vs. Municipal Corporation of Delhi and another reported in 2011 (5) SCC page 270.
Relying upon the aforesaid decisions, it has been submitted that the essential difference between the lease and licence has not been appreciated by the two courts, consequently the findings are absolutely against the law, hence the two judgments are liable to be set aside.
Per contra Shri Mohd. Arif Khan, learned Senior Counsel for the plaintiff-respondent has submitted that as far as the question regarding the nature of possession of the defendant is concerned, the plaintiff by leading cogent evidence and examining herself and three other witnesses established that the possession of the defendant was that in the nature of a licencee. Since the defendant had raised the plea that he was a tenant then it was incumbent upon him to have established that fact by leading evidence whereas the defendant miserably failed to establish that fact and moreover except for the statement of the defendant alone, no worthwhile witness was examined.
Shri Khan has further submitted that it was the specific case that the premises in question was given on licence to the defendant on the request of the father of the defendant. The father of the defendant would have been the best witness, however, he was not examined. There were material contradictions in the statement of the defendant which has been taken note of by the trial court as well as the lower appellate court and taking a comprehensive view of the evidence on record, the trial court has recorded a finding of fact that the defendant was a licencee in the premises in question. The aforesaid finding being a finding of fact and having been recorded on the basis of evidence are not liable to be assailed in second appeal merely because another view may be possible, though as per the plaintiff-respondent the evidence has rightly been appreciated and there can be no two views about the same.
Shri Khan has further submitted that alternatively even assuming if the defendant was a tenant even then he cannot have the benefit of getting the decree set aside for the reason that the plaintiff had instituted the suit for possession on the basis of his title which was contested before the civil court.
As far as the title of plaintiff is concerned, the defendant did not dispute the same. Though a feeble attempt was made by the defendant to challenge the maintainability of the suit by taking a vague plea in paragraph-19 of the written statement upon which issue no.4 was also framed but the defendant did not press the same nor led any evidence in respect thereto, hence the trial court decided the issue in the negative against the defendant. While filing the regular first appeal the defendant-appellant had taken a ground in the memo of appeal, however, the same was not pressed, consequently the aforesaid issue was not proposed as a substantial question of law while filing the instant second appeal.
In view of the aforesaid, it is submitted that where a decree of eviction has been passed against the defendant irrespective of the fact whether the plaintiff is a licencee or a tenant the net result would be that even if at all, it is held that the defendant is a tenant yet he cannot save his eviction. In the aforesaid backdrop, the question regarding the fact whether the defendant is a licencee or a tenant is only academic and no substantive relief can be granted to the defendant appellant thus the appeal deserves to fail.
Lastly, it has been submitted by Shri Khan that while admitting the aforesaid appeal, this Court had directed the defendant to make the payment of the outstanding sum and continue to do so during the pendency of appeal. However, the defendant has not made full compliance of the order and as such is not entitled to any equitable consideration and for this reason also the appeal deserves to be dismissed.
The record indicates that during the pendancy of appeal, the original plaintiff had expired and legal heirs were substituted as respondent.
The Court has considered the submission of the learned counsel for the parties and also perused the record.
In order to answer the substantial questions as framed, it would be relevant to notice certain undisputed facts. It is not disputed by the parties that the plaintiff-respondent was the owner of the premises in question. It is also not disputed that the plaintiff-respondent had given the premises to the defendant. It is also not disputed that there is no pleadings in the written statement that the plaintiff never issued any rent receipt against the rent of Rs.30/- as claimed by the defendant. It is also not disputed between the parties that there is no written instrument which can ascertain the fact whether the occupation of the defendant in respect of the premises in question was a lease or a licence.
In the aforesaid backdrop, it would be noticed that whether the occupation of the defendant-appellant was that of a licencee or a tenant is to be construed on the basis of evidence led by the parties.
The learned Senior Counsel for the appellant has laid much stress on the fact that the possession of the defendant was exclusive in nature. He was exercising the rights of a tenant and in no manner the plaintiff had any control over the same. It is also submitted that the defendant was paying a rent of Rs.30/- per month to the plaintiff and in the aforesaid circumstances, there is no other view except that the defendant was a tenant and could not be treated to be a licencee.
This Court considering the submission of the learned counsel for the appellant and also noticing the decision rendered by the Apex Court in the case of Associated Hotels of India (supra), Sohan Lal Naraindas (supra), Mrs. M. N. Clubwala (supra), Smt. Rajbir Kaur (supra), Capt. B. V. D'souza (supra) and Pradeep Oil Corporation (supra), one thing is common in all the aforesaid cases is that there was a written document on the basis of which the Court had to construe whether the nature of possession of the party concerned was that of a licencee or a leasee.
From the perusal of the decisions which have been relied upon by the learned Senior Counsel for the appellant they all relate to the proposition how a lease and the licence can be differentiated. From the conspectus of the decisions which has been cited by the learned counsel for the appellant. The broad test which has been laid down by the Apex Court can succinctly be enumerated as under:-
(i) In order to ascertain whether a document creates a lease for a licence first and foremost the intention of the parties is to be kept in mind and the exclusivity of the possession is an important factor though not determinative alone to ascertain whether lease or licence is being created.
(ii) The intention of the parties is to be gathered from the documents as well as the surrounding circumstances. The substance is to be preferred to the form and the court must ascertain that by cleaver drafting or by resorting to camouflage the real intention is not obscured.
(iii) In absence of the written document then it should be ascertained as to whether a person is in exclusive possession. With no special evidence the intention is to be gathered from the surrounding and corroborative evidence which may be available on record, nevertheless the exclusivity of possession would be an important and most relevant circumstance.
Thus, in so far as the instant case is concerned, it is not disputed between the parties that there is no written document, hence the only basis to determine whether the defendant was a licencee or a lessee is from the evidence available on record in shape of testimony of witnesses and other corroborating statements and documents.
In the instant case, admittedly there is no document to indicate the nature of occupation. Here the Court has to consider the evidence led by the parties and the surrounding circumstances to arrive at a conclusion whether the finding recorded by the two courts are appropriate or requires to be interfered with.
With this aforesaid in mind, the Court has meticulously perused the statements of the plaintiff as well as of the defendant witnesses. The plaintiff examined three witnesses whereas the defendant also examined seven witnesses. The plaintiff and her witnesses clearly stated that it is on account of the request made by the father of the defendant that the premises was given to the defendant purely on licence and that at no point of time any rent was received. It is also stated by the plaintiff witnesses that by and large the premises was occupied by the defendant. However, they categorically stated that the defendant never had any shop in the name and style of Venus Dry Cleaner in the said premises nor he had any shop dealing with sale of seeds and pesticides. The plaintiff witnesses have been crossed examined and nothing adverse could be elicited from their statement.
As far as the defendant is concerned, he was required to establish his tenancy and he could not bring any document or material on record to indicate nor any of the witnesses examined by the defendant could establish any creation of tenancy; inasmuch as no payment of rent was ever proved. None of the witnesses ever deposed that in their presence rent was paid to the plaintiff or any receipt was issued.
Significantly, in the pleadings of the defendant there was never any statement that the rent was accepted by the plaintiff but no receipt were issued. The defendant has merely relied upon the statement of the electricity meter reader who stated that the building in question had a meter installed in the name of the defendant. An attempt has been made to indicate that the defendant was occupying the premises since 1967 and it is incorrectly suggested by the plaintiff that the premises was given on licence in the year 1971.
The argument is that there was no way for the defendant to have got an electricity meter installed in the year 1967 when according to the plaintiff, he was given the premises only in the year 1971-72. It is further urged by the learned Senior Counsel by referring to the evidences that the exclusivity of possession of the defendant could not be disputed by the plaintiff and in the aforesaid circumstance, the findings are erroneous, holding the plaintiff to be a licencee.
At this stage, where this Court is faced with the finding of two courts concurrently holding that the defendant is a licencee and is liable to be evicted, also this Court is faced with a decision in the case of Smt. Rama Shanker Vs. Noor Mohammad reported in 1976 (74) ALJ page 748 where the issue before the Court was that whether a plaintiff could get a decree on the basis of title even though such plaintiff has failed to prove the contract of tenancy. This Court in the case of Smt. Rama Shanker (supra) relying upon the decision of the Apex Court has recorded that a suit for possession by the landlord plaintiff can be decreed even though the plaintiff has failed to prove the contract of tenancy. The aforesaid decision was followed in the case of Panna Lal Vs. Sharafat Ali reported in 1979 (5) ALR page 24 and also by this Court in the case of D.P.Misra Vs. S.D. Singh in Second Appeal No.58 of 1995 decided on 11.01.2019.
In the case of Smt. Rama Shanker (supra) this Court by considering the decisions of the Hon'ble Supreme Court held as under:-
"7. In Balmakund vs. Dalu, reported in 25 Allahabad 498, while dealing with the above question, the Full Bench held:
"The fact that no distinct issue as to the plaintiff's title had been framed could not be construed to the prejudice of the plaintiff inasmuch as the issue had in fact been tried, and it could not be said that the defendant had been in any way taken by surprise."
8. The case, in hand, stands on still better footing. In this case, there was a definite pleading in the written statement denying the title of the plaintiff and the setting up of the title by the defendants themselves on the basis of adverse possession. There were definite pleadings of the parties and the definite issue on the question of title and the trial court recorded findings on those issues. The finding of the trial court, as stated earlier, on the question of adverse possession was not reversed by the lower appellate court and in such a case, the Full Bench case will squarely apply and the plaintiff's suit could be decreed on that basis.
9. In Abdul Ghani vs. Musammat Babni, reported in 25 Allhabad 256, the defendant denied the tenancy set up by the plaintiff and asserted that she had been in adverse possession for a period of seventeen years. The finding of the appellate Court was that the plaintiff was the owner of the house and that the defendant occupied the house as a friend with the permission of the plaintiff and that the defendant had never before this asserted her title to the house, and that her possession was permissive. On these findings, it was held by the Full Bench that the plaintiff was entitled to a decree for possession notwithstanding that his case had been that the defendant was his tenant.
10. In Bhagwati Prasad vs. Chandramaul, AIR 1966 SC 735, dealing with such a situation, the Supreme Court observed:
"Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot overrule the legitimate considerations of substance."
11. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would into duce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another".
In view of the principles laid down by the Supreme Court, the suit for possession was decreed on the basis of title although the plaintiff had failed to prove the contract of tenancy. The Supreme Court quoted with approval the aforesaid two Full Bench decisions.
12. On the analysis of the various authorities, there is so manner of doubt that the Court can pass a decree for possession on the basis of title even if the plaintiff had failed to prove the contract of tenancy put up by him provided no prejudice is caused to the other side. In the instant case, both the parties led evidence on the question of title and there was a definite issue framed on the question of title. Therefore, there is no question of any prejudice being caused to the defendants. In these circumstances, the suit should have been decreed on the question of title though the plaintiff failed to prove the contract of tenancy.
13. Learned counsel for the respondents, however, contended that in a suit for possession on the basis of a contract of tenancy, it was not at all necessarily for the lower appellate court to record any finding on the question of title or to decree the suit on the basis of title, and, in support of his contention, he placed reliance on The Subsagar Muncipal Board Sibasagar vs. Dayal Chandra Harthakur, AIR 1971 Assam 155. There is no quarrel with the proposition of law laid down in that case. In a suit on the basis of the contract of tenancy, all that need he gone into whether there is a contract of tenancy between the parties and if the plaintiff had failed to prove then the court could dismiss the suit on that basis and it is not necessary to go further in, but in a case where the question of title has also been gone into and the parties were at issue on the point and the parties had led evidence, it is not necessary to direct the plaintiff to file another suit for possession on the basis of title and the suit can be decreed on the basis of the findings recorded by the courts below. The only guiding consideration is that no prejudice should be caused to the other side. In the instant case, I have already observed that there is no question of prejudice to any party. Law courts always abnor the multiplicity of suit."
In view of the categorical pronouncement of this Court which deals squarely with the issue that in case even if the plaintiff failed to prove the fact of tenancy whether a decree of possession can be granted. This question has been answered in the affirmative and in the given facts situation of the instant case is squarely applicable.
The learned counsel for the appellant could not dispute the fact that even if at all, it is considered that the defendant was a tenant but since the issue no.4 which was not pressed before the trial court as well as the lower appellate court and the instant second appeal has not been admitted on the aforesaid questions of law, hence the question regarding the occupation of the defendant which has concurrently been held to be that of a licencee being a finding of fact is binding on the court. Moreso when question relating to appreciation of evidence is not a substantial question of law as held in 2005 (10) SCC 139, State of Kerala Vs. Mohd Kunhi.
There is another angle to look at this issue. Admittedly, the premises in question is an old building and though no pleadings has been furnished by either of the parties as to whether the U.P. Act 13 of 1972 is applicable yet even assuming so, the position obtained from the facts pleaded would be that if the defendant was a licence inducted in 1971-1972 and then the U.P. Act 13 of 1972 came into effect from 15.07.1972. The licence as per section 2-A of the U.P. Act 13 of 1972 could not be for a period in excess of three months. Thus, after the expiry of three months the occupation of the defendant would be that of an unauthorized occupant. On the other hand, if the plea of the defendant being a tenant is considered, even then he has been unable to establish his tenancy, and in absence thereof he would be an unauthorized occupant. If his tenancy is assumed to be regularized in terms of Section 14 of the U.P. Act 13 of 1972, and when the suit was filed in 1982 for possession on the basis of title and the defendant did not raise any substantial pleadings or led evidence nor objected to the jurisdiction of the Court, hence he would be precluded from doing so in light of the decision of this Court in the case of Smt. Rama Shanker (supra) as noticed above.
Thus, for all the aforesaid reasons the plea of the defendant appellants fails and the substantial questions as framed stand answered.
Accordingly, the instant second appeal is dismissed. In the facts and circumstances, there shall be no order as to cost. The office is directed to remit the record to the court below within a period of two weeks from today.
Order Date :- February 12, 2021 ank/-