Darshan Kumar Sharma vs Vimal Bansal and Another

M.M. Kumar, J.—This is defendant''s appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for brevity, ''the Code'') challenging concurrent findings of facts recorded by both the Courts below in their judgments and decrees dated 10.2.1999 and 28.2.2003 respectively holding that the defendant-appellant is only a licensee and not a lessee. His license has been legally and validly revoked by the plaintiff-respondents. His ejectment had been ordered by both the Courts.

On 31.3.2003 when notice of motion was issued, counsel for the plaintiff-respondents had appeared. Me had apprised the Court that possession of the premises had already been taken on 29.3.2003 through the Bailiff. Therefore, by the affidavit filed by one of the plaintiff-respodnent, namely, Subhash Bansal, a copy of the warrant of possession with the report dated 29.3.2003 have been placed on record which show that possession has been delivered to the plaintiff-respondents.

Mr. Ravinder Chopra, learned counsel for the defendant-appellant has argued that once a person is in exclusive possession of the premises, then he cannot be considered as a licensee and such a person has to be considered as a lessee. Leaned counsel has placed reliance on the averments made in paragraph 5 of the plaint and the statement of PW2-Subhash Bansal. According to the learned counsel, a conjoint reading of the statement along with paragraph 5 of the plaint show that the defendant-appellant is in exclusive possession of the premises in dispute and the rate of rent has also been mentioned by the plaintiff-respodnent to be Rs. 1,000/- p.m. In support of his submissions, the learned counsel has placed reliance on a judgment of this Court in the case of Brahm Raj Vs. Smt. Vidya Wati and others, .

Mr. Rakesh Chopra, learned counsel for the plaintiff-respondents has argued that once concurrent findings of facts have been recorded by both the Courts below, no room is left for interference by this Court in the concurrent findings. According to the learned counsel, appreciation of evidence cannot be undertaken in the second appeal to reverse the findings even if another view is possible. It has further been argued that mere exclusive possession by a party is not the clinching and conclusive proof of fact that such a person is a lessee.

Having heard learned counsel for the parties at a considerable length, I am of the considered opinion that the view taken by the Courts below does not suffer from any legal infirmity. According to the view of the Supreme Court in Mrs. M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, mere exclusive possession is not the sole criteria for determining the status of a licensee or a lessee. The Supreme Curt has followed the earlier view expressed in Associated Hotels of India Ltd. v. R.N. Kappor AIR 1955 S.C. 1262. In the present case, no agreement between the parties has been produced on record to show the nature of possession of the defendant-appellant. He has also failed to place on record any documents. Even the suit filed by the defendant-appellant against the plaintiff-respondents seeking permanent injunction was withdrawn by him. A perusal of the document Annexure R1 with the affidavit of Subhash Bansal shows that even the judgment and decree under appeal has been executed. Therefore, I am of the considered view that there is no merit in this appeal which is liable to be dismissed.

The judgment in the case of Brahm Raj (supra) cannot be applied to the facts of the present case because the real test is the intention of the parties which is to be gathered from the documents or from the attendant circumstances. No document has been placed on record reflecting the intention the plaintiff-respondents that a lease was sought to be created in favour of the defendant-appellant. There is nothing on the record to substantiate the plea hat the defendant-appellant is a tenant. Therefore, the test applied in Associated Hotels of India Ltd.'' case (supra) would be equally applicable to the tenants of the present case and the appeal is liable to be dismissed. 7. I am further of the view that the findings of facts cannot be gone into by reappreciation of evidence as learned counsel for the defendant-appellant has canvassed by inviting my attention to the statement of PW-2 and the statements made in paragraph 5 of the plaint. It is well settled by the judgments of the Supreme Court in the cases of Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah, and Kulwant Kaur and Others Vs. Gurdial Singh Mann (dead) by Lrs. and Others etc., that u/s 100 of the Code reappreciation of evidence to record a finding other than the one recorded by the Courts below is not permissible. Therefore, on that score also the appeal does not deserve to be admitted. No question of law would arise warranting any interference. The appeal is wholly without any merit.

For the reasons, stated above, this appeal fails and the same is dismissed.