Kuldip Raj vs Roop Rani and Another

Swatanter Kumar, J.—Learned counsel for the appellant has vehemently argued that the appellant was a lessee of the premises in question and the learned courts below have erred in law in treating him as licensee and decreed the suit of the respondents (plaintiff).

In order to examine the legality and propriety of this submission, reference to facts may be necessary.

Plaintiff Kishan Chand, who had died during the pendency of the suit and was prosecuted by the legal representatives, filed a suit for mandatory injunction directing the defendant to hand over the vacant possession of the shop in dispute, more particularly identified in the map annexed to the plaint. It was stated that the plaintiff had purchased the shop by means of registered sale deed dated 11.10.1996 and had inducted his brother, defendant, as licensee to carry on the business of bakery in the shop in question as licensee, He terminated the licence and wanted the defendants Kuldip Raj to vacate the premises. He served a registered notice dated 18.5.1993 and 28.7.1993 revoking the licence and asked for possession. Having failed to achieve any result, the present suit was instituted.

The suit was contested by the appellant, who claimed himself to be lessee. According to him as the relationship of landlord and tenant existed between the parties, the jurisdiction of the civil court is barred, in view of Section 13 of the East Punjab Rent Restriction Act, 1949. It was stated that the shop was rented at Rs. 10/- per month and he had even made improvement on the said shop and was thereafter paying Rs. 20/- per month to the plaintiff. It is stated that rent upto 13.12.1992 stood paid.

Learned trial Court upon aforestated pleadings of the parties framed as many as four issues and decided all the issue against the defendant and in favour of the plaintiff and decreed the suit as prayed, vide judgment and decree dated 1.2.1997.

The judgment and decree of the learned trial Court was assailed before the learned additional District Judge, Gurdaspur, unsuccessfully by the defendants. Hence the present appeal.

Learned counsel below have come to a concurrent finding of fact that it was a case of licence and not lease. Contention of the learned counsel for the appellant that he is in conclusive possession of the property in question and it would automatically become lease is totally mis-conceived. It is true that there is a fine but a well accepted and defined distinction between a licence and lease in law. The ingredients which would help in clearly understanding this fine distinction, are intention of parties, attendant circumstances at the time of execution of such documents, nature of possession being exclusive or permissible and the relationship created from these documents. Lease is a relationship of lessor and lessee arising out of an agreement to pay rent and to enjoy exclusive possession of an immovable property for a specified period and there is an element for creating an interest on the immovable property. While licence is an authority and permission to do an act which in the absence of such authority would be an unlawful act. For example, in relation to an immovable property, in the absence of a licence to do an act, then it would amount to trespass. It has no essential ingredients of creating an interest in the immovable property. The ingredient of exclusive possession would be normally absent in the case of licence. In this regard reference can be made to the judgment of the Hon''ble Supreme Court in the case of Qudrat Ullah Vs. Municipal Board, Bareilly, , Puran Singh Sahni Vs. Sundari Bhagwandas Kripalani (Smt) and Others, , and Shri Dipak Banerjee v. Smt. Lilabati Chakraborty, 1987(3) J.T.454.

Applying these well enunciated principles to the facts of the present case, the learned courts below have rightly concluded that it was a licence which was granted to the appellant by his deceased brother and there was no intention to crate a lease. In other words, it was not a case where exclusive possession except restricted right of the landlord to inspect the premises was granted to the appellant. Admittedly, no agreement was executed.

In the facts and circumstances of the present case, the defendant did not place any documents on record to show that rent, as alleged, was paid. Furthermore, the defendant also did not produce any document from the Municipal Committee that he was recorded as a tenant of the plaintiff in the premises in question, in the record of the Municipal Committee, Sujanpur. The onus of issue No. 3 was heavily placed upon the defendant and the defendant has miserably failed to discharge his onus by leading any cogent and proper evidence. None production of the above-record, seen in the light of the fact that notice terminating the licence exhibits P.1 and P2 were admittedly received by the appellant and remained unreplied and unrebutted, adverse inference has to be drawn against the appellant.

The concurrent finding of fact arrived at by the learned courts below and the principles of law cited in the impugned judgment can neither be termed as perverse or unsustainable.

In the aforesaid discussion, I find no merits in this appeal and the same is dismissed in limine.