M. Prasadarao (died) per L.R. vs Andhra Pradesh State Road Transport Corporation

Avinash Somakant Bhate, J.—The appellant before us was occupying certain premises belonging to the respondent (plaintiff). The respondent filed the suit on the basis that the appellant was inducted as a licensee in the premises occupied by him and the said licence having stood expired the appellant was bound to surrender the vacant possession of the said premises in favour of the respondent Separate suits were filed against all the occupants. The appellant contended that he was a tenant and was not liable to be evicted, merely on the ground that the term of licence, as alleged by the plaintiff, had expired. The learned trial Court, on going through the pleadings and evidence adduced before the said Court, delivered the judgment on 1-8-1992 dismissing the suit and holding that the appellant was a tenant of the said premises and could not be evicted except by due process of law. In an appeal preferred by the plaintiff against the said judgment, the learned single Judge of this Court held in A.S.No. 2047 of 1992 that the appellant herein was only a licensee and therefore, was bound to surrender the possession of the premises. The finding turned on the interpretation of document which was executed by the appellant in favour of the respondent.

In the present appeal before us, the learned Advocate for the appellant has tried to contend that the document, under which the appellant was inducted, on proper construction amounts to a lease deed. It is also contended that the learned trial Court had impounded the said document on the basis that it was inadequately stamped as a lease deed and from that step taken by the learned trial Judge the document has to be construed as a lease deed. We are not at all impressed by the contention advanced by the learned Advocate for the appellant. It has been brought to our notice that this matter is in fact fully covered by the judgment delivered by a Division Bench of this Court in Writ Appeal No. 823 of 1985 decided on 27-4-1989. In fact, it was on the basis of this judgment, that the learned single Judge has decided the appeal, filed by the respondent before the learned single Judge. In the aforesaid Writ Appeal precisely the same point came up for consideration before the Division Bench. The document on which the whole case depended in that appeal was in identical terms as the document on which the appellant now claims right of licensee (sic. lessee) in the present case. After considering clause by clause all the terms and conditions in the said document, the Division Bench has observed as follows:-

"All these clauses amply indicate that the Corporation has an effective control and supervision of the use of the space given to the petitioner for running a sweet-meat shop. Whether the transaction is a lease or a licence depends upon the facts of the case and the conditions thereof. The nomenclature would not decide the issues."

Thereafter the Division Bench held that considering all the terms and conditions the construction of document clearly showed that it was a licence. As stated above, the document in the instant appeal is identical to the document which came up for consideration before the Division Bench and therefore, we are of the view that this case is fully covered by the decision in the said Writ Appeal. We also agree with the findings recorded in the said Writ Appeal.

The contention that the learned trial Judge impounded the document as a lease and therefore, the document should be considered as lease has to be stated merely for the purposes of rejection. If the trial Court had made any error at the stage of evidence in putting a construction on the document which was unwarranted, that would not come to the help of the appellant for urging that the same view should be accepted by this Court. It is after all the true construction of the document which is material.

The learned Advocate for the appellant lastly tried to argue that the decision of the Supreme Court in Capt. B.V. D''Souza Vs. Antonio Fausto Fernandes, shows that on proper construction in this case the document should be treated as lease. We are not convinced by the argument on this point because the case before the Supreme Court only laid down the well settled principle once more: "For ascertaining whether a document creates a licence or lease, the substance of the document must be preferred to the form. It is not correct to say that exclusive possession of a party is irrelevant but at the same time it is not conclusive. The other tests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations." In the instant case, as has been adequately disclosed in the discussion by the Division Bench of this court, no interest in the property has been created in favour of the appellant. Hence, the Supreme Court judgment is of no assistance to the appellant. We find no merit in the appeal.

In the result, the appeal is dismissed with costs.