Rampratap Singh vs Keshardevi

P.R. Sharma, J.—This is a defendant''s first appeal against the judgment and decree dated the 28th of December, 1957 passed by the Civil Judge, 1st Class Gwalior, in civil original suit No. 447 of 1955.

The suit out of which the present appeal arises was based on the following allegations: The defendant on 21-8-1954 took the plaintiff''s house on license for 11 months agreeing to pay a sum of Rs. 50 for use and occupation thereof in addition to water charges. The defendant paid the charges for use and occupation till 31-5-1955 and the water charges till September 1954. The period of license expired the on 20-7-55 but the defendant did not vacate the premises in his occupation. The plaintiff, therefore, served the defendant with a notice on 16-9-1955 demanding possession and payment of arrears of the aforesaid charges. Since the defendant did not Comply with the terms of the settlement, the plaintiff sued him for ejectment and charges for use and occupation amounting to Rs. 182-4-0 for the period from 1-6-1955 to 20-10-1955, water charges amounting to Rs. 102-4-0 from September 1954 and Rs. 3 by way of interest on the aforesaid dues.

The defendant in his written statement admitted to have taken the plaintiff''s house as a licensee. He, however, denied that he had agreed to pay water charges or interest on the arrears of charges for use and occupation and water charges. He further contended that he had remitted the amount of rent due by money order, but the same was refused by the plaintiff. He, therefore, contended that he had not made any default in payment of rent. Lastly he contended that he was on the date occupier of the premises under his occupation and that the plaintiff had no right to seek his ejectment therefrom.

The trial court at first framed an issue whether the defendant was a licensee of the premises in question as alleged in para 1 of the plaint. But on an objection being raised to this issue it was deleted by the order of the court dated 10-4-1956. Thereafter the parties led their evidence. The trial court by its judgment held that defendant had failed to prove that he had become a lessee of the plaintiff. It also held that the defendant was liable to pay charges for use and occupation from 1-6-1955 onwards together with water charges as claimed by the plaintiff and interest in the sum of Rs. 2-4-only. It, therefore, decreed the plaintiff''s claim for ejectment and for recovery of the aforesaid charges till delivery of possession after deducting therefrom the sum of Rs. 2001 deposited by the defendant along with his written statement.

It may be mentioned at the outset that the finding of the trial court on the point that the defendant has failed to prove that he became a tenant of the plaintiff on expiry of the period of the licence must be maintained. The trial court rightly held that inasmuch as Ex. D-4 includes charges for use and occupation up to the 20th of July, 1955 the mere use of the word ''rent'' in Ex. D-4 could not suffice to prove the alleged lease. There is be sides no evidence to show that Hiralal was duly authorised by the plaintiff to confer the status of a lessee on the defendant. The plaintiff having accepted the position of a licensee under Ex. P. 1 could not in absence of an agreement with the plaintiff himself, acquire the status of a lessee. I would, therefore maintain the finding of the trial court on this point.

It was, however, vehemently urged by the learned counsel for the appellant that the admission made by the defendant in his written statement to the effect that he entered nito possession of the premises in question as a licensee of the plaintiff under the deed Ex. P. 1 cannot debar him from showing that the terms of the document Ex. P. 1 in substance amount to a lease.

In determining whether an agreement between the parties creates the relationship of landlord and tenant or merely that of a licenser and licensee the decisive consideration is the intention of the parties. It is no doubt true that a mere statement in the document that the possession was to be that of a licensee will not be sufficient to turn a lease into a license. But if the document on the face of it contains a stipulation that possession is handed over to the defendant as a licensee for a fixed period and the defendant admits that the intention of the parties is correctly represented by the language of the deed, the question of the intention of the parties being different from what the language of the deed implies does not at all arise. "A person may be allowed temporary rights of exclusive possession in order to alleviate hardship or for other reasons which negative the intention to create a tenancy which would confer on the grantee a permanent right of occupation under the Rent Restrictions Acts, and in these circumstances the grant may be construed as a licence" (See Halsbury''s Laws of England, Third Edition, Volume 23 page 429).

In Marecoft Wegons vs Smith (1952 All. ELR 271) the daughter of the original statutory tenant had, after his death and the death of his widow, continued, to remain in occupation and paid rent for a period of six months. Still it was held that no tenancy had been created between the plaintiffs and the daughter. It was observed by Sir Raymond Evershed M. R. as follows:-

"Until, in the present century the Rent Restrictions Acts came into force, the law, broadly speaking, necessarily inferred, when exclusive possession was granted to one of the property of another at a rent payable to that other, that a tenancy had been created. The law did not recognize that there conditions were compatible with any other kind of relationship. That, I think, sufficiently appears from the passage in Halsbury''s Laws of England Hallsham Ed., Vol. 20 P. 8, to which counsel for the defendant referred. But it is now quite clear that to use the formulae which before has been applied, a new nonstrum horrendum, infermo, ignes has come into our ken the conception of a statutory tenancy, the conception that a person may have such a right of exclusive possession of property as to entitle him to bring an action for trespass against the owner of the property, but yet that such right would not confer any interest whatsoever in the land on the occupier who would not be able to dispose of it by grant or by testamantary disposition."

In the case of Associated Hotels of India Ltd. Vs. R.N. Kapoor, the Supreme Court cited with approval the observations of Denning L. J. in Cobb vs. Lane ( 1952 ALL. E. R. 1999)

"The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land ? "

Where the person in whose favour the deed is executed himself admits that he was a licensee and the deed describes the relationship to be that of licensor and a licensee, the latter by his conduct in treating himself as such admits that the document correctly represents the intention of the parties. The need for determining whether an intention different from that indicated by the terms of the deed existed can in my opinion arise only in those cases where such a question is distinctly raised between the parties and they have had an opportunity to lead evidence on that point. Where no such dispute is raised the court would not be justified in imputing to the parties an intention different from that which the language used in the document suggests and which is admitted by the party affected thereby to have been the true intention of the parties.

In this view of the matter this appeal has no force and is hereby dismissed with costs.

A. H. Khan, J.

I agree.