Smt. Daya Wati, and others vs Dr. Ravinder Kumar Sharma

The question involved in this case is as to whether document Exhibit P-7 is a licence deed or a lease deed. Both the Courts below holding the same to be a licence deed decreed the suit for possession of the shop as well as for recovery of Rs. 10,080/-, the amount of licence fee. This appeal is by the defendants.

The property in dispute is described as shop No. 3 forming part of property No. 732 situated on Rishi Daya Nand Road, Ludhiana. Dr. Ravinder Kumar Sharma plaintiff is the owner of the property. He filed the suit for possession of the shop and for recovery of Rs. 10,080/- on account of compensation for use and occupation of the shop for the period from 1-1-1980 to 31-12-1982 at the rate of Rs. 280 per mensem. Manohar Wati, mother of the plaintiff, was the original owner. She had gifted the shop in dispute to the plaintiff vide gift-deed dated 29-12-1975. Earlier Madan Lal was carrying on the business of General Provisions (Karyana) in the shop in dispute as a licensee with effect from September 1, 1967 vide licence deed dated August 22, 1967. Only portion of the shop aforesaid was allowed to be used by Madan Lal. Otherwise the control and possession throughout remained with Manohar Wati. At that time licence fee was at the rate of Rs. 80/- per mensem. Subsequently such like licence deeds continued to be executed. It was on April (6, 1979 that a fresh licence deed was executed and Madan Lal agreed to pay Rs.280/- per mensem as licence-fee. On breach of the terms of the licence, the same was to stand as revoked. Madan Lal was to deliver the possession. A notice revoking the licence was issued by the plaintiff and Madan Lal denied ownership of the plaintiff. Hence his possession became illegal and the suit was filed.

The suit was contested by Madan Lal. He pleaded that he was a tenant in the property in dispute for the last more than 15 years on payment of Rs. 80/- per month as rent. He claimed to be in exclusive possession of the property from the very beginning. No licence deed was ever stipulated to be executed. He denied the relationship of landlord and tenant between the parties. Civil Court had no jurisdiction to entertain the suit. The ownership of the property of the plaintiff was not denied however, it was admitted that Manoharwati was the owner. However, it was denied that she had gifted the shop to the plaintiff Dr. Ravinder Kumar Sharma. In case of proof of the gift deed he pleaded that he would be tenant under Ravinder Kumar. He denied the control over the shop of the plaintiff. He denied the execution of the licence deed. However, he pleaded that his signatures were obtained on some documents alleging the same to be rent note. According to him the rent was never increased from Rs.80/- to Rs.280/-. Rent at the rate of Rs. 80/- per month was remitted through money order. He claimed to have paid the rent up to December, 1979. Subsequently the same was not accepted by the landlord. The following issues were framed on the pleadings of the parties:--

(1) Whether plaintiff is owner of the disputed property? OPP

(2) Whether plaintiff is entitled to get possession of the disputed property?

(3) Whether Civil Court has no jurisdiction to decide the present case? OPD

(4) Whether plaintiff is entitled to recover any compensation for use and occupation? If so how much? OPP

(5) Relief.

All the issues were decided in favour of the plaintiff and against the defendant and the suit was decreed. Madan Lal died after the decision of the trial Court and the appeal was filed by Daya Wati and others, his legal representatives before the lower appellate Court, which was dismissed.

Shri Viney Mittal, learned counsel for the appellants, has argued that Exhibit P-6, the alleged document on which the plaintiff relied, is in fact a lease deed. The parties intended it to be a lease deed. The possession of Madan Lal was exclusive over shop No. 3 and Dr. Ravinder Kumar Sharma had no control over it. It is in this context that he has further argued that when this document was executed at least from that date Madan Lal became the tenant on payment of Rs. 280/-per month which rent was increased from Rs. 80/- and exclusive possession of the shop was delivered to him.

On the other hand Shri M.L. Sarin, Sr. Advocate, appearing for the respondent, has argued that from the very beginning Madan Lal was allowed user of portion of shop No. 3, the articles of the plaintiff continued to remain in the shop in dispute and key of the shop also remained with the plaintiff. Madan Lal was allowed to take the key in the morning and hand it back in the evening. Learned counsel has also referred to the earlier documents i.e. licence deeds produced in the case which are also on the same terms and conditions as contained in Exhibit P-6.

In order to determine whether a document is a lease or licence, general principles have been laid down by the Supreme Court in several decisions. Those cases are Associated Hotels of India Ltd. Vs. R.N. Kapoor, ; Qudrat Ullah Vs. Municipal Board, Bareilly, ; Khalil Ahmed Bashir Ahmed Vs. Tufelhussein Samasbhai Sarangpurwala, . The following principles have been laid down in the Associated Hotels case (supra) which were noticed in the subsequent decisions. The following proposition may therefore, be taken as well-established:-- (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties -- whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner it is a licence; and (4) if under the document a party gets exclusive possession of the property, ''prima facie'', he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. Khalid Ahmed Bashir Ahmed''s case (supra) related to grant of a licence for 20 hours restricted use. Licensor retained his right to enter upon the premises and inspect the same at any time. Referring to the earlier decisions, it was held that it was a case of licence.

Reverting to the facts of the case, reference may be made firstly to Exhibit P-7 which is licence deed dated December 22, 1967. This was executed by Madan Lal in favour of Manoher Wati, mother of the present plaintiff. Apart from describing the parties as licensor and licensee, it refers to use of portion of shop No. 3 by the licensee. The licensor retained control over the premises in dispute as his articles remained therein and the licensee in the morning used to collect the key and returned the same in the evening as per evidence produced. Subsequently, in all the licence deeds same terms and conditions were repeated regarding user of the portion of shop No. 3 and right of the licensor to enter upon the premises. Those licence deeds are Exhibits P-8 of 1974, P-9 of 1975, P-4 of 1977, P-5 of 1978 executed by Madan Lal in favour of Ravinder Kumar Sharma. Finally it is Exhibit P-6, the licence-deed dated April 16, 1979 which is being interpreted now to determine whether it is a licence deed or a lease deed. Suffice it to say it is also on the same lines as the previous licence deeds. However, specific portions which are relevant are being noticed. Ravinder Kumar Sharma was described as a licensor and Madan Lal -- a licensee. The recital shows that the licensee had approached the licensor to grant him the licence to use portion of the shop No. 3, ground floor of the property unit No. B-XIX-732. Subsequently, in this deed licensed portion of the property was described as such. Licence fee was fixed at Rs. 280/ - per mensem. In default of payment of the licence fee, the licence was to stand automatically revoked and the licensor had the right to enter upon the property without any previous notice. Clause 7 specifically provided that no right in the property licensed passed to the licensee. The possession of the premises always was to remain with the licensor. It was further specifically provided under Clause 8 that it was expressly agreed that there was no intention of the parties to create a relationship of landlord and tenant but the intention was to create relationship of licensor and licensee. The licensor under Clause 10 retained the right to enter upon the property for raising any construction on the property licensed. As held by the Courts below on consideration of the oral evidence produced that Madan Lal used to take the key in the morning and returned the same in the evening and that one almirah containing articles of the licensor continued remaining in the premises in dispute. This is a finding of fact which is not open to challenge in the second appeal. It was after 1979 that the licensor Madan Lal stopped taking key and delivering it daily and the dispute occurred between the parties regarding revocation of the licence on serving of notice etc. It was ultimately in February, 1983 that the suit was filed.

The contention of the learned counsel for the appellant is that after 1979 the exclusive possession over shop No. 3 remained with Madan Lal and he stopped taking key or deliver it back further shows that entire control over the shop remained with Madan Lal and not with Ravinder Kumar. After 1979 the intention of the parties was to create relationship of landlord and tenant and the rent was increased to Rs. 280/- per mensem. In support of this contention reliance was placed on the notice issued on behalf of the plaintiff by his Advocate which is Exhibit P-10. In para2 it was stated that in April, 1979 Madan Lal had requested Ravinder Kumar to use the entire shop instead of portion of the same and he was allowed to do so on paying monthly licence fee of Rs. 280/- and licence deed was executed. This contention of the counsel for the appellant cannot be accepted for the simple reason that it is not the case of Madan Lal defendant as pleaded that he was a tenant on the shop in dispute from 1979 onwards. His case had been that for the last 15 years he was a tenant on the shop in dispute on payment of Rs. 80/ - only. His stand stands rebutted when previous licence deeds are taken into consideration as referred to above.

As far as averment in the notice Exhibit P-10 is concerned, it clearly refers to execution of the licence deed in response to the talk which had taken place. The licence deed which was the outcome of the talk clearly refers to the licence for use of portion of shop No, 3. Other conditions have also been referred to above. The licence deed, referred to above, did not create any relationship of landlord and tenant between the parties which was also never intended. Rather it was specifically mentioned in the licence deed that the parties never intended to create relationship of landlord and tenant. Findings of the Courts below are affirmed holding that there was only relationship of licensor and licensee between the parties. The licence having been revoked, the licensor is entitled to get back the possession.

Exhibit P-1 is the gift deed vide which Manohar Wati gifted the property in dispute to Ravinder Kumar Sharma. Thus, Ravinder Kumar Sharma is held to be the owner of the property in dispute.

Finding no merit in the appeal the same is dismissed with no order as to costs.

Appeal dismissed.