Sri Prasanta Mallick vs Sri Ashoke Kumar Mallick & Ors.

Jyotirmay Bhattacharya, J.—Leave is granted to the learned advocate-on record of the appellant to rectify the defect in the memorandum of appeal.

This second appeal is directed against the judgment and decree dated 18th March, 2014 passed by the learned Additional District and Sessions Judge, Fast Track Court, Chandernagore, Hooghly in Title Appeal No. 05 of 2013 affirming the judgment and decree dated 29th April, 2013 passed by the learned Civil Judge (Junior Division), Additional Court, Chandernagore in Title Suit No. 44 of 2011 at the instance of the defendant no.1/appellant.

Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not.

The parties are closely related to each other. The plaintiff is the uncle of the defendant No.1. The plaintiff filed the suit for declaration of his tenancy right under the proforma defendants and for recovery of possession from the defendant No.1. It is stated therein that the plaintiff is the tenant in respect of the suit shop room under the proforma defendants. He claims that he permitted his nephew, the defendant No.1, to carry on business in a part of the suit premises. When such permission was granted by the plaintiff, the defendant No. 1 started carrying on his business in a part of the suit premises after obtaining trade licence from the Municipal authority. Since the defendant No.1 did not vacate the suit premises even after revocation of his licence granted by the plaintiff, the plaintiff filed the instant suit for recovery of possession from the defendant No.1.

The defendant No.1 contested the said suit by filing written statement denying the material allegations therein. He tried to defend the said suit on the strength of his possession in the suit property. He also prayed for dismissal of the said suit as the description of the suit property was vague. Though the proforma defendants did not come forward to contest the said suit and/or to support the plaintiff�s plea of tenancy in respect of the suit shop room, but the plaintiff proved his tenancy right in respect of the suit shop room by proving the rent receipts granted by the proforma defendants in his favour in respect of the suit shop room.

The defendant No.1 could not prove his better title in the suit premises. In such circumstance, the learned Trial Judge held that the defendant No.1 is nothing but a trespasser. As he did not give up possession of the portion in his occupation to the plaintiff after revocation of his licence, the learned Trial Judge passed a decree for eviction against the defendant No.1.

Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the defendant No.1 preferred an appeal before the learned First Appellate Court. The learned First Appellate Court dismissed the said appeal by affirming the findings of the learned Trial Judge. The legality and/or propriety of the said judgment and decree of the learned First Appellate Court is under challenge in this appeal before this Court.

Mr. Karmakar, learned advocate appearing for the defendant no.1/appellant submits that both the courts below failed to appreciate that since his client has been carrying on his business in a portion of the suit premises after taking trade licence from the Municipal authority, his possession cannot be held to be illegal. He further submits that the suit property has not been properly described. He, thus, argues that both the courts below should have dismissed the suit due to vague description of the suit property.

Let us now deal with the aforesaid two contentions of Mr. Karmakar in the facts of the present case.

On perusal of the materials on record including the judgments and decrees of both the courts below, we find that the plaintiff has established his tenancy right in respect of the suit property. The defendant no.1/appellant could not prove any better title than that of the plaintiff in respect of the suit property. A person can occupy a premises in different capacities. He may occupy a premises as an owner. He may also occupy a premises as a lessee and/or tenant. He may also occupy a premises as a licensee or he may occupy any premises as a trespasser.

Here, the defendant no.1/appellant has failed to establish that he was occupying the suit premises as an owner thereof. He has also failed to establish that he was occupying the suit premises as a tenant and/or lessee. He has also failed to prove that he was not a licensee under the proforma defendants.

Since the defendant no.1/appellant is unable to prove a better title than that of his uncle i.e. the plaintiff in respect of the suit property, we have no hesitation to hold that the learned courts below rightly held that the defendant no.1/appellant was a licensee under the plaintiff and his licence has been duly revoked and since after revocation of such licence, he did not deliver vacant possession of the suit premises to the plaintiff, he is liable to be evicted. We do not find any illegality in this part of the findings of the courts below.

Let us now consider the other point which is raised by Mr. Karmakar, learned advocate. He has contended that both the courts below should have dismissed the suit as the suit property has not been properly described in the schedule of the plaint.

We cannot agree with this submission of Mr. Karmakar by following the well settled principle of law that the licensee must know the extent of his possession in the suit property as a licensee thereof. A licensee cannot be confused with identity of the suit property even if the schedule of the suit property is vague. It is not a case that the defendant no.1/appellant was a licensee under the common licensor in respect of more than one premises. This is a case where we find that the suit premises was held by the defendant No.1 as a licensee under the plaintiff and this was the solitary licence on the strength on which he was occupying the portion of the suit property. As such, we hold that the defendant no.1/appellant cannot be confused with the description of the suit property even if the description of the suit property is vague.

We do not find involvement of any substantial question of law in this appeal. We, thus, decline to admit this appeal for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure.

The appeal, thus, stands dismissed.

Re: CAN 9093 of 2014 (Stay)

Since we have not admitted the appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 9093 of 2014 is thus deemed to be disposed of.