Yoginder Pal Wadhera vs Ram Charan Saini

G.C. Garg, J.—Appellant filed a suit for possession of upper storey of Shop No. 16, situated in Gandhi Chauk, Pathankot and for recovery of Rs. 2,100/- as damages for use and occupation on the allegations that he being a lessee of the site underneath the building had raised construction thereon and gave upper portion of the shop to the defendant on August 1, 1975 as a licencee for temporary use by him with a premise that he would vacate the same on the asking of the plaintiff-appellant. The defendant having failed to vacate inspite of the repeated requests, was served with a notice dated July 6, 1976, revoking the licence and asking him to hand over the possession and make payment of Rs. 1650/- from August!, 1975 to June 30, 1976 at the rate of Rs. 150/-per month. The defendant having failed to do so, the present suit was filed.

The defendant contested the suit and controverted the allegations made by the plain till in his plaint. It was pleaded by him that he was a tenant under the plaintiff at a monthly rent of Rs. 180/-. It was denied that the premises were taken for temporary use and he had promised to vacate the same on the asking of the plaintiff The defendant took a categorical stand that he was a tenant under the plaintiff and, therefore, could not be dispossessed except in due course of law. Pleadings of the parties gave rise to the following issues :-

Whether the defendant is licencee of the premises in question ? OPP.

Whether the plaint is correctly valued for the purposes of court fee and jurisdiction ? OPP.

Whether the plaintiff is entitled to get Rs. 2100/- on account of damages and compensation for use and occupation of the suit property from the defendant ? OPP.

4 Whether the defendant is a tenant of the disputed premises under the plaintiff. If so on what terms ? OPD.

Relief.

Issue Nos. 1 and 4 were discussed together and it was concluded by the trial Court that the plaintiff was a tenant of the Municipal Committee and the defendant failed to prove his tenancy. Thus he was held to be a licencee. Under issue No. 3, it was held that the tenant had admitted the rate of runt to be Rs. 150/- per month though the tenancy was not proved The plaintiff was thus held entitled to Rs. 150/- per month from the defendant on account of use and occupation of upper portion of the Shop from August 1, 1975 to June 30, 1976. The suit was consequently decreed for possession by ejectment from the upper portion of the shop and for the recovery of Rs. 1650/- on account of use and occupation by judgment and decree dated February 9, 1979.

The defendant feeling dissatisfied with the judgment and decree of the trial Court filed an appeal which was finally disposed of by the learned Second Additional District Judge Gurdaspur. The learned Additional District Judge reversed the findings as recorded by the trial Court under issue Nos. 1 and 4. The findings on all other issues were, however, upheld. As a consequence thereof, the appeal was accepted. The judgment and decree of the trial Court was set aside and the suit of the plaintiff was dismissed. Plaintiff has tiled the present second appeal and has challenged the findings as recorded by the learned Additional District Judge.

Learned Counsel appearing for the appellant has vehemently argued that the defendant was proved to be a licencee on the upper portion of the shop and the finding of tenancy was wrong. Learned Counsel for the appellant took pains to take me through the entire evidence on record to contend that the evidence clearly go to show that there exists no relationship of landlord and tenant between the parties and that the defendant was only a licenee who was given the premises for temporary use for 10 to 15 days and on a promise that he would vacate as and when required by the plaintiff. Learned Counsel further contended that the intention of the parties regarding the relationship of landlord or tenant or licencee or lessee had to be ascertained from the substance of the agreement and in the absence thereof the intention of the parties must be inferred from the circumstances and conduct of the parties and that the mere fact that the premises are in exclusive possession of a person would not make him a lessee He also referred to the fact that the plaintiff was a lessee under the Municipal Committee and in terms of the lease he could not grant further lease in respect of the shop in question In the present case, there is no document from which it may be inferred whether the present is a case of licence or lease. It has only to be inferred from the ocular testimony of the witnesses produced by the parties. The plaintiff appeared as P. W. 1 and stated that the Shop was given to the defendant for temporary use and it was agreed that he would vacate the same as and when required and after some alternate arrangement was made. He further stated that Walaiti Ram, Mahesh Dass and Dwarka Dass P. Ws. were also present when the defendant was permitted to occupy the premises in question The plaintiff is only working as a tea vendor on the ground floor of the shop. He admitted that the defendant was in exclusive possession of the shop given to him wherein he was carrying on the business of tailoring. The plaintiff while appearing as his own witnesses has no where stated that the defendant was either a relation, friend or even an acquaintance. Exclusive possession of the First Floor was thus delivered to a complete stranger for carrying on the business of tailoring. Can in these circumstances, it be said that the defendant was only a licencee and not a tenant. In my view, the learned----Additional District Judge has given cogent reasons for coming to the conclusion that he was in fact a tenant and not a licencee. As already noticed the possession of the defendant is exclusive and it is he who locks the premises. It is again the admitted case that the portion given to the defendant was lying vacant prior to his induction. The appellant himself is a lessee and carrying on his business in the ground floor as a tea vendor and consequently was interested to earn something in respect of the first floor of the shop which he had constructed after taking the site under the shop on rent from the Municipal Committee. There being a clear bar under the lease executed by the Municipal Committee in favour of the plaintiff regarding creation of sub tenancy, no written document could obviously came into being as that would have clearly gone against the plaintiff. It was under these circumstances, learned Additional District Judge tightly concluded that if an agreement in writing had come into ex istence, that would have jeopardised his interest as a lessee of the Municipal Committee. It is highly improbable that the plaintiff would have parted possession of the first floor of the shop in question for no consideration in favour of a complete stranger and admittedly he kept silent for a period of over one year after the possession was handed over to the defendant. Nothing has been brought on record by the plaintiff that the defendant was to vacate the premises shortly after making some alternate arrangement of a tenanted premises The defendant while appearing as his witness has clearly stated that he was paying a sum of Rs. 150/- per month on account of rent but no receipt had been issued. Witnesses produced by the defendant clearly support his case. The defendant being in exclusive possession, plaintiff has no control or interference in the premises in question and this in my view goes a long way to show that the present in a case of lease and not of licence. I thus find no merit in the contention of the learned counsel and concur with the finding recorded by the learned Additional District Judge. As already noticed, the learned Additional District Judge upheld the finding on issues 2, 3, 5, 2(i) and 2(ii) but curiously enough set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff in toto without realising that the plaintiff had been granted a decree for recovery of Rs. 1650/- at the rate of Rs. 150/- p m. for the period from August 1, 1975 to June 30, 1976. No challenge whatsoever was made to this part of the decree before the lower Appellate Court. To that extent the judgment and decree passed by the lower appellate court deserves to be modified.

During the pendency of this appeal S. S. Sodhi, J. vide order dated August 30, 1981, directed the respondent to deposit in Court an amount due to the plaintiff at the rate of Rs. 150/-per month with effect from August 1, 1975 to date. It was further recorded in the order that a sum of Rs. 4,800/- had already been deposited on March 7. 1979 and another sum of Rs. 1650/- on June 7, 1979. In these circumstances, it was ordered that if these amounts had been deposited, the balance amount be deposited. It was further directed that the defendant would continue to deposit in Court in advance the sum of Rs. 150/- per month on or before 10th day of each month. The plaintiff-appellant was allowed to withdraw the amount so deposited

In view of the aforesaid discussion, finding as recorded under issue Nos. 1 and 4 are affirmed and it is held that the defendant-respondent is a tenant on the first-floor of the shop in question on payment of Rs. 150/- per month. In the result, the judgment and decree passed by the learned Additional District Judge is modified and the suit is decreed for recovery of Rs. 1650/- with proportionate costs and the suit for possession by way of ejectment is dismissed. Any amount lying in deposit with the trial Court shall, however, be disbursed to the plaintiff-appellant in terms of the order passed by this court on August 30, 1984.