Hon''ble Rajesh Tandon, J.@mdashHeard Sri Sarvesh Agarwal, counsel for the Appellant and Sri Sharad Sharma, counsel for the Respondents. As both the second appeals have been filed against a common order, therefore, the same are decided together.
FACTUAL MATRIX of THE CASE:
2. By the present second appeals filed u/s 100 of the Code of Civil Procedure, the Appellant has prayed for setting aside the judgment and decree dated 20.04.2007 passed by the Addl. District Judge/IIIrd Fast Tack Court, Haridwar in Civil Appeal No. 36 & 37 of 1998 Dr. Ramesh Singh v. Manager Meharchand Sood Dharamshala and another.
3. Briefly stated, so far as Second Appeal No. 61 of 2007 is concerned, a suit was filed by the Plaintiff-Respondent being Civil Suit No. 123 of 1981 Ramesh Chandra v. Manager Meharchand Sood Dharamshala and another praying for permanent injunction restraining the Defendant from interfering in his possession.
4. So far as Second Appeal No. 60 of 2007 is concerned, another suit was filed by the Plaintiff-Respondent being Suit No. 188 of 1987 claiming the eviction of the Defendant as well as damages for use and occupation of the premises in dispute. Both the suits were decided together. Suit of Ramesh Chandra was dismissed, whereas suit for eviction of Sood Sabha was decreed. However, both the Appeals being Appeal No. 36 of 1998 arising out of Suit No. 123 of 1981 and 37 of 1998 arising out of Suit No. 188 of 1987 were decided together. Both the appeals were dismissed.
5. According to the case of the Plaintiff, the Plaintiff is a registered society of which Om Prakash Sood is the Secretary. The society is running a Dharamshala in the name of Marak Lal Sundar Lal Mehar Chand Sood Dharamshala Jodhamal Road, Haridwar. The management of the, said Dharamshala is being looked after by the Plaintiff. The Defendant Sri Ramesh Singh was admitted in the Dharamshala as a Passenger (Yatri). He has entered his name in the register managed by the Dharamshala as a Passenger (Yatri) on temporary basis. The Defendant was required to vacate the premises, but on one pretext or the other, he posed himself to be the tenant of the premises, when in point of fact he came to visit the place only and was admitted as a licensee. His licence was terminated orally, but he has not vacated the premises and continues to occupy the same unauthorisedly. Hence the present suit was filed for dispossession of the Defendant from Dharamshala.
6. The Defendant has filed a written statement denying the averments made in the plaint.
7. According to the case of the Appellant, the Appellant was admitted as a tenant on a sum of Rs. 30/- per month in the Dharamshala and it has been denied by the Appellant that he was admitted as a licensee.
8. Counsel for the Appellant has made the following submissions:
1) The Defendant-Appellant was admitted as a tenant of the premises and not as a licensee.
2) The dispossession of the Defendant-Appellant from the Dharamshala in question is wholly illegal as he was paying the rent at the rate of Rs. 30/- per month.
Point No. 1.
9. On behalf of the Plaintiff-Sood Sabha Shimla, one Om Prakash Sood was examined on oath as P.W.2. He has stated that he is Manager of the said Dharamshala since 1991 and the Defendant-Appellant (Ramesh Singh) was given the Dharamshala as a Passenger(Yatri) by the previous Manager namely Hans Raj Negi, though No. Passenger (Yatri) is allowed to stay for more than seven days and after seven days, the license has automatically come to an end. According to the statement made by the Manager, the Defendant-Appellant has neither paid any money nor Plaintiff has received any amount towards rent.
10. On behalf of the Plaintiff, one Brij Lal Gupta was examined. He has deposed that the property namely Mehar Chand Lal Sood Dharam Shala is being managed by the said tenant as will appear from the documents Paper No. 50-Ga issued by the Nagar Palika and the same is being used for staying Yatri and the Defendant was admitted as a Yatri and he is not being treated to be the tenant. He has also proved the Register Paper No. 51-Ka on 6th December, 1980, when he came as a Yatri. On behalf of the Defendant-Remesh Singh was examined, who has stated that he was paying the rent at the rate of Rs. 30/- per month. He could not prove any receipt issued by the Plaintiff in order to prove that the Defendant was the tenant of the premises.
11. The trial Court while considering as to whether the Appellant is the tenant or a licensee has recorded the finding that there are seven columns in the Register and in Column No. 2 the date of arrival is being mentioned. In column No. 3 the name of Yatri is being mentioned. In column No. 5 father''s name, Column No. 6 Business, Column No. 7 Resident, Column No. 8 is rooms occupied by the yatri and in Colum No. 9 the number of passenger and column No. 11 the signature of the passenger is mentioned. Paper No. 20-C-1 Serial No. 631 names of other passengers have been mentioned and in column No. 631, the arrival of the Appellant has been mentioned.
12. The appellate Court has also recorded the finding that the status of the Appellant was only like a Yatri, which can be treated as a licensee and the Appellant was never admitted as a tenant of the premises in question. It is well established that even assuming that the Appellant was paying some money towards use and occupation, the same he be treated as a tenant of the premises of Dharam Shala.. Permitting the Yatris to stay in the Dharamshala for a short term will not confer the rights of the tenant. As will appear from the register of Dharam Shala, the Defendant was not allowed to stay for more than seven days.
13. So far as injunction suit (Suit No. 123 of 1987 in Second Appeal No. 61 of 2007) filed by the Appellant is concerned, it is well settled that the Appellant cannot claim any injunction against the true owners as held in
9. It is settled law that No. injunction could be granted against the true owner at the instance of persons in unlawful possession.
14. Lucknow Bench of Allahabad High Court in the case
Prima facie a permission to occupy for safety of the property would not establish an unrestricted or unconditional use or possession of the property. The possession of use would be confined to the occupier''s obligation to stay for so long as the needs for safety are felt and thereafter to quit.
15. In the case Khalil Ahmad Bashir Ahmad u. Tufel Hussain Samas Bhai Sarangpurwala 1988 (a) ARC SCC 65 the Apex Court while dealing with the question of lease and licence has observed as under:
This Court referred to the well-known decision in the case of Errington v. Errington 4 where Lord Denning reviewing the case-law on the subject summarized the position as follows:
The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.
The Court of Appeal in England again in Cobb v. Lane 5 considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. Somervell, L.J., had observed:
the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties.
Denning, LJ. also reiterated the same decision. Reviewing these decisions Denning, L.T. had observed at page 384 of the report (1) that to ascertain whether a document created a licence or lease, the substance of the document must be preferred to the form; (2) the real test was the intention of the parties -- whether they intended to create a lease or a licence; (3) if the document created an interest in the property, it is a lease; but if it only permitted another to make use of the property, of which the legal possession continued with the owner, it was a licence; and (4) if under the document a party got exclusive possession of the property, prima facie, he was considered to be a tenant; but circumstances might be established which negative the intention to create a lease,
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The distinction between leave and licence has been well summarised in Halsbury''s Laws of England, Fourth Edn., Volume 27, p. 13. In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. Lord Greene, M.R. had observed this in Booker v. Palmer 1942 (2) All. ER 674 at 676, 677. This is a salutary test.
17. In the case of Booker v. Palmer 1942 (2) All. ER 674 it has been held as under:
In my opinion there is No. evidence from which any such inference could be drawn. Whether or not parties intend to create as between themselves the relationship of landlord and tenant, under which an estate is created in the tenant and certain mutal obligations arise by implication of law, must in the last resort be a question of intention. Where the parties enter into a formal document the intention to inter into formal legal relationship is obvious; but when all that happens is a quite causal conversation on the telephone, it is very much more difficult to infer that the parties are really contemplating entering into any legal relationship at all and in particular, such a special relationship as that of landlord and tenant.
That brings me to the evidence from which it is alleged that a tenancy is to be inferred. The landowner said:
I remember Mrs. Godsmith, in the early summer of 1940, telephoning and saying she was interested in some people who had been bombed out of London and could 1 give one of Culme cottages to these evacuees ? I said they were welcome to it for the duration of the war rent free.
That is all that happened. Later on in his evidence this statement is recorded in the Judge''s note:
I offered the cottage free to Mrs. Goldsmith, not to Mrs. Palmer.
To my mind that quite clearly means that the offer to which he had previously referred was made to Mrs. Goldsmith and not to Mrs. Palmer, and is not intended to carry the matter any further. That was a conversation where a charitably disposed person, wishing to help people in distress, said over the telephone to a friend in effect: "You can certainly put these evacuees you are interested in my cottage and they can stay therefor the rest of the war and, of course, I shall not charge them any rent.
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There is one golden rule which is of very general application, namely that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. It seems to me that this is a clear example of the application of that rule.
18. So far as Suit No. 188 of 1987 in Second Appeal No. 60 of 2007 is concerned, both the courts below have recorded licensee and therefore, I find No. substantial questions of law involved in the appeal so as to interfere u/s 100 of the Code of Civil Procedure.
19. In view of the fact that the Appellant was staying in the premises since 1980, therefore, in the interest of justice, he is allowed time up to 31st October, 2007 to vacate the premises in dispute provided:
(a) undertaking is furnished by the Appellant on or before 15th July, 2007.
(b) the Appellant pays the entire arrears of rent/damages/mesne profit on or before 15th July, 2007.
(c) the Appellant pays on damages at the rate of Rs. 100/- per month for use and occupation in the first week of every month towards mesne profits.
On failure of the aforesaid conditions, the Respondents shall have liberty to execute the decree against the Appellant.
20. Both the appeals are dismissed with costs.
