S.C. Deb, J.@mdashThe Court: This is a suit for ejectment and for mesne profits briefly on this case pleaded in the plaint : On the basis of negotiations carried on between the plaintiff and the defendant''s representative the defendant entered into occupation of the suit premises on December 1, 1956 on condition that the President of India, by a duly authorised officer, would execute a lease for a minimum period of 3 years preferably for a period of 5 years on a monthly rent of Rs. 37.50 P. per 100 Sq. ft., which became Rs. 2986.12 P. on calculation, but no lease was executed and, therefore, the defendant did not be-come a tenant of the suit premises. By a letter dated July 17, 1967, the defendant was asked to make over its possession to the plaintiff on the expiry of the month of August, 1967 and yet the defendant continues in wrongful occupation of the suit premises. The main defence is that though no lease could be executed due to the wrongful attitude of the plaintiff and yet the defendant became a monthly tenant by payment of rents to the plaintiff who has accepted those rents and has assented to the defendant''s possession and therefore the defendant is entitled to protection from eviction under the provisions of the West Bengal Premises Tenancy Act, 1956.
The following issues were settled by consent of the parties:
(i) Was the defendant let into possession of the suit premises on the basis of any negotiation as alleged in paragraph 1 of the plaint or on the basis of the letters mentioned in paragraph 2 of the written Statement?
(ii) Is the alleged contract of tenancy pleaded in the plaint hit by Article 299 of the Constitution?
(iii) Is the notice dated 12th July 1967, mentioned in paragraph 6 of the plaint valid ?
(iv) Is the notice u/s 80 of the Code valid ?
(v)
(a) Is the defendant a tenant under the plaintiff ?
(b) If so, is the defendant entitled to protection from eviction under the West Bengal Premises Tenancy Act, 1956 as alleged in paragraph 7 of the Written Statement ?
(vi) Is the plaintiff''s alleged claim barred by estoppel or acquiescence as alleged in paragraphs 8(a) and 8(c) of the Written Statement ?
(vii)
(a) Did the plaintiff make any representation to the defendant that the defendant has been inducted as tenant as alleged in the Written Statement ?
(b) If so, is the defendant entitled to compel the plaintiff to give effect to it.
(viii) To what relief, if any, is the plaintiff entitled ?
2. Issue No. 2 has been deleted today by consent of the parties as no contract of tenancy has been pleaded in the plaint and Mr. B.C. Dutt, the learned Advocate for the plaintiff, addressed me only on Issues 5 (a), (b) and 8.
3. Mr. Tarit Kumar Ballav, one of the Managing Directors of the plaintiff, gave evidence whereas the defendant did not call any witness. Several briefs of documents and correspondence were exhibited by consent of the parties.
4. It is an admitted fact that the plaintiff has granted the rent receipts to the defendant each and every month upto the month of August, 1967. Thereafter, the plaintiff refused to accept the rents tendered by the defendant on the plea that the defendant''s tenancy was determined by the letter dated July 12, 1967.
5. In examination-in-chief Mr. Ballav (QQ. 71-73) has said that the plaintiff had received those monthly sums as "damages or as compensation" and not as rents. In cross-examination (qq. 95-107) he has said that those sums were received by the plaintiff ''impliedly as damages'' and in answer to QQ. 108-120 he has admitted that the defendant had paid those sums as rents-and the plaintiff had accepted those sums as rents and not as occupation charges.
6. In answer to QQ. 147-175 he has said the parties completely stopped all negotiation with regard to the execution of the lease after November 6, 1961 due to a complete deadlock in this behalf. Thereafter, he went to his lawyers for advice and placed all papers and told them that the defendant was paying rent each and every month to the plaintiff and those rents were being accepted by the plaintiff and after he came back from the lawyers the plaintiff went on accepting the rents from the defendant each and every month upto the month of August 1967.
7. It appears from the documentary evidence that the defendant was let into possession in course of a negotiation for a lease for 5 years and not ''on the basis of negotiations'' as alleged in the plaint. The said lease was to contain the terms and conditions contained in the letters mentioned in paragraph 2 of the written statement.
8. Mr. Dutt cited the decision of our Court of Appeal in the case of J.I.J. Hyam v. M.E. Gubbay, reported in 20 C.W. 66, for the proposition that as the paramount intention of the parties was that there should a formal lease and no such lease was executed the defendant became a trespasser but as I was not impressed by his contention namely that the defendant became a trespasser I drew his attention to the case of Currimbhoy & Co. Ltd. v. Creet, reported in 60 Ind. App. 297 at p. 302 of the report, where Lord Thankerton has said this :
If the execution of a formal agreement, as the plaintiff maintained and the Subordinate Judge held, was intended to be a condition of the bargain * * * it followed that the latter never became an enforceable contract * * * It follows as contended before their Lordships by plaintiff''s counsel, that it is no longer possible to treat the defendants as trespassers, their possession having been originally granted by the plaintiff?
9. In this state of law, Mr. Dutt did not press his point namely that the defendant was a trespasser but he made these contentions: The defendant became a licensee under the plaintiff and therefore the defendant was liable to pay licence fees and not rents; the rent receipts are not conclusive on this question; the said licence was revoked by the letter of July 12, 1967, and therefore, prior to its revocation the defendant occupied the suit premises as a licensee and not as a tenant. In this connection he cited the cases of
10. In Sheodhari''s case the defendant did not pay any rent but pleaded adverse possession which he failed to establish and therefore no reliance can be placed on this case by Mr. Dutt. He cited Dr. Rikhi''s and the State of Punjab''s case for the proposition that the word ''rent'' is not conclusive and I agree with him but these two cases are not authorities on the questions involved before me which Mr. Dutt has conceded.
11. In Delhi Motors case, the terms of the sub-lessee for 15 months on yearly rent were contained in 3 unregistered letters and the sub-lessee filed that suit for possession and that action failed for no relief could be granted on the basis of those unregistered letters and that there was no materials on the record to establish that any monthly lease came into existence by payment and acceptance of rent which was not even the case pleaded in the plaint nor was argued in the courts below. Therefore, this decision has no application to the facts and circumstances of instant case before me mainly ''for the reasons namely that it was suit for possession by the sublessee, who was not in possession of the disputed premises, and its case was not founded upon the creation of any tenancy by payment and acceptance of rent whereas the defendant before me is in exclusive possession of the suit premises and has pleaded in the written statement that the defendant had become a monthly tenant of the suit premises by payment and acceptance of rent.
12. What a person in permissive possession of a property pays to its owner is not rent but a fair compensation for his occupation because he is a tenant-at-will. The tenant-at-will is a licensee and therefore the mere use of the word ''rent'' in the receipts granted to him by the owner of the property is not conclusive of the matter. In the case of Coggan v. Warwicker, reported in (1852) 3 Car & K 40, the defendant was let into possession of the suit premises in course of a negotiation for lease for 5 years and he refused to execute the lease and removed his goods By keeping a ''boy'' in the said property and the ''boy'' left when the plaintiff came to take its possession. It was held by Erle, J., that as the defendant was let into possession of said property with view to execute a lease his position, was that of a tenant-at-will so long the negotiation for execution of such lease was going on between the parties and, therefore, he was liable to pay a fair compensation to the plains-tiff during the period of his occupation.
13. In the case of Sudhir Kumar Mazumdar v. Bhirendra Nath Biswas, reported in 61 C.W.N. 23, an oral annual lease was granted which was held to be void u/s 107 of the Transfer of Property Act and, at p. 26 of the report, Mr. Justice Bachawat said this:
A tenancy at will is to be implied from permissive occupation * * * * the tenant-at-will is not liable to pay rent. An agreement for payment of reason-able compensation for use and occupation is implied from the permissive occupation. Such compensation is not rent. The tenancy at will is a licence to occupy the property not amounting to an interest in the property.
14. Therefore, it must be held that so long the negotiation for execution of the said lease was carried on by the parties before me the payments made by the defendant to the plaintiff must be regarded not as rent but as fair compensation for such permissive occupation of the suit premises because their relationship during that period was that of a licensor and licensee. But, the question does not rest here.
15. The plaintiff was entitled to evict the defendant forthwith fro in the suit premises on the expiry of 6th November, 1961, when the parties refused to approve the draft lease exchanged between them and there ceased to be any question of execution of the said lease any further. After the aforesaid period the defendant paid and the plaintiff accepted rents each and every month until the time hereinbefore stated. Now, in Sudhir Kumars case (supra) at p: 25 of the report Mr. Justice Bachawat says this:
Oral agreement for a lease is to be implied from payment and acceptance of rent. A lease is, therefore, made by possession under a void lease accompanied by payment and acceptance of rent, and such'' a lease is presumed to be a lease from month to month.
16. In the case of
A tenancy, if any, between the parties must be some other tenancy and must be founded otherwise and apart from kabullyat. This has been established in the present case by the admitted payment and receipt of rent and is implied by law from the said admitted circumstances. The terms of this ''implied'' or ''presumed'' tenancy would have to be founded from admission of the parties, if any, aided by implications and presumptions of law. So found, they would not be hit by section 91 of the Indian Evidence Act. Having indicated the approach, I turn now to the facts of the present case. Admittedly, the petitioner went into occupation of the disputed land for residential purposes and remained" or continued in such occupation for several years on payment of rent to the opposite parties and/or their predecessoRs. This payment of rent and receipt thereof are admitted and so also the further fact that the payment and receipt of rent was on the monthly basis according to the Bengali Calendar. From these admitted facts it is open to hold that a tenancy arose between the parties by implication or presumption of law. The terms of this implied tenancy will have to be found, as already stated, from the legal presumptions, statutory or otherwise, arising from proved or admitted facts and circumstances and not inconsistent with or contradicted by any of the admitted or proved facts or circumstances of the case.
17. In the case of
Proceeding, therefore, on the assumption that even though the parties might have intended to create a lease for 10 years, no operative lease came into existence, the only facts admitted are that the defendant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff''s estate and paid rent to the latter. From these facts a tenancy could be fairly presumed.
18. Mr. Justice P.N. Mookerjee, in Indramoni''s case at p. 1156 of the report, has said this on Ram Kumar''s case :
Clearly enough the Supreme Court relied upon the ''presumed'' or ''implied'' tenancy, arising from the facts of possession, coupled with payment and acceptance of rent, when the express contractual lease failed to be operative in law due to non-compliance with section 107, third paragraph of the Transfer of Property Act.
19. In the case of
The possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease; but, if he pays rent, which is accepted by the lessor, his possession ceases to be adverse to the lessor, and a relation of landlord and tenant comes into existence. In other words, he no longer remains a trespasser but becomes a tenant.
20. No lease was executed by the defendant and therefore it was the duty of the defendant to make over possession of the suit premises to the plaintiff who was entitled to evict the defendant forthwith from it but the plaintiff; allowed the defendant to remain in exclusive possession of the subpremises and accepted the rents from the defendant. Now, in
On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by s. 116, T.P. Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of s. 106 of the Act, As s. 116 T.P. Act expressly mentions an under lessee, defendants 2 and 3 would obviously come within the purview of the section, and it is not disputed that they did continue, in possession after the lease expired by lapse of time. If, therefore, it is established on the facts of this case that the plaintiff assented to the continuance of possession of defendants 2 and 3 in respect to the demised premises by acceptance of rent or otherwise, these defendants would certainly acquire the status of tenants under s. 116, T.P. Act. * * * It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it.
21. It was also argued before the Federal Court that the landlord was entitled unilaterally to treat those" payments as damages and not as rents and in rejecting that contention Dr. Mookherjea, at p. 129 of the report, said this:
In the first place, the facts clearly show that when the cheques were cashed, it was done without any reservation or condition whatsoever. The protest was not a contemporaneous but a much subsequent event and if the agreement was already complete by acceptance of rent on 23rd November, 1942, the subsequent conduct of one of the parties cannot alter its legal consequences. In the second place, it seems to me that when money was paid as rent, it did not lie in the mouth of the plaintiff to say that he would receive the money but not as rent. It is a settled principle of law that when money is paid by a debtor with an express intimation that it is to be applied to the discharge of a particular debt, the creditor may not accept the money at all, but if he receives and appropriates it, he cannot be allowed to say that he took it wrongfully on some other account. The ordinary legal consequence of accepting payments as indicated by the debtor-would follow in such cases, however, much the creditor might attempt to repudiate them. This being the position it must be held, on the facts of this case that money was not only paid as rent by defendants 2 and 3 out was received as rent by the plaintiff and consequently a monthly tenancy under the provision of S. 116 of the T.P. Act did come into existence. So long as this monthly tenancy is not determined in a manner recognised by law, the plaintiff''s suit for ejectment must fail.
22. Three main questions in suit No. 1441 of 1961 of the Court in the case of Jiwandas Agarwalla & anr. v. Narayandas Deora and oRs. before, me were: (1) whether a long lease was determined by payment and acceptance of damages; (2) If so, whether the lessor could unilaterally treat those damages as rents on the advice of their lawyer long after those damages were received by them; and (3) whether the relationship of landlord and tenant came into existence between the parties by payment and acceptance of rent after the determination of the said long lease. In that suit Mr. Dun appeared for some of the defendants and I came to the conclusion in favour of his clients in my judgment dated May 10 to 12, 1972 that the said long lease was determined by payment and acceptance of damages and the- landlords were not entitled to treat unilaterally those damages as rents and that a relationship of landlord and tenant between those parties came into existence by payment and acceptance of rent after the determination of the said long lease following the principles laid down in some of the decision discussed above.
23. I will now once more recall the relevant facts of the instant case before me the defendant was let into possession of the suit premises in course of a negotiation for a lease of 5 years as contemplated by the parties. Hence, the defendant occupied the premises as a tenant-at-will or sufferance and therefore the sums paid or the defendant to the plaintiff during the period of such tenancy-at-will or sufferance were not rent but must be regarded as the fair compensation for such permissive occupation. The parties could not agree to the draft lease and they broke off all negotiation after November 6, 1961. No lease, as contemplated by them, was executed and the plaintiff assented to the continuance of the defendant''s possession of the suit premises. The defendant paid each and every month those sums as monthly rent of the suit premises to the plaintiff who accepted those sums as such monthly rent of the said premises from the defendant. Thereafter, Mr. Ballav went to the lawyers with the copies of those rent receipts for advice and after he came back from them the plaintiff went on accepting rent each and every month from the defendant "in clear recognition of the tenancy right asserted" by the defendant.
24. Hence, I am not impressed by the contentions of Mr. Dutt and hold that the said tenancy-at-will or sufferance of the defendant was converted into a monthly tenancy after November 6, 1961 and the defendant is entitled to the protection from eviction under the provisions of the West Bengal Premises Tenancy Act 1956. No oral evidence was adduced by the defendant and no other contention was made by Mr. Dutt. Hence, I answer the remaining issues as follows:
Issue No. (i)--The defendant was let into possession in course of a negotiation for a lease of 5 years and not "on the basis of negotiations" as alleged in the plaint.
Issue No. (iii) No.
Issue No. (iv) Does not arise.
Issue No. (v) (a) Yes. Issue No. (v) (b) Yes.
Issue No. (vi) No.
Issue No. (vii) (a) No
Issue No. (vii) (b) No
Issue No. (viii) The plaintiff is not entitled to any relief.
In the premises, this action must fail. The suit is dismissed with costs. Certified for two counsel.
