Ajoy Kumar Mukherjee, J
1. Being aggrieved and dissatisfied with the judgment and decree dated 23rd August, 2011 passed by learned Additional District Judge, 9th court
Alipore, in Title Appeal No. 150 of 2009, present second appeal has been preferred. By the impugned judgment learned court below set aside the
judgment and decree dated 31st March 2009 passed by learned Civil Judge (Junior Division), 2nd Court, Alipore, in Title Suit no. 19 of 2002.
2. Plaintiffs/Respondents herein instituted aforesaid Title Suit no 19 of 2002 contending that the suit premises originally owned by one Satyandra
Chandra Gupta, who during his lifetime bequeathed the property in favour of the plaintiffs. After taking probate of the will, plaintiffs became absolute
owner of the property. Original defendant was known to the plaintiff, who approached the plaintiff in the month of April 1987 for temporary
accommodation in the suit property comprising of two bedrooms, one drawing cum dining room one kitchen and two bathrooms cum privy and
considering his difficulties the plaintiff allowed the original defendant to reside in the suit property on payment of licence fee of Rs.2000/- per mensem
which was subsequently enhanced to Rs. 4000/-. Plaintiffs’ further case is said licence for accommodation was purely on temporary basis initially
for eleven months and thereafter licence was extended from time to time till 31.03.1999. The defendant has not paid any amount from April 1999 and
left for his native place at Rajasthan. Thereafter plaintiff discovered that the said defendant put one Mahendra Kumar Surana in his place in the suit
property. The plaintiff thereafter issued notice upon defendant through their advocate on 05.03.2001, thereby revoking the licence and as the
defendant failed to quit and vacate the suit premises, the plaintiff was compelled to file the aforesaid suit for eviction.
3. The defendant on the other hand appeared in the suit and filed written statement denying all material allegations levelled against him in the plaint.
According to defence case, he was inducted initially by the plaintiff as a tenant at a monthly rent of Rs, 1000/- and subsequently the rent was
enhanced to Rs. 2,500/- per month. The defendant never defaulted in paying rent. By that time the defendant felt ill and his daughter and his son-in-
law started residing with him. The defendant specifically denied that he was inducted as a licensee. On the contrary defendant contended that in spite
of payment of rent to the plaintiff, the plaintiff never bothered to issue rent receipt to him. Accordingly defendant prayed for dismissal of the suit. On
the basis of the pleading, the Trial Judge has framed following issues:
1. Whether the suit is maintainable in its present form and prayer?
2. Whether the plaintiffs have any cause of action to file the suit?
3. In what capacity the defendant is residing in the suit property?
4. If the defendant is a licensee, then whether such licence was renewed by the plaintiff?
5. Whether the plaintiff is entitled to get any decree as prayed for?
6. To what other relief, the plaintiff is entitled to get.
4. Trial Court heard the said suit on the aforesaid issues and by a judgment and decree dated 31.03.2009, was pleased to dismiss the said Title Suit
being no. 19 of 2002 against the plaintiff/respondent, on the ground that original licensee had already left the suit flat after putting some third person in
possession of the suit flat, so passing decree of eviction of licensee against defendant/licensee would be infructuous in the eye of law.
5. Being aggrieved by the said judgment and decree the plaintiff preferred appeal being aforesaid Title Appeal no 150 of 2009, which was heard by
learned Additional District Judge 9th court, Alipore. Learned First Appellate Court was pleased to allow the Appeal in favour of the
Plaintiff/Responded herein and set aside the Judgment and decree passed by learned Trial Judge. Being aggrieved by and dissatisfied with the
judgment and decree passed by the court below/First appellate court, the defendant/appellants preferred the present Second Appeal. When the
present Second Appeal came up for hearing before the Division Bench of this court, Their Lordship, upon hearing the learned advocate of the
respective parties was pleased to admit the Second Appeal by an order dated 09.01.2012 and had framed the following substantial question of law:
“Whether learned Judge of the Court of Appeal below erred in law in not holding that the agreement being Exbt. 1 is an agreement for tenancy and
not a licence agreement in view of the stipulation mentioned in the said agreementâ€.
6. Mr. Buddha Dev Ghosal learned counsel appearing on behalf of the appellants contended that the clauses stipulated in the so called Leave and
License agreement clearly reflects the intention of the parties that the defendant/appellant is a tenant in respect of the suit property. If the appellant
would not have a tenant, the subletting clause, addition alteration prohibitory clause, prohibitory trade/ business clause, reasonable requirement clause
would not have been incorporated in the licence agreement. Accordingly it is apparent from the surrounding circumstances and also from act and
conduct of the parties that the alleged so called licence agreement is nothing but an agreement of tenancy. He further contended that the money
receipt dated 5th October, 1993 shows that the amount received by the landlord/plaintiff is nothing but “rentâ€. He further contended that so called
leave and license agreement does not bear the signature of the original defendant and the alleged licence agreement was purportedly renewed from
time to time without getting signature from the original defendant. The original defendant, since deceased has his legal heirs who are now in exclusive
possession of the suit property and plaintiff failed to prove conclusively that the alleged licence dated 30th April 1987 was a bilateral agreement, duly
executed by the parties. He further contended that alleged licence agreement dated 30th April 1987, which was extended from time to time as alleged
by the plaintiff is silent regarding the month of April of each year and as such the theory of preponderance of probability does not support the case of
the plaintiff. Plaintiff took payment of rent on yearly basis and issued money receipt thereof. In fact plaintiff/respondent did not retain any control over
the suit property. Mr. Ghosal puts the question if the original defendant was a licensee and if his licence was not renewed after 31st March, 1999, why
the land lord allowed the original defendant to reside in the suit property till 2002.
7. Mr. Ghosal further argued that the eleven months leave and license agreement is a kind of fraud upon the statute and if the terms of contract are
unlawful the same is not legally enforceable. Accordingly the question involved in the case that the licence agreement is a tenancy agreement in
disguise, cannot be decided by the nomenclature or the label attached to it. The mandate of law cannot be altered simply by changing the label. By
using the word “license fee†instead of using the word “rent†the true spirit and object of the Act cannot be altered. Appellant in this context
relied upon following judgments:-
a) Ayan Chatterjee Vs/ Future Technology Foundation Inc. & Ors. reported in 2005 (4) CHN 99.
b) Achintya Kumar Saha Vs. Nanee Printers and others reported in 2004 (2) CHN SC 88.
c) R.N. Dutta Vs. Dunlop Rubber Co. (India) Ltd. & another reported in AIR 1968 SC 175.
d) Capt. B.V. D’Souza Vs. Antonio Fausto Fernandes reported in AIR 1989 SC 1816.
e) Dipak Banerjee Vs. Smt. Lilabati Chakraborty reported in AIR 1987 SC 2055.
f) C.M. Beena and another Vs. P.N. Ramachandra Rao. reported in AIR 2004 SC 2103.
g) Smt. Rajbir Kaur and another Vs. M/S S. Chokesiri and Co. reported in AIR 1988 SC 1845.
h) Delta International Ltd. Vs. Shyam Sundar Ganeriwalla and another reported in (1999) 4 SCC 545.
i) Rekha Mukherjee & anr. Vs. Anjana Aditya reported in 2008(1) CHN 792.
j) Velay Udhan and others Vs. Mohammed kutty and others. reported in AIR 2017 SC 2098.
8. Countering the submissions advanced by the learned Advocate for the defendants/appellants, Mr. Sounak Bhattacharya learned counsel appearing
on behalf of the plaintiff respondent submits that on perusal of the aforesaid agreement and its hand written renewal agreements on the back side of
the said agreement, it appears that initially the said agreement was entered into by the parties for a period of 11 months and the subsequent renewals
were also for 11 months. Accordingly it is clear from a bare reading of the agreement that there was no agreement for the month of April of each
year since 1987 to 1999 and all extensions were only for 11 months and as such it cannot be treated as a tenancy agreement but it is an agreement for
leave and license.
9. Mr. Bhattacharya further argued that there is no concept under West Bengal Premises Tenancy Act, 1956 or under the present act of 1997, where
tenancy can be given only for a specified period of the year. As such the instant agreement between the parties has to be treated as leave and license
agreement and the same was duly revoked and the defendant /appellants cannot claim themselves as tenants and are not entitled to get any protection
under the Act of 1956 or 1997.
10. He also contended that there is no dispute about the proposition of law that for ascertaining whether a document creates license or lease, the
substance of the documents must be preferred to the form. However, it is not correct to say that exclusive possession of a party is conclusive proof of
tenancy. Though exclusive possession may not be irrelevant but the other tests namely intention of the parties and whether the documents creates any
interest in the property or not are important considerations. In this context he relied upon a Division Bench judgment of this court in the case of Arun
Kumar Pattanayak vs. Partha pratim Das, reported in 2012 (2) ICC 548 and the Judgement of Apex Court in Associated Hotels of India Ltd Vs. R.N.
Kapoor reported in AIR 1959 SC 1262.
11. Mr. Bhattacharya further argued that the defendants/appellants in their written statement had clearly admitted that the agreement in question is an
agreement for leave and license on the basis of mutually settled terms and admittedly executed by the parties. Referring paragraph 8 of the written
statement he contended that admissions if true and clear are best proof of facts and they by themselves can be made the foundation of the rights of
the parties. He further stated that the parties were conversant into English language and executed the documents without any compulsion or pressure.
He further contended that the clauses of the agreement where the appellant had laid stress to prove that it was tenancy agreement, has got no
substance in view of the fact that the terms of said agreement was made in order to keep suit property in good and habitable condition and all these
terms and conditions of the said agreement unequivocally established that the said agreement is an agreement for licence and not a tenancy
agreement. In this context he relied upon an un-reported decision of this court passed in the case of Dr. Vikramjit Singh Rohtagi and another Vs. Smt.
Provabati Das and other delivered on 17.04.2008, being S.A.T. no. 90-91 of 2014.
12. Mr. Bhattacharya relying upon clause 7,9 and 10 of the said agreement argued that exclusive possession was never given to the licensee which is
one of determining factor and which proves that the said agreement was an agreement for licence and not a tenancy agreement. Referring Dr.
Vikram Jit Singh Rohtagi Case (supra) he contended that right of inspection of suit premises as provided in the aforesaid agreement is against the
concept of exclusive possession and such agreement is to be treated as agreement for leave and license and not a tenancy agreement.
13. Relying upon another judgment of this court passed in Tarumoni Mondal and others Vs. Prafulla Kumar Mondal and others reported in 2006 (3)
CHN 1. Mr. Bhattacharya argued that when the plaintiff respondent had established their title in the suit property by exhibiting the will, which was
duly probated and when the defendant/appellant had failed to prove their case of tenancy and when the revocation of licence has also been proved,
the only conclusion which the court can come is to evict the defendants/appellants by passing the decree for eviction of licence. In fact the defendant
failed to show any rent receipt in support of tenancy. If it is the case of the defendants that the plaintiff did not grant the rent receipt then what
prevented the defendant to take recourse under section 21 of the West Bengal Premises Tenancy Act 1997. Furthermore defendant in one hand
denying execution of the agreement contending that it was never a bilateral agreement and on the other hand based his claim of right to stay in the suit
property claiming tenancy right relying upon contents of said document and as such plea of defendant is not at all trustworthy. Accordingly Mr.
Bhattacharya on behalf of the plaintiff/respondents submits that the appeal is liable to be dismissed.
Decisions with reasons
14. The substantial question that poses in the present context is whether the appellant under the impugned agreement is a tenant or a licensee. Section
105 of the Transfer of Property Act defines a lease whereas section 52 of the Indian Easement Act defines a licence. A lease is the transfer of a
right to enjoy the property made for a certain time in consideration for a price paid or promised to be paid .Section 108 of the Act provides that the
lessee is entitled to be put in possession of property. A lease is thus a transfer of an interest in land. Whereas if a document gives only a right to use
the property in a particular way or under certain terms, while it remains in possession and control of the owner thereof, it is licence. A licence is a
privilege to do something on the premises which otherwise would be unlawful. It is well settled through various judicial pronouncements that if the
language of the agreement is ambiguous having regard to its object and the circumstances under which it was executed i.e. whether the rights of the
occupier are those of a lessee or a licensee, the question will have to be determined whether it grants any interest in the land or not. If the agreement
does not grant any interest in the property but it only gives a personal privilege with no interest in the property it is a licence. Therefore, the question is
not of words used therein but of substance and the label which the parties choose to put upon the transaction though relevant, but not decisive. In
Associated Hotels of India Ltd. Vs. R.N.Kapoor reported in AIR 1959 SC 1262, Supreme Court has laid down the tests to be applied to ascertain
whether an agreement is lease or licence. Relevant portion of Paragraph 28 of the Judgement runs as following:-
“(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 â€" 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.â€
15. In the light of aforesaid settled position of law, let me consider the issue involved in the present context.
16. The impugned agreement was initially entered into by the parties on 30th April, 1987 and it was for a period of 11 month commencing from 1st
May, 1987 to 31st March., 1988. The said agreement was renewed on 1st May, 1989 to 31st March, 1990. Subsequently renewal was made from 1st
May, 1990 to 31st March, 1991, 1st May, 1991 to 31st March, 1992, 1st May, 1992 to 31st March, 1993, 1st May, 1993 to 31st March, 1994, 1st May,
1994 to 31st March, 1995, 1st May, 1995 to 31st March, 1996, 1st May, 1996 to 31st March, 1997, 1st May, 1997 to 31st March, 1998 and lastly on 1st
May, 1998 to 31st March, 1999. Accordingly it appears from the agreement as well as the renewals as stated above that there was no agreement for
the month of April of each year since 1987 to 1999 and all extensions were made only for 11 months. Generally, there is hardly any concept of
granting tenancy right only for a specific period of a particular year. Usually, a tenancy is a continuous one without any interruption. On plain reading
of the said agreement as well as the receipts produced and marked as exhibit, it clearly suggests that the said agreement in its unambiguous term
described the document as leave and license agreement. Though there is no quarrel with the proposition of law that label of the agreement is not
conclusive proof but still in the context of unambiguous content of the agreement, let me also consider the attending circumstances in order to gather
real intention of the parties behind execution of such agreement.
17. The defendant/appellants failed to establish that he had paid any price for the month of April since 1987 to 1999. Therefore though there was
renewals of agreement but it never continued for a continuous period of 12 months. Had it been the intention of the parties to create tenancy, there
must not have any provision for breaking continuity of possession, at least for one month in every year. There is no dispute that the terms of the
agreement was mutually settled by and between the parties. It is also not the case of the defendant/appellant that they were not conversant with the
language in which it was written. No case has been made out that the parties executed the said document under any compulsion or pressure or that
said agreement was executed by the licensee under duress. As such there is sufficient scope to presume that the said agreement was executed by the
parties freely, after understanding the true meaning and purports thereof. Renewed agreements unequivocally states that the licensee paid the
“licence fee†to the licensor during the continuation of the licence for using the suit premises only for a particular and specified purpose of his
residence without allowing any third party to reside therein. Clause 7 of the said agreement stipulates that licensor shall have the right of inspection of
the flat at all times after giving prior notice of the same to the licensee. Clause 11 of the agreement states that parties agreed that electric meter and
electric bill will stand in the erstwhile name and it had not been changed in the name of occupier though licensee agreed to pay electric bill. It was also
mentioned in the agreement that the licensee will keep the flat in good condition but the licensee shall not make any alteration or any addition without
written permission of licensor. It is also mentioned in clause 12 of the agreement that in case of violation of any of the terms mentioned in the
agreement the licencee’s right to stay may be terminated and he will have to deliver peaceful vacant possession. The clauses suggests that in case
of non-observance of any of the conditions, the licence will be terminable as per decision of the licensor and the decision of the licensor will be final in
this regard.
18. There is no ambiguity in the terms and conditions of said agreement and parties clearly understood the meaning of the terms and contents thereof.
The defendant/appellants never protested against such description of the status of appellants as licensee either in the agreement or on the receipts. No
case has been made out that any new relationship of tenancy is created between the parties after termination of the said licence following delivery of
possession thereof by the licensee to the licensor.
19. Needless to say that the intention of the parties has to be gathered from the evidence and from the conduct of the parties. It is apparent form the
facts and circumstances of the case that the initial agreement as well as the renewal agreements are all temporary in nature and for a period of 11
months within a period of 12 months and as such the parties never intended to have a long and/or continuous relationship. Furthermore renewal clause
and other clauses of agreement including clause 7 of the agreement clearly demonstrates that no exclusive possession was given to the
defendant/appellant at any point of time.
20. Under section 52 of the Easement Act if a document gives only a right to use the property in a particular way or under certain terms, while it
remains in possession and control of the owner, it will be a licence. The legal possession as it appears from the facts and circumstances of this case
continued with the owner of the property but the occupier was permitted to make use of the premises for a particular purpose only for a period of
eleven months. The agreement did not create any interest in favour of occupier in the suit property. The intention of the parties to create leave and
licence agreement is clearly manifested in the body of agreement and I am not at all convinced that the document writer had concealed real intention
of the parties using any clever phraseology.
21. Moreover in contradiction to plaintiffs case of granting licence the defendant had taken the specific plea that he is a tenant in respect of the suit
property. Where the plaintiff alleges that the defendant is a licensee and where the defendant asserts that he is a tenant, the initial onus is upon the
plaintiff/owner to prove that the defendant was inducted as a licensee. The question of onus however loses its importance once the parties enter into
the evidence. When the plaintiff succeeded in proving with the help of the exhibited documents that the defendant was inducted as a licensee, the onus
shifts upon the defendant to show that his status is that of a tenant and not a licensee as claimed by the plaintiffs. Accordingly in the present case
following the principle laid down under section 101 of the Evidence Act burden is upon the defendant who substantially asserts the affirmative of the
issue. As against the case of the plaintiff that the defendant was a licensee, when the defendant has come forward with the case that he was not a
licensee but a tenant protected under the Premises Tenancy Act, the defendant had to prove his case by adducing evidence in support of his case. To
establish tenancy the defendant had to prove the induction of the tenancy and the terms and conditions of such tenancy.
22. Needless to say that in the present context defendant/appellant has not filed any scrap of paper nor adduced cogent and/or convincing evidence to
show that at any point of time he was inducted as a tenant or had paid rent to the plaintiff/land lord. Even the defendant is not permitted under the
Rent Act to take the plea that landlord refused to grant the rent receipt as an excuse. Rent receipt is a very important document for the purpose of
proving the case of tenancy and in case the landlord refuses to grant receipt, the legislature has provided proper and effective remedy in such cases.
In fact in order to claim a right of tenancy the defendant has to produce rent receipt and in case rent receipt was not granted, he has to satisfy the
court that he had taken the recourse under the law which provides remedy for refusal to grant rent receipt. Absence of any rent note evidencing
payment of rent or any other material or circumstances to suggest that the relationship between the parties was that of landlord and tenant, the
conclusion would be that the defendant was let out into the suit property by the plaintiff as licensee. In fact series of receipts exhibited by the plaintiff
would show that the defendant has made the payment as a licensee and towards “licence feeâ€. Even if in the money receipt dated 5th October
1993, the amount received by plaintiff from the defendant is mentioned as “rentâ€, which is commonly used towards receipt of price, does not
nullify the series of receipts which clearly specify that the amount received by plaintiff was towards “licence feeâ€. It is also well settled that even
if actual induction as licensee is not proved, the moment plaintiff establish his title to the property and the defendant fails to establish his title or his
alleged claim of tenancy right decree of eviction is a matter of course. In this context reliance has been placed upon the Judgement passed by this
court in Kumaresh Mazumder Vs. Smt. Binapani Sarkar and others reported in 2001 (2) CLJ 475 and 2006 3 CHN 1.
23. So merely because there are certain clauses in the agreement which might have certain resemblances with the grounds of eviction under the
tenancy legislation, that does not ipso facto nullify the agreement as a licence agreement. The court do exist to advance the cause of justice.
Therefore while deciding the rights of the parties, court should bear in mind about the preponderance of probabilities. Even if there are certain clauses
which the parties may have aided from the tenancy legislation, is no ground to affect the merit of the agreement and it also cannot be a ground to
declare the unambiguous leave and licence agreement to be an agreement of tenancy ignoring preponderance of probability.
24. The aforesaid attending circumstances coupled with the evidence clearly suggests that the parties really intended to create a licence agreement by
execution of the said document which had expired automatically after the expiry of the licence period and as such the defendant is liable to be evicted
from the suit premises.
25. Though the learned first appellate court was correct in her ultimate approach in setting aside the judgment and decree of the Trial Court by which
the trial court had dismissed the suit but inadvertently while the first appellate court had set aside the aforesaid order of dismissal, did not pass any
decree of eviction against the defendant/appellant, for which the suit was filed.
26. In such view of the matter aforesaid Title Suit. No. 19 of 2002 is decreed on contest against the defendant without cost. Appellants/Defendants
are hereby directed to quit and vacate the suit premises within a period of 60 (sixty) days from the date of decree, failing which the
plaintiffs/respondents will be at liberty to execute the decree before the appropriate executing court as per law without making any further reference
to this court.
27. S.A 29 of 2012 is thus disposed of on contest.
Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
