Sardar Lakhbir Singh Senior Member and Trustee and Another Vs. Swargashram Trust, Through Manager - Court Judgment

B.S. Verma, J

Oral:

This second appeal is directed against the judgment and decree dated 18.4.1998 passed by the District Judge Pauri Garhwal in Civil Appeal No. 19 of 1997 Swargashram trust vs. Lakhbir Singh and another, whereby the appeal was allowed and the suit No. 43 of 1991 was decreed after reversing the judgment and order dated 26-11-1996 passed by trial court in O.S. No. 43 of 1991 in between Swargashram Trust vs. Sardar Lakhbir Singh and another.

The relief sought in the second appeal is that the judgment and decree passed by the first appellate court referred above be set aside and the suit No. 43 of 1991 be dismissed.

The second appeal was admitted by this court on the following substantial questions of law:-

1- Whether the amount paid for a limited period can be treated as donation when it was being paid for the use and occupation of the premises and not covered under Section 105 of the Transfer of Property Act.

2- Whether right of exclusive possession with creation of interest therein can be treated as a license.

Brief facts of the case, giving rise to this appeal, are that O.S. No. 13 of 1989 Sardar Lakhbir Singh and another vs. Swargashram Trust was filed by the plaintiffs for permanent injunction, against the defendant, with the assertion that plaintiff No.1 Sardar Lakhbir is a tenant of defendant @ Rs. 5,00/- as rent besides Rs. 600/- as electricity charges. The defendant has refused to accept the rent and wants to forcibly evict the plaintiffs.

The defendant filed written statement and it was alleged that the plaintiff No.1 was a licensee and was not a tenant of the defendant and his license had been terminated and he is not entitled to any relief.

Swargashram Trust also filed O.S. No. 43 of 1991 against Sardar Lakhbir Singh and another who were plaintiffs in O.S. No. 13 of 1989, with the allegations that Sardar Lakhbir Singh is a licensee and his licence has been terminated by a valid notice, but inspite of the notice he has not vacated the disputed accommodation and the suit was filed for eviction. In O.S. No. 43 of 1991, defendants (plaintiffs of O.S. No. 13 of 1989) also filed written statement and asserted that they are the tenants of the disputed accommodation and are not the licensee. Their tenancy has not been terminated and unless the tenancy is terminated, the defendants cannot be evicted.

Both the suits were consolidated and issues were framed by the trial court. Parties led evidence in support of their cases. The learned Civil Judge (J.D.) Kotdwar (Garhwal) vide judgment and decree dated 26-11-1996 has held that the plaintiffs Sardar Lakhbir Singh and another are the tenants of defendant Trust and they are not the licensee and decreed the suit No. 13/1989 and the defendant in that suit was directed not to interfere in the possession of plaintiffs and not to evict the plaintiffs without due process of law. The connected suit No. 43/1991 was dismissed.

Feeling aggrieved by the aforesaid judgment and decree passed by learned Civil Judge (J.D.), Civil Appeal Nos. 7 of 1997 and 8 of 1997 were filed by Sardar Lakhbir Singh and Mastram Sewa Samiti Abhiram, whereas Civil Appeal Nos. 9 of 1997 and 10 of 1997 were filed by Swargashram Trust against Sardar Lakhbir Singh and another.

The learned District Judge reversed the finding of the trial court and has held that the appellants Sardar Lakhbir Singh and another were not lessee, but a licensee on the disputed property and the evidence on record proves that the license was terminated in accordance with the provisions of law. Accordingly the appeal Nos. 9 and 10 of 1997 filed by Swargashram Trust were allowed and the appeal Nos. 7 and 8 of 1997 filed by appellants were dismissed. The O.S. No. 43 of 1991 filed by Swargashram Trust for the evidence of the appellants was decreed. It was further directed by the appellate court that the Trust would also be entitled for damages @ Rs. 200/- per month on payment of court fees at the time of execution.

Now feeling aggrieved by the judgment and decree passed by the appellate court this second appeal has been preferred by the appellants.

I have heard learned counsel for the parties and perused the entire record.

Finding on Substantial Questions of Law

Both the substantial questions of law are interconnected, therefore, they are being decided by common finding.

Learned counsel for the appellants has vehemently argued that the appellants were undisputedly in occupation of property with exclusive possession and as such they cannot be licensee. The appellants were paying the amount of consideration in the shape of donation to the respondent yearly for specific term and period regularly in lieu of occupation. He further contended that as per ingredient of Section 105 of Transfer of Property Act the exclusive possession can only be lease and not license. It has further been contended that for granting any license there should be some document and in absence of any such instrument the license cannot be said to be an implied license and the first appellate court has given a wrong finding that receipt of donation cannot be treated as a rent.

On the other hand learned counsel appearing on behalf of respondent has submitted that the appellant Lakhbir Singh was a licensee and donation was being realized from him in the form of license fee and this was mentioned in the receipts.

The short controversy involved in this case is whether the appellants are licensee as alleged by the respondent or they are the tenants as alleged by the appellants.

This fact is undisputed that there is no written agreement between the parties whether the contract between the parties is a lease or license. There is only oral evidence led by the parties to substantiate their respective pleadings raised in the plaint or the written statement, therefore for a just decision, it is necessary to examine the difference between the lease and licence. The Apex Court in the case of Mrs. M.N. Clubwala and another vs. Fida Hussain Saheb and others, reported in AIR 1965 Supreme Court, 610, has considered the provisions of Section 105 of the Transfer of Property Act, 1882. The Apex Court in para-12 of the judgment has held as under:-

“…….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. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties.”

In a subsequent decision of New Bus Stand Shop Owners Association Vs. Corporation of Kozhikode and another reported in [(2009) 10 Supreme Court Cases 455, it was made clear that use of terms ‘lease or ‘licence, ‘lessor or ‘licensor, ‘rent or ‘licence fee by themselves are not decisive. The conduct and intention of the parties before and after the creation of relationship is relevant to find out the intention.

The learned first appellate court has recorded a finding that although Lakhbir Singh has asserted that rent receipts were issued to him, but he has not filed any such receipts nor has made efforts to summon those receipts from Swargashram Trust. Lakhbir Singh also stated in his statement that the disputed accommodation came into his possession in the year 1973 and at that time no rent was realized from him. It was given to him on lease in the year 1977 but no reliable evidence was produced before the trial court in this regard. What was the status from 1973 to 1977 has also not been stated. The learned first appellate court has perused the receipts and came to the conclusion that the Trust had realized donation and in lieu of donation the appellant was allowed to occupy the disputed accommodation and if Lakhbir Sigh was allowed to occupy the accommodation and yearly donation was received, it will not make him a tenant of the disputed accommodation, unless and until there was any such agreement oral or in writing. This fact was also considered by the first appellate court that Swargashram Trust is a public charitable and public religious institution. The duties of officials who supervise and manage the working of the trust have been specified and the Assistant Secretary was not competent to grant lease or depose any such fact. He only was to supervise the Trust property and it appears doubtful that the Manager could have granted the lease.

Before the trial court as well as appellate court the appellant Lakbir Singh has raised the issue that provisions of U.P. Act No. 13 of 1972 apply to the disputed premises as the disputed premises is situated near Muni-ki-Reti, which is a notified area and the disputed accommodation is within 3 Kms from this place. The trial court as well as the appellate court have disagreed with the above submission on the ground that in view of evidence on record this fact cannot be disputed that defendant Swargashram Trust is a public religious Trust and in view of these facts and the evidence on record it was held that provisions of U.P. Act No. 13 of 1972 do not apply to the disputed premises. The respondent had served notice to the appellant mentioning therein that he has been allowed to occupy the property as licensee and not a tenant and only electric and water expenses are taken from them in the form of donation and they had filed the suit on wrong facts mentioning themselves as tenants of the Trust and the license of the appellant was terminated. If the appellants were tenants of the Trust then this fact should not have been written in the receipts that the amounts are being realized as donation and clearly it should have been mentioned that the amounts are being realized as rent of the disputed accommodation and this fact demolishes the case of the appellants that they were tenants and not licensee. Thus, from the conduct and intention of the appellants before 1977, when the appellant has admitted that he was as licensee and lateron he developed the case that he was a tenant, it is amply proved that the appellants were not the tenants in the disputed property rather they were licensee and they use to offer donation for their use and occupation to the religious trust/ respondent. I do not find any manifest error of law in the judgment and order passed by the first appellate court.

Even otherwise, I am of the view that the question whether the appellants are tenants or whether they were put in possession of property as licensee is not a substantial question of law. I am fortified in my view by the Apex Court verdict in the case of Parvati and others vs. S.R.S. Parvatrao Desai and another, reported in [(2005) 11 Supreme Court Cases, 549]. In that case the suit filed by the plaintiff-respondents for possession was dismissed by the trial court holding that the defendants i.e. the appellants before the Apex Court had perfected their title by way of adverse possession. In appeal, the judgment and decree passed by the trial court was set aside. It was held that the appellants were put in possession of the suit property as licensees and that the appellants had not become the owners of the suit property by way of adverse possession. The High Court in appeal had affirmed the finding recorded by the first appellate court. The Apex Court in paragraph No.4 has held thus:-

“4. We agree with the view taken by the High Court that a substantial question of law did not arise in the facts and circumstances of the case, and the second appeal has therefore been rightly dismissed.”

So far as the submission of learned counsel for the appellants that as per provision of Section 105 of Transfer of Property Act the exclusive possession can only be lease and not license, is concerned, Section 105 is quoted below:-

“105. Lease defined- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in considering of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specific occasions to the transferor by the transferee, who accepts the transfer on such terms.”

From the above definition it is quite clear that the lease may be express or implied in consideration of a price paid or promised for a certain time. In the case at hand as has been mentioned earlier also no instrument was ever executed between the parties and no consideration or price was fixed. The appellants used to give some amounts in donation in lieu of water and electric expenses to the Trust. No specific period was there between the parties to occupy the disputed property by the appellants. Thus it cannot be concluded that the appellants were given exclusive possession of the disputed property rather they were occupying the said property as licensee and in lieu of their occupation they were tendering some donation to the Trust.

Since the appellants were tendering donation to the Trust in lieu of their occupation in the disputed property for which receipts were issued to them mentioning therein the amount as donation, no receipt was issued showing as rent, it can very well be concluded that the donation paid by the appellants is not covered U/S 105 of the Transfer of Property Act to conclude that the appellants were lessee and the occupation of the appellants do not create any interest of the appellants over the disputed property and they can impliedly be treated as a licensee.

Both the substantial questions of law are answered against the appellants and in favour of the respondent.

In the result the appeal fails and is dismissed. The judgment and decree passed by the first appellate court is affirmed. Interim order dated 18-6-1998 is vacated.

However, to do complete justice six months time is allowed to vacate the premises in question, provided the appellants give undertaking within four weeks, before the trial court i.e. Civil Judge (J.D.) Kotdwar, District Pauri Garhwal, to the effect that after expiry of six months, they will handover vacant possession of the premises in question to the respondent peacefully.