Judgment:
1. This second appeal is directed against the judgment and decree of the first Appellate Court affirming on appeal those of the trial judge whereby the suit of the plaintiff/respondents for mandatory injunc-tion was decreed.
The facts :--
Madan Lal plaintiff filed the suit for a mandatory injunction against the defendant/ appellant for handing over possession of the suit property to him. It was alleged that on Sept. 1, 1967 under an oral agreement, the defendant took the suit property on licence and remained in possession of the same for a few months; on Sept. 23, 1969 through a registered notice, the plaintiff revoked the licence; the defendant was still in possession of the property to which he had no right. Thesuit was filed for a mandatory injunction onOct.4, 1969.
2. The defendant contested the suit inter-alia pleading that the suit in the present formdid not lie; that there was relationship oflandlord and tenant between the parties; thatthe civil court had no jurisdiction; that thedefendant took the disputed property on anannual rent of Rs. 1200/- as partner of M/s.Brahm Raj Medical Hall, Jind and had keptaccounts regularly and paid rent upto August31, 1969; that the defendant was a partner of firm M/s. Brahm Raj Medical Hall, Jind which was registered and that the firm was not made a party in the suit and the suit was bad, for non-joinder of necessary parties; that the plaintiff ought to have paid the court-fee on the market value of the suit property for suit for possession and not for injunction and that the suit was bad on account of delay and acquiescence.
3. The trial judge framed the following issues from the pleadings of the parties:--
1. Whether the defendant came into possession of the southern portion of the shop shown in red colour in the plaint filed by trie' plaintiff as a licencee vide an oral agreement as prayed in the plaint? If so then what was the. date of the execution of the oral agreement and what were its terms and to what effect?
2. Whether the defendant is in possession of the shop in dispute as a tenant of the plaintiff, as mentioned in the written statement? If so then what were its term and to what effect?
3. Whether this court has jurisdiction to try this suit in the present form?
4. Whether this suit is bad for non-joinder of necessary parties, as mentioned in the written statement? If so then to what effect?
5. Whether the plaintiff is estopped fromfiling this suit on the ground as mentioned inthe written statement?
6. Whether this suit has been properly valued for the purposes of court-fee and jurisdiction if so, then to what effect?
7. Whether plaintiff is not the owner of theproperty and Vidya Wati is the owner of the property in suit? OPD (Onus objected to)
8. Whether this suit is maintainable in the present form?
9. Whether the plaintiff is entitled for a decree for mandatory injunction as prayed inthe plaint?
10. Relief.
The trial judge decided issues Nos. 1, 2, 3, 6, 8 and 9 in favour of the plaintiff; issues Nos. 4, 5, 7 were decided against the defendant and in result the plaintiffs suit was decreed. The defendant challenged the judgment and decree of the trial judge in appeal before the Additional District Judge. The first Appellate Court vide its order dated January 1, 1975 called for additional evidence whereafter two witnesses, namely, CW 1 Telu Ram and CW 2 Vas Dev were examined by the trial Court on 5-2-1975. Document marked 'C' was also brought on the record. During the pendency of the appeal, the defendant made an application under O.6, R. 17, Civil P.C. seeking amendment of the written statement to plead that he had fixed permanent structures, namely, iron shutters, furniture, telephone and electric meter and therefore, the licence, if any, had become irrevocable. This application was allowed by the first Appellate Court vide its order dated Nov. 3, 1977. The plaintiff unsuccessfully challenged the order in this Court in Civil Revision No. 1836 of 1977 decided on April 27, 1978. During the pendency of the first appeal, the plaintiff died and vide order dated Jan. 3, 1976, the respondents were brought on record as legal representatives of the deceased. The first Appellate Court negatived the plea of the defendant that he was in occupation of the disputed property as tenant. It, however, arrived at the following findings :--
'Learned counsel for the appellant made much stress on the fact that the possession of the premises is exclusive. No doubt it is so. (Para 25 of the First Appellate Court judgment). The writing 'Mark C' is written on the back of application 'Mark A'. This application purports to have been made by Smt. Vidya Wati wife of Madan Lal to MunicipalCommittee on March 27, 1969. It is said that against shop No. 319 (which is the shop in dispute) the name of the tenant is wrongly shown and in fact it is Paras Ram with whom the shop was on rent. Then there is a some mention of shop No. 319-A with which we are not concerned but in respect of which it is said that it is lying vacant for the last 2 1/2 years. On the back of this writing Mark 'A' is writing 'Mark C'. It is in hindi and its English translation is as under:--
'Shri Laxmi Narain is present.
i) 'Rent of property No.319/7 admitted. The name of tenant is changed on the condition that he files an affidavit to this effect. (It is not clear who is meant by he underlined above this parenthesis mine).
ii) The rent of property No. 2 is fixed at Rs. 200/- per annum.
Writing Mark 'C' purports to have been signed by Laxmi Narain Advocate who is son of the plaintiff and who is now one of the respondents. The witnesses examined in respect of this writing are two handwriting experts K. S. Puri (DW-10) and Bishambher Math Srivastava (P.W. 5), Taxation Inspector Kartar Singh D.W. 3 and two Municipal Commissioners Telu Ram C.W. 1 and Vasdev C.W. 2. The experts were needed because Laxmi Narain appearing as P. W. 4 had denied that the signatures on this writing were his. Shri K. S. Puri D.W. 10 has said that these signatures are of Laxmi Narain. P.W. 5 Bishamber Nath has said that they are not his. But Kartar Singh says in unmistakable terms that it was Laxmi Narain who was present when this writing was made, though he does not say that these signatures were also appended by Laxmi Narain. Telu Ram C.W. 1 at first said that this writing was statement of Laxmi Narain and was written by Inspector Kartar Singh; but later he said that he was not Sure whether this writing was made by Kartar Singh or his assistant. He added that Laxmi Narain had not signed it. He, however, admitted his own signatures on it. He added that writing was the decision of the members of the Municipal Committee and was signed by Vasdev also. Cross-examined he said that hesigned this writing on the faith of Kartar Singh and without reading it.
Vasdev C.W. 2 is however, very clear. He says that it was written by Kartar Singh and signed by Laxmi Narain and himself and Telu Ram. It is no longer disputed that the signatures are of Laxmi Narain but even assuming that, what is the effect? The application 'A' was presented by one Sh. Janardhan.
Inspector Kartar Singh also says so. He admits that Janardhan had no authority to appear on behalf of Vidya Wati. Vidya Vati was examined on commission on 10-1-1975 and she says that she had made no such application.
But for getting everything else and assuming that the application was made by Vidya-vati and writing 'C' was signed by Laxmi Narain what does it indicate? The only thing that the learned counsel for the appellant has been stressing is the use of word 'rent* in writing marked 'C' and the statement in mark 'A' that the 'Karayadar' in shop No. 319 was Paras Dass. This application was made for the purpose of getting house tax reduced and, therefore, the use of word 'rent' in mark 'C' does not mean rent as it is legally understood a payment by a tenant to the land-lord.' (Paras 22 to 24 of the first Appellate Court judgment)
4. It is undisputed that shop No. 319 was partitioned and one portion was assigned No. 319 in the municipal records for the purpose of assessment of house tax and the other No. 319-A. Shop No. 319 is in dispute. In the house tax assessment register for the year ending 1967-68, Ex. D 1, Smt. Vidya Devi wife of Madan Lal is recorded as the owner in possession and annual value was assessed at Rs.450/- and on this amount house tax assessed and payable was Rs. 33.75. In the subsequent year 1968-69, Ex. D 2, shop No. 319 is shown to have two parts, namely Nos. 319 and 319-A. In the column of ownership, it is recorded that Smt. Vidya Wati wife of Madan Lal is the owner and in column No. 5 name of the occupier is recorded as Brahm Raj medicine wala. Annual value wasassessed at Rs. 1080/- and the tax payable was Rs. 81/-. Shop No. 319-A was shown to be in possession of the owner and the annual value of this portion was assessed at Rs. 540.00 and the tax payable was Rs. 40,50. On objection by the landlady the annual value was reduced to Rs. 180/ - and proportionately the tax payable was reduced to Rs. 13.50, In the subsequent assessment year 19'69-70 Ex. D3, the same entry continues. In the years 1970-71 -- 1971-72 shops Nos. 319 and 319-A were assigned Nos. 86 and 87 respectively. Shop No. 86 was shown to be in occupation of Brahm Raj and the annual value was recorded as Rs. 1200-120 = Rs. 1080/-. Shop No, 87 was shown in possession of the owner and the annual value was assessed at Rs. 600-60 = Rs. 540/-. On objection by the owner, the annual value was reduced to Rs. 180/- and so was the tax payable at Rs. 13.50. The same entry continued in the years 1972-73 and 1973-74, Ex. D 4 and Ex. D 5. These extracts from the assessment register Ex.D 1 to Ex. D 5 were not taken into consideration by the first Appellate Court. The documents lend credence to the defendant's version which is not controverted by the plaintiff that shop No. 310 was partitioned and exclusive possession of one portion was given to the defendant and the other portion was retained by the owner. The portion which was retained by the owner was given identification No. 319-A in the house tax assessment record and thereafter these two portions were assigned Nos. 86 and 87 respectively. The parties are not at issue that the defendant put shutters on the portion of the shop in his occupation. He even-installed electric meter, telephone etc. in that portion. He is running a druggist's shop in the disputed premises. He applied for the licence which was granted by the authorities and the firm which is running the business in the disputed premises has been allotted both Central Sales Tax and provincial Sales tax numbers.
5. Objections with regard to impositionof house tax on property Nos. 319 and 319-A situate in Ward No. 7 owned by Smt. Vidya-wati was filed before Executive Officer, Municipal Committee, Jind. In this application, it was stated that no house tax could beimposed on the property situated within the municipal limits. In paragraph No. 2 of this application, it was stated that against property bearing No. 319, the name of the tenant has been incorrectly mentioned. In fact Paras Dass is occupying the shop as a tenant under the landlady and that shop No. 319-A is lying vacant for the last 2 1/2 years. On the back of this application, the following writing was made in Hindi and English rendering of the same has been reproduced in the earlier part of the judgment. However, for ready reference, it reads:--
'Shri Laxmi Narain is present.
(i) Rent of property No. 319/7 is admitted. The name of tenant is changed on the condition that he files an affidavit to this effect.
(ii) The rent of property No. 319-A/7 is fixed at Rs. 200/- per annum.'
The application has been marked as 'A' and endorsement on its back as Mark 'C'. Objections were submitted to the Executive Officer against the imposition of house tax on the property in dispute. The original document is forthcoming from official custody. Its authenticity was not disputed. It was admissible in evidence. In fact it has been referred to by the first Appellate Court in its judgment and both the parties addressed arguments on it. The first Appellate Court was in error in not admitting these documents in evidence. Accordingly, the application dated 27-3-1969 filed by Smt. Vidyawati is exhibited as Ex. RS A/1 and the endorsement on the back of it as Ex. RSA/2 (Page No. 119 & 120 of the suit file). The endorsement is signed by Sh. Laxmi Narain, Advocate, one of the heirs of original owner Madan Lal and now party to the lis as legal representative of the deceased. The endorsement relates to the property in suit. The signatory to this endorsement was willing to admit the occupant as a tenant on payment of Rs. 200/- per mensem as a rent. The first line of the endorsement refers to property No. 319/ 7. There is no property owned by the plaintiff bearing No. 319/7. The endorsement has to be read in conjunction with the averment made in the application and on a correct reading of the application and the endorsement, the only inference deducible is that it refers to the shop in dispute. There appears to be dispute regarding rent. Laxmi Narain was willing to admit the occupienas a tenant if he agrees to pay Rs. 200/- per mensem as rent. Laxmi Narain Advocate apprehending that his signatures on the endorsement may not operate to his prejudice denied his signatures thereon. Dewan K. S. Puri, D. W. 10, a renowned handwriting expert proved on record that the disputed and the admitted signatures of Laxmi Narain Advocate tallied. There is nothing to doubt the correctness of the statement made by the expert. The first Appellate Court also did not opine that the signatures of Laxmi Narain Advocate did not exist on the endorsement. It, however, discarded it on the ground that it was of no consequence. The first Appellate Judge did not try to understand that Laxmi Narain Advocate wanted to admit the occupier as a tenant provided he paid Rs. 200/- per mensem as'rent. The original application is signed by Vidyawati wife of Madan Lal the owner. She did not deny her signatures on the application. In the application, it was mentioned that the name of the tenant was wrongly mentioned in the assessment register and in fact it was Paras Dass. Paras Dass is the same person who appeared as P.W. 2 and who according to the plaintiff's version introduced the defendant to the plaintiff and asked the latter to give the shop on Licence to the former. The defendant found him to be a very convenient person to be used at one stage, a person who exercised his influence on the plaintiff to give the shop on licence to the defendant and at other stage the same person was referred as actual tenant on the disputed premises and the name of the tenant recorded in the assessment register as having been wrongly mentioned. It gives me an impression that Laxmi Narain Advocate who had the legal background at his command wanted to give status of a licencee to the defendant which he has failed to do so. Apart, from the evidence referred to above and not referred to by the first Appellate Court in its judgment, the finding recorded by it is; that the defendant is in exclusive possession of the disputed premises. On appraisal of evidence, I havefound that disputed property has its separate gates and in the municipal records maintained for the purposes of house tax assessment No. 319 has been assigned and the annual value has been fixed at Rs. 1080. On the other hand the annual value of the portion in possession of landlady has been fixed at Rs.540/-. The fixation of higher valuation of the portion in possession of the defendant corroborates his version that he is paying rent at the rate of Rs. 1200/- per annum. The marked distinctions between a lease and a licence was stated thus in Associated Hotels of India Ltd. v. R. N. Kapoor, AIR 1959 SC 1262:--
'The following propositions may be taken as well established: (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 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.'
The rule of law laid down was re-iterated in Associated Hotels of India Ltd. v. S. B. Sardar Ranjit Singh, AIR 1968 SC 933. As observed earlier, the first Appellate Court has given a firm finding that the defendant is in exclusive possession of the premises in dispute. This finding brings the case of the defendant within the ambit of rule of law laid down in Associated Hotels' case supra. If the occupier is in exclusive possession of the property, prima facie, he is considered to be a tenant. The other evidence in the form of extracts from house tax assessment registers Ex. D2 to Ex. D5 corroborates the defendant's version that he was in possession on payment of Rs. 1200/- per annum as rent. Ex. RSA/1 and Ex. RSA/2 also lend credence to the defendant's version. The only conclusionwhich can be drawn is that the defendant is in possession of the disputed premises as a tenant on an annual rent of Rs. 1,200/- and not as a licencee as alleged. Learned counsel for the respondent submitted that the finding of fact arrived at by the first Appellate Court that the defendant is in occupation as a licencee cannot be reopened in second appeal. The submission is devoid of merit. The legal effect on the facts found by the final Court of fact is a question of law which can be reviewed by this Court in second appeal. In Nafar Chandra Pal Chowdhury v. Shukur Sheikh, (1919) 1LR XLVI Cal 189: (AIR 1918 PC 92) the Privy Council observed that the proper legal effect of a proved fact is essentially a question of law. Discussing the true scope of the Privy Council observation, the apex Court in Sri Meenakshi Mills Ltd. v. Commission of Income-tax, AIR 1957 SC 49 held thus (at page 58):--
'In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involved first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous of fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession, the Court has firstly to find on an appreciation of the evidence what the facts are. So far it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether onthe fact established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law. In this respect, mixed questions of law and fact differ from pure questions of fact in which the final determination equally with the finding or ascertainment of basic facts does not involve the application of any principle of law. The proposition that an inference from facts is one of law will be correct in its application to mixed questions of law and fact but no to pure questions of fact.'
And summing up the result of the authorities, the Court stated thus :--
'1) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the Court under S. 66(1).
2) When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final, its decision is to the legal effect of those findings is a question of law which can be reviewed by the Court.
3) A finding on a question of fact is open to attack under S.66(1) as erroneous in law when there is no evidence to support it or if itis perverse.
4) When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact.'
6. For the reasons stated above, the appeal succeeds, the judgment and decrees of the Courts below are set aside; the suit filed by the respondent / plaintiff is dismissed but with no order as to costs.
7. Appeal allowed.