SHANTI DEVI Vs. MELA RAM

JUDGEMENT

(1.) [Suit property was an evacuee property. Smt. Ganga Devi on 27.1.1951 applied for its allotment to her. It was allotted to her on 29.3.51. In 2 survey reports of 17.8.51 and 29.12.51 she is described as allottee. The property was auctioned in 1964 in favour of respondent and he was granted sale certificate on 22.3.1965. The allottee did not make any payment to the respondent and thus lost the protection of S. 29 of Displaced Persons (Compensation and Rehabilitation), Act 1954. Respondent sued her for possession claiming her only as a licensee. Trial Court Court dismissed the suit. In appeal District Judge held that Smt. Ganga Devi was a mere allottee and not a tenant and that she having failed to comply with the provisions of Sec ion 29 she was liable to eviction. He granted a decree for possession. Ganga Devi appealed against the said judgement. She died during the pendency of the appeal and her legal representatives were brought on record. High Court dismissed the appeal. Paras 8 to 14 of the judgement are :-

(2.) It is obvious that Ganga Devi originally asked for allotment and the order of the Custodian also was making allotment to her. At no time was there any question of any lease of the property even mentioned either in the application by Ganga Devi or in the order of the Custodian of Evacuee property. The whole course of events leads to this and obviously if the property had been allotted to her the legal rights that flow from it can be only that of allottee. The stress laid by Mr. Dhawan on the receipts in which the word 'rent' is used also does not help him. In the first instance it will be seen that the receipts specifically provide for rent/licence fee/and lease money. If the contention of Mr. Dhawan is correct that rent was being mentioned there because it was not allotment to Ganga Devi but was a lease then it is not understood why even 'lease money' was scored out and 'rent' was used. It is quite clear in terms of the provisions of rent/lease money/by the department in cases where allotment was made. Had there been a lease made in favour of Ganga Devi one would have expected that the word used should have been lease money. The emphasis placed by Mr. Dhawan on the use of the word 'rent' also cannot be held itself to denote that the premises were given not as allottee but as lessee. The Supreme Court has clearly held that the use of the term 'rent' cannot preclude a landlord from pleading that there is no relationship of landlord and tenant and the question there is relationship of landlord and tenant in the sense that there is transfer of interest by the landlord in favour of the tenant is to be judged by the intention, vide Dr. H.S. Rikhy etc. Vs. The New Delhi Municipal Committee, AIR. 1962 S.C. 554.

(3.) Mr. Dhawan also sought to contend by referring to Associated Hotels of India Ltd. v. S.B. Ranjit Singh MR. 19 58, S.C. 933 that as exclusive possession was given to Ganga Devi it must be held the property was given to her on lease. But this authority by the Supreme Court lays down no such rule. On the contrary this authority says that the test of exclusive possession was not conclusive. This observation was made in the context of subletting by landlord of portion of the room in a hotel where the plea of landlord was that the occupation was that of licensee and not by way of subletting. In the present case allotment had been made to Ganga Devi of house and it cannot be suggested that unless it was shown that some other person was also permitted to use the property it must be held that it was not by way of allotment but by way of lease. The right to exclusive possession does not automatically mean that this possession cannot be that of a licensee. It is only if an interest in immoveable property is conveyed that it becomes a lease. In the present case the property has been allotted to her and at no stage the question of lease was considered. The authority therefore, is of no assistance to Mr. Dhawan.