PRAKASH GANESH LOTLIKAR Vs. JOEL AVELINO NORONHA

JUDGEMENT

(1.) Heard Mr. S. D. Lotlikar, learned Senior Counsel appearing for the appellant and Mr. V. P. Thali, learned counsel appearing for the respondent.

(2.) The above appeal came to be admitted by order dated 06.08.2010 on the following substantial question of law.

(3.) Mr. S. D. Lotlikar, learned Senior Counsel appearing for the appellant in support of his above appeal has pointed out that on bare perusal of the licence executed between the appellant and the respondent way back in the year 1979, the intention as well as the terms clearly disclose that a licence was created in favour of the respondent to occupy a part of the larger premises belonging to the appellant for the purpose of carrying out some business activities. The learned Senior Counsel has thereafter minutely taken me through the clauses of the said agreement at Exhibit 25 and pointed out that the intention therein can discloses that the intention of the parties was not to create a lease. The learned Senior Counsel thereafter has taken me through the written statement filed by the respondent and pointed out that at para 3 therein it is the case of the respondent that he was occupying the premises on leave and licence agreement and he became the statutory tenant in the year 1979. The learned Senior Counsel has pointed out that there is nothing on record to suggest that in the year 1980 any relationship was created between the appellant and the respondent which would infer that the premises were given on lease in favour of the respondent. The learned Senior counsel further pointed out that though it does not dispute the fact that mere title of the document does not infer the relationship between the parties nevertheless, the terms of the agreement clearly disclose that the intention of the parties was only to create a lease. The learned Senior Counsel thereafter has pointed out that there is no averment in the written statement to suggest that the parties had entered into such agreement only to camouflage the real intention between the parties which was to create a lease. The learned Senior Counsel further submitted that this itself would suggest that the learned Lower Appellate Court has misconstrued the material on record to come to the conclusion that a lease was created in favour of the respondent. The learned Senior Counsel has thereafter also taken me through the judgment of the trial Court and pointed out that the learned Judge has rightly appreciated the evidence on record as well as inferences in law from the document executed between the parties to come to the conclusion that the respondent was merely a licensee of the appellant. The learned Senior Counsel further pointed out that the learned Lower Appellate Court has come to the conclusion that the respondent was in exclusive possession of the premises without examining the nature of the so called possession as according to him the terms of the licence agreement clearly suggest that the respondent was not in exclusive possession of the premises. The learned Senior Counsel has also pointed out that the electricity connection was given from the meter which was located in the portion belonging to the appellant and even some electrical features were provided in terms of the said agreement. The learned Senior Counsel has thereafter taken me through the impugned judgment passed by the learned Lower Appellate Court and pointed out that the learned Judge has misconstrued the documents on the basis of some subsequent material which is not at all relevant to examine the real intention of the parties at the time of the execution of the agreement. The learned Senior Counsel further pointed out that the very fact that the licence was for the period of three years and the document itself was not registered when a lease for more than 12 months has to be registered in terms of law would itself suggest that the parties never intended to create a lease. The learned Senior Counsel thereafter has taken me through the different portions of the pleadings as well as the judgment of the learned Lower Appellate Court and pointed out that the learned Lower Appellate Court has misconstrued the evidence on record to come to the conclusion that the disputed document is to create a lease. In support of his submission, the learned Senior Counsel has relied upon the judgment of the Apex Court reported in the case of Mrs. M. N. Clubwala and another V/s Fida Hussain Saheb and others, 1965 AIR(SC) 610 and the judgment of the learned Single Judge of this Court reported in the case of Joao Necessidade Roque Antonio As V/s Dr. Vaman Govind Lotlikar & Ors., 2013 2 BCR 842