NANDLAL KARSANDAS MEHTA Vs. SHRINIVAS KORGA RAO

JUDGEMENT

(1.) ONE Shrinivas Korga Rao filed civil suit no.160 of 1972 in the Court of the Civil Judge, J.D.Panvel against defendant Nandlal Karsandas Mehta for eviction alleging that the said defendant Nandlal was a mere licensee in the suit premises, of which the plaintiff Shrinivas was a tenant and after termination of the licence the defendant's occupation is that of a trespasser.

(2.) THE plaintiff averred that the shop premises bearing no.12 in house property bearing municipal no.400 situated at Uran belong to a Church. The plaintiff was paying the rent of the suit premises at Rs.28.00 per month to the said Church. The plaintiff also kept a cupboard on the front ota of the suit premises and one Shankar Rama Shetty was running a pan shop as a licensee of the plaintiff in the said cupboard. These was friendship between the defendant and the plaintiff. The plaintiff used to help the defendant financially from time to time and therefore the plaintiff allowed the defendant to do his business in the premises without any fees being charged for use and occupation. It is alleged by the plaintiff that defendant used to hand over keys of the suit premises regularly to plaintiff in the evening. The plaintiff has locked the back door of the suit premises. The defendant stopped his business completely by the end of 1970. The defendant however, used to sit in the suit premises and used to hand over the keys of the suit premises to the plaintiff even after 1970. Sometime in the beginning of 1972 the defendant stopped giving keys back to the plaintiff. The plaintiff learnt that the defendant has registered his shop in the premises under the Shops land Establishments Act. Therefore by notice dated 10.4.1972 the plaintiff revoked the licence and called upon the defendant to deliver possession.

(3.) ISSUES were framed by the trial court. The trial court observed that the defendant has not produced any account books and therefore, he drew adverse inference against the defendant and held that the defendant never made by payment on account of rent to the plaintiff as alleged. Though the case of the defendant regarding exchange and promise of Rs.1000.00 was supported by his own evidence as also the evidence of his witness Laxmichand. The learned Judge of the trial court disbelieved the evidence on the ground that as both were traders they would have certainly reduced oral agreement into writing. The trial court also held that it would be improbable that defendant would keep quiet for more than 10 years when the promised amount of Rs.1000.00 was not paid. The learned Judge held that in case of lease there is exclusive possession but in the case of licence there is a right to use premises without exclusive possession. In the opinion of the learned Judge giving of key is generally the symbol of exclusive posses-sion. The learned Judge also inferred that the plaintiff appears to have retained general control of the suit premises. It is on these reasoning that the learned trial Judge held that the he is satisfied that the suit premises were given to the defendant on leave and licence. The learned Judge specifically held that as the plaintiff has proved that the defendant is the licensee, the issue regarding the sub-tenancy shall have to be answered in the negative. The learned Judge held that by notice dated 10.4.1972 the plaintiff has duly revoked the licence as such the plaintiff is entitled to get possession. Accordingly by judgment and decree dated 28.11.1978 the learned Civil Judge, J.D., Panvel was pleased to decree the suit of the plaintiff for possession.