SHER KHAN Vs. ABBAS BHAI JANAL

JUDGEMENT

(1.) THIS is defendant's second appeal against the judgment and decree of the lower appellate Court, affirming the decree for ejectment passed by the trial Court. It was admitted for hearing on 11 -4 -1989 on the following substantial question of law : -

(2.) IN his suit for ejectment and damages, the plaintiff asserted that the suit accommodation was given on licence to the defendant. Under the licence, the accommodation was being used by the defendant for the purpose of carrying on his business under the name and style of "Raza Small Industries". The licence was revoked with effect from 15 -3 -1985 by a registered notice dated 5 -3 -1985, but instead of vacating the accommodation, the defendant claimed himself to be the tenant in respect of the suit accommodation and also sent a cheque for Rs. 250/ - by way of rent for two months. In his reply dated 14 -3 -1985, the plaintiff denied the defendants claim as a tenant and, thereafter tiled the suit for ejectment and carnages at the rate of Rs. 20/ - per day. The defendant denied the plaint allegations and asserted that he had taken the suit plot on a monthly rent of Rs. 125/ - from the plaintiff and was carrying on his business under the name and style of "Raza Small Industries", after constructing the superstructure on the suit plot. The trial Court decreed the suit for ejectment by holding the defendant to be a licensee in respet of the suit accommodation, but dismissed the suit for damages. Being aggrieved, the defendant preferred an appeal before the lower appellate Court and the plaintiff preferred a cross -objection against dismissed of his suit for damages. By its impugned judgment and decree, the lower appellate Court was pleased to dismiss the appeal but to allow the cross -objection of the plaintiff by decreeing his suit for damages at the rate of Rs. 125/ - per month. Aggrieved by the decree for ejectment, the defendant preferred this second appeal, which was admitted for hearing on the aforesaid substantial question of law.

(3.) IN Ag. Secy. Board of Rev v. S.I.Ry. Co. AIR 1925 Mad. 434 (FB)., it was held that in both the cases of lease and licence certain rights are conferred on the lessee or the licensee. In the case of a licence, something may be paid as consideration for allowing a person to do an act on another man's land. Both have several elements in common, but the difference between a lease and a licence is that in the case of a licensee there is no interest in immovable property transferred to the licensee while in the case of a lease there is a transfer or carving out of the interest in favour of the person in whose favour the lease is granted. One chief consideration is whether there is any right of exclusive possession given. When a document is clear and unambiguous we cannot go outside its terms for the purpose of determining the stamp duty but where it is otherwise.... the question is whether, having regard to the purpose of the agreement and the terms in which it is expressed, the document can be said to confer any interest in the land on the licensees". In Mrs. M. N. Clubwala v. Fida Hussain , Saheb AIR 1965 SC 610., it was emphasised by the Supreme Court that if the exclusive possession to which a person was entitled under an agreement with landlord was coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. In Sohan Lal Naraindas v. Laxmidas Raghunath Gadit(1971) 3 SCR 319, it was reiterated that the test of exclusive possession was an important point in deciding any transaction to be a lease or a licence. In Qudrat Ullah v. Municipal Board, Bareilly AIR 1974 SC 396, it was observed that there is no simple litmus test to distinguish a lease as defined in section 105 of the Transfer of Property Act from a licence as defined in section 52 of the Easements Act, but the character of the transaction turns on the operative intent of the parties. In Khalil Ahmed v. Tufelhussein Samasbhai (supra) the Supreme Court stated the principle for distinguishing a lease from a licence and thereafter came to the conclusion that the particular transaction under consideration was a licence in the following passage of its judgment : -