SUSAMA PAUL & ORS. Vs. MANICK SHAW

JUDGEMENT

(1.) The present second appeal arises out of an appellate decree passed by Assistant District Judge, Sealdah through his judgment dated 19.2.97 in Title Appeal No. 7/95, through which the learned appellate Court below, allowed the appeal, set aside the judgment and decree passed by the Munsif, 3rd Court, Sealdah in T.S. 619/84 and ultimately passed a decree for eviction against the defendant/respondent from the suit premises.

(2.) The respondent/plaintiffs filed the suit before the trial Court against the defendant/appellant alleging, inter alia, that during the life-time of the predecessor-in-interest of the plaintiff/respondents, late Pran Krishna Paul, the defendant was allowed to use and occupy the suit shop room at a monthly licence fee of Rs. 70.00 payable according to English calender month and an agreement was entered into on 31.5.78 for the aforesaid purpose. It was stipulated in the agreement that the defendant/tenant would quit and vacate the suit shop room only on 7 days verbal notice. It was further alleged that on 20.4.80, the said Pran Krishna Paul permitted the defendant to install of fresh electric meter in his own name (name of the defendant) by a written agreement. It is further alleged that on 5th Oct., 1982 the said Pran Krishna Paul revoked the licence but on request of the defendant he allowed the defendant to continue to occupy the suit shop room. It is further alleged on 6th of Oct., 1982 there was a second agreement. Then on 24th of Feb., 1984, the said Pran Krishna Paul died and thereby the said leave and licence came to an end. After the death of the said Pran Krishna Paul his legal heirs who are the plaintiffs of the suit did not grant any further licence to the defendant and when inspite of the aforesaid revocation of the licence and the notice to quit the defendant/tenant failed to vacate, they were constrained to file the suit. The defendant contested the suit on a written statement denying that he was a mere licensee. On the basis of the pleadings, the trial Court raised certain issues including the issue touching the question whether the defendant was a mere licensee or a tenant and in his judgment, the said Court indicated that he carefully scrutinised the materials on record to find that the defendant was given exclusive possession, of the suit property and there was nothing to show that the plaintiffs landlord retained legal possession of the same, and ultimately came to a finding that the defendant was not a licensee but a tenant and thereafter dismissed the suit. In appeal, the learned appellate Court reversed the judgment of dismissal and indicated in the judgment impugned that relying on Exts. 2 and 3 together with other documents like counter foils of the rent receipts, intention of the predecessor-in-interest of the appellants was clear that he intended to create a licence and not a tenancy. Ultimately relying on those documents together with the surrounding circumstances involved came to a finding that the respondent was a licensee and was not a tenant. On the basis of the same, set aside the judgment and decree of the trial Court and decreed the suit.

(3.) At the time of admission of the appeal, a Division Bench of this Court merely indicated that appeal would be heard without formulating the substantial question of law. In this back-ground, before hearing the appeal, after going through the judgments of the Court below and the Memo of Appeal and also after hearing the learned counsel for the appellant I take the following question as the substantial question of law involved in this appeal : Whether the document Ext. 2 created a lease of licence in favour of the defendant/appellant.