CHIRANJILAL SEKSARIA Vs. NAND KISHORE SAREF

JUDGEMENT

(1.) The Respondent seeks to eject the Appellants from a plot of land at No. 5, Nimtolla Ghat Street. The Appellants claim to be thika tenants of the land under the Respondent and they contend that the suit ought to be dismissed because (a) the Respondent did not plead nor prove any ground of eviction under the Act and (b) the trial Court had no jurisdiction to entertain a suit for eviction of the thika tenant.

(2.) In order to be a thika tenant the claimant must satisfy the conditions of Section 2(5) of the Calcutta Thika Tenancy Act, 1949, and must be a person

(3.) We think also that the case that the Appellants were thika tenants of the Plaintiff must be rejected on another ground. In order to be a thika tenant under the Respondent, the Appellants must establish that they hold the land under the Respondent and are or but for a special contract would be liable to pay rent for the land to him. To satisfy the test of Section 2(5) of the Calcutta Thika Tenancy Act, 1949, they must be tenants of the land under the Respondent. The Act seeks to make better provisions relating to the law of landlord and tenant in respect of thika tenancies in Calcutta. The preamble to the Act as also the word "holds" in Section 2(5) indicate that the person claiming to be a thika tenant must establish that he is a tenant. Now a bare licensee or a person using the land under a licence from the owner has no interest in the land and cannot claim to be a thika tenant. Section 2(5) of the Calcutta Thika Tenancy Act, 1949, corresponds to Section 3(17) of the Bengal Tenancy Act under which it was well settled that, "There can be no tenancy unless a right to the land has been given to the grantee", see Jatindra Mohan Lahiri v. Abdul Aziz Meah,1920 AIR(Cal) 733 The distinction between a lease and a license is well known. A lease is a transfer of right to enjoy the land, whereas a license is a privilege to do something on the land which, otherwise, would have been unlawful. The question whether a transaction amounts to a tenancy or a license is a question of the intention of the parties. If the agreement is in writing, we must look to the intention as expressed in the document. The point must then be decided on a consideration of the contents of the document with the assistance of such extrinsic evidence as may be admissible. The most important, and often the decisive test, is whether the document gave exclusive possession to the grantee, see H.E. Wijesuriya v. Attorney-General for Ceylon, 1950 AC 493. The grant of a right to use land without a right of exclusive occupation takes effect as a licence but if the effect of the instrument is to give exclusive possession, it will normally take effect as a lease, see Addiscombe Garden Estates Ltd. v. Crabbe, 1957 3 AllER 563, unless the document read as a whole shows an intention to a grant a possessory licence short of a lease, see Isaac v. Hotel De Paris Ltd., 1960 1 AllER 348, Murray, Bull and Co. Ltd. v. Murray, 1953 1 QB 211. The question is not of words but of substance, see Glenwood Lumber Coy v. Phillips, 1904 AC 405, O.C. Ganguly v. Kamalpat Singh Dugar,1946 51 CalWN 203, and the label which the parties choose to put on the transaction, though material, is not decisive. The operative words of the agreement may create a tenancy, even if it is framed as a license to use the club-house and tennis Court on a periodical payment called Court-fee, see Addiscombe Garden Estates Ltd. v. Crabbe, 1957 3 AllER 563 or as a contract of employment of the grantor as commission agent for a fixed commission payable periodically, (Messrs. Vallabhdas Champshi and Co. v. Messrs. Berry and Co. and Messrs. Meghraj Mohanlal) Unreported decision of Sen, T. dated 10.12.53 in Civil Rule Nos. 3018 and 3019 of 1952 or as a contract of employment of the grantee with the stipulation that nothing in it shall be construed to create a tenancy, see Facchini v. Bryson,1952 1 TLR 1386. To give exclusive possession it is not necessary to use express words to that effect, it is sufficient that the nature of act to be done by the grantee requires that he should have exclusive possession, see Mohipal Singh v. Lalji Singh, 1912 17 CalWN 166