SANKARI PROSAD SARKAR Vs. RANJIT SANKAR CHOWDHURY

JUDGEMENT

(1.) This is an appeal from the decree of the appellate Court affirming that passed by the learned Munsif, 2nd Court at Alipore, dated 19.3.86 in T.S. No. 143 of 1980 of the said Court. The plaintiff-respondent Ranjit Sankar Chowdhury filed a suit for eviction against the defendant-appellant Sri Sankari Prosad Sarkar in respect of a flat being flat No. 102 at 11/1-B, Ekdalia Place, Calcutta en the allegations inter alia that the defendant came to occupy the said fiat as a licensee in September 1976 for a period of 19 months and thereafter the said licence was extended till December 1978. During the said period the plaintiff received licence fees from the defendant on four occasions and granted receipts for the same. As the defendant refused to vacate the disputed flat inspite of repeated demands, the plaintiff was obliged to file the suit after revoking the licence by a notice. The defendant contested the suit by filing a written statement in which he claimed tenancy right under the plaintiff in respect of the disputed flat at a monthly rental of Rs. 750 for the first six months and thereafter at the rate of Rs. 800 together with a sum of Rs. 20 towards the rent for the parking space. Up to October 1978 the plaintiff accepted the rent from the defendant amicably and thereafter on his refusal to accept the rent the defendant started depositing rent with the Rent Controller. Several issues were framed by the Trial Court and two such issues were whether the defendant was a licensee or a tenant under the plaintiff in respect of the disputed flat. The learned Munsif came to an ending that the defendant was a licensee and not a tenant under the plaintiff and that he was liable to eviction and mesne profits as prayed for in the suit. The suit was accordingly decreed. On appeal the learned Additional District Judge, Alipore upheld all the findings of the learned Munsif and the appeal was dismissed. Feeling aggrieved, the defendant has come up in second appeal.

(2.) From the facts of the case stated above it would appear that the only question which lies at the root of the controversy is whether the defendant-appellant is a tenant or a licensee under the plaintiff-respondent in respect of the disputed flat and an answer to this is decisive of the appeal. The admitted position is that the plaintiff as one of the members of East End Apartments Housing Co-operative Housing Society Ltd. was allotted the disputed flat on ownership basis and he had to incur debts for purchasing the said flat. His mother was allotted the next door flat being flat No. 103 of the said building. The defendant came to occupy the flat No. 102 in September 1976. While the plaintiff has alleged that the defendant's possession was that of a licensee, the defendant has asserted that he was inducted by the plaintiff as a monthly tenant under the West Bengal Premises Tenancy Act, 1956. No document was brought into existence at the time when the defendant's possession commenced. The Supreme Court and the Bench decisions of this Court have laid down several tests for ascertaining whether a transaction is a lease or a licence, The exclusive possession and some interest in the property are undoubtedly important factors, but these are not decisive in that regard. The common factor and possibly the only decisive factor on which all the decisions have laid emphasis is the intention of the parties. Thus while in the case of Associated Hotels of India Ltd. reported in A.I.R. 1959 S.C. page 1263 it was held that the real test is the intention of the parties whether they intended to create a lease or a license, in M. M. Clubwalla's case reported in A.I.K. 1965 S.C. page 610 it was confirmed that "whether an agreement creates between the parties relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties". The aforesaid two decisions of the Supreme Court were followed in two Division Bench decisions of this Court reported in 82 C.W.N. page 695 (Ram Avtar v. Khajan Singh Punjabi) and 84 C.W.N. page 817 (Sankar Ghose v. Arun Kumur Dasgupta) respectively. In both the decisions great emphasis was laid on the intention of the parties and such intention is to be inferred from the surrounding facts and conduct of the parties. The observation made in Sankar Ghose's case (Supra) was as follows, "As we read the judgements of the Supreme Court, it is always necessary to go into the question and find out what was the interaction of the parties by which the defendant came into possession of the property". It would be appropriate to note that in all the decisions cited above certain documents were brought into existence prior to the commencement of the possession of the tenant or licensee and still it was insisted upon that the Court should in the first instance find out what the intention of the parties was at or about the time of induction and how the parties reacted thereafter.

(3.) Now bearing in mind the ratio and principles emerging out of the reported decisions we propose to ascertain the nature and character of the defendant's possession in the disputed flat and the subsequent conduct of the parties in relation thereto. The most significant aspect of this case is that although the defendant set up a tenancy right under the plaintiff, he could not produce a single rent receipt or any other piece of paper in proof of his payment of rent to the plaintiff for the use and occupation of the flat. Under Section 2(h) of the West Bengal Premises Tenancy Act 1956 a "tenant" means any person by whom or on whose account or behalf the rent of any premises is payable. Thus, the paint of rent by the "tenant" to his 'landlord' is the most important incidence of the tenancy right. In paragraph 6(b) of the written statement the defendant stated that at the time when he was inducted as a tenant it was agreed between the parties that no rent receipt would be given to the defendant for the time being and as the defendant had implicit faith in the plaintiff's assurance he did not suspect anything and continued to pay rent without receipt. In his cross-examination the defendant who deposed as D.W. 1 stated that he demanded rent receipt from the very beginning of his tenancy but the plaintiff refused to grant the same on the plea that a litigation was pending between the cooperative society and another party. This contradiction between the statement made in the written statement and that made at the trial throws much light on the weakness of the defence case of tenancy right. The second ingredient namely, rent agreed is not there. The defendant is a qualified person working as .the Construction Manager in the M/s. B. Sen & Company and he used to draw house rent allowance from the Company and claimed income-tax rebate from the Income-tax Department on the house rent so drawn. In this context it is not believable that he would not insist on rent receipt but would continue to occupy the flat and go on paying rents at the risk of eviction at the pleasure of the plaintiff-landlord. The conduct of the defendant is inconsistent with the relationship of landlord and tenant. The plaintiff has admitted that he was anxious to liquidate the debt incurred by him for purchasing the flat and accordingly in terms of the agreement with the defendant he received from him Rs. 20,000 in four instalments towards the licence fees. In the Income-tax returns submitted by the plaintiff for the years 1977-78 and 1978-79 the receipt of the sums on four different dates, namely, 18.8.76, 7.2.77, 7.9.79 and 8.4.78 was shown. Besides the defendant, five other witnesses have been examined on his behalf. D.W.2 is a laundry owner, D.W. 3 claims to have served as a broker, D.W.4 is the person who occupied the disputed flat for sometime before the defendant came to occupy and D.W.S is the wife and D.W.6 is the brother-in-law of the defendant. None of these witnesses could explain satisfactorily why inspite of the creation of the tenancy, the defendant conceded to pay rents without receipts. The Courts below had discussed the evidence adduced on behalf of either side, took note of the surrounding facts and circumstances and the conduct of the parties and came to a finding that the plaintiff never intended to create any tenancy in favour of the defendant. In this connection the Court takes note of an important fact regarding the possibility of the plaintiff's intention not to create any tenancy. It may be recalled that in terms of the Rules of the Housing Society, of which the plaintiff was a member, induction of tenant or transfer of the flat by the allottee was an absolute bar. It has been proved that the plaintiff as one of the members of the Society was allotted the disputed ownership flat and it has been rightly pointed out by Mr. Roy Chowdhury, the learned advocate for the plaintiff-respondent, that the plaintiff could never take the risk and expose himself by inducting any tenant. In Shankar Ghose's case (Supra) the parties entered into an agreement whereby the defendant agreed to let out to the plaintiff (tenant) a flat at a monthly rental of Rs. 160. The plaintiff was to hold the flat for one year. After the expiry of one year, as stipulated in the original agreement the term of occupation was extended from time to time. In the said agreement one party was described as a 'landlord' and the other as a 'tenant' and the consideration payable by the tenant was expressed in terms of, "rent". On the facts of the case it was held that the intention of the parties was to create a licence and not a lease although the terms landlord, tenant and rent appeared in the document.