BANWARILAL CHOKHANI Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) THIS Second Appeal arises out of a suit instituted by Banwarilal Chokhani against the Union of India in its capacity as the owner of North -East Frontier Railway, hereinafter called the N. F. Railway, and 12 others. The reliefs claimed in the suit were, (a) for a declaration of plaintiffs' tenancy right, with possession over the lands in dispute, (b) grant of a lease or leases to him by Union of India of the same lands, (c) withdrawal and cancellation of the licences granted by the N. F. Railway to the defendants Nos. 2 to 13, (d) permanent injunction restraining Union of India from evicting the plaintiff from the lands in dispute pursuant to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, hereinafter called "the Act". (e) confirmation of the plaintiff's possession as a tenant over the suit lands, and (f) for cancellation of licences issued by the N. F. Railway in favour of defendants Nos. 2 to 13, besides the costs of the suit. The suit was dismissed by the trial Court on the findings that the agreement entered into between the plaintiff and the N. F. Railway was in the nature of a licence and not of a lease, that that licence had long since been terminated, that the lands in dispute were presently in occupation of defendants Nos. 2 to 13 and not of the plaintiff, and that as such the suit was altogether misconceived. The plaintiffs' appeal against the trial Court's decree taken to the Court of Assistant District Judge proved abortive. The learned Assistant District Judge affirmed the finding of the trial Court that the agreement between the parties created a licence and not a lease, and held, in addition, that the suit filed by the plaintiff Banwarilal was not maintainable inasmuch as the contracting party was Joharmal Murlidhar and Co. and not Banwarilal personally.

(2.) SHRI J. P. Bhattacharjee very fairly stated at the bar, while arguing the appeal on behalf of Banwarilal, that the fate of the appeal hangs by the finding whether the contract made between the parties was in the nature of licence or of lease. To appreciate the parties' respective contentions it is necessary that I should read the definitions of the expressions 'lease' and of 'licence' as given respectively in Section 105 of the Transfer of Property Act and Section 52 of the Indian Easements Act. Section 105 of the Act reads: -

(3.) IT is in the light of these well settled principles that I proceed to examine the terms of the agreement concluded between the parties with a view to find out whether it creates a lease or a licence.