MADHU BEHAL Vs. RISHI KUMA

JUDGEMENT

(1.) OF the three grounds of eviction namely i) non-payment of rent ii) sub- letting iii) bona fide requirement of the landlord, only two grounds sans the ground of non-payment of rent remain for consideration, especially after the tenant rendered the rent at first hearing. The grounds found favour that both the Rent Controller and the Appellate Authority and the tenant that faces eminent prospect of eviction is the revision petition before this Court.

(2.) EVEN before adverting to the merits of the claim, as regards the grounds, the revision petitioner contends that the property in dispute is governed by a document under Ex.A-2 which refers to a transaction of leave and licence and consequently the provisions of Rent Control Act are not applicable. The counsel for the petitioner places reliance on the judgment of the Supreme Court in Delta International Ltd. v. Shyam Sunder Ganeriwala, 1999(2) RCR(Civil) 471 : 1999(1) RCR(Rent) 447 : AIR 1999 SC 2607 which states that when the agreement specifically recited the nature of transaction as licence and parties were conscious that the document if treated as a lease it would be illegal to create a sub-lease, the agreement would have to be regarded as 'leave and licence' and not as 'lease'. The Supreme Court was laying down the law while considering the relevant provisions under the West Bangal Premises Tenancy Act, 1956. This decision assumes significance in the context of the maintainability of the petition by a landlord that only if there was a relationship of landlord and tenant and if the character of the first defendant in possession was that as licensee the petition itself could not have been entertained. This aspect has been considered both by the trial Court as well as the Appellate Court by directing attention to the law in its correct prospective. It is never a nomenclature in the document that would govern the decision when the issue is put to test as to whether a document as a 'lease' or a 'licence'. The essential feature that distinguishes a lease from licence is always a transfer of interest in the demised property in a transaction of lease while a licensee does not involve any such transfer of interest. The further notable distinction is that the lease is heritable while license is personal to the grantee. The legal possession of the property is inevitably transferred to a tenant under lease while in a transaction of license the legal possession continues with the licensee and the licensee has a mere right of user of the premises in a particular fashion mentioned under the document. Apart from these distinctions, there is another aspect which is the most predominant consideration namely the intention of the parties.

(3.) AS regards the plea of sub-letting, the contention of the revision petitioner is that there was an admission by the landlord in his evidence that in respect of yet another shop at door No. 1 there had been a joint tenancy in favour of the first respondent and the deceased husband of the second respondent before the Rent Controller and that even in respect of Ex.A-2, although the document had been executed in favour of the first respondent the deceased husband of the second respondent has also signed as a witness. His contention was that brothers were in joint possession of the property and the first respondent had never lost his possession of the property to be guilty of sub-letting in the manner canvassed by the landlord. Two facts stand out to give a lie to the contention of the revision petitioners. If in respect of shop No. 1, there could be a lease in favour of both the fast respondent and his brother and in respect of shop No. 2 which is the petition mentioned premises, there was a document in favour of first respondent only, by necessary implication, it must mean that the document was meant to favour only the first respondent. Again, if the husband of the second respondent could sign as a witness, there was no reason why he was not also made a party to the document as a beneficiary under the same instrument. The contention of a joint lease in their favour ought to therefore fail on this line of reasoning.