ABBAS ALI Vs. PRATAP SMARAK TRUST UDAIPUR

JUDGEMENT

(1.) The only question involved in this second appeal is that whether document Ex.3 is a deed of lease or a deed of licence. According to the learned counsel for the appellant a bare reading of Ex.3 clearly proves beyond doubt that by this deed, a immovable property was let out to the defendant-appellant by the landlord-Trust on payment of rent of Rs.375/- per month. He also has been given permission to put on an stall over the land and to do the business of the photography and allowed to keep books, coloured view cards and filmrolls and sale them. The specific word tenancy has been used in Ex.3.

(2.) The exclusive possession was given to the defendant-appellant. The terms which normally are incorporated in the lease, they have been incorporated in Ex.3 dated 16.6.1972. In view of the above, the appellant is tenant and not the licensee as claimed by the plaintiffs. The two courts below treating the appellant-tenant licensee, decreed the suit of the plaintiffs for eviction of the appellant-tenant by the impugned judgment and decree dated 6.10.1980 and that was upheld by the first appellate court by judgment and decree dated 31.3.1984.

(3.) No body appeared on behalf of the respondents despite service. I considered the submissions of the learned counsel for the appellant and perused the record and specifically the deed Ex.3 dated 16.6.1972. In the said deed Ex.3, in the beginning it is stated that the property is being given on licence to the defendant by the respondentplaintiff- Trust. The description of the entire property of the plaintiff- Trust is given separately which appears to be some big and enclosed property out of which a small piece of land measuring only 8' x 10' has been given by this deed to the defendant for specific purpose of keeping the goods relating to photography, books, coloured view cards and filmrolls and he was given permission to sell those items from the stall. It is provided in the licence that the defendant shall put his stall over the said piece of land and will take away that temporary structure when he will vacate the suit premises. As per condition no.5, no other photographer will be permitted to take photographs within defendant- Trust's property who may come with the tourists. However, it is provided in the deed Ex.3 that the tourists may bring their own camera and may take phorographs. It is also provided in condition no.5 that no other person will be allowed to do the same business which will be done by the defendant and it is mentioned in the deed Ex.3 that the total period of permission given to be defendant is upto 1.7.1972. After expiry of term, the respondent-Trust invited tender for giving the contract of photography by publication of the notice in the news-paper on 19.6.1975. It was provided in the said notice that the contract will be given by auction. The plaintiff challenged that action on the ground that the plaintiff is tenant. The two courts below after interpreting the said deed Ex.3 held that even though there is mention of the word tenancy in Ex.3 at number of places, still looking to the nature of the contract between the parties and the business which was allowed to the defendant and total area of the property let out to the defendant, out of the big chunk of the property of the plaintiff, giving plaintiff right to keep the entire property including the property in dispute in lock and key of the plaintiff. This is a licence and not the lease in favour of the defendant-appellant.