Peter Alex D'Souza vs Prithi Paul Singh
2002 Latest Caselaw 355 Bom

JUDGMENT

A.P. Shah, J.

1. This appeal is directed against the judgment and order dated 4-11-1997 passed by the learned single Judge in Suit No. 556 of 1976 dismissing the suit. The suit was originally filed by two brothers Joe D'souza and Peter D'souza. During the pendency of the suit, plaintiff No. 1, Joe D'souza died and therefore, his name came to be deleted and the suit is continued by plaintiff No. 2, Peter D'souza, hereinafter referred to as the plaintiff. The suit was filed by both the plaintiffs in the capacity as executors named in the last Will and Testament dated 17-9-1966 of their late mother Milagrina D'souza who died at Mumbai on 27-7-1968. The property in dispute consists of a cottage and a garden situated at Chapeal Road, Bandra, Mumbai and was jointly owned by Milagrina D'souza and her husband Diego D'souza and after death of her husband Milagrina alone became entitled to the said property. Under an agreement of leave and licence dated 25-5-1965 the defendant Prithi Paul Singh came to be inducted as a licensee in the aforesaid property on payment of monthly compensation of Rs. 600. The said leave and licence agreement came into effect from 1-6-1965 and the term was for 11 months. On the expiry of 11 months of the said agreement dated 25-5-1965, the defendant requested deceased Milagrina

to reduce the amount of compensation from Rs. 600 to Rs. 425 per month and to allow the defendant to use the same and occupy as a licensee for a further period of 11 months from 1-6-1966 and licence period was extended on the terms set out in the leave and licence agreement dated 25-5-1966. On the expiry of 11 months the defendant once again requested deceased Milagrina to grant leave and licence and use and occupy the said property for a further period of 11 months from 1-6-1967 on payment of compensation of Rs. 425 and in addition he offered to pay the electricity charges. Accordingly an agreement for leave and licence came to be entered into by and between the parties on 25-5-1967 for a period of 11 months on the same terms and conditions. Thereafter a further agreement of leave and licence was made on 25-5-1968 for 11 months on the same terms and conditions.

2. Milagrina expired on 27-7-1968. The leave and licence period granted by deceased Milagrina to the defendant under the last agreement dated 25-5-1968 expired on 30-4-1969 and thereafter neither the deceased Milagrina nor any person on her behalf extended the period of licence granted to the defendant nor granted the defendant any fresh licence or authority or permission to enter upon or use or occupy or continue to use or occupy the suit property. By their advocate's letter dated 23-10-1972 the plaintiffs revoked the leave and licence granted to the defendant and called upon him to remove himself and pay the arrears of compensation due in respect of the property forthwith. This letter was not replied to by the defendant. Therefore, by another letter dated 24-11-1972 the defendant was called upon to pay the arrears of compensation. The defendant by his letter dated 27-12-1972 claimed that he was a tenant of the deceased Milagrina and called upon the plaintiff's advocate to inform the names of the legal heirs of Milagrina. Thereafter there was further exchange of correspondence between the parties. As the defendant failed to comply with the notices and vacate the premises the plaintiff brought the present suit for possession.

3. The defendant filed his written statement wherein he admitted execution of the leave and licence agreements and also correspondence exchanged referred to above. However, according to the defendant, he was inducted in the suit premises as a tenant in pursuance to the agreement entered into between him and the deceased Milagrina and the agreements were sham and colourable. The real intention was to create the tenancy in his favour. In the alternative the defendant contended that even if he is held to be a licensee under the leave and licence agreement, he continued to be in the suit premises on 1-2-1973 while the leave and licence agreement was still subsisting and, therefore, he has become deemed tenant by virtue of Section 15A of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter referred to as the 'Bombay Rent Act', and therefore this court has no jurisdiction to grant reliefs in the above suit. Upon the respective pleadings of the parties, issues came to be framed. Oral as well as documentary evidence was led by the parties and on consideration of this evidence the learned single Judge rejected the case of the defendant that the agreement of leave and licence was colourable and sham and was not to be acted upon. It was also held by the learned Judge that the licence was not subsisting on 1-2-1973 and therefore, the case of the defendant that he became deemed tenant

under Section 15A of the Bombay Rent Act was not accepted. The learned Judge, however, held that the intention of the parties was to create a lease and not a licence. Having arrived at the conclusion that there is relationship of landlord and tenant between the parties the learned Judge held that the suit is not maintainable as the remedy of the plaintiff is to file a suit in the Court of Small Causes.

4. We have heard Mr. Abhyankar appearing for the appellant/plaintiff and Mr. Thakkar for the respondent/defendant.

5. The basic issue involved in this appeal is whether the transaction is one of leave and licence or a lease. Number of decisions of the Supreme Court were cited before us by the learned counsel appearing for the parties. However, before adverting to these decisions we will briefly deal with the case of the defendant that the agreements were sham and colourable documents and executed only with a view to circumvent the provisions of the Bombay Rent Act. In this behalf it is necessary to refer to the pleadings made in the written statement, of the defendant. In para 4 of the written statement this is what the defendant says about the express agreement which took place in regard to the transaction:

"The defendant says that the defendant was in look out for residential premises in Bandra in the early part of May 1965. The defendant says that through the newspaper advertisement the defendant came to know that the plaintiffs and their mother Milagrina D'souza hereinafter called the deceased, intended to let out a residential premises situated at plot No. 98, Rebello Road, Bandra, hereinafter referred to as the "said premises". The defendant says that the plaintiffs and the deceased were strangers to the defendant and came to know the plaintiffs and the deceased through the Estate Agents M/s Dave and Co. Before the transaction of letting out the said premises took place the defendant had negotiations with one Capt. J. R. D'souza the original plaintiff No. 1, herein about the terms on which the said premises in suit would be let out to the defendant and on offer in writing as regards terms of tenancy were made to the original plaintiff No. 1 through the said Estate Agent".

6. In regard to the agreement of leave and licence this is what the defendant says in his written statement:

"The defendant says that the said premises were let out to defendant and exclusive possession of the said premises was given to the defendant on 25th May 1965 and since then the defendant has been in exclusive and continuous possession and enjoyment of the said premises. The defendant says that the documents annexed at Exh. B to the plaint shows that the stamp paper has been issued by office of the Sub-Registrar of Bandra on 7th July 1967. However, the plaintiffs have alleged that the said document was executed on 25th day of May 1966. The defendant says that it is apparent that the said writing was not at all executed at the time when the said premises were let out to the defendant and the said document has been brought into existence with a view to avoid application of the provisions of the Bombay Rent Act 1947".

7. At the outset it is required to be stated that in so far as the case of offer in writing allegedly given by Joe D'souza through the estate agent M/s Dave and Co. is concerned there is absolutely no evidence and even in his evidence the

defendant has not adverted to this case made out in the written statement, but on the contrary he has come out with a different story. After stating about the reading of the advertisement in "Times of India" regarding the suit premises given by Dave and Co in para 2 of his evidence the defendant stated in para 3 that he was not knowing Milagrina D'souza till he went to her with Mr. Dave and Mr. Dave introduced him to Mrs. D'souza as a prospective tenant of the cottage and the garden i.e. the suit premises and then came to know that one Julie Rangal was occupying the suit premises as a tenant and she was to vacate the same in the third week of May 1965. Mrs. D'souza told him that she had no objection to give the cottage and the garden to the defendant on rent. He then sought permission from Mrs. D'souza to inspect the property and that was done. The defendant has further stated that on the next day thereafter he met Mrs. D'souza and Capt. Joe D'souza and told them that he approved the cottage and wanted to take the same on long period on tenancy basis. Mrs. D'souza is then alleged to have said that except Cosmos D'souza all other sons and daughters are married and stay out of Mumbai while she herself is staying with Cosmos in Irani Building where there is sufficient accommodation and she is ready to give the cottage and the garden. On 25-5-1965 he was called by Mrs. D'souza at her residence in Irani Building and gave agreement and asked him to go through the same and sign it. Capt. D'souza was also then present. He read the agreement, which was an agreement of leave and licence. He then enquired from Mrs. D'souza and Capt. D'souza as to how the agreement of leave and licence is there when they had agreed to give the premises on rent. They told him that they had to show the said agreement to the society and in case they prepare an agreement of lease, they will not be able to charge Rs. 600 as rent and it would be contrary to the Bombay Rent Act and in order to be within the rules, the said agreement of leave and licence is prepared but in fact the defendant will remain as a tenant. Accordingly he executed the agreement and then paid advance of Rs. 1800 as deposit and Rs. 600 as advance rent. On 1-6-1965 Capt. D'souza handed over exclusive possession of the cottage and the garden and since then he is in possession. It is clearly seen that this case was not made out in the written statement and the written statement as reproduced would go to show that there was some kind of written agreement between the defendant and Capt. D'souza. The evidence of plaintiff, would go to show that except Milagrina D'souza none else was present at the time of transactions between the parties. There is nothing to indicate that Capt. D'souza was present at the time of settling this transaction.

8. In regard to the case of advertisement in the newspaper, the defendant has examined one Yashwamt Kashiram Lashkare, who has been working as senior officer in the reference department of the Times of India at Bombay. This witness has produced a micro film copy of the news item advertisement which is published in the newspaper with its negative. The learned single Judge, has however, found that there is absolutely no evidence to connect the advertisement to the suit premises and the description of the property given in the advertisement does not tally with the suit premises. It may be pointed that Mr. Dave, the alleged estate agent ought to have been the best witness on this point but the defendant did not choose to examine him for the reasons best known to him and no reasons are given by the defendant in this behalf. Therefore whatever the defendant has

deposed about the talk between him and deceased Milagrina is not at all supported by any other material and further the evidence of the defendant in that behalf appears to be varying with the case made out in the written statement. In particular offer in writing alleged to be made by Capt. Joe D'souza to the defendant as stated in para 4(c) of the written statement is not at all explained and defendant does not say a word about the same. A case was sought to be made out that the agreements were executed in casual manner thereby showing that they were never intended to be acted upon. Further, it was urged that the last three agreements were signed on the one and the same date clearly indicating that the transaction was sham. This aspect has been duly considered by the learned single Judge and rejected the contention. Suffice it to say that there is intrinsic evidence to show that these agreements have been executed on different dates. It is pertinent to note that each page of the agreements has been signed by both the parties and as such wherever there are corrections they are initialed by the parties. It is also pertinent to note that the defendant never disputed execution of the agreements by him. In the circumstances it is not possible to accept the case of the defendant that the agreements were casual and not intended to be acted upon and the agreements were brought about to circumvent the provisions of the Bombay Rent Act.

9. Turning then to the main question as to whether the transaction is one of leave and licence or a lease, the learned single Judge seems to have relied upon four aspects viz. (i) that the defendant was placed in exclusive possession of the suit premises: (ii) that the licensor and licensee i.e. deceased Milagrina and defendant were strangers; (iii) that the deceased had possessed another premises in Irani Building and (iv) that plaintiff had entered into a development agreement with M/s Correa Estate on 12-12-1993 and in that agreement and General Power of Attorney as also in the application made to the appropriate authority under Section 269 of the Income Tax Act, the defendant was described as tenant.

10. We are afraid that we cannot accede to the view taken by the single Judge. It would be proper to reproduce the relevant terms of the leave and licence agreements which are identical except change in the figure of compensation:

"The licensee covenants with the licensor that the licensee shall observe and perform the following covenants and conditions:

a) To pay every month to the licensor a sum of Rs. 600 (Rs six hundred only) as and by way of compensation for the use of the said cottage including for the hire for the said furniture, and fixtures such payment to be made on or before the fifth day of each and every succeeding month.

b) To pay electricity charges and water charges in respect of electricity and water consumed in respect of cottage.

c) To use the said flat as well as the furniture and fixtures mentioned above only for the purpose of residence of the licensee and the members of his family.

d) Not to allow any person other than the licensee and the members of his family the use of the said flat, and furniture and fixtures.

e) To remove himself with the members the said flat on revocation or determination of this license.

f) To observe all municipal regulations in the use of the said cottage as also to confirm to the byelaws and regulations, if any, that may be applicable to the building.

g) Not to become or cause nuisance or annoyance to neighbours".

11. Clause 3 of the agreement provided that the defendant licensee shall deposit with the licensor sum of Rs. 1800 which was to be refunded to the licensee without interest on vacating the said flat and delivery of vacant possession thereof together with the furniture and fixtures. Clause 5 then specifically provided that nothing contained in the agreement shall create or construed to create any tenancy or to confer or be construed to confer upon the licensee any interest in the said cottage or a part thereof, and the said cottage shall continue or be deemed to continue to remain in the possession of the licensor. The last clause provided that the license is personal to the licensee and is not capable of and shall not be assigned by the licensee to any other person.

12. We may then refer to the relevant definitions in law. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy the property for a certain time in consideration for a price paid or promised. The price paid is called rent. On the other hand under Section 52 of the Indian Easements Act licence is:

"Where one person grants to another... a right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such a right be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license".

Under Section 56 a licence except one to attend a public place of entertainment is made non transferable and it is not exercisable even by servants or agents. By Section 60 the licensor's transferee of the property is not bound as such by the licence. By this section it is also made revocable except in certain cases. In the case of a licence therefore, there is something less than a right to enjoy the property in the licensee, it cannot be exercised by servants and agents, is terminable and a transferee of the property is not as such bound by the licence. On the other hand, in the case of a lease, there is a transfer of a right to enjoy the property or in other words the lessee is entitled to enjoy the property. We have to gather and find out the true intention of the parties as to whether the document creates a lease or license, the dominant intention of the parties is to be gathered from the terms of the document irrespective of the labels that the parties may put upon it.

13. In Associated Hotels of India Ltd. v. R. N. Kapoor , the court held that there is a clear distinction between lease and license, the dividing line is clear, though some times it becomes very thin or even blurred and observed that for such determination, following propositions may be taken as well established:

(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form.

(2) The real test is the intention of the parties whether they intended to create a lease or a licence.

(3) If the document creates an interest in the property, it is a lease, but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence, and

(4) If under the document a party gets exclusive possession of the property, prims facie, he is considered to be a tenant, but circumstances may be established which negatived the intention to create a lease. Before laying down the aforesaid propositions, the Court held that:

"At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington, (1952 (1) ALL ER 149) wherein Lord Denning reviewing the case law on the subject summarises the result of his discussion thus at page 155:

"The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy"

The Court of Appeal again in Cobb v. Lane, (1952 (1) All ER 1199) considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document At p 1201. Somervell, L J stated:

"..... the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties". Denning L J said much to the same effect at p 1202:

'The question in all these cases is one of intention. Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land?"

14. In Sohan Lal Naraindas v. Laxmidas Raghunath Cadit, the Supreme Court has observed as under:

"9. Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance".

15. In Rajbir Kaur v. S. Chokesiri and Co the court held that ultimately the question whether a transaction is a lease or licence "turns on the operative intention of the parties and there is no single simple litmus test

to distinguish one from the other". The Court held that wherever there is exclusive possession, the idea of a licence is not necessarily ruled out and further observed that:

"English law contemplates what are called Possessory Licences which confer a right of exclusive possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, far even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence, "turns on the operative intention of the parties" and that there is no single, simple litmus test to distinguish one from the other. The "solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties".

16. In the light of these decisions, it is apparent that exclusive possession by itself will not amount to creation of interest. Exclusive possession by itself would not militate against the concept of a licence, if the circumstances negative any intention to create a tenancy. In a recent judgment of the Supreme Court, in Delta International Ltd v. Shyam Sundar Ganeriwalla and Anr. , the Supreme Court after taking a survey of all previous decisions summarised the legal position as under:

"To find out whether the document creates lease or licence real test is to find out the intention of the parties, keeping in mind that in cases where exclusive possession is given, the line between lease and license is very thin. The intention of the parties is to be gathered from the document itself. Mainly, intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such case exclusive possession of the property would be most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease. If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole...."

17. Bearing in mind these established principle we may now proceed to examine the terms and condition of the agreement executed between the parties and the circumstances attending to it. The nomenclature or the label for the arrangement in the instant case is unambiguous. It is only a licence. Clause (5) of the agreement specifically provides that nothing herein contained shall create or be construed to create any tenancy or to confer or be construed to confer upon the licensee any interest in the said cottage or any part thereof, and the said cottage

shall continue or be deemed to continue to remain in the possession of the licensor. Clause (6) provides that this license is personal to the licensee and is not capable of and shall not be assigned by the licensee to any other person. No right or interest whatsoever in the premises or any part thereof is created in favour of the defendant. One thing is clear that the Bombay Rent Act was in existence ever since 1947. The plaintiff as well as the defendant were aware and should be deemed to be aware of the prevailing state of law. They chose to call the arrangement as a licence. The initial period of licence was for 11 months and thereafter the licence was renewed from time to time till the period under the last licence agreement expired in 1969. The exclusive possession by itself will not amount to creation of interest and it will not militate against the concept of a licence if the circumstances negative any intention to create any interest. In the circumstances, in our opinion, it is not possible to accept the view taken by the learned single Judge that the fact that the defendant was placed in exclusive possession indicates the intention of the parties to create a lease. In our opinion the fact that the defendant was a stranger to deceased Milagrina or that she was having another premises for her residence also would not militate against the concept of leave and licence.

18. The only other circumstance relied upon by learned single Judge is that the plaintiff had entered into a development agreement with M/s Correa Estates on 12-12-1993 and had executed general power of attorney and on that basis application was made for transfer of immovable property to the appropriate authority under Section 269UC of the Income Tax Act. It is urged that in these documents the plaintiff has described the defendant as a tenant. We fail to appreciate as to how mere use of terms such as 'tenant' or 'rent' would create relationship of landlord and tenant. It is well settled that mere use of such terms would not conclusively prove or would not establish the intention of the parties to create a lease. In the development agreement it is specifically stated as follows:--

"And whereas the said Mr. Peter Aliex D'souza owner No. 1 as the executor of the said will dated 7th December 1966 has filed a suit being suit No. 556 of 1976 in the High Court of Judicature at Bombay against the said tenant Mr. Prithi Pal Singh Walia inter alia for evicting the said tenant which suit is pending for hearing and final disposal in the said court".

The copy of the development agreement was submitted to the appropriate authority along with the application. We do not think that this circumstance in any way establishes relationship of landlord and tenant between the parties.

19. It was also urged that during the pendency of the present suit the plaintiff filed LE suit No. 56/60 of 1995 under Section 13(1)(hh) of the Bombay Rent Act for getting possession and before that applied and obtained from the competent authority a certificate as provided under the said section. The submission is that in the present suit plaintiff is contending that defendant is a licensee whereas in the Small Causes Court suit the plaintiff is claiming possession under Section 13(1)(hh) and that the plaintiff should not be allowed to approbate and reprobate and, therefore, the present proceeding are bad not on the ground of res judicata or estoppel but on the principle that the person cannot

approbate or reprobate and reliance is placed on the decision in Verschures Creameries Ltd, v. Hull and Netherlands Steamship Co Ltd. (1921) 2 KB 608 and in particular observations of Scrutton L J at p 611 were relied upon in support of this position. In that case the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes L J :

"Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act". The observations of Scrutton L J on which reliance is placed are as follows:

"A plaintiff is not permitted to approbate and reprobate. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election - namely, that no party can accept and reject the same Instrument : Ker v. Wauchope, (1819) 1 Bligh 1 (21) (E) Douglas Henries v. Umphelby 1908 AG 224, (232) (F). The doctrine of election is not however confined to instruments. A person cannot say at the time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round, and say it is void for the purpose of securing some other advantage. This is to approbate and reprobate the transaction.

20. The said judgment in Verschures Creameries Ltd was explained by the Supreme Court in Nagubai Animal and Ors v. B Shama Rao and Ors. and it was observed that the maxim that person cannot approbate and reprobate is only one application of the doctrine of election and its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The Supreme Court then referred to a passage in Halsbury's Laws of England Volume XIII p 451, para 512, which reads as under:

"On the principle that a person may not approbate or reprobate a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here.

Thus a party cannot, after taking advantage under, an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons, who have relied upon it a case inconstant with that upon which it was founded, nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it".

21. In the instant case the plaintiff obtained no advantage against the defendant by filing a suit in the Court of Small Causes at Mumbai nor did he acquire any right pursuant to the said suit. It is pertinent to note that Small Clause suit was filed by the plaintiff without prejudice to the present proceedings which

were taken for eviction of the defendant. The certificate of tribunal referred in the suit is granted to the plaintiff only for compliance with statutory provisions. The said suit is still pending. Under the circumstances the doctrine of approbate and reprobate cannot be invoked in the instant case.

22. The next contention urged on behalf of the defendant is that the licence was subsisting on the relevant date i.e. 1-2-1973. The agreement of leave and licence expired by efflux of time in 1969. Thereafter there was no agreement between the parties nor the period of licence was extended. Reliance was, however, placed upon the recitals in Exh. C-2 to C-9 indicating that there was agreement of leave and licence in June 1969 and since that agreement is suppressed adverse inference will have to be drawn against the plaintiff that the licence was for indefinite period and not restricted to 11 months. The learned single Judge has held that the existence of the agreement of 1-6-1969 appears to be not plausible and perhaps the date as 1-6-1969 might have been a mistake. It is pertinent to note that the defendant has failed to make out a case about this agreement in his written statement and in the plaint which he had filed in the Small Causes Court for declaration of his tenancy rights. He also omitted to mention this fact in the correspondence. Had it been a fact, defendant would not have omitted to make a reference to the same in his pleadings and in the correspondence since it was extremely material fact from the point of view of the defendant. In any event letter dated 23-10-1972 clearly indicates that the licence in favour of the defendant was revoked by the plaintiffs through their advocate and the defendant was called upon the remove himself with all the family members and the belongings. It is contended that the said letter was not received by the defendant. However, in our opinion, this question is really academic inasmuch as the licence admittedly expired in June 1969. Thus the licence in favour of the defendant was not subsisting on the relevant date and as such the defendant cannot be treated as deemed tenant under Section 15A of the Bombay Rent Act.

23. In the result appeal is allowed. The judgment and order of the trial court is set aside.