Jainabi Yusuf Lambe And Ors. vs Jainabi Allimiya Wagale And Ors. ...
2004 Latest Caselaw 364 Bom

JUDGMENT

P.V. Kakade, J.

1. Both these appeals can be conveniently disposed of by this common judgment as they arise out of the same dispute and have been disposed by the lower Court toy common judgment.

2. The subject matter of both these appeals is the impugned order dated 25.4.2000 passed by the learned Addl. District Judge, Ratnagiri, dismissing both appeals with costs.

The only substantial question of law involved in these appeals, as framed by my learned predecessor, is regarding interpretation of document Exh.73 which is the agreement between the parties to determine whether the said document is the document creating tenancy or a mere licence.

3. The facts involved in these appeals, in brief, are thus --

Respondent No. 1 Jainabi Allimiya Wagale (hereinafter referred to as "the original plaintiff") owned and possessed Municipal House No. 1082 at Ratnagiri. The said house is called as "Wagale Court". The plaintiff was running a hotel business and business of lodging house in three rooms on the ground floor and three rooms on the first floor. Originally, Municipal House No. 1062 "Wagale Court" belongs to plaintiff Jainabi Wagale's brother. She purchased it from her brother and since then she has become owner of the suit house. The business of hotel and lodging was being conducted under the name and style "Grand Hotel". The necessary licence for the said business, however, stood in the name of plaintiff's husband Allimiya Wagale. Thus, after purchasing House No. 1082, plaintiff conducted the abovesaid business for a year or two. Meanwhile, the plaintiff's husband took ill. Therefore, it became difficult for plaintiff to run the said business and,, therefore, she began to conduct the hotel and lodging house business through others on certain terms and conditions.

4. Similarly, by an agreement dated 20.3.1973 the possession of the abovesaid six rooms i.e. the premises of hotel business and lodging house were delivered to deceased defendant No. 1 (the LRs of deceased defendant No. 1 Jainabi Lambe through their constituted attorney who filed Reg. Civil appeal No. 12 of 2000) as per the terms and conditions mentioned in the agreement dated 20.3.1973. According to the plaintiff, the equipment and articles necessary to run the abovesaid business were separately enlisted and possession of all six rooms alongwith those articles and equipment was given to deceased defendant No. 1. Thus, plaintiff contended that the relations between deceased defendant No. 1 and plaintiff was that of a licensee and licensor respectively. Plaintiff also received the amount of Rs. 10,000/- as a deposit from deceased defendant No. As per the terms and conditions of the agreement dated 20.3.1973 deceased defendant No. 1 was to pay monthly rent of Rs. 225/- to the plaintiff. She also put in exclusive possession of those six rooms and she was further allowed to do any other business in the said premises if it was impossible on her part to run the business of a hotel and lodging house except the business of liquor. It Was also agreed upon between the plaintiff and deceased defendant No. 1 that in case of delivery of possession of the suit premises to the plaintiffs defendant No. 1 would give notice in advance to the plaintiff to that effect.

In view of these aspects, the plaintiff submitted that defendant No. 2 was not legally competent to induct a stranger in the suit premises however sometime in the year 1975 plaintiff learnt that defendant No. 2 was put in possession of the suit premises and on enquiry with defendant No. 2, who was plaintiff in Civil Appeal No. 11 of 2000 in the lower Appellate Court. It was learnt that there was an agreement purported to have been executed by deceased defendant No. 1 in favour of defendant No. 2 on 26.6.1975. Therefore the plaintiff issued notice dated 31.7.1975 to both defendants and called upon them to deliver vacant possession of the suit premises. In short, it appears that by the said notice, the plaintiff revoked the licence of defendant No. 1 and called upon defendant Nos. 1 & 2 to vacate the premises and hand over its possession. By notice dated 8.9.1978, the plaintiff reiterated the demand of possession alongwith the articles. The defendants failed to act accordingly and, therefore, Special Civil Suit No. 16 of 1979 came to be filed.

5. The bone of contentions between the parties, as can be seen from the contents of the written statement is to the effect that defendant No. 1 claimed that, by virtue of 1973 agreement he had become tenant in the suit property and, therefore, plaintiff was not in a position to recover the possession under the T.P. Act and the suit could have been filed under the provisions of the Bombay Rent Act. It was also submitted that the suit premises were let out by deceased defendant No. 1 to defendant No. 2 for 10 years by virtue of the agreement 26.6.1975 with the consent of plaintiff's deceased husband and, therefore, the suit was said to be not tenable in its present form.

The learned Trial Judge adjudicated the dispute on merits and came to the conclusion that the original agreement dated 20.3.1973 did not adopt the relationship of tenant and landlord between the plaintiff and defendant No. 1 but the legal status of their relation was that of licensee and licensor and, as such defendant No. 1 was not competent to induct defendant No. 2 in possession of the suit premises and it was further held that defendant No. 2 was trespasser in the suit property. It was further held that the plaintiff was not entitled to forfeit the amount of deposit and? therefore, recover the same from defendant No. 1.

6. Both the judgment and order passed by the learned Trial Court was challenged in the lower Appellate Court by two separate appeals which were adjudicated by the learned Addl. District Judge, who came to the conclusion that the reasoning adopted and findings recorded by the learned Trial Judge were just, legal and proper and, therefore, both the appeals were dismissed with costs.

Hence the present appeal.

7. I have heard the learned counsel for the appellants and learned counsel for the respondents. They have also taken me through the entire evidence on record.

As noted earlier, the only question to be determined in this second appeal is concerning the interpretation of document Exh.73 i.e. agreement dated 20.3.1973 in order to determine whether it creates a tenancy in favour of defendant No. 1 or defendant No. 1 is mere licensee of the original plaintiff. In this regard it would be worthwhile to refer to the impugned document of agreement dated 30.2.1973. It was executed between the original defendant No. 1 and original plaintiff. The very opening para is to the effect that the original plaintiff's property No. 1082 "Wagale Court" was knowing as "Grand Hotel Lodging & Boarding" and it was being given to original defendant No. 1 w.e.f. 1.4.1973 for conducting the hotel on rent of Rs. 225/- p.m. All the utensils and articles of the Grand Hotel were also handed over to original defendant No. 1 of which a detailed list was annexed to the agreement. After this preamble, Clause (1) refer to the amount of deposit of Rs. 10,000/- which was to be paid to the original plaintiff; Clause (2) refers to the agreement that if it became impossible to defendant No. 1 to run the business, the plaintiff was to be given notice of three months. Further clause made clear about the payment of levies and taxes, repairs, etc. The privy was allowed to be used for the business purposes. Conclusive Clause (11) is crucial to the effect that it was made clear to defendant No. 1 that running business of lodging and boarding was given to defendant No. 1 for running and, therefore, defendant No. 1 was not to claim any right, title, interest over the suit property. This clause was followed by the list of articles which is typically conspicuous to show that it relate to lodging and boarding business.

On the basis of this agreement, it is quite manifest that it is nothing but agreement of conducting of business in the suit premises i.e. hotel and lodging house which was handed over to defendant No. 1. The learned counsel for the appellant vehemently urged that since conclusive possession of the property was handed over to the original defendant No. 1 by virtue of the said agreement, it becomes lease and not a license. He sought to put reliance in the ruling of the Supreme Court in the case of Sohan Lal Naraindas v. Laxmidas Raghunath Gadit, reported in 1971 Bom. L.R. SC 141, wherein it is observed that, 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.

Therefore, relying on the said ratio, it was urged on behalf of the appellant that, since the test of exclusive possession is in favour of the appellant, the document must be held to create a lease agreement and cannot be read as a mere licence. In my considered view, this cannot be the correct reading of the suit document in question. The very contents of the suit document are sufficient to show that what was really intended by the originally plaintiff was to give the business for conducting as her husband was unable to look after the business any more due to ill--health and, therefore, the document was executed with categorical intention to create a licence and no more right, title or interest as a lease on behalf of the appellant. In this connection, Shri Kulkarni, learned counsel for the respondents sought to put reliance on the ruling of the Apex Court in the case of Delta International Ltd. v. Shyam Sundar Ganeriwalla and Anr., . Dealing with similar dilemma, the Supreme Court observed that, to find out whether the document creates a lease or a licence, the 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 licence is very thin. It was further observed that intention of the parties is to be gathered from the document itself, mainly, the intention has to be gathered from the meaning of the words used in the document except where it is, alleged and proved that document is a. camouflage. If the terms of 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 real relationship between the parties. Therefore, in the present case before us, it is quite clear that the wording of the document itself is plain and clear and has to be given its plain meaning to it and cannot be read between the lines. Secondly, the evidence on record? as properly appreciated by the lower Appellate Court Judge, appears to be clear enough to show that conduct of the parties including original defendant No. 1 was in consonance with the status of licensee. The fact that original defendant No. 1 sought to induct defendant No. 2 under agreement of 1975 for 10 more years, was due to the fact that the original plaintiff was a lady and her husband was dead and there was nobody to effectively oversee the conduct of original defendant No. 1. Moreover, when original plaintiff came to know about the induction of defendant No. 2 in the property, she immediately gave notice to both defendants and terminated the licence of defendant No. 1. This conduct by itself shows real intention between the parties and the fact that original agreement of 1973 was executed as a licence between the parties. Therefore, I have absolutely no hesitation to hold that the real relationship between the parties is that of licensor and licensee and not lessor and lessee. Both the Courts below have rightly appreciated the evidence on record. It is needless to mention that when the status of original defendant No. 1 is decided to be a licensee, the status that of defendant No. 2 is nothing but a trespasser and, therefore, the decree passed in favour of the original plaintiff passed by the Courts below is to be endorsed.

In the result, both appeals stand dismissed with costs.