Sri Arun Kumar Pattanayak vs Sri Partha Pratim Das
2022 Latest Caselaw 949 Cal

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Soumen Sen
                And
The Hon'ble Justice Ajoy Kumar Mukherjee

                           SAT 101 of 2018
                                 With
                            CAN 1 of 2018
                      (Old No: CAN 2212 of 2018)

                       Sri Arun Kumar Pattanayak
                                   Vs.
                          Sri Partha Pratim Das

                        (Via Video Conference)

For the Appellant              : Mr. Aniruddha Chatterjee, Adv.,
                                 Mr. Surya Prasad Chattopadhyay, Adv.

For the Respondent             :Mr. Partha Pratim Roy, Adv.,

Mr. Tanmoy Mukherjee, Adv., Mr. Manik Ganguly, Adv.

Hearing concluded on            : 15th February, 2022

Judgment Dated                  : 2nd March, 2022

Soumen Sen, J.: The second appeal has come up for admission.

We have recorded in earlier order dated 14.02.2022 that the

learned Counsel for the parties have submitted that the second appeal

itself can be disposed of on the basis of the available records and the

pleadings made available to this court by the parties. They have

consented to second appeal being heard out along with connected

application on merits in presence of the opposite party.

The appellant is aggrieved by the judgment and decree dated 23rd

February, 2018 passed by the Additional District Judge, 7th Court,

Paschim Medinipur in Other Appeal No.30 of 2016 thereby reversing

the judgment and decree dated 19th December, 2015 passed by the

learned Civil Judge (Jr. Division), 1st Court, Paschim Medinipur in

Other Suit No.65/2009 heard analogously with Other Suit

No.123/2009.

This decree of reversal has been assailed in this second appeal.

In view of the fact that the second appeal is required to be

admitted only on substantial question/questions of law. We have

invited the appellant to address us on the substantial

question/questions of law involved in the second appeal.

Before we refer to the submissions made on behalf of the

appellant, we feel it necessary to summarize the facts in order to

appreciate the argument advanced by Mr. Aniruddha Chatterjee,

learned Counsel appearing on behalf of the appellant in support of the

appeal.

There are two suits disposed of by the learned Trial Judge. The

two suits were heard analogously.

Sri Arun Kumar Pattanayak filed a suit being suit no. 65 of 2009

(hereinafter referred to as 'first suit') for declaration of tenancy along

with other consequential reliefs. The respondent filed a suit being suit

no. 123 of 2009 (hereinafter referred to as 'second suit') praying for

recovery of khas possession and other consequential reliefs.

In the second suit the plaintiff contended that the father of the

plaintiff inducted Sri Arun Kumar Pattanayak as tenant in respect of

the Schedule 'Ka' property at a monthly rent of Rs.600/- per month for

a period of five years commencing from March, 1994 to 31st March,

1999. Subsequently, the said period of tenancy was orally extended till

31st March, 2001. Thereafter, the father of the plaintiff became ill and

a fresh agreement was executed on 15th June, 1999 with regard to the

extension of tenancy and the plaintiff signed the said deed of agreement

on behalf of his father. After the expiry of the said period another

tenancy agreement for two years commencing from 1st April, 2001 to

31st March, 2003 was executed. The said agreement was signed by the

brother of the plaintiff on behalf of their father. Subsequently, on 5th

December, 2002, the father of the plaintiff died. After the demise of the

plaintiff's father, Sri Arun Kumar Pattanayak requested the brother and

the mother of the plaintiff to execute another tenancy agreement for

two years in respect of the suit premises after expiry of the aforesaid

tenancy on 31st March, 2003. The said proposal was accepted and a

fresh tenancy agreement on 1st April, 2003 was executed.

Subsequently, a partition suit being No. T.S. 47/2005 was filed in

respect of the joint properties of the heirs of deceased Nirmal Chandra

Das, the father of the plaintiff in the second suit. The defendant was

asked to vacate the suit premises after the expiry of the tenancy on 31st

March, 2005. However, a new tenancy agreement in respect of the suit

premises for the period 1st April, 2005 to 31st March, 2007 was

executed. At the time of execution of the agreement, the plaintiff

informed the defendant that they would not let out the suit premises

for any further period after expiry of the tenancy on 31st March, 2007.

On expiry, the plaintiff requested Sri Pattanayak to vacate the suit

premises. At that time Sri Pattanayak requested the plaintiff for further

extension of the period on a plea that some time would be required for

him to get a Drug licence from the Drug Control office for relocation of

his business at a new place and a suitable extension of the period may

be favourably considered. The plaintiff accepted keeping such request

in view the probable inconvenience likely to be caused to the defendant

in the event the said defendant is immediately evicted.

On such consideration, the plaintiff agreed to permit him to stay in

the suit premises as licensee for two years. On the basis of such

understanding on 13th April, 2007 a licence agreement was executed by

the plaintiff and the defendant. It was agreed that the defendant would

pay licence fee at the rate of Rs.1,140/- per month along with 10% of

the municipal tax in respect of the suit premises. Subsequently, due to

differences between the plaintiff and the defendant, the relationship got

strained and the defendant stopped paying licence fee from the month

of July, 2008.

Thereafter in view of the fact that in terms of the licence agreement

dated 13th April 2007 the period of licence would expire on 31st March,

2009, a notice dated 7th March, 2009 was issued on behalf of the

plaintiff in the second suit duly revoking the licence and Shri

Pattanayak was requested to vacate and deliver possession of the

premises in question on 1st April, 2009.

The defendant entered appearance in the second suit and

contested the proceeding by filing the written statement. Sri

Pattanayak in the written statement has also mentioned about the

plaint filed in his first suit as contended that the relationship between

the parties is that of landlord and tenant and he was unaware about

the nomenclature of the agreement dated 13th April, 2007 as he was

informed that it was a mere extension of the tenancy agreement and he

would enjoy the same status as tenant which he was enjoying since

inception of the tenancy.

The learned Trial Judge initially framed six issues. However, the

principle issue appears to be, whether Mr. Pattanayak is a licencee or a

tenant in the suit premises. The learned trial Judge on the basis of the

evidence held that the licence agreement on the basis of which the

plaintiff of the second suit is described as a licence agreement, is in

effect, a tenancy agreement and accordingly the termination was bad in

law. The learned trial judge held that the intention of the parties has to

be gathered on a wholesome reading of the agreement along with other

documentary and oral evidence. In view of the fact that Sri Pattanayak

was in exclusive possession of the suit property even after the

execution of the licence agreement and also having regard to the fact

that Mr. Pattanayak was inducted initially as a tenant in the suit

premises by the father of the plaintiff of the second suit by an

agreement dated 28th March, 1998 and subsequently the said tenancy

was renewed from time to time each for a period of 2 years and last of

which was executed on 23rd March, 2005, it would appear that the

intention of the parties was to continue with the relationship of

landlord and tenant. The licence agreement does not reflect the real

state of affairs and real intention of the parties. The learned Trial

Judge on consideration of the licence agreement dated 13th April, 2007

that was marked as Exbt. 7, was of the opinion that the terms

conditions of the said agreement is same and similar to that of the

previous tenancy agreements being Exbts.1 to 4. The manner of

possession provided in the previous agreements is also the same with

the only difference that the parties are now described as licensor and

licencee instead of landlord and tenant.

From a bare reading of the previous agreements as well as licence

agreement the exclusiveness of possession by Mr. Pattanayak could be

easily inferred. The Trial court believed the evidence of Sri Pattanayak

that he had signed the said agreement in good faith without actually

being aware of the contents of the said agreement and in the absence of

any independent witness claiming that he had seen or was present

when Mr. Pattanayak alleged to have executed such agreement with full

knowledge about the contents of the same, the plaintiff cannot take

advantage of the licence agreement to evict Mr. Pattanayak from suit

premises. The leaned Trial Judge was also took the view that the

receipt of the licence fees cannot be the decisive factor for

determination of the matter in dispute. As a matter of general

prudence the tenant would not permit the landlord to convert his

status from a tenant to licencee unless the owner of the premises put

any extraneous pressure upon him.

From the surrounding circumstances it can be reasonably inferred

that the alleged licence was created to circumvent the express

possession of the tenancy law. When all the earlier agreements being

Exbt. 1 to 4 clearly show that the relationship of the partiers were of

landlord and tenant, sudden alteration of the status is something more

that it needs the eyes.

Accordingly, the suit filed by Partha being the plaintiff in the

second suit for a decree for eviction of Mr. Pattanayak as a licencee and

for recovery of khas possession must fail. On the contrary Mr.

Pattanayak has been able to establish his tenancy right and

accordingly he is entitled to continue to remain in possession of the

suit premises as the tenant. In short the suit for declaration of tenancy

right was upheld.

The landlord preferred in appeal.

The Appellant Court reverse the judgment and decree passed in

favour of Mr. Pattanayak. On appreciation of the oral and documentary

evidence adduced before the learned Trial Judge, the Appellate court

was of the view that having regard to the fact that Sri Pattanayak never

disputed the execution of the agreement dated 13th April, 2007, it

cannot now be contended that he continued to remain as a tenant and

the said licence agreement does not reflect the real intention between

the parties. The Appellate Court disbelieved Sri Pattanayak that he

executed the licence agreement being moved by the notion that it was

an agreement for monthly tenancy.

Mr. Chatterjee has submitted that when the parties have acted in

a particular way over a long period of time and there is a sudden

departure from that relationship, thereby creating a new relationship

which is detrimental to one of the parties and would give an edge to one

party over the other, it needs to be ascertained what was the necessity

to change such relationship and whether such change in relationship

was consensual.

In the present case, when Mr. Pattanayak was enjoying the

protection under the Tenancy Law this sudden change of relationship

from tenant to licencee has to be viewed with suspicion and needs to be

considered in a holistic manner on the basis of all relevant and

surrounding circumstances relating to the execution of the alleged

licence agreement. Mr. Chaterjee submits that since inception of the

tenancy the record would show that the duration of the tenancy was

extended from time to time and the parties acknowledged their

relationship as landlord and tenant. It is submitted that the evidence of

the defendant has to be read as a whole. The first appellate court has

overlooked the fact that Mr. Pattanayak was not aware of the true

nature of the agreement and the blanks in the alleged licence

agreements were all filled up by the plaintiff. The Appellate Court

ignored this vital and material piece of evidence as it clearly establishes

the superior bargaining power and dominance of Partha over

Pattanayak. These circumstances would show that the agreement was

not entered into voluntarily. The Appellate Court has also failed to take

into consideration that the exclusive possession of the suit premises

remained with Mr. Partha and there is no clause in the license

agreement which would show that Partha had the right to enter the suit

premises during the so called licence period. Mr. Chatterjee submits

that the phraseology used in a document is not a decisive factor and it

is the substance of the agreement that matters.

The alleged licence agreement obliges Mr. Pattanayak to defray all

expenses including payment of municipal rates and taxes which is

unusual in licence agreement.

Mr. Chatterjee submits that if a document gives only right to use

the property in a particular way or under certain terms while it remains

in possession and control of the owner it will be a license. The Appellate

Court has overlooked that in the alleged license agreement no such

right was preserved in favour of Partha.

Mr. Aniruddha Chatterjee, learned Counsel appearing on behalf of

the appellant has strenuously argued that surrender of tenancy has to

be categorically proved by cogent evidence by the plaintiff as the

plaintiff asserted that the defendant has surrendered her tenancy and a

licence agreement less favourable to Sri Pattanayak was entered into by

and between the parties. The agreement is merely a camouflage and in

effect a "hidden lease". It does not show that there has been a

surrender of tenancy by Sri Arun Kumar Pattanayak in favour of the

plaintiff. It is submitted that surrender of tenancy has to be by way of

a registered instrument and in absence of any document to show that

the surrender of tenancy was done by any registered instrument, the

inference arrived at by the Appellate Court on the construction of the

agreement dated 13th April, 2007 is clearly erroneous and against the

cannons of interpretation of documents.

Mr. Chatterjee has invited this Court to allow this appeal on the

ground that there has been a manifest misreading of Exhibit-7, that is

the licence agreement, leading to miscarriage of justice. It is, submitted

that the finding of the learned Appellate Court that the tenancy was

surrendered is perverse and contrary to the evidence on record.

Mr. Chatarjee has drawn our attention to the affidavit in Chief of

Arun Kumar Pattanayak paragraph 8, 9, 10 and 13 to show that the

defendant in the affidavit-in-chief, has specifically stated that the

alleged agreement which now turned out to be a licence agreement by

reason of Partha with the knowledge that the said agreement is for

monthly tenancy. The said agreement was prepared by plaintiff and

was never read over and explained by Mr. Partha and the defendant

also did not get any chance to read it. After the service of the notice

dated 7th March, 2009 Mr. Pattanayak tendered the rent to the plaintiff

for the month of February 2009 by money order, as the plaintiff refused

to accept the rent and asked Mr. Pattanayak to vacate the suit

premises. Since Partha refused to accept the rent, Mr. Pattanayak filed

H.R.C case no.8 Sadar 2009 before the House Rent Controller under

Section 21 of the West Bengal Premises Tenancy Act and also filed a

suit namely OS No. 65 of 2009 against Partha for declaration of the

tenancy right and injunction. The notice dated 7th March, 2009 by the

learned Advocate for Partha describing Mr. Pattanayak as licencee is

illegal, invalid and not binding upon him as he is a monthly tenant in

the suit premises and he had never occupied the said premises as a

licencee.

The Appellate Court has failed to consider the real intention of the

parties which were to be gathered from a complete reading of document

along with surrounding circumstances including conduct of the parties

before and after creation of the relationship. In this regard Mr.

Chatterjee has relied upon the decision of the Hon'ble Supreme Court

in:

1. Associated Hotels of India Ltd. v R.N. Kapoor reported in

AIR 1959 SC 1262.

2. Delta International Ltd. v Shyam Sundar Ganeriwalla &

Anr., reported in 1999(4) SCC 545

3. C.M. Beena & Anr. v P.N. Ramachandra Rao, reported in

2004(3) SCC 595.

Mr. Chatterjee also raised a jurisdictional issue and questioned

the maintainability in suit filed by Partha. It is submitted that a suit for

eviction of a licencee is not maintainable in view of the fact that the

provisions of Section 60 of the Easement Act is not applicable to the

State of West Bengal. In this connection, he has relied upon a Division

Bench of our court in Madhulata Kankani v. Homant Bangur,

reported in AIR 2005 Cal 268.

Mr. Chatterjee submits that the Hon'ble Division Bench after

taking note of the judgment of the Hon'ble Supreme Court in

Panchugopal Barua & Ors. v Umesh Chandra Goswami & Ors.,

reported in 1997(4) SCC 713 has categorically observed in paragraphs

18 and 19 in Madhulata (supra) that the provisions of the Indian

Easement Act would have no manner of application in the State of West

Bengal.

Mr. Partha Pratim Roy the learned Counsel appearing on behalf of

the respondent/decree holder submits that the learned Trial Judge has

completely overlooked the admission of Arun Kumar Pattanayak during

his evidence that he executed the agreement.

The Appellate Court noticed such mistake committed by the

learned Trial Court and reversed the judgment on the ground that there

is a clear admission on behalf of Pattanayak that he became a licencee

by virtue of the licence agreement. Our attention was drawn to the

agreement dated 13th April, 2007 which bears a description "Ghor

Babohar Koribar Licence" meaning thereby it is a (licence for using

premises).

Mr. Roy submits that subsequent to the said licnece agreement

licence fees were paid and receipts showing such payment as licence

fees were issued.

Mr. Roy has referred to 15 such receipts showing payment of

licence fee that were marked as Exbt. 8 (series) and contrasted the said

receipts with the earlier receipts where rent was specifically mentioned.

Moreover the description of the two receipts are completely different.

The receipt issued after the licence agreement bear the nomenclature

"Licence fee Prodaner Rashid", that is, "Receipt towards Licence fee"

and on the left hand side it is specifically mentioned that on expiring of

the licence, the licence shall be obliged to handover possession of the

room.

Mr. Roy submits that Mr. Pattanayak had never questioned the

existence of the said agreement nor the receipts with the aforesaid

description issued pursuant to the licence agreement and had paid

licence fees in terms of the said licence agreement. Our attention is

drawn to the cross-examination of Mr. Pattanayak to show that he was

not only aware of the existence of the said agreement and the

relationship that were to follow after the execution of the said

agreement but he has also admitted to have a copy of the said

agreement which he said during his cross-examination that he would

file after consulting with his learned Advocate. This evidence clearly

demolishes the evidence of Mr. Pattanayak in Chief where he has

denied receipt of such agreement or unaware of its contents. Mr. Roy

submits that there is no absolute bar to file a suit for revocation of

licencee and the judgments relied upon by Mr. Chatterjee with regard

to the maintainably of the suit on the ground that Section 52 of the

Easement Act has no manner of application in the State of West Bengal

was never raised either before the Trial Court or before the first

Appellate Court. It was not even urged as one of the grounds of appeal

in the memorandum of appeal. Moreover Justice I.P. Mukherji in ITC v.

Chowringhee Residency Private Ltd. reported in AIR 2015 Cal 37

has expressly stated that the courts across jurisdiction has applied the

common law principle to decide a claim based on licence. In any event

in Madhulata (supra) the Hon'ble Division Bench has applied the

principle of justice equity and good conscience to interpret the

provisions of the Easement Act. It is a fit case where such principle of

equity needs to be applied to do complete justice.

Moreover, agreement dated 13th April, 2007 bears the

nomenclature "Ghar Babohar Koribar license" (Licence for using

premises). The said agreement mentions licence fee at the rate of

Rs.1140/- per month for two rooms described in the Schedule to the

deed. The receipts showed that payment is made towards licence fee

and all the receipts were marked as Exhibit 8. The agreement dated

13th April, 2007 read with receipts, according to the learned Appellate

Court, manifestly shows that Sri Arun Kumar Pattanayak had

surrendered his tenancy right in respect of the suit premises by

entering into licence agreement which became operative on and from 1st

April, 2007.

We shall now examine on the basis of the submissions made on

behalf of the parties whether any substantial question of law is involved

in this second appeal. The preponderance of evidence on the basis of

which a civil litigation is to be decided both documentary and oral are

overwhelming in favour of the respondent / decree holder. The reasons

are as follows:-

During his cross examination on 3rd July, 2015 in relation to the

agreement dated 13th April, 2007, he has categorically stated in his

cross examination that before he put his signature on the said

agreement he was fully aware of the contents of the said document. He

had further admitted that after expiry of the agreement dated 31st

March, 2007, the relationship of the landlord and tenant had ceased

and that before the expiry of the licence agreement, he was asked by

the plaintiff to vacate the suit premises. There is no requirement in law

that all surrender has to be by a registered instrument. It could be

implied from the conduct of the parties.

There are contradiction in the evidence of Mr.Pattanayak with

regard to the receipt of the copy of the agreement. While in the

examination in chief on affidavit he has stated that he did not receive a

copy of the agreement but during his cross-examination he admitted

that he has a copy of the said agreement and he would produce the

said agreement only upon consultation with his advocates. It is correct

that some of the blanks in the said agreement were filled up by the

landlord/plaintiff however, those are not essential terms to decide the

nature of the said agreement. The typed written agreement clearly

mentions "Asthayi Licence Sarupe Bandobosto hoilam" meaning

thereby that the appellant becomes a licencee.

Apart from the names of the parties, duration of the agreement

and the monthly licence fee payable under the said agreement, all other

terms are printed. This is a clear departure in the language of the

licence agreement from the earlier tenancy agreement. Every page of

the said agreement was signed by Mr. Pattanayak. Mr. Pattanayak has

never alleged that he is illiterate or the agreement was never read over

to him. In fact, all the earlier agreements were in Bengali language

which were duly singed by the parties. The evidence shows that Mr.

Pattanayak with free will and voluntarily executed the said agreement

of licence in favour of the landlord. The doctrine of factum non valet is

not applicable in the instant case Mr. Pattanayak is a businessman and

we have every reason to believe that only after he read the said

agreement he put his signature. He did not file a suit for delivery up

and cancellation of the said agreement nor made any counter claim in

the written statement. Although it was open for him to do so

immediately after he allegedly became aware of the said agreement. In

fact, Mr. Pattanayak could not had any convincing evidence suggesting

that he was not aware of the contents of the agreement as he did not

contemporaneously received the said agreement. In fact, series of

receipts exhibited by the plaintiff would show that he has made

payment as a licencee and towards licence fee and the word "Bhara"

which is commonly used to identify rent as opposed the licence fee were

conspicuous in their absence in each of the receipts issued by the

landlord after the licence agreement was executed by the parties. The

plaintiff having proved due execution of the licence agreement is not

required to discharge any other onus. The licence agreement along

with licence fees clearly establish the relationship between the plaintiff

and the defendant is one of licencor and licencee.

Mr. Chatterjee has strenuously argued that the licence agreement

is, in fact, a hidden tenancy and exclusivity of possession of the

appellant in the said premises is a pointer towards tenancy and not

licencee. In Associated Hotels of India Limited (supra) Justice K.

Subbarao in paragraph 28 of the said report laid down the tests to be

applied to ascertain whether an agreement is lease or licence :-

"For ascertaining whether a document creates a licence or lease, the substance of the document must be preferred to the form. It is not correct to say that exclusive possession of a party is irrelevant but at the same time it is not conclusive. The other tests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations".

The intention of the parties has to be gathered from the oral and

documentary evidence and the conduct of the parties. All the earlier

agreements were temporary in nature. The parties never intended to

have a long continuous relationship. It has come on record that Mr.

Pattanayak was aware of the nature of the agreement and it was on his

request that the plaintiff allowed him to stay for few more years. So

that he did not face any inconvenient in his business. The alteration in

the status was consensual and consciously adopted by the parties.

Once the parties with their eyes wide open create to alter their situation

knowing fully its contents a party likely to be affected by the said

agreement cannot question the said agreement after he has accepted

the said agreement and performed his duties and obligation under the

said agreement.

In view of the unclinching evidence both oral and documentary

that the agreement is a licence agreement as it appears and intended,

there is no scope to hold that the said licence agreement is a hidden

tenancy. The 2nd appeal can be admitted provided it involves a

substantial question of law as opposed to a mere error of law. It needs

to have a substantial foundation on law bound to withstand the regards

Section 100 of the Code of Civil Procedure.

The trial court and the first Appellate court are best suited to

decide on the question of fact and law. The appreciation of evidence by

both the courts unless it is perverse are not to be interfered with 2nd

Appeal. Although the order of the learned Trial court was reversed by

the appellate court but we are convinced that the order of the trial

court was erroneous as it has failed to interpret the agreement in its

proper perspective and has overlooked the material piece of evidence

which strongly suggest licence and not tenancy. The appellate court

has correct the said error.

Before I conclude it needs to be mentioned that the non-

maintainable of the suit on the ground that the provision of the

Easement Act would not apply in the instant case was never raised

before any of the courts including in the grounds of appeal filed before

us. When a party does not raise such questions in the earlier

proceedings, High Court cannot decide the second appeal on the basis

of a new point not specifically set out in the memorandum of appeal.

However, even on the basis of the judgment cited by the parties in this

regard the jurisdiction of the court to revoke a licence has been guided

by the common law principle of justice equity and good conscience and

if the court is convinced on the basis of the evidence on record that the

said principle is required to be applied to do justice between the

parties, the court is not preclude from applying the principle in an

appropriate case to do complete justice between the parties. This

inherent power of the court recognised in the decision cited by the

parties in this regard.

On such consideration the second appeal being SAT 101 of 2018

along with CAN 1 of 2018 (Old CAN 2212 of 2018) stand dismissed.

However, there shall be no order as to costs.

I agree,


(Ajoy Kumar Mukherjee, J.)                        (Soumen Sen, J.)