Delhi High Court
Mohd. Farooq vs Smt. Mubassara And Anr. on 21 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.107/2013
% 21st February, 2014
MOHD. FAROOQ ......Appellant
Through: Mr. Maroof Ahmad, Advocate.
VERSUS
SMT. MUBASSARA AND ANR. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal has been filed under Section 100
of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first
appellate court dated 16.3.2013 by which the first appellate court set aside
the judgment of the trial court dated 23.11.2011 which had dismissed the
suit for possession and mesne profits filed by the respondents/plaintiffs. The
appellate court has decreed the suit for possession and mesne profits against
the appellant/defendant/tenant.
RSA No.107/2013 Page 1 of 5
2. The only issue which was to be decided was as to whether the
appellant/defendant was a licencee or was a tenant as contended by him.
The first appellate court has referred to the fact that neither there was any
rent agreement nor any rent receipt relied upon by the appellant/defendant.
The first appellate court also notes conflicting defences raised by the
appellant/defendant as to whether rent included electricity and water charges
or not, noting that in the pleadings the appellant/defendant pleaded that rent
was exclusive of other charges, however, in the evidence he took up a case
that rental charges included electricity and water charges. So far as the issue
of exclusive possession is concerned, the first appellate court relied upon
various judgments of this Court and held that exclusive possession in the
facts of the present case is not such to hold that tenancy rights existed in
favour of the appellant/plaintiff. The relevant observations of the first
appellate court are contained in paras 12 to 17 of the impugned judgment
and which read as under:-
"12. Although the defendant in his cross examination contended that
there was a written rent agreement between the parties, he has
not produced any such document. He has deposed that there
was no rent receipt. In his written statement, the defendant has
not averred that there was a written rent agreement executed
between the parties. As regards the tenancy, in para 2 of the
preliminary objections the defendant has averred that he was
inducted as a tenant in the suit premises by the plaintiff No.2 at
RSA No.107/2013 Page 2 of 5
a monthly rent of Rs.500/- "besides other charges". In his cross
examination the defendant as DW-1 has admitted that the
plaintiff had not charged him for electricity and water.
Thereafter he voluntarily deposed that electricity and water
charges were included in the rent of Rs.500/-. This part of
deposition of the defendant is contradictory to the averments
made in the written statement that the tenancy was at the
monthly rent of Rs.500/- "besides other charges". The
defendant has contradicted himself as regards terms of tenancy
pleaded by him in the written statement. The defendant had not
averred in the written statement that there was any written
agreement but in the cross examination he has denied the
suggestion that there was no written rent agreement. It was
therefore incumbent upon the defendant to produce written rent
agreement which is failed to produce.
13. In the case of Prem Pal Singh versus Jugal Kishore Gupta
(supra), the plaintiff therein had contended that the defendant
was a licensee but the defendant contended that he was a tenant
under the plaintiff and that the suit for possession was barred
under section 50 of the Delhi Rent Control Act. Issue No.2
framed in the said matter was whether the defendant was a
tenant in the suit premises and the suit was barred under section
50 of the Delhi Rent Control Act. The defendant did not
produce any rent agreement or rent receipt and the learned Trial
Court concluded that the relationship was of licensor and
licensee and decided the said issue against the defendant. In
appeal the Division Bench of the Hon'ble High Court upheld
the finding of the learned Trial Court and held in para 3 as
under:
"3. As noted above, on the second issue the defendant has
not led any documentary evidence except his own statement
that he was the tenant. He admits that he has no document to
show that he was tenant in the premises. Tenancy rights are
created by contract under the statute being the Transfer of
Property Act and Court has to be satisfied that there in fact a
tenancy existed, and when landlord denies the same a mere
statement of the tenant may not be enough. Mr. Chopra
has also referred to a judgment of the Calcutta High Court in
RSA No.107/2013 Page 3 of 5
shore note in Satinath Mukherjee V. Satlendra Nath Sen alias
Aailen Sen. AIR 1991 NOC 55 (Calcutta), to contend that to
prove the tenancy it is not necessary to prove an agreement,
That of course, will depend up to the facts of each case and
the evidence that may be led in a case. In the present case the
defendant has been unable to prove that he had been a
tenant." (emphasis added)
14. The judgment in the case of Prem Pal Singh (supra) was
followed by the Hon'ble High Court in the cases of Praveen
Narang (supra) in which the Hon'ble High Court in para 18
reiterated that a "mere statement of the defendant that he is a
tenant in the suit property without producing any document
in support thereof cannot be accepted as sufficient proof of
tenancy." In the case of Mahabir Prasad Jain versus Ganga
Singh (supra) the Hon'ble Supreme Court was pleased to
hold in para 14 that "exclusive possession by itself will not
give rise to any presumption of tenancy."
15. It has been held in the judgments referred above that
exclusive possession would be itself not give rise to
presumption of tenancy. Further, mere claim of a party of
being a tenant without producing any document to prove
tenancy would not be sufficient and the only inference which
can be drawn is that the party was a licensee in the property.
16. Learned counsel for the respondent has relied upon the
case of MN Clubwala (supra) wherein the Hon'ble Court was
pleased to hold that exclusive possession of property would
not give rise to inference of tenancy. However, where a
person is found to be in exclusive possession under an
agreement with the landlord, the agreement would be
construed as a lease, in the case of MN Clubwala (supra) the
party concerned had produced written agreements before the
Court which was called upon to determine whether its terms
constituted a lease or a license. In the present case,
admittedly there is no document available with the defendant
to demonstrate the nature of his possession.
RSA No.107/2013 Page 4 of 5
17. The case of the defendant before the Trial Court was that
he was inducted in the suit premises by the plaintiff No.2.
The plaintiff No.2 claimed that he inducted the defendant as
licensee while the defendant claimed tenancy. The defendant
does not have documentary evidence in his support. He has
also contradicted himself regarding the terms of the tenancy.
His exclusive possession even though admitted by the
plaintiffs and their witnesses would not amount to a tenancy.
The only inference that can be drawn on the basis of the
evidence is that the defendant was a licensee in the suit
premises. Hence the findings of the learned Trial Court in
this regard are not sustainable and are set aside and it is held
that the defendant was a licensee of the plaintiffs in the suit
property." (underlining added)
3. In view of the above, no substantial question of law arises
because the appellant/defendant has rightly been held not to be a tenant of
the suit premises and that he was only a licencee. Appeal is therefore
dismissed, leaving the parties to bear their own costs.
FEBRUARY 21, 2014 VALMIKI J. MEHTA, J.
Ne
