Karnataka High Court
Byadgi And Hirekerur Taluk Kurubara ... vs Babusab S/O Saidusab Halageri on 29 November, 2023
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NC: 2023:KHC-D:14157
RSA No. 2737 of 2006
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.2737 OF 2006 (RES)
BETWEEN:
KURUBARA UNNE NEKARARA SAHAKARA
SANGHA, NIYAMITA, BYADAGI,
TALUK: BYADAGI,
DIST: HAVERI, BY ITS CHAIRMAN.
BASAVARAJ. S/O. GUDDAPPA KAMBALI,
AGE: 56 YEARS, OCC: AGRICULTURE AND
BUSINESS,
R/O. BYADAGI-581106, DIST: HAVERI.
...APPELLANT
(BY SRI. RAVI S. BALIKAI, ADVOCATE)
AND:
BABUSAB
Digitally
signed by
VISHAL
S/O. SAIDUSAB.
VISHAL NINGAPPA
PATTIHAL
HALAGERI, SINCE DECEASED BY HIS LRs.,
NINGAPPA
PATTIHAL Date:
2023.12.14
11:38:27
+0530
1(A) SRI. JINNAA.
S/O. LATE BABUSAB. HALAGERI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. SANGAMESHWAR NAGAR,
BYADAGI, DIST: HAVERI.
1(B) SRI. HAZARATALI.
S/O. LATE BABUSAB. HALAGERI.
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. SANGAMESHWAR NAGAR,
BYADAGI, DIST: HAVERI.
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NC: 2023:KHC-D:14157
RSA No. 2737 of 2006
1(C) SRI. BASHA.
S/O. LATE BABUSAB/ HALAGERI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O. SANGAMESHWAR NAGAR,
BYADAGI, DIST: HAVERI.
1(D) KUM. BANU.
D/O. LATE BABUSAB. HALAGERI,
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O. SANGAMESHWAR NAGAR,
BYADAGI, DIST: HAVERI.
1(E) SMT. MUNNI.
W/O. RASOOLSAB JILLUR SULMATTI,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O. SANGAMESHWAR NAGAR,
HAVERI, DIST: HAVERI.
1(F) SMT. FATHIMA.
W/O. JANGIRSAB. TURABIGUDDA,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O. SHIVAPUR BADAVANE,
BYADAGI, DIST: HAVERI.
1(G) SMT. BIBIZAHIRA.
W/O. MOHD. SAMIULLA. KATTELLUR,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O. MASUR, TAL. HIREKERUR,
DIST. HAVERI.
1(H) SMT. MUMTAZ.
W/O. MOULABI. MOULASABAR,
AGE: 30 YEARS, OCC: HOUSEHOLD AND BUSINESS,
R/O. PRINCE HARDWARE, KABARASTHAN
COMPLEX, RANEBENNUR, TAL. RANEBENNUR,
DIST. HAVERI.
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RSA No. 2737 of 2006
1(I) SMT. PARVEEN.
W/O. BABAJAN. TAHASILDAR
AG: 27 YEARS, OCC: HOUSEHOLD,
R/O. KANDAK ROAD, HAVERI,
TAL AND DIST: HAVERI.
1(J) SAIDUSAB.
S/O. BABUSAB. HALAGERI,
SINCE DECEASED BY HIS LRS.,
1(J)(i) SMT. HAZARATBI.
W/O. SAIDUSAB. HALAGERI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
1(J)(ii) SMT. GOUSIA.
D/O. SAIDUSAB. HALAGERI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
1(J)(iii) ALTAF.
S/O. SO. SAIDUSAB. HALAGERI,
AGE: MAJOR, OCC: NIL.
1(J)(iv) SMT. ROSHANBANU.
D/O. SAIDUSAB. HALAGERI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
Nos. 1(j) (i) TO 1(j) (iv) ARE ALL
R/O. SANGAMESHWAR NAGAR,
BYADAGI, TAL: BYADAGI, DIST: HAVERI.
...RESPONDENTS
(BY SRI. S. B. HEBBALLI, ADVOCATE FOR R1 (A TO I;
NOTICE TO R1J (i) TO R1J (iv) SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGMENT & DECREE DATED: 20.9.2006
PASSED IN R.A.NO.49/2002 ON THE FILE OF THE
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RSA No. 2737 of 2006
ADDL.CIVIL JUDGE (SR.DN.), RANEBENNUR, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED: 29.6.2002 PASSED IN OS.NO.93/1997 ON
THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, BYADGI.
THIS REGULAR SECOND APPEAL, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The present second appeal by the plaintiff assailing
the judgment and decree of the First Appellate Court,
whereby, the suit of the plaintiff seeking possession was
dismissed, reversing the Judgment and decree of the Trial
Court.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. Suit for recovery of possession in respect of the
suit schedule property, viz., a building and a site measuring
60 x 40 ft., bearing No.939, situated at Byadagi Town
Municipal Area and for mesne profits contending that the
defendant is occupying the suit schedule property running a
flour mill on a "leave and licence" basis as a licencee and
NC: 2023:KHC-D:14157
though the plaintiff requested for vacating the premises,
the same has not been adhered to.
4. Pursuant to the suit summons issued by the Trial
Court defendant appeared and filed written statement, inter
alia, contending the following grounds:
(i) That the defendant is in occupation of the
suit property as a tenant on tenancy basis,
until tenancy is terminated in accordance
with law he cannot be evicted. The
defendant denied that he is in "permissive
possession" of the suit property on a "leave
and licence" basis.
(ii) That the Karnataka Rent Control Act, 1999
is applicable and the Civil Court had no
jurisdiction to try the suit.
(iii) That the Civil Court has no jurisdiction under
Section 118 of the Karnataka Co-operative
Societies Act, 1959 ("Co-operative Societies
Act" for short) and there is a special
provision for raising a dispute under Section
70 of the Act, barring the Civil Courts
jurisdiction.
(iv) That the suit of the plaintiff is hit by
principles of res judicata.
NC: 2023:KHC-D:14157
(v) That greater hardship would be caused if an
order of eviction is passed against him.
5. The Trial Court, on the basis of the pleadings,
framed the following issues:
"1) whether the plff. proves that the deft. has been
punistive occupation or under Licencee in the suit
schedule premises?
2) Whether the plff. further proves that he has
terminated the Licence granted in-favour of the
deft. by issuing legal notice as contemplated under
law?
3) Whether the plff. is entitle for recovery of
possession of the suit property from the deft?
4) Whether the Deft. proves that the suit as
brought by the Plff. is improper and it is not
maintainable in law?
5) Whether the Deft. proves that the suit is barred
by the provision of Sec-70 of K.C.S. Act?
6) Whether the deft. proves that the suit is-
improperly valued and Court-fee paid is in-
sufficient?
NC: 2023:KHC-D:14157
7) Whether the deft. proves that the Civil Court-
has no Jurisdiction to try the present suit and the
plff. ought to have invoked the Jurisdiction of Rent
Control Court as pleaded in-para7 of the Written
Statement?
8) Whether the plff. proves that he is entitle to
recover the mesne profit he is entitle Rs.1000/-
per- year from the date of termination of Licence
in-favour of the deft?
9) Whether the deft. proves that he is not in
occupation of the suit property as a Licencee but he
is continued in possession as Lessee and there is no
termination of Lease in accordance- with law?
10) Whether the suit is barred by the principles of
Res-Judicata for the reasons stated in- -para-17 of
the Written-Statement?"
6. In order to substantiate the claim, the plaintiff
got examined himself as PW.1 and two witnesses as PWs.2
and 3 and got marked documents at Exs.P-1 to P-10. On
the other hand, defendant examined himself as DW.1 and
three witnesses as DWs.2 to 4 and got marked documents
as per Exs.D-1 to D-19.
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7. The Trial Court, on the basis of the pleadings,
oral and documentary evidence, arrived at a conclusion that
the defendant's possession is on the basis of "leave and
licence" and the defendant has failed to establish that he is
in occupation of the suit schedule property as a "lessee".
The Trial Court further held that the defendant has failed to
prove that the suit of the plaintiff is not maintainable before
the Civil Court and by judgment and decree, decreed the
suit of the plaintiff, directing the defendant to handover the
possession of the suit schedule property within thirty days
from the date of the decree.
8. Feeling aggrieved by the Judgment and decree of
the Trial Court, the defendant preferred an appeal before
the First Appellate Court.
9. The First Appellate Court, while reversing the
Judgment and decree of the Trial Court, held that:
i) The plaintiff-Society's suit is not
maintainable in light of the provisions of
NC: 2023:KHC-D:14157
Section 118 of the Co-operative Societies
Act.
ii) The society has to raise a dispute under
Section 70 of the Co-operative Societies
Act. Further, the First Appellate Court held
that the Karnataka Rent Control Act, 1999
is applicable and the plaintiff has not issued
notice as contemplated under Section 106
of the Transfer of Property Act, 1882 ("TP
Act" for short), as the defendant is a lessee
of the suit schedule property and suit of
the plaintiff is not maintainable.
10. The First Appellate Court was of the view that
even assuming that the appellant becomes only the
"licencee," even a licencee can be termed as a "lessee"
because of the continuous possession of the suit schedule
property and by the judgment passed by the First Appellate
Court, the suit of the plaintiff for possession was dismissed,
reversing the judgment and decree of the Trial Court.
Aggrieved by the same, plaintiff filed second appeal before
this Court.
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11. This Court, while admitting the appeal on
24.11.2007, has framed the following substantial question
of law:
"Whether the lower appellate Court was justified
in reversing the Judgment and decree of the trial
Court on the ground that the suit is not
maintainable u/s.118 of the Karnataka Co-
operative Societies Act ?"
12. Sri Ravi S.Balikai, learned counsel for the
appellant and Sri S.B.Hebballi, learned counsel appearing
for the respondent have been heard on the substantial
question of law framed by this Court.
13. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties
and perused Judgment and decree of the Courts below
including the original records.
14. Before answering the substantial question of law,
I.A.No.4/2022 filed by the appellant-plaintiff seeking for
amendment of the plaint needs to be considered.
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15. I.A.No.4/2022 is filed under Order VI Rule 17 of
CPC, seeking permission to amend the plaint para No.2 and
the suit schedule annexed to the plaint and incorporate the
correct survey number, municipality number and plot
number of the suit property belonging to the society. The
plaint para No.2 is mentioned as hereunder:
"zÁªÉÃzÀ D¹ÛAiÀÄ ªÀtð£É.
zsÁgÀªÁqÀ f Áè ¨ÁåqÀV vÁ®ÆPÀ ¨ÁåqÀV ±ÀºÀgÀzÀ ¸ÀAUÀªÉÄñÀégÀ
£ÀUÀgÀzÀ ªÁå¦ÛAiÀÄ°ègÀĪÀ j.¸À.£ÀA. 185 £ÉÃzÀÝgÀ°èAiÀÄ ©£À ±ÉÃwÌ ¥Áèmï
£ÀA. 17, PÉëÃvÀæ 0 JPÀgÉ 10 UÀÄA-14 3/4 DuÉ £ÉÃzÀÝgÀ°ègÀĪÀ
PÀlÖqÀ«zÀÄÝ, EzÀgÀ GzÀÝ 60 ¥ÀÇmï, CUÀ® 40 ¥sÀÇmï EgÀÄvÀÛzÉ.
EzÀPÉÌ ¨ÁåqÀV ¥ÀÅgÀ¸À¨sÁzÀªÀgÀÄ D¹Û £ÀA. 5549/995 CAvÁ
PÉÆnÖgÀÄvÁÛgÉ. F D¹ÛAiÀÄ ZÀPÀ§A¢ PɼÀV£ÀAvÉ EgÀÄvÀÛzÉ.
¥ÀǪÀðPÉÌ : ¸ÀzÀgÀ ©£ï ±ÉÃwÌ ¥Áèmï £ÀA. 17 gÀ°ègÀĪÀ ªÁ¢
¸ÀAWÀzÀ EvÀgÉ PÀlÖqÀUÀ¼ÀÄ .
¥À²ÑªÀÄPÉÌ : ªÀĹâ ªÀÄvÀÄÛ ¦ÃgÀ¸Á§ EªÀgÀ ªÀÄ£É.
GvÀÛgÀPÉÌ : ¥ÀÅgÀ¸À¨sÉ D¹Û £ÀA. 5549/995 £ÉÃzÀÝgÀ°èAiÀÄ CAzÀgÉ
©£ï ±ÉÃwÌ ¥Áèmï £ÀA. 17 £ÉÃzÀÝgÀ°èAiÀÄ G½zÀ RÄ Áè eÁUÀ.
zÀQëtPÉÌ : gÀ¸ÉÛ
F ZÀPÀ§A¢ ªÀÄzsÀåzÀ°ègÀĪÀ D¹ÛAiÀÄÄ ªÁ¢AiÀÄ ªÀiÁ°Ì
D¹Û EgÀÄvÀÛzÉ. ¸ÀzÀgÀ D¹ÛAiÀÄ ¸ÀªÀÄUÀæ «ªÀgÀuÉAiÀÄ£ÀÄß ±ÉqÀÆå®ß°è
«ªÀj¸À ÁVzÉ".
16. By way of amendment, the plaintiff is seeking to
correct the survey number, municipality number and plot
number, which reads as under:
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NC: 2023:KHC-D:14157
"And Suit Schedule:
"zsÁgÀªÁqÀ f Áè ¨ÁåqÀV vÁ®ÆPÀ ¨ÁåqÀV ±ÀºÀgÀzÀ
¸ÀAUÀªÉÄñÀégÀ £ÀUÀgÀzÀ ªÁå¦ÛAiÀÄ°ègÀĪÀ j.¸À.£ÀA. 185 £ÉÃzÀÝgÀ°èAiÀÄ
©£À ±ÉÃwÌ ¥Áèmï £ÀA. 17 PÉëÃvÀæ 0 JPÀgÉ 10 UÀÄA-14 3/4 DuÉ
£ÉÃzÀÝgÀ°ègÀĪÀ PÀlÖqÀ«zÀÄÝ, EzÀgÀ GzÀÝ 60 ¥sÉÇÃmï, CUÀ® 40 ¥sÀÇmï
EgÀÄvÀÛzÉ. EzÀPÉÌ ¨ÁåqÀV ¥ÀÅgÀ¸À¨sÁzÀªÀgÀÄ D¹Û £ÀA. 5549/995
CAvÁ PÉÆnÖzÁÝgÉ. ªÀÄvÀÄÛ ªÉÆzÀ®Ä ¸ÀzÀgÀ D¹ÛAiÀÄ C¢üPÁjUÀ¼ÀÄ
j.¸À.£ÀA. 185-17 CAvÁ PÉÆnÖzÀÄÝ EvÀÄÛ. F D¹ÛAiÀÄ ZÀPÀ§A¢
PɼÀV£ÀAvÉ EgÀÄvÀÛzÉ.
¥ÀǪÀðPÉÌ : ¸ÀzÀgÀ ©£ï ±ÉÃwÌ ¥Áèmï £ÀA. 17 gÀ°ègÀĪÀ ªÁ¢ ¸ÀAWÀzÀ
EvÀgÉ PÀlÖqÀUÀ¼ÀÄ.
¥À²ÑªÀÄPÉÌ : ªÀĹâ ªÀÄvÀÄÛ ¦ÃgÀ¸Á§ EªÀgÀ ªÀÄ£É.
GvÀÛgÀPÉÌ : ¥ÀÅgÀ¸À¨sÉ D¹Û £ÀA. 5549/995 £ÉÃzÀÝgÀ°èAiÀÄ CAzÀgÉ
©£ï ±ÉÃQÌ ¥Áèmï £ÀA. 17 £ÉÃzÀÝgÀ°èAiÀÄ G½zÀ RÄ Áè eÁUÀ.
zÀQëtPÉÌ : gÀ¸ÉÛ
F ZÀPÀ§A¢ ªÀÄzsÀåzÀ°ègÀĪÀ ¥ÀÇgÁ D¹ÛAiÀÄÄ ªÁ¢AiÀÄ ªÀiÁ°Ì
D¹Û EgÀÄvÀÛzÉ".
17. It is stated in the affidavit accompanying the
application that, the suit schedule property was described
as NA plot bearing No.32, Municipal No.939 situated in RS
No.204+205 of Byadagi Town totally measuring 10 guntas
14¾ annas, building in a portion measuring 60 ft. x 40 ft.,
with specific boundaries as mentioned in the plaint. It is
stated that some error has crept in, while mentioning the
property number, municipal number and survey number
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and the correct property number is mentioned as NA Plot
No.17, bearing municipal No.5549/995 in RS No.185,
totally measuring 10 guntas 14¾ annas, out of which, the
building portion measuring 60 ft. x 40 ft., along with the
boundaries. The reasons stated in the affidavit are that, the
mistake is a bona fide, it has been occurred by
inadvertence and oversight and it is a technical mistake. In
support of the contention to evidence the actual survey
number of the suit property, a copy of the sale deed in
favour of the plaintiff is produced.
18. In addition, the appellant has placed the copy of
the plaint in O.S.No.18/2021, filed by the defendant herein
for permanent injunction and copy of the order passed on
I.A. in the said suit.
19. The respondent-defendant filed objections to the
said application-I.A.No.4/2022, inter alia, contending that
the plaintiff has sought for change of nature of the property
in question, boundaries mentioned in para No.2 of the
plaint, schedule property in the plaint differs from the one
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sought to be amended and the description of the property
described in para No.2 of the plaint is left unamended and
only the schedule in the plaint cannot be permitted to be
amended. It is also stated by the respondent's counsel that
in the event, this Court permits such amendment, the
defendant - respondent should be permitted to file
additional written statement.
20. This Court has carefully perused the application-
I.A.No.4/2022 as well as the objections filed to
I.A.No.4/2022 and the contentions of the respective
counsel.
21. Order VI Rule 17 of CPC needs to be looked into
while considering the application filed for amendment,
which reads as under:
"Order VI - PLEADINGS GENERALLY
xxxx
17. Amendment of pleadings.- The Court may at
any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments
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shall be made as may be necessary for the purpose
of determining the real questions in controversy
between the parties:
Provided that no application for amendment
shall be allowed after the trial has commenced,
unless the Court comes to the conclusion that in
spite of due diligence, the party could not have
raised the matter before the commencement of
trial."
22. Plain reading of the said Section envisages that
the Court may at any stage of the proceedings can allow
the parties to amend or alter the pleadings in such manner
or in such term as it may be, all such amendments shall be
made as may be necessary for the purpose of determining
the real questions in controversy between the parties. The
exception is that no application for amendment shall be
allowed, after trial has commenced, unless the Court comes
to the conclusion that in spite of due diligence, the party
could not have placed the matter before the
commencement of trial.
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23. The amendment sought is in respect of
incorporating the correct survey number, municipal number
and plot number of the suit schedule property in para No.2
of the plaint. The measurement and the boundaries of the
suit schedule property from the original to amendment
stands unchanged. The reason stated is a technical
mistake and bona fide and the parties knowing fully well
the suit property have went in trial, understood the suit
schedule property, merely because the plaintiff is seeking
for correction of survey number, municipal number and plot
number would not change the nature of the suit schedule
property. It is also relevant to note that the suit instituted
by the defendant herein against the present plaintiff in
O.S.No.18/2021 and at para No.2 of the suit, schedule
property is mentioned as under:
"zÁªÉÃzÀ D¹Û: zÁªÁzÀ D¹ÛAiÀÄÄ ¨ÁåqÀV vÁ®ÆPÀ ¨ÁåqÀV ±ÀºÀgÀzÀ
¸ÀAUÀªÉÄñÀégÀ £ÀUÀgÀzÀ ©£ï ±ÉÃwÌ ªÀÄ£É ªÀ RÄ Áè eÁåUÁ EgÀÄvÀÛzÉ. CzÀgÀ
«ªÀgÀ
UÁæªÀÄ ¸ÀªÉð £ÀA. ¥Áèl £ÀA. PÉëÃvÀæ(J-UÀÄA-D)
¨ÁåqÀV 185 17 10-14-76
(j.¸À.£ÀA. 204 ªÀÄvÀÄÛ 205 ¥Áèl £ÀA. 32
¸ÀzÀgÀ D¹ÛAiÀÄ ZÀPÀ̧A¢
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¥ÀƪÀðPÉÌ : gÀ¸ÉÛ
¥À²éªÀÄPÉÌ : ªÀÄ¢£Á ªÀĸÀÆw
GvÀÛgÀPÉÌ : gÀ¸ÉÛ
zÀQëtPÉÌ : gÀ¸ÉÛ
F ZÀPÀ̧A¢ ªÀÄzÀåzÀ D¹ÛAiÀÄÄ zÁªÁ D¹Û EgÀÄvÀÛzÉ. ¸ÀzÀj D¹ÛAiÀÄ£ÀÄß
zÁªÉÃzÀ D¹ÛAiÀÄAzÀÄ £ÀªÀÄÆ¢¸À ÁUÀĪÀÅzÀÄ."
24. The perusal of the description of the suit
schedule property in O.S.No.18/2021, indicates that the
suit survey number, municipal number and plot number,
which is sought to be incorporated by way of amendment is
being stated in the plaint in O.S.No.18/2021 filed by the
defendant. It is also relevant to state that the injunction
was sought by the plaintiff in the said suit in respect of the
amended suit schedule property and the injunction sought
was dismissed by the trial Court. Since the amendment of
the suit schedule property as sought in I.A. No.4/2022 does
not change the nature of the suit property, the question of
permitting the respondent-defendant to file a written
statement would not arise, particularly in view of the fact
that in his suit, he has incorporated the very same survey
number, municipal number and plot number stated supra
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as suit schedule property. In the said circumstances,
I.A.No.4/2022 needs to be allowed, and the appellant-
plaintiff is permitted to incorporate survey number,
municipal number and plot number of the suit schedule
property in the plaint schedule as mentioned in the
application-I.A.No.4/2022 and carry out the necessary
amendment.
25. Before adverting to the substantial question of
law framed by this Court, relevant facts needs to be
considered to understand the actual dispute between the
parties. The plaintiff was running a Kurubara Woollen
Weavers' Association and they were manufacturers of
blankets (kambalies) and the defendant had come forward
for open plot, and in that regard, the plaintiff - association
had given the open plot to the defendant for running the
flourmill and the defendant was in possession of the suit
schedule property and was running the flourmill in the said
area. The plaintiff contended that the defendant is a
"licencee" and on the other hand, the defendant contended
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that he is a "lessee" over the suit schedule property. PW1
to PW3 have categorically spoken about the possession of
the defendant on the basis of "leave and licence" and his
possession being in a "permissive possession". PW2 has
spoken about the possession of the flourmill by the
defendant and about the defendant request to the plaintiff's
society to permit him to run the flourmill for two or three
months and he would make necessary arrangements to
shift the flourmill to his own property. Another member of
the Managing Committee - PW3 also spoken about the
nature of the occupation of the suit property by the
defendant and he has produced the sale agreement letter
at Ex.P10. Ex.P10 is the document, which is placed
reliance by the plaintiff i.e., the "sale letter" executed by
the plaintiff - Society on 17.07.1978 in favour of the
defendant, thereby, acknowledging the sale of the flourmill
and its part payment of Rs.7,900/- and the receipt of sum
of Rs.4,600/- as advance sum and the balance to be paid at
the time of change of the name in R.R. number and meter
in his name. The plaintiff, in support of its contention has
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mainly relied upon Exs.P6 to P9, Ex.P-7 is the evidence of
the defendant in O.S.No.3/1997, wherein he asserts that he
is the tenant of the suit property and not a "licencee" and
states that he has records to show that he is a tenant, in
his cross-examination, he contends that he is in possession
since 21 years and he admits about the purchase of the
flourmill from Susheela Bai and also having taken the
permission from the plaintiff - Society to run the machine
in the suit property for few months. Another key
documents are Exs.P8 and P9, Ex.P-8 is the application
submitted by the defendant to HESCOM to transfer the
power meter in his name stating that he would be shifting
the flourmill to his own premises within four months. The
other important document is "Oppige Patra" at Ex.P9, the
consent letter dated 29.03.1982 executed by the defendant
in favour of the plaintiff - Society that he would run the
flourmill in the suit schedule property temporarily and he
would vacate the premises and handover the vacant
premises as and when the plaintiff - Society demands.
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26. On the other hand, the defendant contended that
he is running the flourmill since 1978 having purchased the
same from the plaintiff, but he contended that he is in
occupation of the premises as a tenant and however, he
admits that there is no document with regard to lease
agreement nor any rent receipts are being issued by the
Society. It is also relevant to state here that the defendant
- DW.1 denies his signature on the pleadings in the earlier
suit in O.S.No.3/1997 and he states that he has no
documents to prove that he has paid the rents to the
plaintiff - Society. The witnesses examined on behalf of the
defendant have admitted that they do not know about the
rent having been paid by the defendant to the plaintiff -
Society. What has been stated by the said witnesses is
that, they are paying rent to the Society and it can be
assumed that the defendant is also paying rent of the said
premises to the plaintiff-society. Other than merely stating
that defendant is the tenant of the suit schedule property,
no materials are forthcoming, documents produced at
Exs.D1 to D19, nowhere establish that the defendant at any
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point of time was a "lessee" of the suit schedule property.
The important document which is placed by the defendant
is Ex.D15, which is a sale deed dated 13.09.1981 executed
by the plaintiff - Society in favour of defendant for having
sold the flourmill and other machines. The sale letter refers
to the earlier sale made by plaintiff - Society to Susheela
Bai, from whom the defendant has again purchased the
flourmill and the machineries, which is the very document
relied by the plaintiff, the other documents are pertaining
to the flourmill licence fee paid. No materials are
forthcoming regarding the occupation of the premises as a
"lessee" and under Section 105 of the Transfer of Property
Act, 1882 ('the TP Act' for short), necessary notice was to
be issued to the defendant seeking possession of the suit
schedule property.
27. Lease is defined under Section 105 of the TP Act,
1882, which reads as under:
"105. Lease defined.--A lease of immoveable
property is a transfer of a right to enjoy such
property, made for a certain time, express or
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implied, or in perpetuity, in consideration of a price
paid or promised, or of money, a share of crops,
service or any other thing of value, to be rendered
periodically or on specified occasions to the
transferor by the transferee, who accepts the
transfer on such terms. Lessor, lessee, premium and
rent defined.--The transferor is called the lessor, the
transferee is called the lessee, the price is called the
premium, and the money, share, service or other
thing to be so rendered is called the rent."
28. The essential ingredients of lease is, that (i) it
pertains to immoveable property (ii) a transfer of a right to
enjoy such property, (iii) made for a certain time, (iv)
express or implied, or in perpetuity, in consideration of a
price paid or promised (v) share of crops, (vi) service, (vii)
or any other thing of value, (viii) to be rendered periodically
(ix) on specified occasions to the transferor by the
transferee, & (x) who accepts the transfer on such terms.
29. Licence has been defined under Section 52 of the
Indian Easements Act, 1882, which reads as under:
"52 "License" defined. -Where one person
grants to another, or to a definite number of other
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persons, 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 right, be
unlawful, and such right does not amount to an
easement or an interest in the property, the right is
called a license."
30. The essential ingredients of the licence is that it
does not create any interest over the suit schedule
property. The distinction between the "lease" from "licence"
is that the lease is a transfer of interest in land by creating
right in favour of lessee in rem, license on the other hand
only makes an action lawful which without it would be
unlawful but would not transfer any interest in favour of the
"licensee" in respect of the property.
31. Reliance placed by the learned counsel for the
appellant in the case of Mangal Amusement Park
Private Limited and Another Vs. State of Madhya
Pradesh and others1, is squarely applicable to the present
(2012) 11 SCC 713
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case on hand, the Apex Court at paragraph Nos.16, 17, 18
and 19 has held as under:
"16. Consideration of the rival submissions
The principal question to be considered is: as to
whether the document of allotment of land dated 6-
5-1994 was in any way a lease or a licence. As far as
a lease is concerned, Section 105 of the Transfer of
Property Act, 1882, defines it as follows:
"105. Lease defined.--A lease of immovable
property is a transfer of a right to enjoy such
property, made for a certain time, express or
implied, or in perpetuity, in consideration of a
price paid or promised, or of money, a share of
crops, service or any other thing of value, to
be rendered periodically or on specified
occasions to the transferor by the transferee,
who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.--
The transferor is called the lessor, the transferee is
called the lessee, the price is called the premium,
and the money, share, service or other thing to be
so rendered is called the rent."
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As far as a license is concerned, the same is defined
under Section 52 of the Easements Act, 1882, as
follows:-
"52. 'License' defined.--Where one person
grants to another, or to a definite number of
other persons, 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 right, be unlawful, and such
right does not amount to an easement or an
interest in the property, the right is called a
license."
From these two definitions it is clear that a lease is
not a mere contract but envisages and transfers an
interest in the demised property creating a right in
favour of the lessee in rem. As against that a license
only makes an action lawful which without it would
be unlawful, but does not transfer any interest in
favour of the licensee in respect of the property.
17. The issue concerning the distinction between
lease and license came up for consideration before
this Court in Associated Hotels of India Ltd. v. R.N.
Kapoor AIR 1959 SC 1262. In para 27 of his
judgment, Subba Rao, J. (as he then was) observed
therein as follows with respect to lease:-
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NC: 2023:KHC-D:14157
"27. There is a marked distinction between a
lease and a license. Section 105 of the
Transfer of Property Act defines a lease of
immovable property as a transfer of a right to
enjoy such property made for a certain time in
consideration for a price paid or promised.
Under Section 108 of the said Act, the lessee is
entitled to be put in possession of the
property. A lease is therefore a transfer of an
interest in land. The interest transferred is
called the leasehold interest. The lessor parts
with his right to enjoy the property during the
term of the lease, and it follows from it that
the lessee gets that right to the exclusion of
the lessor."
Thereafter, the learned Judge referred to the
definition of "license", then observed as follows:-
"Under the aforesaid section, if a document
gives only a right to use the property in a
particular way or under certain terms while it
remains in possession and control of the owner
thereof, it will be a license. The legal
possession, therefore, continues to be with the
owner of the property, but the licensee is
permitted to make use of the premises for a
particular purpose. But for the permission, his
occupation would be unlawful. It does not
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create in his favour any estate or interest in
the property. There is, therefore, clear
distinction between the two concepts. The
dividing line is clear though sometimes it
becomes very thin or even blurred."
18. Subba Rao, J., thereafter referred to the
judgments of the Court of Appeal
in Errington v. Errington, 1952-1 All ER 149
and Cobb v. Lane 1952-1 All ER 1199, and then
observed as follows:-
"The following propositions may, therefore, be
taken as well established: (1) To ascertain
whether a document creates a license 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 license; (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
license; and (4) if under the document a party
gets exclusive possession of the property,
prima facie, he is considered to be a tenant;
but circumstances may be established which
negative the intention to create a lease."
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These propositions have been quoted with approval
subsequently by a Bench of three Judges
in Konchada Ramamurty Subudhi (dead) v. Gopinath
Naik and Ors. Reported in AIR 1968 SC 919, and
in Capt. B.V. D'Souza v. Antonio Fausto
Fernandes reported in AIR 1989 SC 1816.
19. (i) Having seen this legal position, we may now
examine the submissions of the rival parties. It was
submitted by Shri Ranjit Kumar, learned Senior
Counsel that, it has to be noted that though the
document of allotment states that the license is
granted initially for a period of 15 years, Clause 8
thereof adds that it may be renewed for a further
period of 15 years by enhancing the license fee
maximum by 40%, and thereafter at such a
percentage as may be decided by the authority. This
indicated the permission to the allottee to remain on
the concerned parcel of land for a period of 30 years
and more, and should therefore be construed as
creating an interest in the parcel of land. Therefore,
in his submission the document of allotment created
a lease, and renewal thereof was a matter of
formality, and IDA was bound to renew the
document. He referred to the judgment of this Court
in Sudhir Kumar v. Baldev Krishna Thapar and Ors.
V. Baldev Krishna Thapar and Ors. Reported in 1969
- 30 -
NC: 2023:KHC-D:14157
(3) SCC 611] to submit that a lessor cannot withhold
his consent for renewal unreasonably.
(ii) Shri Vikas Singh, learned Senior Counsel
appearing for IDA and Ms Vibha Datta Makhija,
learned counsel for the State Government submitted
on the other hand that the possession of the allottee
was merely a permissive one, and that it was not
exclusive to warrant an inference of creation of an
interest. In their view, the document of allotment
when read in the entirety makes it very clear that it
was a license and not a lease."
32. The principal question to be considered is, as to
whether the occupation of the premises by the defendant is
by "lease" or "leave and licence". In light of the provisions
stated supra and the decision of the Apex Court placed by
the learned counsel for the appellant and the material
placed before this Court, it is evident that the defendant is
in possession of the suit schedule property as a "leave and
licence" and not as a "lessee" as contended by the
defendant and the first appellate Court was not justified in
holding that the occupation of the premises by the
defendant is as a "lessee".
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33. The first appellate court holds that the suit of the
plaintiff is not maintainable under Section 118 of the Co-
operative Societies Act. In order to answer the substantial
question of law, the necessary provisions of the Co-
Operative Societies Act needs to be looked into.
34. Section 70 of the Co-Operative Societies Act is a
provision under the Co-Operative Societies Act, which oust
jurisdiction of the Civil Courts and explains what are the
matters that can be referred under Section 70 of the Co-
Operative Societies Act to the competent code, which reads
as under:
"70. Disputes which may be referred to
Registrar for decision. --
(1) Notwithstanding anything contained in any law
for the time being in force, if any dispute touching
the constitution, management, or the business of a
co-operative society3 [XXXX] arises,--
(a) among members, past members and
persons claiming through members, past
members and deceased members, or
(b) between a member, past member or
person claiming through a member, past
member or deceased member and the society,
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its 1[board] or any officer, agent or employee
of the society, or
(c) between the society or its 2[board] and any
past 3[board], any officer, agent or employee,
or any past officer, past agent or past
employee or the nominee, heirs, or legal
representatives of any deceased officer,
deceased agent, or deceased employee of the
society, or
(d) between the society and any other co-
operative society, 4[or a credit agency]
such dispute shall be referred to the Registrar for
decision and 5[no civil or Labour or Revenue Court or
Industrial Tribunal] shall have jurisdiction to
entertain any suit or other proceeding in respect of
such dispute.
(2) For the purposes of sub-section (1), the following
shall be deemed to be disputes touching the
constitution, management or the business of a
cooperative society, namely:--
(a) a claim by the society for any debt or
demand due to it from a member or the
nominee, heirs or legal representatives of a
deceased member, whether such debt or
demand be admitted or not;
(b) a claim by a surety against the principal
debtor where the society has recovered from
the surety any amount in respect of any debt
or demand due to it from the principal debtor,
as a result of the default of the principal debtor
whether such debt or demand is admitted or
not;
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[(c) any dispute arising in connection with the
election of a President, Vice-President or any
office-bearer or Member of board of the
society;]
[(d) any dispute between a co-operative
society and its employees or past employees or
heirs or legal representatives of a deceased
employee, including a dispute regarding the
terms of employment, working conditions and
disciplinary action taken by a co-operative
society 1[notwithstanding anything contrary
contained in the Industrial Disputes Act, 1947
(Central Act 14 of 1947)];
(e) a claim by a co-operative society for any
deficiency caused in the assets of the co-
operative society by a member, past member,
deceased member or deceased officer, past
agent or deceased agent or by any servant,
past servant or deceased servant or by its
[board], past or present whether such loss be
admitted or not.]
(3) If any question arises whether a dispute referred
to the Registrar under this section is a dispute
touching the constitution, management or the
business of a co-operative society, the decision
thereon of the Registrar shall be final and shall not
be called in question in any court.
[(4)XXXXX.
(5) XXXXX.]"
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35. Section 118 of the Co-Operative Societies Act is
the connecting provision to Section 70 of the Co-Operative
Societies Act, which reads as under:
"118. Bar of jurisdiction of Courts.-(1)
Save as provided in this Act, no 1[Civil, Labour or
Revenue Court or Industrial Tribunal] shall have
jurisdiction in respect of,-
(a) the registration of a co-operative society or
bye-laws or of an amendment of a bye-law;
(b) the removal of a member or the removal and
disqualification of a director or the removal of
a board;
(c) any surcharge application required under
Section 69 or any dispute required under
Section 70 to be referred to the Registrar or
the recovery of moneys under Section 100 or
the execution of any award or order referred to
the Registrar for execution under Section 101.]
(d) any matter concerning the winding up and the
dissolution of a co-operative society.
(2) While co-operative society is being wound up, no
suit or other legal proceedings relating to the
business of such society shall be proceeded with, or
instituted against, the Liquidator as such or against
the society or any member thereof, except by leave
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of the Registrar and subject to such terms as he may
impose.
(3) Save as provided in this Act, no order, decision
or award made under this Act shall be questioned in
any Court on any ground whatsoever."
36. A conjoint reading of the above provision, it
clearly discloses that when the dispute is between the
members, past members and persons claiming through
members, past members and deceased members and
between the society or its any officer, agent or employee or
any past officer, past agent or past employee or nominee,
heirs or legal representatives of any deceased officer,
deceased agent, or deceased employee of the society or
between the society and any other Co-Operative Society or
a credit agency and if the dispute falls under Section 70 of
the Co-Operative Societies Act, Civil Courts have no
jurisdiction to entertain any suit. In the present case, the
defendant is not a member, nor the dispute touch the
constitution, management or business of the Co-Operative
Society as envisaged under Section 70 (2) (a) to (d) of the
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Co-Operative Societies Act and goes without saying that the
dispute does not relate either to the constitution,
management or the business of the Co-Operative Societies
to attract Section 70 and barring the suit under Section 118
of the Co-Operative Societies Act, what is assailed by the
co-operative society is the possession from the defendant
who has been put in "permissive possession". The first
appellate Court has erroneously come to the conclusion that
the plaintiff's suit is not maintainable and he has to raise a
dispute under Section 70 of the Co-operative Societies Act
and though the plaintiff is a Co-operative Society registered
under the Karnataka Co-operative Societies Act and the
defendant is not the Member of the Society nor he has
borrowed any loan, therefore the question of raising a
dispute under Section 70 of the Co-Operative Societies Act
would not arise.
37. Accordingly, the substantial question of law
framed by this Court is answered in favour of the
appellant/plaintiff and the reasoning of the first Appellate
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Court is unsustainable and under such circumstances, the
entire reasoning of the first appellate Court is one
perversity and illegality warranting interference by this
Court and this Court pass the following:
ORDER
(i) The regular second appeal is hereby
allowed.
(ii) The judgment and decree of the first
appellate Court is set aside.
(iii) At this stage, learned counsel for the
respondent seeks some time to vacate the
suit schedule property, this Court, noting
that the respondent is in possession, grants
four months from the date of release of this
order to vacate and handover the vacant
possession of the suit schedule property,
subject to the undertaking affidavit to be
filed by the respondent within four weeks
from the date of release of this order.
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In the light of the disposal of the appeal, pending
applications, if any, would not survive for consideration and
the same are accordingly disposed of.
Sd/-
JUDGE
PJ & VNP, CT: UMD
