RSA No.1959 of 2004 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1959 of 2004 Date of Decision: 6.2.2008 Mahesh Kumar ..Appellant. Vs. Kamlesh Kumar Sangar and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.S.K.Arora, Advocate for the appellant. Mr.Vikas Behl, Advocate for the respondents. * * * Rakesh Kumar Jain, J. This appeal is directed against the judgment and decree dated 12.2.2001 passed by Civil Judge (Jr.Division), Nawan Shahar vide which the suit for mandatory injunction filed by the plaintiffs was decreed with direction that defendant should cease to use the shop shown in red colour in the site plan attached with the plaint and should hand over the vacant possession to the plaintiffs within three months from the date of order and against the judgment and decree of the first Appellate Court dated 14.1.2004 passed by the Additional District Judge, Nawan Shahar whereby the appeal of the defendant-appellant was dismissed with costs. Briefly stated the facts of the case are that the plaintiffs are the owners of shop shown in red colour in the site plan attached with the plaint bounded as: East : Plaintiffs West : Road RSA No.1959 of 2004 -2 - North : Plaintiffs South : Plaintiffs situated at Nawan Shahar, District Jalandhar which was taken by the defendant as licensee on 1.1.1993 on payment of Rs.140/- p.m. as compensation for its use. The licence was reduced into writing on 25.1.1993 by the defendant in favour of plaintiff Kewal Krishan predecessor-in- interest of the present plaintiffs. It was stipulated in the licence that actual and legal control of the shop would remain with the plaintiffs and defendant will only be entitled to use the shop against compensation fee of Rs.140/- p.m. It was also agreed that he will not hand over possession of the shop to anybody else and plaintiffs would have a right to revoke the licence. It was further averred that the defendant did not pay compensation for the use of the shop from 1.11.1993 and committed breach of the terms of the licence. The plaintiffs revoked licence with a notice to the defendant and filed suit for mandatory injunction to the effect that the defendant should cease/stop using the shop in question and deliver the possession of the shop to the plaintiffs. It was also prayed in the suit that a sum of Rs.1400/- be also got recovered from the defendant as compensation for the use of the shop in dispute from 1.11.1993 to 31.8.94 @ Rs.140/- p.m. On notice of the suit, defendant appeared and filed written statement in which it was alleged on merits that the shop in dispute is in possession of the defendant since 1979 as a tenant and licence deed is only a camouflage. It was alleged that the defendant is in actual possession having legal control over the property in question on payment of Rs.140/- per month as rent. The plaintiffs filed replication in which averments made in the RSA No.1959 of 2004 -3 - written statement were controverted. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled to the mandatory injunction as prayed for ? OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Whether the court has got no jurisdiction to try the present suit?OPD. 4. Whether there is relationship of landlord and tenant between the parties ? OPD. 5.Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 6. Whether the plaintiffs have not complied with the provisions of order 7 rule 1 CPC. If so its effect ?OPD. 6-A Whether the applicants Kamlesh Kumar and Surinder Kumar are only legal heirs of deceased Kewal Krishan ?OPA. 7. Relief. The plaintiffs in support of their case, examined Baldev Singh, draftsman as PW1, Satpal as PW2, Kewal Krishan Sangar, plaintiff himself as PW3, Vijay Kumar Ghai, Deed Writer as PW4 and thereafter closed their evidence. The defendant examined Naresh Kumar as DW1 and closed his evidence. While dealing with issue No.1, the trial Court had found that document Ex.P1 was executed between the parties to the suit on 25.1.1993, which bears the signatures of Satpal Lambardar and Darshan Pal as attesting witnesses. The question for consideration was as to whether document Ex.P1 constitutes a licence deed as alleged by the plaintiffs or rent deed as RSA No.1959 of 2004 -4 - alleged by the defendant. The learned trial Court perused the document itself and held as under : - “Now coming to the terms of the document Ex.P1 in the present case, perusal of which reveals that in condition No.1 it has been mentioned specifically that compensation of Rs.140/- has been fixed for the user of the shop. In condition No.2 it has been written that possession and control will remain of the licensor. In condition No.3 it has been specifically mentioned that he (defendant) knew the difference between rent deed and license deed. Condition No.4 specifies that he will not give the premises to any other person for use. In condition No.6 it has been mentioned that the terms of license is for 11 months and in condition No.11 it is mentioned that in the event of violation of any of the condition the licenser would be entitled to cancel the licence deed. Meaning thereby that in every line of the terms and conditions the word licensee or compensation is mentioned. Therefore, in my considered opinion, the conditions speaks volumes of creation of license deed and not tenancy.” Besides the above finding, it was also found by the trial Court that the defendant has not led any oral evidence even to prove his intention or circumstances at the time of execution of document Ex.P1 as he did not step into the witness box to depose in respect of the nature of the document. It was also found that admittedly defendant is settled in foreign country and witness Naresh Kumar appearing on his behalf as DW1, his attorney, has simply deposed that the shop was taken on rent. He was not present at the time of execution of document Ex.P1 and has further failed to prove on record as to how the defendant is in possession of the shop in dispute since 1979, therefore, trial Court held that Ex.P1 is a licence deed, which stood terminated, as a result of which the plaintiffs were held to be entitled for RSA No.1959 of 2004 -5 - mandatory injunction as prayed for. The defendant went up in first appeal along with an application under Order 41 Rule 27 read with Section 151 CPC for producing challan receipts vide which it was alleged that rent was deposited from the years 1998 to 2000 in order to show that there was a relationship of landlord and tenant between the parties. The application for additional evidence was dismissed, consequently, the said challan receipts were not taken on record. The first Appellate Court on the basis of document Ex.P1, approved the findings of fact recorded by the trial Court that it was a licence not a rent deed, resultantly, the appeal was also dismissed. The defendant has come up in second appeal, which was admitted on 14.5.2004 with the following question of law :- “Whether possession of the appellant is that of a tenant? Learned counsel for the defendant has made only one submission that since the actual physical possession of the shop in question was with the defendant-appellant, therefore, in view of his exclusive possession, he can not be called a licensee but a tenant. He has relied upon a judgment of this Court in the case of Yoginder Pal Wadhera Vs. Ram Charan Saini 1992 (2) PLR 288 to substantiate that if the defendant is in exclusive possession and the plaintiff has no control or interference in the premises then it is a case of lease and not of a licence. On the contrary, Sh.Vikas Behl, learned counsel for the respondents submitted that mere fact of exclusive possession does not prove that lease was created in favour of the plaintiffs. In fact it is the pith and substance of agreement which proves that it was a grant of licence and not a lease and the intention of parties is the main factor to determine the nature RSA No.1959 of 2004 -6 - of a document. Learned counsel for the respondents, has relied upon decision of Hon'ble the Supreme Court in the cases of Vayallakath Muhammedkutty Vs. Illikkal Moosakutty 1997 HRR 47 SC and Delta International Ltd. Vs. Shyam Sunder Ganeriwalla 1999(1) RCR (Rent) 447. I have heard learned counsel for the parties and have gone through the record. Both the Courts below as well as this Court has considered the document Ex.P1 containing terms and conditions under which the defendant was allowed to run the shop. As per condition No.1 of document Ex.P1, compensation of Rs.140/- has been fixed for the user of the shop, in condition No.2, it is mentioned that possession and control of the shop shall remain with the licensor. In condition No.3, it was categorically mentioned that the defendant knew the difference between rent deed and licence deed and in condition No.6, it was mentioned that the terms of the licence were for 11 months and in condition No.11, it is mentioned that in the event of violation of any of the conditions of licence, the same can be cancelled, therefore, from the substance of document Ex.P1, it is proved that it is a licence and not a lease. So far as the decision rendered in Yoginder Pal Wadhera's case (supra) relied upon by the defendant is concerned, where he has claimed due to his exclusive possession that he is a lessee and not the licensee, the same cannot be considered to be the only yardstick as it has been held by the Hon'ble Supreme Court in Vayallakath Muhammedkutty's case (supra) that though the exclusive possession of a RSA No.1959 of 2004 -7 - party is not irrelevant, but at the same time it is also not conclusive as the other tests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations. In the present case, the defendant is admittedly settled in foreign country and did not even enter into witness box to depose as to what was the circumstances at the time of execution of the document nor he could prove on record as to how he was in possession of the disputed shop since 1979 as a tenant. It would also remain uncontroverted as to how the conditions are enumerated in the document Ex.P1, which indicate that it was a case of licence and not a lease. Pith and substance of the agreement is to prove that it was a grant of licence and not a lease as held by the Hon'ble Apex Court in the aforesaid decision in Vayallakath Muhammedkutty's case (supra). Therefore, I am of the view that document Ex.P1 is a licence deed & not a lease and the defendant is not a tenant but a licensee. Both the Courts below have recorded firm findings of fact on the appreciation of document Ex.P1 as such there is no scope of interference in the findings of fact. No question of law much less substantial arises in this appeal for adjudication. No other point has been argued. This appeal being devoid of any merit, is thus, dismissed however, without order as to costs. (Rakesh Kumar Jain) 6.2.2008 Judge Meenu