RSA No. 2839 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 2839 of 2008 Date of decision: December 8,2008 Satish Chand Gaur ..Appellant. Versus Basti Ram Sharma ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Raj Mohan Singh, Advocate for the appellant. ... Rakesh Kumar Garg,J. This is plaintiff's second appeal challenging the judgment and decrees of the courts below whereby the suit for permanent injunction restraining the defendants from interfering in the peaceful possession and enjoyment of the plaintiff over the property in dispute has been dismissed. Briefly stated, the facts of the case as alleged in the plaint are that the plaintiff has been in possession of the property marked by letters A B C D situated at Railway Road, Faridabad bearing Plot No. 220 since more than 35 years at a monthly rent of Rs. 120/-. This property was taken on rent by him about 35 years back and since then he is using the same as his office. The plaintiff is a railway booking agent and is performing the job of booking of goods of different parties for transportation through railway which has been duly approved by the Railway Department. The plaintiff has also got opened account on the same address in the Bank and doing the business in the said premises. But the defendant is bent upon to dispossess him from the suit property without any right to do so. Hence, the present suit for permanent injunction was filed by the plaintiff against the defendant. The suit was contested by the defendants by filing written statement raising their in various preliminary objections. RSA No. 2839 of 2008 2 On merits, it is stated that in the fact the land and building at 220, Railway Road, Faridabad where the shop in question exists, was purchased by M/s Trueman Engineers, a firm owned by the sons of the defendant on 10.11.1989. It is further submitted that the defendant being an old man was permitted by their above said sons to occupy the shop for doing social work by permitting some doctors and other persons to help the needy and poor persons. The plaintiff was earlier evicted from one of the places earlier occupied by him and he had requested the defendant in the year 1990 to permit him to use the shop in question only for his postal address where he could show to his clients and railway authorities that he had some postal address. It is further submitted that since the plaintiff is the son of Shri M.P. Gaur, who is a close friend of defendant and they had very good cordial relations with each other, therefore, he permitted the plaintiff to use the premises for the same and thus plaintiff used to come and collect his mail from the shop in question. Thereafter, the plaintiff started objecting to the philanthropic work being carried out by the defendant from the shop in dispute which led the defendant to stop the plaintiff from using postal address of the said shop and he also revoked the license of the plaintiff in respect of the shop in question. Therefore, it is wrong that plaintiff has been in possession of the said premises as a tenant under the defendant for the last 35 years at the monthly rent of Rs. 120/- per month. It is further submitted that the plaintiff is not running a booking agency in the shop in question and he has never been in possession of the shop in any manner. Since the suit of the plaintiff is false and frivolous, therefore, the same is liable to be dismissed. The defendant also filed counter claim to the plaint reiterating the facts, as mentioned in the written statement with the prayer that plaintiff be directed to stop the use of the premises in any manner. Replication was filed controverting the assertions made in the written statement and reiterating the averments made in the plaint. The plaintiff also filed reply to the counter claim stating therein that the defendant gave him the impression that he is the landlord of the property in question and is RSA No. 2839 of 2008 3 competent to let it out. Believing his representation, the plaintiff took the premises on rent from him and as such, the plaintiff is in possession thereof as a tenant for the last about 35 years and was regularly paying the rent to the defendant @ Rs.120/- per month. However, no receipt was ever issued by the defendant to the plaintiff after receipt of the rent. It is further stated as wrong that there was a dispute in the month of June 1999 and the report, if any, made by the defendant is false and bogus. The defendant wanted to dispossess the plaintiff from the premises in dispute wrongly and illegally, therefore, the plaintiff filed the present suit against the defendant on 30.6.1999. It is further stated that the plaintiff never occupied the premises in question as a licensee under the defendant, therefore, the question of revocation of license does not arise and lastly prayed for dismissal of the counter claim. After hearing learned counsel for the parties and going through the evidence on record, the trial Court dismissed the suit of the plaintiff and counter claim of the defendant was decreed and plaintiff was directed to vacate the shop in question occupied by him as a licensee within two months from the date of order. Feeling aggrieved, the plaintiff/appellant preferred an appeal which was also dismissed by the Additional District Judge (I), Faridabad vide impugned judgment and decree dated 28.5.2008. Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the pleadings as well as material evidence brought on record has been misread, misconstrued and misapplied to the facts of the case resulting in failure of justice. He has further argued that it is the case of the appellant that he is in possession of the property in dispute as a tenant for the last more than 35 years and is doing his work as Railway Booking Agent, whereas the defendant- respondent has come into picture on the basis of a sale deed dated 10.11.1989. Thus, the possession of the plaintiff-appellant over the suit land is old and RSA No. 2839 of 2008 4 started much prior to coming into existence of the sale deed dated 10.11.1989 in favour of the defendant-respondent. Therefore, the defendant respondent cannot claim the plaintiff-appellant to be a licensee over the suit land. On the basis of the above arguments, learned counsel for the appellant has raised the following substantial question of law in this appeal:- “Whether the plaintiff-appellant can be held to be licensee under the defendant-respondent, particularly when the possession of the plaintiff-appellant is continued since long prior to even date of sale deed dated 10.11.1989 in favour of the defendant-respondent ? I have heard learned counsel for the appellant. However, I find no force in the contention raised by him. The courts below on appreciation of evidence have recorded a concurrent finding of fact that the plaintiff has not been able to prove that he is a tenant over the shop in question. Rather, it has been proved that he is merely a licensee and his license stands revoked by the defendant and therefore, he is not entitled to any injunction. While recording this finding, the courts below have also found that in spite of the fact that the appellant has claimed his possession for the last more than 35 years but he has not placed on record any document with regard to the payment of rent. He himself admits in his cross-examination that there was no agreement deed between him and Basti Ram. Admittedly, the plaintiff is an Income Tax Payee but he has not submitted his Income Tax Return to show the payment of rent. The plaintiff has also failed to give any other proof regarding payment of rent. The courts below have also recorded a finding of fact that the plaintiff who although claims himself to be a tenant in the shop in question @ Rs. 120/- per month yet none of the document produced by him supports his claim. There is no evidence on record to show that the plaintiff was inducted as a tenant in respect of the property in question. Rather the evidence on record proves that he was only permitted to use the shop in question for the purpose of postal address. It was the duty of the plaintiff to prove that he is in occupation of RSA No. 2839 of 2008 5 shop in question as a tenant under the defendant. In the present case, on the basis of evidence led on behalf of the plaintiff, it cannot be presumed that he was a tenant in the demised premises. The relationship between the landlord and tenant is legal and not equitable. Mere occupation of a premises without payment of rent is no proof of existence of any tenancy as there cannot be any tenancy merely on the basis of occupation. It has to be proved that the intention of giving and taking possession of the property was for the purpose of creating a tenancy and use and occupation of the premises as a tenant. If there is no transfer of interest in the property on the basis of oral or written agreement, it is a case of license.” In the present case also, there is neither any written agreement nor any proof of existence of any oral agreement creating tenancy between the parties. In the present case, in the absence of any rent agreement creating tenancy, the only evidence to prove a tenancy was by way of payment of rent and production of rent receipt thereof, which could not be proved by the appellant.The plaintiff has also not refuted that plot No.220, Railway Road, Faridabad is a big property and there are numerous persons having the same address which fact stands established from the record of the license placed on the file. For the reasons recorded above, I find no merit in this appeal. Dismissed. December 8, 2008 (RAKESH KUMAR GARG) nk JUDGE