HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case S.A. No. 01 of 2002 Smt. Leela Singh and others Vs. Smt. O.C. Singh Approved for reporting. Date of Decision- 03.03.2008. Initial of Judge: ............... ,,,,,,,,,,,,,,,,,, .................. HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 166 OF 2002 1. Smt. Leela Singh, W/o late Sri Bhagwat Singh, 2. Sri Umed Singh, S/o late Sri Bhagwat Singh, 3. Anil Singh, S/o late Sri Bhagwat Singh, All R/o Singh State, Hiradungi (Almora) ............Defendants/Appellants. Versus Smt. O.C. Singh, W/o Late Sri C.P. Singh, R/o Singh State, Hiradungri, Almora. ............Plaintiff/Respondent. Dated: 3.3.2008 Hon’ble Rajesh Tandon, J. Heard Sri H.V. Shah & P.S. Bisht, counsel for the appellant and Sri Sandeep Tandon, counsel for the respondent. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 27.6.2001 passed by the District Judge, Almora in Civil Appeal No. 3 of 1999 Smt. O.C. Singh Vs. Smt. Leela Singh and others, whereby the appeal has been allowed and the judgment decree dated 24.10.1998 passed by the Civil Judge (Jr. Division), Almora in Civil Suit No. 75 of 1990 C.P.Singh Vs. Smt. Leela Singh and others has been dismissed. 3. Present Second Appeal has been admitted on the following substantial questions of law: “Whether the suit for possession, filed by the plaintiff was barred by provisions of Section 14 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972?” 4. Briefly stated, a suit was filed by the plaintiff / respondent being Civil Suit No. 75 of 1990 C.P.Singh Vs. Smt. Leela Singh and others praying to the following effect: “vr% izkFkZuk gS fd oknh ds i{k esa fMdzh e; [kpkZ eqdnek bl vk’k; dh ikfjr dh tk; fd eqgYyk ghjkMqWxjh vYeksM+ fLFkr flag LVsV ds vkÅV gkÅl ds 3 dejs e; cjkens dks ftldh pkSgnh bl izdkj gS %& iwoZ esa fe’ku dks tkus okyh cUnkscLrh lM+d] if’pe es oknh dh Hkwfe o tsy ls Åij fe’ku dks tkus okyk jkLrk] mRrj esa oknh dh Hkwfe o fe’ku dks tkus dk jkLrk rFkk nf{k.k esa eq[; Hkou ftles dekUMsUV ,l0,l0 oh0 djk;snkj gS izfroknhx.k ls [kkyh djok;k tkdj dCtk oknh dks fnyok;k tk;A** 5. According to the plaint averments, Sri C.P. Singh (husband of the respondent/plaintiff) is the owner of Singh Estate, situated at Hira Dungri, Almora. There is an outhouse in Singh Estate. It consists of three rooms and Varandah. The main building of Singh Estate was rented to the Commandant of S.S.B. Sri C.P. Singh was employed in he Income Tax Department and retired from the post of Assistant Commissioner of Income Tax. As he was not in good health, he therefore settled at Meerut for this treatment. Since, Sri C.P. Singh was in a government service, he remained out from the native place for about 20 years and due to this fact, he was not able to look after his property i.e. Singh Estate at Almora. For looking after his house, C.P. Singh kept Sri Bhagwant Singh as a care-taker in the out house. Sri Bhagwat Singh died in the month of October, 1989 and on his death, permission to live in the outhouse came to an end automatically. Defendants are the heirs of Sri Bhagwat Singh, they are still living in the out-house of the Singh Estate, although their licence came to an end after the death of Sri Bhagwat Singh. The plaintiff asked the defendants to vacate the outhouse, but they failed to do so. Plaintiff has further submitted that the status of the defendants is that of trespasser. 6. The defendants have jointly contested the case by filing a written statement stating therein that Sri Bhagwat Singh was not put in the outhouse as a caretaker or watchman in the disputed properly i.e. Singh Estate, but he was the tenant of the disputed property as he was paying entire dues of the property i.e. house tax, water tax and electric charges on behalf of Sri C.P. Singh by way of rent of the outhouse. After the death of Sri Bhagwat Singh, they inherited the property in question as they are legal heirs of the original tenant Sri Bhagwat Singh. It has further been held that the tenancy cannot be terminated by the plaintiff as there is no law in which tenancy automatically comes to and end after the death of tenant. Defendants have further submitted that they were not bound to vacate the premises as first they are legal heirs of the tenant and further they have got no other accommodation in the city of Almora. Defendants have further submitted that the plaintiff has served on them a notice, but he has no right to get the disputed property vacated from them. 7. On the pleadings of the parties, the trial Court has framed following issues: “1. Whether the husband of defendant no. 1 and the father of defendant nos. 2 and 3, Sri Bhagwat Singh, were put in the disputed property as a caretaker to watch and care Singh Estate? 2. Whether Bhagwat Singh was the tenant of the disputed property? If so, whether he used to pay the rent of the disputed property by way of expenses in repairs, payment of electric and water charges and Safai of Singh Estate? 3. Whether the tenancy of the disputed property came to an end automatically after the death of Sri Bhagwat Singh? 4. Whether the defendants have no alternative accommodation to live in? 5. Whether any parties of the disputed property was got constructed by Sri Bhagwat Singh? If so, its effect? 6. Whether the suit property is undervalued? If so, whether the court fee paid is insufficient? 7. To what relief, if any, is the plaintiff entitled? 8. Whether the suit was neither instituted by Sri C.P. Singh, nor he has appointed any representation to file the suit?” 8. On behalf of the plaintiff, plaintiff / respondent has been examined on oath as P.W.1. Towards the documentary evidence, the plaintiff has filed copy of the power of attorney dated 28.4.1988, notice dated 23.6.1990, receipt of the Post Office and A.D., letter written by the H.P. Singh. 9. On behalf of the defendants, Smt. Leela Wati has been examined as D.W.1. Towards the documentary evidence, the defendants have filed per list 73 Ga 25 documents i.e. original notice given by Sri Ramesh Chandra Shah to the defendants and receipts of water tax and electricity bills. Per list 82 Ga, the defendants have filed 95 documents, which are bills and receipts of electricity, water and sewage. 10. While deciding the issues as to whether the husband of defendant no. 1 and the father of defendant nos. 2 and 3, Sri Bhagwat Singh, were put in the disputed property as a caretaker to watch and care Singh Estate and further as to whether Bhagwat Singh was the tenant of the disputed property and whether he used to pay the rent of the disputed property by way of expenses in repairs, payment of electric and water charges and Safai of Singh Estate, the trial Court has recorded a finding to the following effect: ^^bl xokg us izfrijh{kk esa dgk fd fdjk;snkjh ds ,ot~ esa geus Hkxoraflag dks dksbZ osru ugh fn;k] jgus ds fy, txg nh FkhA lh0 ih0 flag ds fy, Hkxor flag i= O;ogkj djrs FksA flag LVsV dk fctyh ikuk] lQkbZdj] Hkoudj Hkxor flag gh vnk djrs FksA geus dHkh ;g VSDl vnk ugh fd;kA Hkxor~ flag tc&2 VSDl tek djrk Fkk ge mls ns nsrs FksA eq>s dqN /kujkf’k dk vUnktk ugha gSA fctyh ikuh] lQkbZ o Hkoudj Hkxor flag nsrk Fkk mldh tkudkjh lh0ih0 flag dks gksxhA eq>s ugh gSA gekjk Hkxor~ flag ds chp dk;Zokgh dh fyf[kr i<+r ugha gksrh FkhA** 11. However, without any proof of any relationship of landlord and tenant between the plaintiff and the defendants, a finding has been recorded that the defendants/ appellants were tenants of the accommodation. 12. While deciding the issue as to whether the suit property is undervalued, since this point was not forced by the counsel for the defendant, this issue has been decided in negative. 13. While deciding the issue as to whether the defendants have no alternative accommodation to live in, the trial Court has recorded a finding that there is no occasion to dismiss the suit if it assumes that the defendants have no other alternative accommodation, but there has to be seen whether the defendants are the licensees or not. Thus, this issue has been decided in negative. 14. While deciding the issue as to whether the tenancy of the disputed property came to an end automatically after the death of Sri Bhagwat Singh, the trial Court has recorded a finding that Leelawati and defendatns no. 1 and 2 used to reside in the tenanted premises with Bhagwat Singh and their tenancy has not been terminated anyhow. This issue has been decided accordingly. 15. While deciding the issue as to whether any portion of the disputed property was got constructed by Sri Bhagwat Singh, the trial Court has relied upon the letter Ext. 44Ka, which has been written by Sri C.P. Singh. It shows that the tin-shed had already been constructed in the year, 1967. Relying upon the aforesaid letter, the trial Court has recorded a finding that on the property in dispute, one room has been constructed by Bhagwat Singh with the consent of plaintiff. 16. While deciding the issue as to whether the suit was neither instituted by Sri C.P. Singh, nor he has appointed any representation to file the suit, the trial Court has relied upon the certified copy of the Power of Attorney filed by the plaintiff, according to which, the plaintiff has every right to file the suit as Sri C.P. Singh has died. This issue has been decided in negative. 17. While deciding the issue with regard to relief to the plaintiff, the trial Court has recorded a finding that since it has already come in the findings of issue no. 1 and 2 that the defendants are tenant of the premises in question and not the licensee and the tinshed had been constructed by the predecessor of the plaintiffs, the licence cannot be terminated until and unless the expe3nses incurred by the defendants are not repaid by the plaintiff / landlord. 18. By recording the aforesaid findings, the suit was dismissed by the trial Court on 24.10.1998. 19. Aggrieved by the said order, the plaintiff preferred an Appeal being Civil Appeal No. 3 of 1999 Smt. O.C. Singh Vs. Smt. Leela and others. 20. The appellate Court has recorded a finding relying on the statement of Smt. O.C. Singh that the predecessor of the defendants / appellants was only a watchman to look after the Singh Estate and he was not occupying the premises in question as a tenant. The statement of the O.C. Singh / plaintiff is quoted below: ^^bl flag bLVsV es ,d Out House Hkh gSA Out Houses esa nks dejs o cjkenk gSA izfroknhx.k blh Out Houses esa jgrs gSA izfroknhx.k ls igys gekjk pkSdhnkj o care Taker ;k ns[kHkky djus okyk Hkxor flag jgrk FkkA Hkxor~ flag dh e`R;q 1989 eas gks x;h FkhA Hkxor flag gekjk fdjk;k nkj ugh FkkA pkSdhnkj dh ,ot es mls jgus ds fy, txg nh FkhA Hkxor flag dh e`R;q ds ckn bl lEifRRk ds pkSdhnkj ;k ns[kHkky djus okyk dksbZ ugha jgkA bl lEifRr dh pkSdhnkjh ;k ns[kHkky dh btktr tks Hkxor flag dks nh x;h Fkh og Hkxor flag dh e`R;q ds ckn lekIr gks x;hA fQj oknh us btktr lekIrh dk uksfVl vius odhy }kjk fHktok;k rc Hkh izfroknh us edku [kkyh ugh fd;kA rc esjs ifr us ;g nkok fd;k A Hkxor flag dks vius ns[kHkky ds fy;s 1965&66 esa j[kk FkkA eSa o esjs ifr bl chp vYeksM+k ls ckgj FksA Jherh yhyk flag izfroknh vLirky es dk;Z djrh gS vk;k gS ;k irk ughA bUgs vLirky dh rjQ ls dejk feyk gqvk gSA Hkxor flag vkSj izfroknhx.k ls esjs ifr Hkh dHkh dksbZ fdjk;snkjh r; ugh gqbZA E;w0 VSDl gekjk Caretaker ;k pkSdhnkj Hkxor flag nsrk FkkA tc ge vYeksM+k vkrs Fks VSDl dk iSlk ns nsrs Fks vkSj dHkh advance es iSlk NksM+ tkrs FksA** 21. The appellate Court has also recorded a finding on the basis of the admission of Smt. Leela Wati to the following effect: “11. This letter Ext. A-44 does not show that Bhagwat Singh was kept as a tenant. It simply shows that Bhagwat Singh was kept in the disputed property as a watch-man so that he may take care of the Singh-Estate. Sri C.P. Singh was of the view that Sri Singh has given the disputed property free of cost. The payment of the dues by Sri Bhagwat Singh or the defendants does not make him a tenant of the disputed property. There is a clear out admission of Smt. Lilawati that her husband was kept in thue disputed property as a watchman. The duty of the watchman is to look after and take every care of the property for which he is kept. He cannot grab the property for which he is kept to watch the same. Payment of dues does not change the possession or the status of a person. Moreover, Smt. O.C. Singh has stated that she was paying the taxes and other dues to Sri Bhagwat Singh, whenever the same was demanded by him. ........Thus, from the evidence on record and the admission of Smt. Lilawati, it is fully made out that Sri Bhagwat Singh was kept as a caretaker or watchman of the Singh Estate. He was not kept as a tenant in the disputed property. There is no doubt that the licence comes to an end after the death of the licensee.” 22. The appeal was, therefore, allowed on 27.6.2001 and the judgment and decree passed by the trial Court was set aside. 18. In the case Khalil Ahmad Bashir Ahmad v. Tufel Hussain Samas Bhai Sarangpurwala ARC 1988 (a) SC 165 the Apex Court while dealing with the question of lease and licence has observed as under: This Court referred to the well-known decision in the case of Errington v. Errington 4 where Lord Denning reviewing the case-law on the subject summarized the position as follows: “The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.” The Court of Appeal in England again in Cobb v. Lane 5 considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. Somervell, L.J., had observed: “the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties.” Denning, L.J. also reiterated the same decision. Reviewing these decisions Denning, L.T. had observed at page 384 of the report (1) that to ascertain whether a document created a licence or lease, the substance of the document must be preferred to the form; (2) the real test was the intention of the parties – whether they intended to create a lease or a licence; (3) if the document created an interest in the property, it is a lease; but if it only permitted another to make use of the property, of which the legal possession continued with the owner, it was a licence; and (4) if under the document a party got exclusive possession of the property, prima facie, he was considered to be a tenant; but circumstances might be established which negative the intention to create a lease. ******************************************* The distinction between leave and licence has been well summarixed in Halsbury’s Laws of England, Fourth Edn., Volume 27, p. 13. In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. Lord Greene, M.R. had observed this in Booker v. Palmer 1942 (2) All. ER 674 at 675, 677. This is a salutary test.” 19. In the case of Booker v. Palmer 1942 (2) All. ER 674 it has been held as under: “In my option there is no evidence from which any such inference could be drawn. Whether or not parties intend to create as between themselves the relationship of landlord and tenant, under which an estate is created in the tenant and certain mutual obligations arise by implication of law, must in the last resort be a question of intention. Where the parties enter into a formal document the intention to inter into formal legal relationship is obvious; but when all that happens is a quite causal conversation on the telephone, it is very much more difficult to infer that the parties are really contemplating entering into any legal relationship at all and in particular, such a special relationship as that of landlord and tenant. That brings me to the evidence from which it is alleged that a tenancy is to be inferred. The landowner said: I remember Mrs. Godsmith, in the early summer of 1940, telephoning and saying she was interested in some people who had been bombed out of London and could I give one of Culme cottages to these evacuees ? I said they were welcome to it for the duration of the war rent free. That is all that happened. Later on in his evidence this statement is recorded in the Judge’s note: I offered the cottage free to Mrs. Goldsmith, not to Mrs. Palmer. To my mind that quite clearly means that the offer to which he had previously referred was made to Mrs. Goldsmith and not to Mrs. Palmer, and is not intended to carry the matter any further. That was a conversation where a charitably disposed person, wishing to help people in distress, said over the telephone to a friend in effect: “ You can certainly put these evacuees you are interested in my cottage and they can stay there for the rest of the war and, of course, I shall not charge them any rent. *********************************** There is one golden rule which is of very general application, namely that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. It seems to me that this is a clear example of the application of that rule.” 14. Lucknow Bench of Allahabad High Court in the case Turab Ghosi vs. Smt. Laxmi Agarwal and another, AIR 1984 Allahabad 180 has held that the person permitted to occupy premises for safety and without payment of money and he failed to specify exact period of time when possession commenced, shall be treated to be the licensee and not the tenant. The single Judge has observed as under: “Prima facie a permission to occupy for safety of the property would not establish an unrestricted or unconditional use or possession of the property. The possession of use would be confined to the occupier’s obligation to stay for so long as the needs for safety are felt and thereafter to quit.” 23. From the findings on the record, it is fully established that the status of the predecessor of the appellant was that of a licensee and not a tenant. 24. In view of the aforesaid, I do not find any substantial question of law involved in the present Second Appeal so as to interfere under Section 100 of the Code of Civil Procedure and the findings recorded by the appellate Court deserve to be confirmed. 25. Consequently, Second Appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 3.3.2008 Rathour