IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 161 OF 1993 LETTERS PATENT APPEAL NO. 161 OF 1993 LETTERS PATENT APPEAL NO. 161 OF 1993 FROM FROM FROM FIRST APPEAL NO. 1109 OF 1987 FIRST APPEAL NO. 1109 OF 1987 FIRST APPEAL NO. 1109 OF 1987 Stanley Parkar Jones, since deceased through his legal heirs 1a) Mrs.Yvonne Rose Jones ...Appellant (Orig.Defendant) V/s. Bansraj Laltaprasad Mishra ...Respondent (Orig.Plaintiff) Mrs.V.V. Thorat for the Appellant. Mr.A.K. Abhyankar i/b. Mr.A.R. Pande for the Respondent. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : APRIL 15, 2008 DATED : APRIL 15, 2008 DATED : APRIL 15, 2008 P.C. :- P.C. :- P.C. :- 1. The appellant is the original defendant and the respondent is the original plaintiff. For the sake of convenience, they shall be referred to as defendant and plaintiff. 2. This appeal arises out of a judgment and decree - 2 - in First Appeal No.1109/87 whereby the learned Single Judge of this Court was pleased to allow an appeal and set aside the judgment and order passed by the City Civil Court and passed a decree for possession against the defendant. . Brief facts are as under :- 3. The plaintiff filed Special Civil Suit No.6954/1972 in the City Civil Court, Bombay, for possession and for arrears of compensation of Rs.6,175/-. The property in question was plot No.81, 82 situated at Dr.E.Mojes Road, Worli, admeasuring about 50 ft x 20 ft. It is an admitted position that the property belongs to the Bombay Municipal Corporation. In the plaint, suit property was described as an open plot of land with the sheds standing thereon. In the plaint, it was alleged that the plaintiff had allowed the defendant to use the premises as per the terms recorded in an agreement dated 1st May, 1971. It was alleged that as per the said Leave and Licence Agreement which commenced from 1st May, 1971, the defendant had - 3 - agreed to pay compensation at the rate of Rs.475/- per month and the period of the licence was eleven months. It is further alleged that the defendant did not pay the compensation as agreed and the cheques which were given by the defendant towards compensation for the month of May and June 1971 dishonoured. The plaintiff, therefore, revoked the licence by notice dated 2nd October, 1971 and called upon the defendant to handover quiet and vacant possession of the premises. It was alleged that the defendant had committed several breaches of the licence. Alternatively, it was pleaded that the Agreement created a lease in favour of the defendant and the defendant was plaintiff’s subtenant and the subtenancy was determined by notice dated 9th May, 1972. It was also pleaded that the defendant had disputed the title of the plaintiff and brought about the cessation of the relationship of landlord and tenant between the plaintiff and defendant. 4. The defendant filed his written statement and contended that the suit was not maintainable in the City Civil Court. It was alleged that the Agreement was - 4 - executed by the plaintiff and defendant but it was stated that it was lease of the land and not leave and licence. It was further alleged that the defendant came in possession of the plot together with the shed on 27th December, 1970 in arrangement with one Shamsher Khan and after the departure of Samsher Khan, the plaintiff approached the defendant and represented to him that he was the legal tenant of the premises and offered to accept the defendant as his subtenant. It is alleged by the defendant that he accepted the representation made by the plaintiff and entered into Agreement dated 1st May, 1971. It was further stated by the defendant that the plaintiff had agreed to make the defendant as his subtenant. It was further categorically contended that after possession of the land was given to him by the plaintiff, he constructed a tin shed admeasuring 50 ft x 20 ft. at his own cost. It is further alleged that he received a letter from BMC on 3rd January, 1974 informing him that one Sayyed Mansoor Hussein was lessee of the suit land and the defendant was not a lawful occupant of the suit land. It was, therefore, alleged by the defendant that the Agreement dated 1st May, 1971 - 5 - is void because of misrepresentation and fraud played by the plaintiff on the defendant. Alternatively, it was pleaded that in the event, the court held that the Agreement dated 1st May, 1971 was valid, in that case, it was contended that the defendant was tenant of the plaintiff and not licensee as alleged. 5. The learned Judge of the City Civil Court by judgment and order dated 30th October, 1987 dismissed the suit filed by the plaintiff. The trial Court held that the plaintiff had failed to prove that the premises were given to the defendant under the Leave and Licence Agreement dated 1st May, 1971. It was held that the Leave and Licence Agreement dated 1st May, 1971 was sham and bogus. It was further held that the defendant was not estopped from raising the contention that he acquired the suit premises from Shamsher Khan. 6. Being aggrieved by the said judgment and order, the plaintiff preferred First Appeal in this court. The First Appeal No.1109/87 was allowed. Against this judgment and order, the defendant preferred - 6 - Letters Patent Appeal. Initially, this Letters Patent Appeal was allowed and the judgment and decree of the learned Single Judge was set aside. The judgment and order passed by the trial court dismissing the suit was upheld. 7. Being aggrieved by the aforesaid order, the plaintiff preferred an appeal to the Apex Court being Civil Appeal No.639/2001. By judgment and order dated 16th February, 2006, the appeal was allowed and the matter was remanded to this Court for fresh hearing and disposal. The operative order passed by the Apex Court reads as under :- "xxxx, we remand the matter to the Division Bench for fresh hearing and disposal. However, we make it clear that we have not expressed any final opinion on the merits of the case. As the matter is pending since long, we request the High Court to dispose of the matter within three months. The interim order passed in this appeal shall continue till the disposal of the matter by the High Court. . The appeal is disposed of accordingly." 8. We have heard the learned Counsel appearing on - 7 - behalf of the defendant-appellant herein and the learned Counsel appearing on behalf of the respondent-original plaintiff at length. Before considering rival submissions, it would be relevant to consider what has been observed by the Apex Court in the matter in hand. In para 12, the Apex Court has observed as under :- "12. It is not in dispute that on 1-5-1971 an agreement was entered into. What the defendant tried to establish was that prior to the date of agreement one Shamsher Khan had put the defendant in possession and therefore the subsequent agreement with the plaintiff-appellant was really of no consequence. This aspect was dealt by the learned Single Judge in detail. It was held that the concept of constructive possession was clearly applicable even if the defendants’ case of Shamsher Khan having put him in possession is accepted. Illustrations were given to buttress the interpretation given. The learned Single Judge was of the view that the word "possession" in section 116 also includes constructive possession. Unfortunately the Division Bench has not dealt with this aspect. It would be relevant at this point of time to take note of what is stated in section 116 of the Evidence Act. The same reads as follows :- "Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a - 8 - title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." . Thereafter, in Para 13, the Apex Court has observed as under :- 13. The "possession" in the instant case relates to second limb of the section. It is couched in negative terms and mandates that a person who comes upon any immovable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given. 9. Finally, in paragraphs 18 and 19, the Apex Court felt that the Division Bench has laid stress on the title which has no relevance in the background of what is stated in Section 116 of the Evidence Act. The Apex Court also observed that the Division Bench did not lay stress on the person who is in possession of the immovable property. Another thing which has to be noted here is that the trial court did not give any finding on - 9 - the second alternative plea taken by the defendant that he was a lawful subtenant of the suit premises. The trial Court also did not record any finding regarding the termination of subtenancy of the defendant. The defendant did not file any cross objection challenging the said observation and finding recorded by the trial court. One additional factor which has to be noted here which is relevant for the purpose of deciding this appeal is that the defendant had filed a criminal case against the plaintiff on 12th January, 1974 for cheating and deception for having misrepresented the defendant that he is the tenant of the suit premises. This criminal complaint was dismissed on 6th December, 1974. The plaintiff has brought on record the criminal complaint which was filed by the defendant and consequent judgment of the trial court. 10. The case of the plaintiff in brief is that he was in possession of the premises and the defendant executed a Leave and Licence Agreement on 1st May, 1971 and thereafter, committed breach of the licence and therefore, the suit was filed for possession by the - 10 - plaintiff in the City Civil Court. The defendant, on the other hand, contended that he was already in possession in 1970 and that through misrepresentation, plaintiff got the said Agreement dated 1st May, 1971 executed by misleading him and therefore, the said Leave and Licence Agreement was void and that the plaintiff himself have the authority to enter into the said agreement since he did not have valid title. 11. Principle of equitable estoppel is laid down in Section 116 of the Evidence Act and as observed by the Apex Court in the said judgment by which the matter was remanded to this Court, a person who is in possession of an immovable property through another person and claims to be the licensee, such a person cannot question the title of a person who has put him in possession. What is relevant, therefore, in such a suit which is filed is not the title of licensor but the possession of the licensor on the date of the agreement by which the defendant has put in possession. In this case, it is alleged by the plaintiff that defendant and plaintiff had executed agreement dated 1st May, 1971 which is an - 11 - agreement of leave and licence and by virtue of the said agreement, the defendant accepted his position as a licensee. On the other hand, the defendant has pleaded that the agreement was sham and bogus. 12. From the evidence, therefore, if it is found that the agreement was not sham and bogus and if it is established that the Leave and Licence agreement dated 1st May, 1971 was a valid agreement, this case of the defendant must fail since in the agreement it has been mentioned that he was put in possession as a licensee on the date of the agreement. If, however, defendant is in a position to establish that the agreement was sham and bogus, then plaintiff would not be entitled to seek possession of the premises on the basis of the Leave and Licence agreement. Though the scope of interference by the Division Bench under the Letters Patent Appeal is limited, in order to see whether the finding recorded by the learned Single Judge in respect of possession of the plaintiff at the time of entering into the agreement dated 1st May, 1971 will have to be considered. The learned Single Judge has observed that - 12 - the word "possession" which is found in second part of Section 116 would also include constructive possession. In the light of these facts, evidence will have to be briefly seen. 13. Before the rival submissions are taken into consideration, it would be relevant to note that the defendant amended the written statement on two occasions. Initially, the defendant had taken out following stand in his written statement :- "(a) That the Civil Court had no jurisdiction to try the suit as the defendant was the tenant or the sub-tenant of the suit premises and not a licensee as alleged, and that, "the landlord had agreed to this arrangement arrived at between the plaintiff and the defendant." (b) That the defendant had constructed a shed on a portion of the suit premises by spending Rs.4,000/-. (c) That the defendant had not committed any breach of the Agreement and gave explanations for the same in para 9 of his written statement. (d) That, there was no cause of action for the suit." Thereafter, on 10.1.1976, the defendant had taken out - 13 - chamber summons for amendment of the written statement in the following terms :- "(a) to amend the Written Statement to contend that the Agreement dated 1-5-1971 was void on account of fraud and misrepresentation made by the plaintiff that, he was the legal tenant of the suit premises : (b) to delete from the original Written Statement the averment that Agreement of sub-tenancy between the plaintiff and the defendant was consented to by the landlord." The trial Court allowed the chamber summons and consequently the written statement was amended by the defendant. Subsequently, another Chamber Summons was filed by the defendant praying for amendments in his written statement in the following terms :- "(a) that, the defendant was not inducted in the suit premises on 1-5-1971 but that, he was already in possession of the plots with a shed on it and was carrying on his business in the name of Famous Engineering Works on an undertaking arrived at with one Shamsher Khan on 27-12-1990; (b) that, the said Shamsher Khan vanished away and the plaintiff approached the defendant representing him that plaintiff was the legal tenant of the suit premises and believing the - 14 - same the defendant executed the Agreement dated 1-5-1971 in favour of the plaintiff; (c) that, the said Mansoor Hussein was and the tenant in respect of the suit property and the defendant was in lawful occupation of the suit property; (d) that, the Agreement dated and 1-5-1971 was void on account of the fraud and misrepresentation practised by the plaintiff." The second amendment was also allowed. 14. The learned Counsel appearing on behalf of the appellant - original defendant submitted that the plaintiff in his cross-examination had admitted that the defendant was in possession of the premises in 1970 and had informed the defendant that the place belongs to the plaintiff and that he was tenant of the Corporation and thereafter, leave and licence agreement was executed on 1st May, 1971. The learned Counsel for the defendant submitted that therefore, the plaintiff was not entitled to suit possession. She submitted that Section 116 of the Evidence Act contemplated two situations, one in respect of a tenant creating sub-tenancy and the wording in the said section clearly indicated that the tenant or - 15 - person claiming through such tenant could not deny or question the title of the landlord in respect of the immovable property. She submitted that however, the subsequent part of the section indicated, so far as licensee is concerned, the words "or person claiming through such tenant" did not find place in the second part of Section 116 and therefore, the defendant was already in possession in 1970, the plaintiff could not claim possession on the basis of leave and licence agreement dated 1st May, 1971. She further submitted that the licence was executed on the basis of misrepresentation and fraud and as such, the plaintiff cannot get assistance of leave and licence agreement for the purpose of seeking possession of the premises from the defendant. She invited our attention to the evidence of the plaintiff and the defendant as also the documentary evidence in support of her submission. 15. Shri Abhyankar, learned Senior Counsel appearing on behalf of the plaintiff, on the other hand, submitted that the defendant had executed the agreement of leave and licence agreement on 1st May, 1971. He further - 16 - submitted that the defendant had filed a criminal case against the plaintiff on the ground that the plaintiff had misrepresented that he was the tenant of the premises and therefore, he had executed the leave and licence agreement. This complaint was dismissed. He submitted that the plaintiff had brought the complaint and the evidence given by the defendant on record in the suit. He submitted that the defendant had taken a stand before the criminal court that he was in possession in 1970 and that he had constructed the tin shed subsequently in 1971 and on the other hand, in the written statement which he had filed in the civil suit and the evidence which was given by him, was to the effect that the tin shed was already in existence in 1970. 16. The two points which fall for consideration are (a) whether it has been established by the defendant that the agreement dated 1.5.71 was executed by him on account of misrepresentation and fraud by the plaintiff and secondly, whether the defendant was put in possession of the premises on account of the agreement - 17 - dated 1.5.71 and whether on the date on which the said agreement was executed, the plaintiff was in possession of the premises. 17. It must be noted here, in so far as the plea of subtenancy is concerned, by virtue of amendment in the written statement, the averment in the written statement that the agreement of subtenancy between the plaintiff and the defendant was consented to by the landlord was allowed to be deleted by the trial court. The plea of subtenancy was not pressed before the trial court or in the High Court in the First Appeal. This question also not agitated before us. 18. So far as the first question regarding the validity of the agreement is whether the plaintiff in his evidence has deposed that he has stated in detail as to when he acquired possession of the land, he has admitted that Corporation was the owner of the land and that he had purchased the tenancy rights from Mansoor Hussein in whose name the tenancy stood in the record of the corporation. He has stated that initially he was - 18 - carrying on scrap business in the said shed and he was carrying on business in the name of New Maharashtra Trading company. The plaintiff has further stated that in the same area, there was another plot no.71 and he was in occupation of the plot since 1960 and he was carrying on scrap business in that plot under the name being New Maharashtra Trading Co. and he had to stop that business on plot no.71. He further stated that Mansoor Hussein was carrying on business of firewood at plot no.82 and 83 and that he was admitted as a partner of Mansoor Hussein and he had paid Rs.2000/- for that purpose and that the plaintiff and Mansoor Hussein could not carry on business together, therefore, the Mansoor Hussein sold his right, title and interest in the business to the plaintiff and a Deed of Assignment was executed by him in that behalf in favour of the plaintiff on 21st August, 1967 and the total consideration was received by Mansoor Hussein was to the tune of Rs.10,000/-. The document was executed on the stamp paper of Rs.170/- in which Rajendra Sethi was shown as confirming party and he had also signed that document in that capacity and the Mansoor Hussein had - 19 - signed as the assignor. The plaintiff has already stated that Mansoor Hussein had constructed a small shed on the land and thereafter, he had paid taxes to the Corporation and the bills and receipts were produced by him. Though bills were issued in the name of Mansoor Hussein, the tax was in connection with the shed and the address was shown to be C/o. New Maharashtra Trading Co. It is an admitted position that the plaintiff was carrying on business in the name of New Maharashtra Trading Co. and the defendant had said so in his evidence at the subsequent stage. The plaintiff had further stated that after carrying on business for about two years, he gave the same to the defendant’s propriety concern called Wood & Wooden Enterprises. He had stated that thereafter concerned Wood and Wooden Enterprises stopped their business and they gave back possession of the suit flat to the plaintiff and thereafter, he gave it to one Khan who also returned the business to the plaintiff and thereafter, he gave the land alongwith shed on leave and licence basis to the defendant who executed agreement dated 1.5.71. The plaintiff had also stated he had insured this shop premises with the goods - 20 - and he had produced the Xerox copies of the year 1972, 1973 and 1974, however, the xerox copies were not exhibited though they were taken on record. The plaintiff had also stated that the defendant’s cheques bounced back. He produced two cheques for Rs.950/- and the other for Rs.475/-. He then gave a notice to the defendant dated 2.10.71. No reply was given to the plaintiff’s notice. The plaintiff has also stated that he applied to the Corporation for insertion of his name in the Corporation record, however, xerox copy of the application was produced, therefore, it was marked for identification and not exhibited. The plaintiff has further stated that he had given his car for repairing to the defendant and had told the defendant that he was carrying on business in his place and that thereafter, the defendant agreed to do agreement which was executed on 1.5.71 which was leave and licence agreement. In the cross-examination, he admitted that the defendant was in possession in 1970. In our view, most of the evidence of the plaintiff has gone unchallenged except his stray admission that defendant was in possession in 1970. It has been admitted by the defendant that the plaintiff - 21 - was carrying on business in the name of New Maharashtra Trading Company. The defendant also has not denied of receiving plaintiff’s Advocate notice dated 2.10.1971. In the light of this evidence, it has to be seen whether the defendant has established that the agreement dated 1.5.71 was executed on account of misrepresentation and fraud. The plaintiff has brought on record the criminal complaint which is