Case: Konchada Ramamurthy Subudhi &amp; Anr Vs. Gopinath Naik

2. The facts in this case are not in dispute. One Konchada Ramamurti Subudhi, deceased, now represented by his legal representatives and appellants before us-hereinafter referred to as the decree-holder- and Bhagirathi Naiko, now represented by Gopinath Naik, Judgment debtor, filed a compromising petition under Order 23 R. 3 of theCode of Civil Procedure in the Court of subordinate Judge, Berhampur, in T. A. No. 13 of 1955. In terms of this compromise petition a decree was passed. The decreeholder filed an application for execution of the decree and the judgment-debtor filed the application (M. J. C. No. 220/60) under Section 47, C. P. C., in the Court of Munsif Berhampur, objecting to the execution of the decree. The Munsif dismissed this application of the judgment-debtor and the District Judge affirmed the order. The High Court, however, on appeal, set aside the order of the District Judge.

Reasoning: 11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is not conclusivefor as observed by this Court in State of Punjab v. British India Corporation Ltd., 1964-2 SCR 114   at p. 123 = (AIR 1963 SC 1459   at p.n its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him."it seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord and tenant13. The High Court stressed the fact that a long period of five years was granted to the judgment debtor for continuation of the possession. In our view, the length of the period, in the circumstances, does not militate against the construction that the compromise only created a licence for the decree holder apparently had lost in the trial court and it was only in the court of appeal that this compromise was arrived at14. For the aforesaid reasons we hold that the compromise deed did not create a lease. Therefore the judgment-debtor is not a tenant within Section 2 (5) of the Act which defines "tenant" to mean "any person by whom or on whose behalf rent is payable for any house and includes every person who, from time to time, derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act, and shall include any person against whom a suit for ejectment is pending in a Court of competent jurisdiction but not a person against whom a decree or order for eviction has been made by such a Court."10. Keeping in mind the above observations, what was the intention of the parties ?It seems to us that the fact that the decree holder had brought a suit for ejectment of the judgment debtor and that a compromise was entered into in that suit is important.It is difficult to impute to him an intention to create a fresh tenancy while the fact that he brought the suit shows that his intention was to eject the judgment debtor after having purported to terminate the tenancy11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word "rent" has been used, but the word "rent" is notfor as observed by this Court in State of Punjab v. British India Corporation Ltd.,2 SCR 114   at p. 123 = (AIR 1963 SC 1459   at p.n its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him."12. The learned counsel further stresses the point that Rs. 300 were paid as deposit for six months rent "to be adjusted towards rent for the period of last six months ending with 1st Julyit seems to us that that amount was really paid as a security for the amounts due under the compromise deed as it was only to be adjusted against the rent for the last six months. But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us shows that the intention of the parties was not to enter into the relationship of a landlord ande may mention that the importance of this fact was adverted to in Sumatibai Waman Kirlikar v. A. B. Shirgaonkar, AIR 1949 Bom