C.S. Dhrmadhikari, J.
1. This is an appeal filed by the original defendants against the judgement and decree passed by the Bombay City Civil Court in S.C. Suit No. 3910 of 1965 dated 5-6th of December, 1980.
2. The present suit was filed by the original plaintiff for a declaration that the leave and licence agreement dated 1st of December, 1960 and further extended by mutual consent upto 31st August, 1963 between the parties stands validly terminated by the plaintiff, and therefore, the plaintiff is entitled to possession of the premises, viz. a portion of the suit premises admeasuring 600 sq. feet on the ground floor of Kamadia House, 142 Mody Street, Fort, Bombay. According to the plaintiff he was sub-tenant of one Mrs. Dhunbai in the year 1960 i.e. on the date when the leave and licence agreement was executed between the plaintiff and the defendants. The said licence was granted for storing goods only and it was specifically agreed between the parties that no tenancy right was created in favour of the defendants. However, even after the expiry of the licence period, which stood extended upto August 1963 the defendants did not vacate the premises and, therefore, the plaintiff was constrained to file the suit. The defendants denied the allegations made in the plaint and contended that the alleged leave and licence agreement was a camouflage one and the real transaction between the parties was in the nature of tenancy. Hence they were the sub-tenants of the plaintiff and not licences as alleged. The defendants also contended that they were in exclusive possession of the suit premises and were either tenants or sub-tenants thereof in exercise of their own right. Before the trial Court the plaintiff examined himself and also produced the correspondence between the parties. No evidence was let on behalf of the defendants. After appreciating all the evidence on record, both oral and documentary, the learned Judge of the City Civil Court came to the conclusion that the defendants were not in exclusive possession of the suit premises and the agreement of leave and licence was not a camouflage one. The defendants were willing to shift to another premises provided they could get one after the expiry of the licence period. In this view of the matter, the learned Judge came to the conclusion that the case as put up by the defendants is not proved and the arrangement between the plaintiff and the defendants which was in the nature of licence stood expired and hence the plaintiff was entitled to the possession of the suit premises. As already observed it is against this judgment and decree that the present appeal is filed.
3. Shri Shah, learned Counsel appearing for the appellant-defendants contended before me that the learned Judge of the trial Court has not properly appreciated the facts and circumstances as brought on record, which prove the defendants' case. Admittedly Dhunbai was a tenant of the suit premises. Dhunbai let out the premises to the plaintiff in the year, 1955 and since 1960 the defendants are in exclusive occupation of the portion of the suit premises. Dhunbai was a relative of the plaintiff and the plaintiff was paying her more than the actual rent which she was paying to the landlord. The landlord very well knew about the arrangement between the parties and the fact that the defendants are in exclusive possession of the portion of the suit premises and still he did not file any suit against the plaintiff. Similarly such proceedings were not taken by Dhunbai. Admittedly the defendants were in exclusive possession of the premises, which fact was accepted by the owner. Therefore, according to Shri Shah from these circumstances an irresistible conclusion will have to be drawn that there was an agreement to the contrary between the owner and the plaintiff and with the consent of the owner the plaintiff had created a tenancy which could be termed as sub-tenancy in favour of the defendants.
4. On the other hand it is contended by Shri Walawalkar, learned Counsel for the respondent-plaintiff that after 1959 the plaintiff was the protected sub-tenant of the suit premises and he being himself a sub-tenant in the year 1960 he could not have created a sub-tenancy in favour of the defendants. The various documents on record clearly indicate that the premises were given to the defendants on a leave and licence basis. They were not in exclusive possession of the premises and the plaintiff had maintained his control over the same. The defence taken by the defendants that the document was a colourable one clearly indicates that there could not have been any consent of the landlord for creating any tenancy or sub-tenancy in favour of the defendants. The defendants have not chosen to adduce any evidence in support of their contention and, therefore, the learned trial Judge was right in coming to the conclusion that this was clearly a case of leave and licence which stood validly terminated.
5. With the assistance of the learned Counsel appearing for both sides, I have gone through the judgment of the trial Court as well as the evidence both oral and documentary on record. The plaintiff has examined himself and has stated that the agreement Exhibit A dated 1st December, 1960 was in the nature of leave and licence. He then stated that he is still doing the business of import. He admitted that Dhunbai was related to him, meaning thereby that she is sister of his step-mother. He also admitted that the premises were taken by him from her. According to him he is in the premises for the last 25 years. Initially he was a tenant and thereafter rent receipts were transferred in his name. When he became tenant, rent was Rs. 65/- and at present the rent is about Rs. 150/-. According to him even today he is paying Rs. 75/- ex gratia to Dhunbai. He then stated that there is no partition wall in its full length and height between the portion given to the defendants and the one in the plaintiff's possession. The partition wall dividing the two portions is partly wooden structure and partly of expanded metal and is upto the ceiling. He then stated that leave and licence agreement was merely extended for a further period and no tenancy was created in favour of the defendants. In his cross-examination he admitted that he did not have any business relations with the defendants. It was suggested to his that the formal agreement of leave and licence was executed to protect himself from the landlord. He gave the licence in favour of the defendants because they said that they were very badly in need of the premises. Without an agreement he could not have given the premises to the defendants. He admitted that no suit was filed by the landlord against him for ejectment. According to the plaintiff the landlord does not know that the defendants are there since 1960 and he does not know whether Mehta of the landlord knows about the same. As also stated that the defendants do not have access to their premises except from the portion in his occupation and through the door which he locks. From the correspondence produced on record viz. the agreement of leave and licence and the letters, it appears that initially the defendants were willing to vacate the premises. By their letter dated 11-9-1983 they had also informed the plaintiff that they had no objection to execute a fresh agreement of leave and licence, but subsequently they refused to vacate the premises and claimed that they cannot be evicted so long as they are paying rent.
6. If cumulative view of the whole evidence is taken, then in my opinion, the learned Judge of the Judge of the trial Court was right in coming to the conclusion that the relationship between the parties was not of tenant or sub-tenant. It is no doubt true that the landlord or Dhunbai did not institute any proceeding against the plaintiff. The reason seems to be obvious because according to the plaintiff the landlord did not know that defendants were there since 1960. The agreement arrived at between the parties was one of leave and licence and if this is so, then it is not expected that the landlord could have instituted any proceedings against the plaintiff. The plaintiff occupied the premises as a sub-tenant because he was related to Dhunbai. In the year 1960 admittedly he was a sub-tenant of Dhunbai and, therefore, as a sub-tenant he could not have created sub-tenancy. Hence creation of sub-tenancy right in favour of the defendants is wholly ruled out. On the suggestion made by the defendants to the plaintiff in the evidence it seems to be the defendants' case that leave and licence agreement was entered into to protect the plaintiff from the landlord. If this is so, then the landlord was not expected to institute any proceedings against the plaintiff. Theory of exclusive possession of the premises is also ruled out in view of the situation of the premises itself. The portion given to the defendants is a rear portion and not the front portion. Further, from the evidence of the plaintiff it appears that the defendants for not have any access to the suit premises except through the portion in his occupation and through the door which he locks. Therefore, it cannot be said that the learned trial Judge was wrong in coming to the conclusion that the defendants were not in exclusive possession of the suit premises. This position is further clear from the subsequent conduct of the defendants also, namely, they initially offered to vacate the premises. Therefore, if cumulative view of the whole evidence is taken, it is clear that the defendants have failed to prove their case of tenancy or sub-tenancy. It is pertinent to note that the defendants have not adduced any evidence in support of their case though reasonable opportunity was given to them. In this view of the matter I am in general agreement with the appreciation of the evidence as well as the findings recorded by the trial Court.
7. Hence the appeal fails and is dismissed with costs.
8. At this stage learned Counsel for the appellants-defendants makes a request for grant of some time to vacate the premises. Upon appellants filing an affidavit in the form of an undertaking, the question of granting time to vacate the premises will be considered. Such an undertaking to be filed within one week.