(1) [SUIT property was an evacuee property. Smt. Ganga Devi on 27.1.1951 applied for its allotment to her. It was allotted to her on 29.3.51. In 2 survey reports of 17.8.51 and 29.12.51 she is described as allottee. The property was auctioned in 1964 in favor of respondent and he was granted sale certificate on 22.3.1965. The allottee did not make any payment to the respondent and thus lost the protection of S. 29 of Displaced Persons (Compensation and Rehabilitation), Act 1954. Respondent sued her for possession claiming her only as a licensee. Trial Court Court dismissed the suit. In appeal District Judge held that Smt. Ganga Devi was a mere allottee and not a tenant and that she having failed to comply with the provisions of Sec ion 29 she was liable to eviction. He granted a decree for possession. Ganga Devi appealed against the said judgment. She died during the pendency of the appeal and her legal representatives were brought on record. High Court dismissed the appeal. Paras 8 to 14 of the judgment are :-
(2) It is obvious that Ganga Devi originally asked for allotment and the order of the Custodian also was making allotment to her. At no time was there any question of any lease of the property even mentioned either in the application by Ganga Devi or in the order of the Custodian of Evacuee property. The whole course of events leads to this and obviously if the property had been allotted to her the legal rights that flow from it can be only that of allottee. The stress laid by Mr. Dhawan on the receipts in which the word 'rent' is used also does not help him. In the first instance it will be seen that the receipts specifically provide for rent/license fee/and lease money. If the contention of Mr. Dhawan is correct that rent was being mentioned there because it was not allotment to Ganga Devi but was a lease then it is not understood why even 'lease money' was scored out and 'rent' was used. It is quite clear in terms of the provisions of rent/lease money/by the department in cases where allotment was made. Had there been a lease made in favor of Ganga Devi one would have expected that the word used should have been lease money. The emphasis placed by Mr. Dhawan on the use of the word 'rent' also cannot be held itself to denote that the premises were given not as allottee but as lessee. The Supreme Court has clearly held that the use of the term 'rent' cannot preclude a landlord from pleading that there is no relationship of landlord and tenant and the question there is relationship of landlord and tenant in the sense that there is transfer of interest by the landlord in favor of the tenant is to be judged by the intention, vide Dr. H.S. Rikhy etc. Vs . The New Delhi Municipal Committee, : 3SCR604 .
(3) Mr. Dhawan also sought to contend by referring to Associated Hotels of India Ltd. v. S.B. Ranjit Singh Mr. 1958, S.C. 933 that as exclusive possession was given to Ganga Devi it must be held the property was given to her on lease. But this authority by the Supreme Court lays down no such rule. On the contrary this authority says that the test of exclusive possession was not conclusive. This observation was made in the context of subletting by landlord of portion of the room in a hotel where the plea of landlord was that the occupation was that of licensee and not by way of subletting. In the present case allotment had been made to Ganga Devi of house and it cannot be suggested that unless it was shown that some other person was also permitted to use the property it must be held that it was not by way of allotment but by way of lease. The right to exclusive possession does not automatically mean that this possession cannot be that of a licensee. It is only if an interest in immoveable property is conveyed that it becomes a lease. In the present case the property has been allotted to her and at no stage the question of lease was considered. The authority thereforee, is of no assistance to Mr. Dhawan.
(4) Reference was made to Shiv Nath etc. v. Shri Mela Ram etc. 1970. R.C.J. 933. But this authority has no relevancy. This authority only lays down that a person who has been asked to attorn to the auction purchaser can be said to have been let into the premises even though the auction purchaser has not voluntarily let out the premises. This authority would have been applicable if in pursuance of attornment Ganga Devi had complied with the requirements laid down in Section 29 of the Act. As Ganga Devi has admittedly not complied with the requirements of Section 29 there could obviously be no question of her being treated as tenant on the basis of this authority.
(5) Reference was made to Amar AhmedKhan and another v. Union of India and others, . All that was held in that case was that the relationship of landlord and tenant can be implied from the act and con- duct of the parties and that payment of rent is one of the important circum- stances. It is thus clear that the word rent used in these receipts is to be read in the context of the allotment that was made to her and so read it cannot lead to conclusion that the property was leased out to Ganga Devi and not merely allotted. It is true that in Ex. D 11 the word tenancy is mentioned. But as the learned counsel for the respondent Mr. Gupta pointed out this letter issued in July 1965 which called upon Ganga Devi to pay rent in future was not called for as even sale deed had been executed in favor of the landlord by 24th May, 1965, It seems to me that even if this letter was issued in normal course it was issued without making reference to facts on record and this by itself cannot be said to confer such rights on Ganga Devi. Dw 2 Mela Ram has clearly stated that there is no contract of tenancy and there is nothing on record showing Ganga Devi as a tenant.
(6) In view of this lower appellate court came to correct finding when it held that Ganga Devi was an allottee of the premises in dispute and was not a tenant.
(7) I may in all fairness to the counsel for respondent note that he had raised a premliminary objection that the finding by the lower appellate court that Ganga Devi was an allottee and not a tenant was a finding of fact and cannot be challenged in appeal. Mr. Dhawan had referred to Sir Chunilal V. Mehta v. Spinning & Mfg. Co. 1962 S.C 1314, Nedunui Kameshwarmma v. Sawpati Subbarao, 1963 S.C. 884 and Bejoy Go pal Mukherji v. Praful Chandra Ghosh : 4SCR930 and Contended that legal inference from the proved facts raises question of law and that the question of tenancy is to be inferred from the documents it must be held to be question of law.
(8) Mr. Gupta has had referred me to Shri Raja Durga Singh v. Tholu : 2SCR693 which had laid down that finding whether the defendant was a tenant of the plaintiff on consideration of all evidence oral or documentary is a finding of fact and cannot be set aside in second appeal. Mr. Gupta had also pointed out that Ex. D. 4 is a letter of allotment and is not foundation of the claim by Ganga Devi and hence it cannot be said that this being document of title or a document on which foundation of right is claimed the said matter can be examined in second appeal. Prima facie I am inclined to agree with Mr. Gupta that finding in the present case on the consideration of various documents and oral evidence that Ganga Devi is an allottee and not a tenant is a finding of fact and would be binding on me in second appeal. However, I have considered this matter in details myself and I agree with the lower appellate court on merits that Ganga Devi is an allottee and not a tenant. The result is that there is no force in the appeal and I would, thereforee, affirm the judgment and decree of lower appellate court and dismiss this appeal but in the circumstance I make no order as to costs. I would, however, allow the appellant a period of 3 months for vacating the premises in dispute.