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T. R. Srinivasa Chetty Vs. G. Nagarajan and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ25
AppellantT. R. Srinivasa Chetty
RespondentG. Nagarajan and anr.
Cases ReferredDattonpant Gopalavarao v. Vithalrao Marutirao
Excerpt:
- - a lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. the following propositions are well-established: all these facts clearly go to show that what was demised as per exhibit r-3 is an interest in immovable property and not a mere licence as contended by the civil revision petitioner. the terms of exhibit r-3 and the several circumstances pointed out, in the above discussion clearly indicate that the second respondent is only a sub-tenant in respect of the.....r. sengottuvelan, j.1. the civil revision petitioner is the tenant in respect of the premises bearing door no. 1140, godown street, george town, madras against whom an order of eviction was passed by the third judge, court of small causes, madras in h.r.a. no. 179 of 1979, on the ground of subletting. the landlord, the first respondent herein, initially filed h.r.c. no. 2519 of 1976, on the file of the court of small causes, madras against the civil revision petitioner herein and the second respondent heipin for eviction under section 10(2)(ii)(a) of the tamil nadu buildings (lease and rent control) act (hereinafter referred to as the act) of the abovesaid premises let out to the civil revision petitioner for carrying on tobacco business only. the case of the landlord is that in the.....
Judgment:

R. Sengottuvelan, J.

1. The civil revision petitioner is the tenant in respect of the premises bearing door No. 1140, Godown Street, George Town, Madras against whom an order of eviction was passed by the third Judge, Court of Small Causes, Madras in H.R.A. No. 179 of 1979, on the ground of subletting. The landlord, the first respondent herein, initially filed H.R.C. No. 2519 of 1976, on the file of the Court of Small Causes, Madras against the civil revision petitioner herein and the second respondent heipin for eviction under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) of the abovesaid premises let out to the civil revision petitioner for carrying on tobacco business only. The case of the landlord is that in the middle of the month of May, 1976, without the knowledge or consent of the landlord the tenant, the civil revision petitioner carried out extensive structural alterations to the portion in his occupation by demolishing certain walls and removing doors and windows and the said act committed by the tenant amounted to an act of waste resulting in damage to the building and also endangering the safety of the building and impairing the material utility and value of the building. The landlord also alleged that the civil revision petitioner had sublet the portion let out to him to the second respondent herein without the knowledge and consent of the landlord, the first respondent herein. The landlord sought the eviction of the civil revision petitioner on both the abovesaid grounds.

2. The learned Rent Controller after going through the evidence in this case found that there is no proof to show that the tenant had caused damage by way of alterations and

other acts of waste to the petition-mentioned premises as alleged by the landlord. On the second ground of sub-letting the learned Rent Controller came to the conclusion that the tenant had sub-let the premises to the second respondent herein and ordered eviction of the civil revision petitioner under Section 10 (2)(ii)(a) of the Act. As against the orders of the learned Rent Controller the tenant filed an appeal to the Third Judge of the Court of Small Causes, Madras in H.R.A. No. 179 of 1979. The appellate authority also concurred with the findings of the learned Rent Controller and dismissed the appeal. As against the order of dismissal by the appellate authority this civil revision petition has been filed by the, tenant.

3. It is urged on behalf of the civil revision petitioner that the appellate authority einred in coming to the conclusion that the second respondent herein is a sub-tenant when actually he is only a licencee. The case of the civil revision petitioner is that according to the terms of Exhibit R-3 under which the second respondent was inducted into the possession of the petition-mentioned premises the transaction can only be said to be a licence in favour of the second respondent herein and not a lease which will amount to subletting the premises to the second respondent herein. On the other hand the case of the landlord is that the terms of Exhibit R-3 coupled with the other circumstances would indicate that the civil revision petitioner has sublet the premises to the second respondent herein.

4. In order to arrive at a conclusion whether the transaction under Exhibit R-3 will amount to a lease or licence the relevant terms of Exhibit R-3 will have to be referred to. The civil revision petitioner, who is the tenant, is referred to as the party of the first part and the second respondent herein is referred to as the party of the second part in the under-mentioned clauses of Exhibit R-3. The agreement Exhibit R-3 contains 17 clauses which are reproduced below:

(1) The party of the first part offers to permit the party of the second part to occupy the portion of the godown at No. 40/41, Godown Street, Madras-1, under leave and licence. A sum of Rs. 300 per month shall be paid as compensation for the leave and licence granted to the party of the second part by the party of the first part.

(2) The party of the first part will work for the. party of the second part on commission for securing the business of the party of the second part. A fixed commission of Rs. 700 per mensem is payable every month by the party of the second part to the party of the first part.

(3) The party of the second part has agreed to pay and hereby pays Rs. 50,000 as deposit to the party of the first part, the receipt of which sum of Rupees fifty thousand only in cash is hereby acknowledged by the party of the first part.

(4) The leave and licence is for 60 months. The compensation for leave and licence of Rs. 300 per mensem shall be paid in cash by the party of the first part, but Rs. 700 per mensem representing the commission alone shall be deducted and adjusted from and out of the said deposit of Rs. 50,000 paid this day.

(5) The deposit of Rs. 50,000 will not carry any interest.

(6) This sum of Rs. 50,000 is to be adjusted in the manner set out in Clause (4) above and is not liable to be refunded to the party of the second part on any account except as stated in clauses (10) and (17).

(7) The party of the first part will have no claim on the business or assets of the party of the second part except the claim of Rs. 700 and Rs. 300 per mensem mentioned in Clause (4) supra.

(8) It is hereby agreed between the parties that the party of the first part shall not have or raise any manner of claim or right over the goodwill of the party of the second part, and the party of the first part shall have no claim, right or title to claim anything with reference to the goodwill of the party of the second part.

(9) This agreement is deemed to commence from 6th May, 1976, as the agreement is executed today.

(10) If for any reason the party of the second part is obliged to vacate for no fault of his before the expiry of 5 years, the party of the first part is liable to refund the balance amount lying to the credit of the party of the second part immediately and in default of such refund, it will carry interest at 18 per cent, per annum.

(11) The party of the first part hereby undertakes to be regular in payment of rent to his landlord and' shall not commit any default or suffer any collusive order of eviction to evict the party of the second part at any time.

(12) If the party of the second part continues to occupy the godown beyond the period of five years, the party of the second part shall be liable to pay twice the fixed commission i.e., Rs. 1,400 per mensem to the party of the first part.

(13) If both parties agree to extend the period of leave and licence beyond 5 years, then the period may be extended on such terms and conditions to be agreed upon between the parties.

(14) The party of the first part hereby undertakes not to cause any obstruction to the cloth business to be conducted by the party of the second part in the godown described below.

(15) The party of the second part will have a sub-meter provided for his portion at his cost.

(16) The party of the second part shall effect the repairs, white-washing, etc., to the portion under his occupation.

(17) If for any reason, the party of the second part is forced to vacate under the process of liaw, then the party of the first part will be liable to refund whatever the balance of deposit lying with the party of the first part after adjusting all the amounts due by the party of the second part.

Bearing in mind the above clauses and the, other surrounding circumstances we will have to come to a conclusion whether the transaction amounts to a lease or licence. Lease is defined under Section 105 of the Transfer of Property Act, as follows:

A lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express Or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

Licence is defined under Section 52 of the Indian Easements Act, 1882, as follows:

Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence

5. In the light of the above said definitions it is seen that if an interest in an immovable property entitling the transferor to enjoyment, is created, it is a lease. If permission to use the property without right to exclusive possession of the property is granted it is said to be a licence. The relevant paragraphs from Halsbury's Laws of England, Volume 23, dealing1 with lease and licence also throws light on the subject. The following are the relevant paragraphs:

1022. Principles for determining whether agreement creates lease or licence. - In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licencee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties.

1023. Nature of grant of exclusive possession. - The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance.

In deciding whether a grantee is entitled to exclusive possession regard must be had to the substance, of the agreement. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession.

The grant of an exclusive right to a benefit can, however, be inferred only from language which is dear and explicit. If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease.

1024. When Grant conferring Exclusive Possession operates merely as licence. - A grant which confers the right to exclusive possession may operate as a licence in the following circumstances which negative the intention to create a lease A requisitioning authority which has no estate or interest in the land cannot grant a lease, and any grant by the authority can only take effect as a licence. A deserted wife is entitled to exclusive possession of the matrimonial home and cannot be evicted by her husband or persons claiming under or through the husband with knowledge of the wife's rights, but her right is a mere licence or equity and does not amount to an equitable estate or interest. A family arrangement may include an irrevocable grant of the right to exclusive possession but the grantee may nevertheless be a licencee and not a tenant and cannot acquire title based on adverse possession. A person may be allowed temporary rights of exclusive possession to alleviate hardship or for other reasons which negative the intention to create a tenancy which would confer on the grantee a permanent right of occupation under the Rent Restriction Acts and in these circumstances the grant may be construed as a licence. Where, however, a purchaser is allowed into possession pending completion, it seems that the purchaser is normally a tenant at will and not a licensee.

1025. Instance of agreements, creating licences. - A licence is normally created where a person granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease.

With this factual and legal background we will have to examine the clauses in Exhibit R-3 and ascertain the intention of the parties to the transaction and come to a conclusion whether the transaction amounts to a lease or licence. It is urged on behalf of the tenant, the civil revision petitioner, that merely from the fact that the possession was delivered to the second respondent herein it cannot be said that the transaction is a lease. Relying upon the decision reported in Nina Ghosh v. Daultras Arora and Ors. : AIR1967Cal633 it is urged on behalf of the civil revision petitioner that the distinction between a lease and licence, in spite and irrespective of exclusive possession of the grantee under the particular document, turns on the actual intention of the parties. Reliance is also placed on behalf of the civil revision petitioner on the case in Eesant Singh v. Cantonment Executive Officer, Jammu A.I.R. 1960 J. & K. 83, where the following observation is found:

The view expressed in some of the earlier decisions that the test whether exclusive possession has been granted or not will be decisive in determining whether the grant is a lease or a licence does not appear to have been adhered to in more recent decisions which have pointed out that the real test for ascertaining the true nature and character of the transaction is the intention of the parties.

My attention is also drawn by the civil revision petitioner to a case decided by a sinele Tudoe of the Delhi Hisrh Court reported in Delhi Simla Catholic Archdiocese v. State of Uttar Pradesh and Ors : AIR1976Delhi251 , where the following observation is found:

It is no doubt true that the mere faot of a person beine in exclusive possession would not be conclusive in favour of the. some beine a lease because there may be other circumstances which may still negative the inference of a lease to indicate the same being only a licence.

Mv attention is also drawn to a passage in Fasements and Licences by B.B Kativar (9th Edition at page 834), which is as follows:

The following propositions are well-established:

(1) to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form:

(2) The real test is the intention of the parties whether they intended to create a lease or a licence;

(3) If the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property of which the lejjal possession continues with. the owner, it is a licence; and

(4) If under the document a party gets exclusive possession of the property, prima facie he is considered, to be a tenant; but circumstances may be established which negative the intention to create a lease.

6. The contention on behalf of the civil revision petitioner in this case is though exclusive possession is granted to the second respondent herein yet if the entire circumstances and the recitals in Exhibit R-3 are taken into consideration the transaction can only be said of be a licence and not a lease. On the other hand the contention of the landlord, the first respondent herein, is that Exhibit R-3 is camouflage to hide the sub-letting by the civil revision petitioner and that the word 'licences' is used in Exhibit R-3 only as a cloak to hide the sub-letting by the civil revision petitioner. The following terms of Exhibit R-3 are pointed out by the first respondent herein in support of his contention that the transaction is a lease and not a licence:

1. According: to Exhibit R-3 the civil revision petitioner is entitled to get a compensation of Rs. 300 per month together with a fixed commission of Rs. 700 per month totaling Rs. 1.000. This arrangement is only a device to pet a rent of Rs. 1,000 per month from the sub-tenant;

2. The fixed commission of Rs. 700 payable to the civil revision petitioner is not fixed with reference to any turnover and as such it cannot be railed as a commission. The civil revision petitioner had not filed any document to show that he had done any work for the second respondent;

3. As per clauses (5) and (6) the second resnondent deposited a sum of Rs. 50,000 with the civil revision petitioner free of interest and that the commission of Rs. 700 per month is to be adiusted from out of the sum of 'Rs. 50 000 makes the case of the civil revision petitioner that he is only a licensee improbable as no licensee will denosit sur-h a heavy sum of Rs. 50,000, losing interest on the same.

4. The term of the contract is said to be five wars according to Clause (4) of Exhibit R-3. A licence is terminable at any time and the term of five years fixd in Exhibit R-3 indicates that the transaction is a lease;

5. Clause (6) of Exhibit R-3 provides that a sum of Rs. 50,000 paid by the second respondent herein to the civil revision petitioner is not liable to be returned to the second respondent herein but the same is to be adjusted towards of the commission of Rs. 700 payable to the civil revision petitioner as per Exhibit R-3, This arrangement also indicates that the sum of Rs. 50,000 was paid to the civil revision petitioner as an interest free advance from which the amounts payable to the civil revision petitioner as per Exhibit R-3 is to be adjusted. This arrangement also probablises the case of the first respondent herein that the arrangement is a lease and not a licence;

6. Clause (7) of the agreement Exhibit R-3 provides that the civil revision petitioner will have no claim in respect of the business carried on in the premises in the occupation of the second respondent herein. If the case of the civil revision petitioner that the transaction is only a licence, is true then in the natural course of the things the assets of the business will continue to vest with the civil revision petitioner;

7. It is also provided as per Clause (8) of Exhibit R-3, the civil revision petitioner shall not claim any manner of right over the goodwill of the business carried on by the second respondent which indicates that the civil revision petitioner has no manner of right in the business. This again indicates that the transaction is a lease and not a licence;

8. As per Clause (10) of Exhibit R-3 it is seen that if for any reason the second respondent is obliged to vacate the premises before the expiry of five years the civil revision petitioner is liable, to refund the balance amount out of the deposit of Rs. 50,000 and in default of such refund the civil revision petitioner is bound to pay interest at 18 per cent, per annum. This clause indicates that the deposit of Rs. 50,000 made by the second respondent to the civil revision petitioner is made only as an advance to ensure the payment of rent;

9. Clause (12) of Exhibit R-3 provides that if the second respondent herein continues to occupy the premises beyond the period of 5 years he is liable to pay Rs. 1,400 per month to the civil revision petitioner. This stipulation is not in conformity with the case of the civil revision petitioner that the transaction is only a licence;

10. Clause (13) of Exhibit R-3 provides for extension of the term of five years probablising the fact that exhibit R-3 is a lease;

11. Clause (15) of Exhibit R-3 provides that the second respondent herein is forced to vacate under the process of law then the civil revision petitioner is liable to refund the balance of dep0osit out of Rs. 50,0000 deposited by the second respondent herein. This clause indicates that there is an apprehension On the part of the parties to the Transaction that the landlord may take proceedings For eviction on the ground of sublettins.

7. The above said clauses in Exhibit R-3 will have to be considered along with certain circumstances existing in this case and brought out in the evidence before the Rent Controller.

8. The first circumstance that will have to be considered is the user of the premises by the second respondent herein. According to the evidence let in the premises has got two openings, one in godown street. The portion facing Audiappa Naicken Street is having door No. 7/8 and the portion facing Godown Street is having door No. 40/41. The portion Used by the second respondent herein is The portion bearing door No. 40/41, Godown Street And the civil revision petitioner will not be In a position to enter the portion facing the Godown Street, occupied by the second respondent Herein. Similarly the second respondent Herein will not have any access to the Portion occupied by the civil revision petitioner Facing Audiappa Naicken Street and bearing door No. 7/8.

9. The second circumstance that will have to be considered is that the business purported to have been carried on by the civil revision petitioner in the portion facing Audiappa Naicken Street is the business in tobacco and The second respondent herein is carrying on The business in textiles in the portion lacing Godown Street in partnership with others. It is also in evidence that the civil revision Petitioner is not a partner in the textile business Carried on in the portion facing Godown Street.

10. The third circumstances, which is relevant for the purpose of this enquiry is the textile business carried on by the second respondent herein known as '64 Textiles' is a partnership firm with five partners of whom sion petitioner has no manner of right in the above said textile business.

11. The fourth circumstances relevant for consideration is the fact that the civil revision petitioner had passed receipts for the payment of Rs. 300 per month to the second respondent Herein as evidenced by Exhibits P-4 to P-32. There recipts are printed receipts With the title P.W. 2, The clerk of the second respondent herein, had Produced these recipts and had given evidence That the second respondent herein used To pay rent to the civil revision petitioner issued the Receipts Exhibits P-4 to P-32 evidencing the Payment of rent. The evidence of P.W. 2 Is attacked by the civil revision petitioner on The ground that there is collusion between the It is seen that P.W. 2 had attended court in pursuance of the summons taken out by the First respondent herein, and that apart from Producing the documents Exhibits P-4 to P-32, D.W. 2 had not give any evidence probablising collusion between the second and the First respondents herein. The rent recipts Issued by the civil revision petioner to the Second respondent herein is duly proved by P.W. 2 and this circumstance also indicates That the transaction is a lease and not a licence.

12. The fifth circumstance that will have to be considered is the conduct of the civil revision petitioner in putting forth his case at several stages of the proceedings. Initially the first respondent issued a notice to the second respondent stating that he had sublet the premises as per the office copy of the registered notice Exhibit p-1, dated 25th May 1976. The said notice was received by the civil revision petitioner on 27th May, 1976 as per the postal acknowledgment Exhibit P-2. The civil revision petitioner had not issued any reply to this notice. 1 hough the civil revision petitioner who was examined as R.W. 1 before the Rent Controller states that he had issued a reply to Exhibit P-1, the reply notice is not forthcoming. In the absence of the production of reply notice we have to take it that no reply is given by the civil revision petitioner to the notice Exhibit P-1. The allegation of the first respondent herein made in Exhibit P-1, that the premises was sublet by the civil revision petitioner would not have gone without a denial by the civil revision petitioner if the case of the civil revision petitioner is true. In the counter-statement filed before the Rent Controller in answer to the plea of the first respondent herein that the civil revision petitioner has sublet the premises the civil revision petitioner stated that himself and the second respondent herein are conducting a partnership business in the premises. In the evidence before the Rent Controller, the civil revision petitioner, R.W. 1 goes to the extent of saying that there is a partnership deed executed on a stamp paper but no steps have been taken to produce the partnership deed. During the course of the evidence the civil revision petitioner had put forward a different case that the second respondent is only a licencee under the first respondent. The conflicting pleas of the civil revision petitioner during the several stages of the proceedings make the case of the civil revision petitioner unbelievable.

13. In addition to the above said circumstances the clerk of the second respondent herein, who was examined as P.W. 2 deposed that no commission was paid and he also says that exclusive possession of the premises facing Godown Street was given to the second respondent and that the civil revision petitioner enters the premises facing Audiappa Naicken Street through a different entrance. All these circumstances probablise the fact that what was intended under Exhibit R-3 is only a lease and not a licence. In the case reported in Sohan Led Naraindas v. Laxmidas Raghunath Gadit : [1971]3SCR319 , the Supreme Court in dealing with the difference between a lease and hence observed as follows:

Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument in intended to create or not to create an interest in the property the subject-matter of the agreement. If it is in fact intended to create an interest in the property it is a lease; if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance.

In the, case reported in Kidar Nath v. Swam Purshad and Ors A.I.R. 1978 Punj. & Har. 204 a single Judge of the Punjab High Court observed as follows:

It is clear that the exclusive possession of the premises was given to the appellant and he was required to pay a monthly rent of Rs. SO though described as licence-fee. It is in the statement of the appellant himself as D.W. 9, that machinery for the purpose of manufacturing hosiery goods had been installed by him in the said premises and that electric meter was also in his name, In the present case the circumstance that the appellant was allowed to have the electric meter and the electric connection of the premises in his own name, gives a clear indication of the real intention of the parties that the appellant was to be on the premises as a tenant and a lessee.

In the case reported in Balavantsingji Anand v. Bhagwantrao Ganpatrao Deshumkh : AIR1980Bom333 . a single Judge of the Bombay High Court had occasion to consider the provision in the deed that the grantor shall at all times as of right and without interference or objections be entitled to enter and visit the portion of the land granted. Such a provision unmistakably postulates that the grantor is not in possession of the land and that is the reason that he has himself reserved the right to enter the land or to visit the land. Right of entering or right to visit is something far different from possession in respect of the land. As a matter of fact even in the case of a lease the landlord does have a right to visit the premises in question. In the case reported in Chandu Lai v. Municipal Corporation of Delhi : AIR1978Delhi174 , a Full Bench of the Delhi High Court in the course of the judgment dealing with the right of parties with reference to kiosk auctioned out by the Delhi Municipality observed as follows:

The question accordingly is whether the various clauses of the document in question, when read as a whole, in any manner carve out an interest in the demised property in favour of the petitioners. Although a person who is let into exclusive possession is prima facie to be considered a tenant, nevertheless if the circumstances negative such a conclusion and show that no tenancy was created, the person in possession would not be held to be a tenant. It is trite saying that the intention of the parties is the real test for ascertaining the character of a document. It is beyond challenge that if a document gives only a right to use the property in a particular way but its possession and control remains with the owner thereof, it will be a licence. In such a case the legal possession remains with the owner of the property, the licensee being permitted to make use of the property for a particular purpose. It would, therefore, be seen that but for the permission the licensee's possession would be unlawful. Exclusive possession does not militate against the concept of a licence, if the circumstances negative any intention to create a tenancy.

Relying on the above decision it is contended on behalf of the civil revision petitioner that the exclusive possession of the premises facing Godown Street will not militate against the case of a licence set up by the civil revision petitioner. But in the above said case it is seen, that the possession and control of the premises remained with the owner. In the present case the evidence goes to show that the civil revision petitioner did not have the possession and control of the premises with him. Hence the principle laid down in the Full Bench decision of the Delhi High Court cannot be applied to the facts of the present case.

14. The case reported in Qndrat Ullah v. Municipal Board, Bareilly : [1974]2SCR530 , is relied on by the first respondent herein in support of his case that the transaction in question is a lease. In that case in pursuance of an agreement with the municipality evidenced by a deed where a person is allowed to collect the rents and bazar dues from sheds and shops and the internal roads within the market, the deed was held to be a lease deed and not a mere licence. The Supreme Court held that the bazar dues constitute, a benefit arising out of the land and may be immovable property which can be leased out.

15. Bearing in mind the principles laid down in the above-said decisions if we examine the facts of the present case, a conclusion will have to be arrived at from the following circumstances present in this case:

1. The second respondent in the civil revision petition is entitled to exclusive, possession of the premises facing Godown Street in which he is carrying on business in partnership with other partners;

2. The civil revision petitioner herein has no manner of right in the business carried on in the portion of the premises, facing Godown Street;

3. The civil revision petitioner has got an exclusive entrance for the portion of the premises occupied by him and he has no> access to the portion of the premises occupied by the second respondent;

4. The portion occupied by the second respondent herein is provided with a sub-meter ;

5. The monthly payment though termed as compensation and commission as per Exhibit R-3 payable by the second respondent to the civil revision petitioner is in reality the rent for the premises occupied by the second respondent;

6. The demise is for a fixed term of five years;

7. No power is reserved for the civil revision petitioner to cancel the contract before the fixed term expired;

8. Provision is also made for extending the term of the contract by mutual agreement;

9. Penal provisions are incorporated in Exhibit R-3 providing for enhanced payment in case the second respondent continues after the term of five years.

All these facts clearly go to show that what was demised as per Exhibit R-3 is an interest in immovable property and not a mere licence as contended by the civil revision petitioner.

16. The word 'licence' is used in Exhibit R-3 only as a camouflage and in order to escape the consequences of subletting if possible. The terms of Exhibit R-3 and the several circumstances pointed out, in the above discussion clearly indicate that the second respondent is only a sub-tenant in respect of the portion of the premises facing Godown Street. It is evident that the civil revision petitioner had sublet a portion of the premises without the written consent of the landlord.

17. Both the Courts below had rendered a cuncurrent finding on fact that what was demised in Exhibit R-3 is an interest in immovable property by the civil revision petitioner in favour of the second respondent. The Supreme Court in the case reported in S. Rajalakshmi Dyeing Works and others v. Rengaswamy Clhettiar1, expressed the view that concurrent findings based on facts by both the Courts below cannot be interfered with by the High Court exercising jurisdiction under Section 25. In the course of the judgment the Supreme Court observed as follows:

In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy 'itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of Superintendeince. Therefore despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because, it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, may not be as narrow as the revisions power of the High Court under Section 115 of the Code of Civil Procedure; but in the words of Untwalia, in Dattonpant Gopalavarao v. Vithalrao Marutirao : AIR1975SC1111 It is not wide enough to make the High Court a second Court of first appeal.

18. The concurrent findings of both the Rent Controller and the Appellate Authority are correct. Under the circumstances no interference is called for in respect of the) concurrent findings of both the Courts below. Hence the civil revision petition is dismissed. There will be no order as to costs. The tenant is given three months time to vacate.


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