P.N. Mookerjee, A.C.J.
1. This appeal is by the defendant and it arises out of a suitfor permanent injunction restraining the defendant from entering into any portion of premises No. 101, Baithakhana Road, Calcutta, and from creating any disturbance or obstruction by the plaintiff in constructing her house there.
2. The plaintiff claimed title to the suit land originally as a co-owner to the extent of a moiety share, and, thereafter, by a partition, exclusive ownership.
3. According to the plaint, the defendant was a trespasser, and, upon that footing, the above relief of permanent injunction was prayed for against the defendant.
4. The defence was a denial of the plaintiff's exclusive title to the suit land, and a denial that there had been any valid partition between the plaintiff and her original co-owner sister Hiron Bala Mitra. The defence, further, was that the defendant was a tenant in respect of the disputed property, and, accordingly, the plaintiff was not entitled to any relief against mm, far less to any injunction.
5. The learned trial Judge eventually decreed the plaintiff's suit, holding, inter alia, that the plaintiff had proved her exclusive title to the suit land, and that the defendant, though not originally a trespasser, was not a tenant but was a licencee at some stage, whose licence had been duly terminated, or, in other words, that, at the date of the suit, the defendant was in the position of a trespasser.
6. The learned trial Judge in coming to his above conclusion also believed the plaintiff's evidence that she was in possession of the suit property and, upon that footing, gave her a decree for injunction, as prayed for by her in the plaint.
7. Before us, Mr. Ghosal has seriously contended that the plaintiff, on the evidence before the court, cannot be said to have proved any exclusive title to the suit property, as, in his submission, the partition, relied on by the plaintiff for that purpose, has not been proved by any valid evidence before the Court. Ha has, further, contended that, as, according to the plaintiff, the defendant was a trespasser, the plaintiff should not be given a decree on the footing that the defendant was a licencee, whose licence has been terminated. Mr. Ghosal has also urged that, on the evidence before the court, the learned trial Judge should have accented the defence contention that the defendant was a tenant in respect of the suit property, as alleged by him. A technical objection was also raised that the present suit for injunction was not maintainable and the plaintiff's remedy, if any, lay in a suit for recovery of possession after making her co-owner sister Hiron Bala Mitra a party to the suit.
8. We will deal with the points, raised by Mr. Ghosal, one by one. On the question of the plaintiff's exclusive title on the basis of the partition, alleged by her, Mr. Ghosal's submission seems to have some force. For proving the alleged partition, the plaintiff relies on a document which has been accepted as Ext. 1 this if described as a deed of partition, but it is not registered. The value of the property has been given therein as roughly in the neighbourhoodof Rs. 40,000. In the circumstances, if it is a deed of partition, in order to be effective, it must be registered. Otherwise, no title would pass under the same. The plaintiff attempted to wriggle out of his difficulty by arguing that the same was in reality a memorandum or record of partition, and that argument appears to have been accepted by the learned trial Judge.
9. We, on our part, however, are unable to accept the same view, as the above document, Ext. 1, in its operative part reads as follows :
'We, for the benefit of us both, make Sahama (Allotment) and partition of our properties in equal shares, described in Schedules 1, 2 and 3 below, in the manner following:--'
Then follows the mode of actual partition. It will be impossible to regard this document, in view of its above contents, as a memorandum or record of partition. It must be held to be the document, effective partition and containing the terms of the said partition. In this view, it will require registration to have operation in law, and, accordingly, the plaintiff's exclusive title by virtue of partition, cannot be said to have established in the instant case, as, if the above deed, Ext. 1, be rejected from evidence on the above ground, the oral evidence would not be admissible for providing partition (vide Section 91 of the Indian Evidence Act). The plaintiff's claim to exclusive title to the suit property would, therefore, fail. But this will not mean an end of the plaintiff's claim in the present suit, as, on the admitted cases of the parties, the plaintiff would be a co-owner of the disputed property to the extent of a moiety share, and, upon that footing, the plaintiff can claim to restrain a third party, not her co-owner or co-sharer, from disturbing her possession or the construction, to be made by her, as she will have, as such co-owner, the right to use every inch of the joint land subject for the rights of her co-owner. Clearly, therefore, if the defendant's claim of tenancy or of any subsisting right, either as licencee or otherwise, be negatived, the plaintiff would be entitled to the decree, granted by the learned trial Judge, even though her claim of exclusive title to the disputed property might fail. From this point of view, it will be necessary to see whether the defendant has been able to establish any right in respect of the disputed property.
10. The defence case of tenancy rests upon the defendant's oral evidence and certain entries in the defendant's note-book in the form of rent receipts by one P.K. Mitra, who, according to the defendant, and that is not disputed on the plaintiff's side,--was the son of the plaintiff's co-owner's sister Hiron Bala Mitra. These receipts extend over a period of roughly one year, from May, 1961 to May, 1962. The distinction between licence and tenancy is one of substance, as remarked by the learned trial Judge, or, to put it more precisely, one of intention. Under different circumstances, exclusive possession with payment may amount to licence or tenancy.
11. In the instant case, the defendant, on the evidence, appears to have been allowed tokeep his carts at night on the disputed land on payment of a sum of Rs. 25 per month. This permission, again, does not appear to have been in respect of any definite piece of land within defined boundaries, but was in respect of an indefinite vacant space within the above premises.
12. The learned trial Judge has also discussed the other circumstances, which are more consistent with a case of defendant's licence than with a case of tenancy in his favour.
13. In our view, the learned trial judge, on the above state of the record, was justified to hold that the defendant was a licencee in respect of the disputed property since May, 1961. It is also the defendants own evidence that, from after May, 1962, P. K. Mitra refused to accept any further payment in respect of the disputed land. From this circumstance, the learned trial Judge has come to the conclusion that the above licence was terminated.
14. We are unable to say that, in taking the above view the learned trial Judge made a wrong approach or suffered from any error. In this view, the defendant's possession at the date of the suit would be that of a licencee, whose licence has been terminated long prior to the institution to the suit, which was filed In November, 1962. It, further, appears from the evidence before the court, which has been accepted by the learned trial judge,--and from his view on the point, we are not inclined to differ,--that the plaintiff was in possession of the disputed property in October, 1962 when, three or four days after she had started her construction on the same, the defendant attempted to disturb such possession. In the premises, the position appears to be that the plaintiff had title as co-owner to the disputed land and, in such capacity, a right to use and possess every inch of the suit land subject to the rights of her co-owner, but without interference from any trespasser, and that the defendant was a trespasser, as found above, his licence having been terminated long prior to the date of the suit or long prior to the date of his disturbance of the plaintiffs possession and thus substantially within the plaintiff's case in the plaint, though not within its specific averments.
15. Upon the above findings, the plaintiff would be entitled to the decree, as made by the learned trial Judge, though on different grounds, and we affirm his ultimate decision. We need only add that the plaintiff's possession having been freed, injunction and not recovery of possession is the proper and appropriate relief in this suit.
16. In the result, this appeal fails and it will be dismissed. There will, however, be no order for costs, either in this Court or in the court below, as the plaintiff is succeeding on a case, not specifically made in the plaint.
Alak Gupta, J.
17. I agree.