Here the defendant does not say that the licensor Kashibai has permitted him to instal the crusher in such a way as to make it irremoveable or removeable only with some difficulty. He was certainly not allowed by the licensor to put up a structure. This is inferable from his statement in the examination-in-chief itself that he had put up a shed without any express permission from the licensor. Initially the shed put up by him was made of tin sheets. Because that did not make a presentable appearance, the defendant removed the shed of made of tin sheets and replaced it by a ceiling of white cloth. Later on, the cloth was replaced by a shed of asbestos cement sheets. All this has been done by the defendant on his own and without permission either from the licensor or the BMC. He admits that he did not take the permission of the BMC to put up the shed. Therefore, the fact that money was spent on the installation of a crusher and a bench at the site, and, further assuming that this entitled some expenditure, would not make the licence irrevocable as is assumed by the defendant. The contention is that consent of the licensor must be presumed or otherwise, the defendant would not have been allowed to continue with the installation of the crusher or the shed since as far back as 1956. The inaction of Kashibai and the other Gandhies does not lead to the inference that they had permitted the Defendant to instal the crusher or put up a structure of any sort whatsoever. It only entails that no action was taken by them until they assigned the property to the plaintiffs. The inaction of a licensor to the encroachment or advances made by a bare licensee does not convert that bare licence into a licence coupled with the grant of an interest in the property. It was argued that the defendant has obtained licence to do sugarcane juice business from the BMC and the police. Next, he has taken an electric connection from the BEST to work the crusher and possibly to illuminate some part of the site where the juice is sold. As one doing business within the territorial limits of the BMC and doing business in a natural beverage, he had to take licences from the BMC and the Police. This liability is placed upon all persons doing business in edibles on a particular site, irrespective of their relation thereto. Even a squatter doing business has to take out licences from the aforementioned authorities. That would not render the owner of the encroached-upon-site, a privy to the doings of the squatter. Therefore, neither clause (a) nor (b) of section 60 of the Easement Act is available to the defendant for protecting his possession.
S.M. Daud, J.
1. This appeal takes exception to a decree for eviction, permanent injunction and damages in relation to a site admeasuring 14' x 20' on the Southern side of the building known as 'Shobha Sadan', Plot No. 321-A. Dadar Matunga Estate, Scheme No. V. Matunga, Bombay-19 (hereinafter referred to as 'the suit premises').
2. Shobha Sadan comprising a multi-storeyed structure together with land appurtenant thereto formerly belonged to Shyamaldas Gordhandas Gandhi and others. The building stands on land owned by the Bombay Municipal Corporation (BMC). One of the Gandhis was a lady known as Kashibai. Respondents/plaintiffs acquired the property under a deed of assignment dated 6 June, 1973.
3. Plaintiffs' case was that the lease under which their predecessors-in-title and they held the land on which stood the structure Shobha Sadan belonged to the BMC and one of the conditions which bound the lessees was not to use or permit the open land to be built upon except with the previous consent of the BMC Defendant was permitted by the Gandhis to use a small portion touching the southern side gate measuring 3' x 10'. This was not given to his exclusive possession All that he was entitled to do on the said space was, to put up a crusher for extracting sugarcane juice and selling the same. The open space was kept for exit and entry of the tenants and occupants of the building. Defendant was to use the open space without any structure permanent or otherwise thereon. The licence in favour of the defendant came to an end with the assignment in favour of the plaintiffs. Defendant was not paying any compensation either to the Gandhis or to the plaintiffs He had no right, title or interest in the space or any part thereof entitling him to continue his occupation Defendant with the object of putting forth a claim on the property, on or about 13 December 1974, unauthorisedly constructed a shed with roof of corrugated asbestos cement sheets covering an area of 14' x 20'. The shed had not been put up after obtaining the BMC's permission. In fact the BMC had called upon the plaintiffs to evict the defendant, his being there on the site itself being a violation of the clause earlier mentioned. As a result of the doings of the defendant, plaintiffs had to give an undertaking that they would get his fixtures removed from the land. As an earnest of this commitment, they were required to make a deposit of Rs. 200/- with the BMC. Repeatedly called upon to vacated defendant has ignored the demand and hence this suit. They claim possession of the space measuring 14' x 20' after removal therefrom of the defendant as also the fixtures and annexures brought in by him. Plaintiffs further pray for past damages totalling to Rs. 2750/- calculated at the rate of Rs. 150/- per month. Pendente-lite and future damages are requested to be ascertained under a decretal direction.
4. Defendant in his written statement denied the assignment pleaded by the plaintiffs. It was not true to say that Shobha Sadan was put up on the land subject to the condition about keeping the appurtenant land vacant. He was not a mere licensee and that too of site measuring 3' x 10'. A licence not being created there was no question of it having come to an end with the transfer of title vis-a-vis Shobha Sadan to the plaintiffs. The land had been given on lease to him on rental of Rs. 15/- per month. The lease was granted by the then owner of the building to him in or about 1986 After taking the site on lease, he erected a shed resting on wooden poles. The original rent of Rs. 15/- was increased from time to time and last the aggregate rent was Rs. 70/- per month. Rent at this rate had been paid to the Gandhis. Plaintiffs were taking advantage of the fact that rent receipts had never been issued by their transferors. He was ever ready and willing to pay the rent at the same rate to the plaintiffs, who however refused to accept the same. In case the tenancy set up by him was not established, he had become the owner of the place having been in open, continuous and uninterrupted possession thereof for over 18 years preceding the institution of the suit. As he was a tenant of the premises, the City Civil Court in which the suit was instituted had no jurisdiction to try the same.
5. Pleadings summarised above led the learned trial Judge to frame only two issues, the first, being whether defendant was a licensee as alleged by the plaintiffs, and, next, whether he was liable to pay damages at rate Rs. 150/- per month. The main witnesses examined at the trial were plaintiff No. 4 and the defendant. After going through their depositions and the documents on record, the learned trial Judge held that the defendant was a licensee whose licence having come to an end rendered him a trespasser and that he was liable to pay damages at rate Rs. 75/- per month. In keeping with these findings, the learned trial Judge passed the decree challenged in appeal.
6. Counsel for the applicant contends that the decree challenged is unsustainable First there was good evidence to bear out the defendant's contention that he was a lessee. Having regard to this the City Civil Court had no jurisdiction to entertain and try the suit, much less pas a decree for ejectment. Assuming that a tenancy in the strict sense of the expression was not proved, Defendant was yet a licensee entitled to the protection of the Bombay rents, Hotel and Lodging House Rate Control Act, 1947 (Rent Act) and therefore again the City Civil Court had no jurisdiction to entertain and try this suit. Lastly, and assuming that the defendant was a licensee unprotected by the Rent Act, the matter fell within the irrevocability clause enshrined in the Indian Easement Act. 1882 (Easement Act), vide section 60 thereof For all these reasons, the decree for possession and damages was liable to be set aside. Counsel representing the plaintiffs supports the correctness of the verdict rendered by the trial Court. On defendant's own showing he had been given nothing more than a bare licence to carry on business of juice extraction and vending. This licence came to an end by the death of the alleged licensor, and in any case, the sale of Shobha Sadan to the respondents. The appellant was not a licensee protected under the Rent Act nor one entitled to the benefit of the irrevocability clause enshrined in section 60 of the Easement Act. The points for determination would be:
(i) Did plaintiffs establish that defendant was bare licensee, the licence having come to an end by the transfer of Shobha Sadan upto them : or whether the defendant was a tenant or protected licensee vis-a-vis the Rent Act and/or in any case the licensee under an irrevocable licence ?
(ii) what order ?
My findings, for reasons given below, are:---
(i) Defendant was bare licensee.
(ii) See order.
7. The crucial issue in this appeal is as to the nature of the transaction which brought the appellant/defendant on the premises First let us get a proper idea of the stand taken by the parties in their pleadings. The plaint avers that the defendant came on the scene under a leave and licence granted by the Gandhis. This licence allowed him to place a juice extraction machine at a certain spot not in excess of 3' x 10'. The space was not given to his exclusive possession but was also used for exit and entry by the tenants and occupants of the building. No structure was put up or allowed to be put up on the open space and the defendant was to use the same temporarily. Consequent to the assignment in favour of the plaintiffs, the leave and licence, if any, in favour of the defendant had come to an end. This part of the pleadings is to be emphasised because of Mr. Walawalkar's submission that on the plaintiffs' own showing the licence in favour of the defendant continued till the Gandhis were the owners of Shobha Sadan. Defendant in his written statement does not admit that he was a licensee In fact, the stand taken in the written statement is that the premises were granted to him as a tenant in or about 1956 on an agreement to pay rent of Rs. 15/- per month. After taking the open space, he erected a shed and thereafter started doing the business of extraction and sale of sugarcane juice. One of the Plaintiffs who has been examined at the trial was questioned in regard to the plaint recital mentioned above. The question put to him was as to how he had learnt of the licence pleaded in the plaint. The witness answered that the recital was based upon information received by him from two sources : (i) his predecessors-in-title and (ii) the defendant. The predecessors-in-title have not been examined and defendant in his evidence says nothing about a licence continuing upto the date of transfer of Shobha Sadan to the plaintiffs. This is important because it knocks the bottom out of the contention that in case defendant fails to establish a transaction of lease, he is entitled to plead a licence protected by the changes effected in the Rent Act pursuant to Maharashtra Act 17 of 1973. A mere pleading in the plaint by the plaintiffs, if the same is shown to be erroneous-it will be no more than an admission, which, it is well-settled, is not binding, if proved to be the result of an error. Here we have the situation of a certain recital in the plaint being based upon information received from the alleged licensor and licensee The licensor has not been examined and in any case the information conveyed by that source would not make out more than a bare licence. The other party to the alleged licence viz. the licensee, repudiates the allegation that he is a licensee.
8. Mr. Rahimtoola for the respondents next contends that the benefit of protection given to licensees under Maharashtra Act 17 of 19/3 is not available to every licensee. The benefit is restricted to a licensee in occupation "of any premises, or any part thereof, which is not less than a room". Learned Counsel contends that a license in respect of open premises is not protected, and, in support of this contention, he relies upon the following commentary on the Rent Act by Dalal appearing on page 108:---
"The question, which however arises, is what are the premises contemplated by the legislature by the said words. The word 'premises' as defined in section 5(8), would mean land as well as building. The expression 'or any part thereof' has been used with reference to the preceding words 'any premises'. The words 'or any part thereof, are intended to emphasise that 'the part' should partake of the character, nature and quality of the words preceding and hence they would mean 'any part of any premises' The words 'which is not less tan a room' which follows the words 'any part of any premises' have been used to describe the class of premises to which the section is intended to be confined. Do the words 'which is not less than a room' apply to any part thereof only and not to 'any premises'. ? The use of the word 'thereof' show that 'any part' cannot be read disjunctively from the preceding words 'any premises'? The words which is not less than a room' apply to 'premises' whether whole or part. They govern both the said preceding expressions. The said words 'which is not less than a room' are not mere words of description which can be ignored. They incorporated the central or dominant decision of the legislature. They are intended to restrict and circumscribe the scope, ambit and meaning of 'the premises' whether whole or part. They are intended to narrow the focus of the otherwise wider focus of the words 'any premises.' or 'any part of premises.' cons trued in the light of the definition. By using the words 'not less than' the legislature has shown its firm and determined mind to emphasize and lay down what should be the minimum or least limit of the premises. In other words, the legislature intended that the premises in preceding words should conform to the minimum condition or qualification laid down by the legislature by the words which is not less than a room'....... If 'the premises' were only land or its part' the legislature would not have used the said expression 'which is not less than a room' in respect of land. The 'land' only is clearly intended to be excluded from the ambit and purview of this section"
This is a construction made by a reputed author on the Rent Act a and there being no decision indicating support for the opposite view. It accepts the same as correct. On the basis it cannot be said that the Defendant was granted a licence which came to be protected by Maharashtra Act 17 of 1973. Let me emphasize that the defendant does not claim to have been let or permitted to occupy a built structure. What was given to him was an open space and nothing more. Thus on his own showing, the contention that the defendant has become a protected licensee is not available to him.
9. The next contention raised on behalf of the defendant is that assuming the transaction between him and the Gandhis be a licence, the licence was one coupled with transfer of property and/or acting upon which licence he has executed a work of a permanent character and incurred expense in the execution. Therefore, the grantor or his successors-in-interest cannot revoke the licence. Mr. Walawalkar is at pains so emphasize that the expression 'work of permanent character' is not limited to immoveable property. Learned Counsel contends that defendant by bringing his crusher on the site and installing it there has executed a work of a permanent character. The installation is one which cannot be shifted with ease. The installation required the incurring of expenditure. In support of his contention learned Counsel has referred to a number of reported decisions. First, he says that the permanency is to be judged not by any rigid standard, but permanency having regard to the factor of duration. In this connection, he relies upon a note from Second Appeal No 186 of 1976 decided by Bhatt, J., of the Gujarat High Court, reported at A.I.R. 1983 NOC 54 :
"The permanency is not related to the material used for the purposes of construction but is stated to be related to the duration for which it intended to be used".
Next, he refers to certain observations appearing in P.M. Jacob v. The Executive Officer Mulanthuruty Panchayat, . In that
case it was remarked that what was not merely of a temporary nature must be treated as a work of permanent character. The important question is not as to the nature of the work that has been done by the appellant. The major hurdle that he has to cross is whether the work was done by him by acting upon the licence. A licensee is not entitled to plead irrevocability because he has carried out a work of permanent nature by incurring expenditure. He has to show that what he has done viz. executing a work of permanent nature, is pursuant to a right granted to do upon the land of the grantor something which would be unlawful in the absence of such a right. To quote from Gujarat Ginning and Manufacturing Co. Ltd. v. Motilal Hirabhai Spinning and Manufacturing Co. Ltd. :
"A man does not 'act upon a licence' if he does work and incurs expense upon his own property. That he can do without anyone's licence. Work done by the licensee on his own land may be done without the knowledge of the licensor, and the alleged licensor's land cannot be held to be bound in perpetuity (subject to section 62) as the result of some work done by the alleged licensee on his own property of which the former was unaware."
Here the defendant does not say that the licensor Kashibai has permitted him to instal the crusher in such a way as to make it irremoveable or removeable only with some difficulty. He was certainly not allowed by the licensor to put up a structure. This is inferable from his statement in the examination-in-chief itself that he had put up a shed without any express permission from the licensor. Initially the shed put up by him was made of tin sheets. Because that did not make a presentable appearance, the defendant removed the shed of made of tin sheets and replaced it by a ceiling of white cloth. Later on, the cloth was replaced by a shed of asbestos cement sheets. All this has been done by the defendant on his own and without permission either from the licensor or the BMC. He admits that he did not take the permission of the BMC to put up the shed. Therefore, the fact that money was spent on the installation of a crusher and a bench at the site, and, further assuming that this entitled some expenditure, would not make the licence irrevocable as is assumed by the defendant. The contention is that consent of the licensor must be presumed or otherwise, the defendant would not have been allowed to continue with the installation of the crusher or the shed since as far back as 1956. The inaction of Kashibai and the other Gandhies does not lead to the inference that they had permitted the Defendant to instal the crusher or put up a structure of any sort whatsoever. It only entails that no action was taken by them until they assigned the property to the plaintiffs. The inaction of a licensor to the encroachment or advances made by a bare licensee does not convert that bare licence into a licence coupled with the grant of an interest in the property. It was argued that the defendant has obtained licence to do sugarcane juice business from the BMC and the police. Next, he has taken an electric connection from the BEST to work the crusher and possibly to illuminate some part of the site where the juice is sold. As one doing business within the territorial limits of the BMC and doing business in a natural beverage, he had to take licences from the BMC and the Police. This liability is placed upon all persons doing business in edibles on a particular site, irrespective of their relation thereto. Even a squatter doing business has to take out licences from the aforementioned authorities. That would not render the owner of the encroached-upon-site, a privy to the doings of the squatter. Therefore, neither clause (a) nor (b) of section 60 of the Easement Act is available to the defendant for protecting his possession.
10. Coming to the main issue the question is whether the defendant was a licensee or a tenant. There are some errors on the judgment of the trial Court which have to be dealt with at the inception Defendant had produced Exh. D 2 bearing the handwriting and signature of Kashibai. This document was proved by the defendant's testifying that the handwriting and signature on the document were that of Kashibai While testifying the defendant seems to have said that Exh. D-2 was given by Kashibai "merely in order to save me from Police harassment". This has led the learned trial Judge to treat the writing as not reflecting the true facts and intended only to protect the defendant from Police harassment. It is not possible to agree with this construction placed upon the writing by the learned trial Judge. Exh. D-2 is dated 10 June 1959 and it is in the nature of a declaration by Kashibai that she had given her land to the defendant for doing business in sugarcane juice on a monthly rental of Rs. 15/- and that she had no objection to the grant of a licence to him to carry on that business. It is not possible to read this document as nominal or meant to protect the defendant against Police harassment. What the Defendant was trying to say was that the writing was given to him by Kashibai so as to enable him to secure a licence from the Police Before grant of such a licence, the Police were treating him as a squatter and one not entitled to vend cane juice in the site in which he was carrying on the business. Unless some writing was forthcoming, he would continue to be subjected to Police questioning and obstruction in the doing of the business. To enable him to overcome this constant interference, Kashibai made a available Exh. D-2 to him. There is no reason to believe that the contents of Exh. D-2 did not reflect the correct position. Of course the words used therein may require interpretation and are not to be taken literally. That however is far different from holding that the letter was nominal and meant to ensure peace to the defendant from police prosecution.
11. Now, I turn to the disability imposed upon the Gandhis vide Exh. P-2. Exh. P-2 is the grant of the land by BMC to the Gandhis. There are some clauses in Exh. P-2 which have to be read as an absolute bar upon the granting and allowing the open land being built upon. In particular, reliance is placed upon Clause 2, which to the extent relevant reads thus:---
"Not to use or permit to be used such portion of the land hereby demised as shall for the time being be unbuilt upon for any purpose whatsoever other than as a garden or open space without the previous consent in writing of the Commissioner and not to place or store or permit to be placed or stored upon the land for the time being unbuilt upon or any part thereof any article or thing whatsoever which may interfere with the use of such land as a garden or open space .............."
Providing space meant to kept open and unobstructed in the installation and placement of the cane juice crusher and a bench for the seating of customers would be a violation of clause 2 That however would be a matter between the grantor and the grantee. But it would not render void the transaction statutorily permissible. No part of the law prohibits a grantee from the BMC, leasing out and which he has covenanted to keep open That the grantor BMC can take action against the grantee for a breach of the terms, would not create a legal impediment so far as the validity of the lease, in the hands of the lessee is concerned. The other clause in Exh. P-2 is Clause 13 and to the extent relevant it reads thus:---
"To use the buildings for the time being on the demised land only for residential purposes and not to use the said premises or any part thereof or permit the same to be used for any business, trade, occupation or purpose whatsoever other than as aforesaid without the previous consent in writing of the commissioner ................."
This again cannot be pleaded by a party to the wrong-doing viz. the grantee, and that too, in a suit as against the lessee. The trial Judge was in error in holding that the disability which Exh. P-2 subjects the grantee to, could have been invoked by the grantee as against the alleged lessee.
12. Kashibai was not the sole owner of Shobha Sadan then known as Gandhi Bhavan. That was pressed as a reason to void the transaction set up by the defendant. From what the defendant says and from Exh. D-2, it is clear that Kashibai who though not the sole owner, was virtually the manager of the property. Exh. D-2 shows that the defendant is telling the truth insofar as he claims to have been brought on the site by Kashibai, and, for a consideration. A co-owner managing the property can bind the other co-owners, unless her action be a fraud upon the rights of the other co-owners. Here, Kashibai's inducting the defendant was to enable the owners to earn an income which escaped the income-tax as also the property tax note. The transaction, whatever it was, to the benefit of the body of owners and not to their detriment. It is unthinkable that they were unaware or had not connived at what Kashibai had done. Had it been otherwise, action would have certainly been taken against the Defendant much prior to the sale in favour of the plaintiffs. One managing the property on behalf of the body of owners is entitled to create a tenancy, and the tenancy so created, is binding upon all the owners. Therefore, the alleged disability of one of the co-owners to create a tenancy does not stand scrutiny.
13. Last there remains the conclusion of the learned trial Judge that the defendant was never placed in exclusive possession of the said space. For this purpose it will be necessary to go into the factual position first. Plaintiffs know nothing of the details of the transaction between their predecessors-in-title and the defendant. Whatever plaintiff No. 4 has chosen to say rests upon either hearsy or conjecture or his interested gloss thereupon. Therefore, it becomes necessary to turn to the evidence of the defendant. We find him fumbling from the very start. Beginning by saying that his place of business consists of an area measuring 300 sq. ft. the defendant in his examination-in-chief itself is compelled to make the declaration "nothing was agreed about the place". The conclusion from this admission is that no area of the open site appurtenant to Shobha Sadan was carved out for his exclusive use even to the extent of placing his wares or the equipment for the juice extraction and sale thereof. With a view to make himself and his customers comfortable, the defendant without so much as by-your-leave went on doing what he wished over the open space. First, he put up a tin shed and because this did not look inviting enough, he replaced the same with a cloth covering. The photographs show that in recent times the defendant has effected a number of changes. Some sign boards in Gujarati as also in Marathi advertising himself and the juice he vends, appear to have been put up on the plot. Next, a shed of asbestos cement sheets has sprung up. Then there are chairs and a counter placed on the spot When exactly these came upon the spot is now known. Defendant does not say that all this was done with the permission of the previous owners. Mr. Walawalkar argues, that having regard to the situation, it cannot be believed that the previous owners were not consenting parties to the fixtures, additions and improvements made by the Defendant on the site. Inaction is not be construed as a sign of consent whether implied or expressed. Irrespective of whether the transaction be a licence or a lease, it can be brought about only by the parties to the transaction being of the same mind. This identity of minds is missing when one party goes on doing something and the other party sits back passively, doing nothing. Great emphasis was laid on the duration as if the long duration of any happening is the last word in proof of whatever is set up. Duration is a factor of some consequence where direct evidence is missing. But where the party to the transaction is examined as a witness, and, where that party is arraigned as a defendant, recourse cannot be had to assumptions, inferences and conjecture. This is because the party is under an obligation to set out the terms and conditions embodying the grant which he sets up, to escape an action for ejectment. Defendant says not a word about the shed or expansions being the result of a permission sought from and granted by Kashibai or any of the other previous owners of Shobha Sadan. In fact there is not even evidence to show that the crusher installed at the site is embeded to the earth. For all we know, that contraption may be moveable from place to place, however heavy it be. The bench must be the usual sort of furniture---easily removeable and shiftable from place to place. On defendant's own showing the space in between the crusher and the bench was not given to his exclusive use. It was used for passage by the tenants, occupants, agents and visitors to and for the Shobha Sadan. However, all this cannot do away with defendant having came to the site in the second half of 1950s, and his being there for a consideration. Exh. D-2 shows that the rent paid by him-atleast in the initial years---to Kashibai was Rs. 15/- per month. Defendant speaks of there having been increases in the rent and his last paying Rs. 70/- per month, even on plaintiffs' behalf payment is said to have been made to a sweeper on a direction given by the plaintiffs. This payment on behalf of the plaintiffs may have been made-if ever it was because the defendant was dirtying the place for carrying on his business. It does not appear to have been a part of an adjustment towards rent. Mr. Walawalkar argues that an inference of lease is inescapable having regard to the recitals in Exh. D-2. Now it is true that in Exh. D-2 the consideration by defendant is described as "monthly rent". But one cannot go by mere words. It is the substance that has to be seen. The words used by Kashibai would be correct were it possible to hold that the defendant was inducted as a tenant. It is elementary that there cannot be rent where there is no lease or tenancy. Section 105 of the Transfer of Property Act, 1882, defines lease, lessor, lessee and rent. A lease of an immoveable property is the transfer of a right to enjoy such property, and the service or other thing to be rendered by leasee, is called the rent. From the Defendant's testimony one learns that no particular spot was assigned to him and the site which he was using was not given in his exclusive occupation. The other inmates of the building had a right of free passage thereon. The nature of the contraption used by him for extraction of can juice as also the bench meant for the customers, has not been described. For all we know, these were filmsy articles capable of being moved with case. That defendant obtained a variety of licenses or an electric connection or that he put a shed and expanded the business, is neither here nor there. These are expansions done unilaterally and not the result of any agreement. What then is the nature of the transaction that governed the induction of Defendant into the site ? The distinction between a lease and a licenee is well known though difficult of application, unless the facts are properly determined. A lease is the transfer of a right to enjoy the premises whereas a license is a privilege to do something on the premises which otherwise would be unlawful......... Transaction is a lease if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties chose to put up on the transaction though relevant, is not decisive B.M. Lal v. Dunlop Rubber Co., . Tested thus, the record reveals the factual position to be thus : Shobha Sadan initially belonged to Gandhis and one of the viz. Kashibai permitted the defendant to do business in sugarcane juice at the mouth of the building. No particular spot was earmarked for the placement of the crusher and the bench by him. The area in which he could do business was and could be freely used by the occupants and visitors of and to the building. Defendant was paying consideration for the grant made to him. That consideration was Rs. 15- per month. Receipts were not given by the erstwhile owners and it is impossible to believe that they allowed the defendant to continue free of charge for near about 18 years, before their transferring the property to the plaintiffs. The better probability is that the defendant paid the occupation charges and that these charges were not acknowledged in writing because the Gabdhis did not want to get caught by the BMC for violating the restrictions in Exh. P-2 and also wanted to enjoy a tax free income But because there was no transfer of an interest in property, the transaction in favour of the defendant could not be said to be a lease. A lease of an open space is permitted in law. In the Rent Act the word premises embraces open site not used for agricultural purposes. Nonetheless, having regard to the nature of the business that defendant was carrying on, it cannot be said that he was granted the lease of any site. In fact at the very start of his testimony he had to say that site given to him for doing business was not even agreed upon. Therefore, a bare licence, is, the name of the transaction between Kashibai and the defendant. Defendant in his fashion understood this to be the position, for, he ends his examination in-chief by the significant exclamation that all that he desires to get from the case is, that he should have a place to carry on his livelihood. Now a bare licence comes to an end in various ways. Being a bare licence it is revocable at Will. Gandhis did not revoke the licence and the mere fact that Kashibai has died would not result in the revocation of the licence. This is because she had acted for and on behalf of herself and the other co-owners. However when the transfer in favour of the plaintiffs was made, he licence came to and an end. This is the effect of section 59 of the Easements Act. Plaintiffs have not chosen to be bound by the licence. In fact, no secret is made by defendant of their unwillingness to continue him as before. The very first act they did was to make him pay for the sweeper's expenses. As if this were not enough, there is the definite indicative of their not wanting to continue the licence by their filing a suit for eviction against him. Therefore, the decree for eviction passed by the trial Court has to be upheld, though not on all the counts which commended themselves to the learned trial Judge. No other points are can vassed and therefore, the order :
14. The appeal fails and is dismissed. Having regard to the complex issues that have arisen for determination, I have the parties to bear their own costs in this Court. Appellant defendant would like to test the correctness of this verdict in a higher Court. For that purposes, I stay his eviction for a period of six months as from today. This will him giving a written undertaking within 7 days from today incorporating the usual terms and conditions. Defendants shall further pay the upto date occupation charges within 2 months from today at rate Rs. 75/- per month and keep on paying the same until expiry of the aforementioned 6 months period. Plaintiffs will be at liberty to move this Court in case of defendant's default in furnishing the undertaking and in payment of occupation charges.
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Bombay High Court
Tukaram Sawant vs Mangalalaxmi Chinubhai Shah And ... on 14 December, 1988
Equivalent citations: 1989 (3) BomCR 313, 1989 MhLJ 197
JUDGMENTS.M. Daud, J.
1. This appeal takes exception to a decree for eviction, permanent injunction and damages in relation to a site admeasuring 14' x 20' on the Southern side of the building known as 'Shobha Sadan', Plot No. 321-A. Dadar Matunga Estate, Scheme No. V. Matunga, Bombay-19 (hereinafter referred to as 'the suit premises').
2. Shobha Sadan comprising a multi-storeyed structure together with land appurtenant thereto formerly belonged to Shyamaldas Gordhandas Gandhi and others. The building stands on land owned by the Bombay Municipal Corporation (BMC). One of the Gandhis was a lady known as Kashibai. Respondents/plaintiffs acquired the property under a deed of assignment dated 6 June, 1973.
3. Plaintiffs' case was that the lease under which their predecessors-in-title and they held the land on which stood the structure Shobha Sadan belonged to the BMC and one of the conditions which bound the lessees was not to use or permit the open land to be built upon except with the previous consent of the BMC Defendant was permitted by the Gandhis to use a small portion touching the southern side gate measuring 3' x 10'. This was not given to his exclusive possession All that he was entitled to do on the said space was, to put up a crusher for extracting sugarcane juice and selling the same. The open space was kept for exit and entry of the tenants and occupants of the building. Defendant was to use the open space without any structure permanent or otherwise thereon. The licence in favour of the defendant came to an end with the assignment in favour of the plaintiffs. Defendant was not paying any compensation either to the Gandhis or to the plaintiffs He had no right, title or interest in the space or any part thereof entitling him to continue his occupation Defendant with the object of putting forth a claim on the property, on or about 13 December 1974, unauthorisedly constructed a shed with roof of corrugated asbestos cement sheets covering an area of 14' x 20'. The shed had not been put up after obtaining the BMC's permission. In fact the BMC had called upon the plaintiffs to evict the defendant, his being there on the site itself being a violation of the clause earlier mentioned. As a result of the doings of the defendant, plaintiffs had to give an undertaking that they would get his fixtures removed from the land. As an earnest of this commitment, they were required to make a deposit of Rs. 200/- with the BMC. Repeatedly called upon to vacated defendant has ignored the demand and hence this suit. They claim possession of the space measuring 14' x 20' after removal therefrom of the defendant as also the fixtures and annexures brought in by him. Plaintiffs further pray for past damages totalling to Rs. 2750/- calculated at the rate of Rs. 150/- per month. Pendente-lite and future damages are requested to be ascertained under a decretal direction.
4. Defendant in his written statement denied the assignment pleaded by the plaintiffs. It was not true to say that Shobha Sadan was put up on the land subject to the condition about keeping the appurtenant land vacant. He was not a mere licensee and that too of site measuring 3' x 10'. A licence not being created there was no question of it having come to an end with the transfer of title vis-a-vis Shobha Sadan to the plaintiffs. The land had been given on lease to him on rental of Rs. 15/- per month. The lease was granted by the then owner of the building to him in or about 1986 After taking the site on lease, he erected a shed resting on wooden poles. The original rent of Rs. 15/- was increased from time to time and last the aggregate rent was Rs. 70/- per month. Rent at this rate had been paid to the Gandhis. Plaintiffs were taking advantage of the fact that rent receipts had never been issued by their transferors. He was ever ready and willing to pay the rent at the same rate to the plaintiffs, who however refused to accept the same. In case the tenancy set up by him was not established, he had become the owner of the place having been in open, continuous and uninterrupted possession thereof for over 18 years preceding the institution of the suit. As he was a tenant of the premises, the City Civil Court in which the suit was instituted had no jurisdiction to try the same.
5. Pleadings summarised above led the learned trial Judge to frame only two issues, the first, being whether defendant was a licensee as alleged by the plaintiffs, and, next, whether he was liable to pay damages at rate Rs. 150/- per month. The main witnesses examined at the trial were plaintiff No. 4 and the defendant. After going through their depositions and the documents on record, the learned trial Judge held that the defendant was a licensee whose licence having come to an end rendered him a trespasser and that he was liable to pay damages at rate Rs. 75/- per month. In keeping with these findings, the learned trial Judge passed the decree challenged in appeal.
6. Counsel for the applicant contends that the decree challenged is unsustainable First there was good evidence to bear out the defendant's contention that he was a lessee. Having regard to this the City Civil Court had no jurisdiction to entertain and try the suit, much less pas a decree for ejectment. Assuming that a tenancy in the strict sense of the expression was not proved, Defendant was yet a licensee entitled to the protection of the Bombay rents, Hotel and Lodging House Rate Control Act, 1947 (Rent Act) and therefore again the City Civil Court had no jurisdiction to entertain and try this suit. Lastly, and assuming that the defendant was a licensee unprotected by the Rent Act, the matter fell within the irrevocability clause enshrined in the Indian Easement Act. 1882 (Easement Act), vide section 60 thereof For all these reasons, the decree for possession and damages was liable to be set aside. Counsel representing the plaintiffs supports the correctness of the verdict rendered by the trial Court. On defendant's own showing he had been given nothing more than a bare licence to carry on business of juice extraction and vending. This licence came to an end by the death of the alleged licensor, and in any case, the sale of Shobha Sadan to the respondents. The appellant was not a licensee protected under the Rent Act nor one entitled to the benefit of the irrevocability clause enshrined in section 60 of the Easement Act. The points for determination would be:
(i) Did plaintiffs establish that defendant was bare licensee, the licence having come to an end by the transfer of Shobha Sadan upto them : or whether the defendant was a tenant or protected licensee vis-a-vis the Rent Act and/or in any case the licensee under an irrevocable licence ?
(ii) what order ?
My findings, for reasons given below, are:---
(i) Defendant was bare licensee.
(ii) See order.
7. The crucial issue in this appeal is as to the nature of the transaction which brought the appellant/defendant on the premises First let us get a proper idea of the stand taken by the parties in their pleadings. The plaint avers that the defendant came on the scene under a leave and licence granted by the Gandhis. This licence allowed him to place a juice extraction machine at a certain spot not in excess of 3' x 10'. The space was not given to his exclusive possession but was also used for exit and entry by the tenants and occupants of the building. No structure was put up or allowed to be put up on the open space and the defendant was to use the same temporarily. Consequent to the assignment in favour of the plaintiffs, the leave and licence, if any, in favour of the defendant had come to an end. This part of the pleadings is to be emphasised because of Mr. Walawalkar's submission that on the plaintiffs' own showing the licence in favour of the defendant continued till the Gandhis were the owners of Shobha Sadan. Defendant in his written statement does not admit that he was a licensee In fact, the stand taken in the written statement is that the premises were granted to him as a tenant in or about 1956 on an agreement to pay rent of Rs. 15/- per month. After taking the open space, he erected a shed and thereafter started doing the business of extraction and sale of sugarcane juice. One of the Plaintiffs who has been examined at the trial was questioned in regard to the plaint recital mentioned above. The question put to him was as to how he had learnt of the licence pleaded in the plaint. The witness answered that the recital was based upon information received by him from two sources : (i) his predecessors-in-title and (ii) the defendant. The predecessors-in-title have not been examined and defendant in his evidence says nothing about a licence continuing upto the date of transfer of Shobha Sadan to the plaintiffs. This is important because it knocks the bottom out of the contention that in case defendant fails to establish a transaction of lease, he is entitled to plead a licence protected by the changes effected in the Rent Act pursuant to Maharashtra Act 17 of 1973. A mere pleading in the plaint by the plaintiffs, if the same is shown to be erroneous-it will be no more than an admission, which, it is well-settled, is not binding, if proved to be the result of an error. Here we have the situation of a certain recital in the plaint being based upon information received from the alleged licensor and licensee The licensor has not been examined and in any case the information conveyed by that source would not make out more than a bare licence. The other party to the alleged licence viz. the licensee, repudiates the allegation that he is a licensee.
8. Mr. Rahimtoola for the respondents next contends that the benefit of protection given to licensees under Maharashtra Act 17 of 19/3 is not available to every licensee. The benefit is restricted to a licensee in occupation "of any premises, or any part thereof, which is not less than a room". Learned Counsel contends that a license in respect of open premises is not protected, and, in support of this contention, he relies upon the following commentary on the Rent Act by Dalal appearing on page 108:---
"The question, which however arises, is what are the premises contemplated by the legislature by the said words. The word 'premises' as defined in section 5(8), would mean land as well as building. The expression 'or any part thereof' has been used with reference to the preceding words 'any premises'. The words 'or any part thereof, are intended to emphasise that 'the part' should partake of the character, nature and quality of the words preceding and hence they would mean 'any part of any premises' The words 'which is not less tan a room' which follows the words 'any part of any premises' have been used to describe the class of premises to which the section is intended to be confined. Do the words 'which is not less than a room' apply to any part thereof only and not to 'any premises'. ? The use of the word 'thereof' show that 'any part' cannot be read disjunctively from the preceding words 'any premises'? The words which is not less than a room' apply to 'premises' whether whole or part. They govern both the said preceding expressions. The said words 'which is not less than a room' are not mere words of description which can be ignored. They incorporated the central or dominant decision of the legislature. They are intended to restrict and circumscribe the scope, ambit and meaning of 'the premises' whether whole or part. They are intended to narrow the focus of the otherwise wider focus of the words 'any premises.' or 'any part of premises.' cons trued in the light of the definition. By using the words 'not less than' the legislature has shown its firm and determined mind to emphasize and lay down what should be the minimum or least limit of the premises. In other words, the legislature intended that the premises in preceding words should conform to the minimum condition or qualification laid down by the legislature by the words which is not less than a room'....... If 'the premises' were only land or its part' the legislature would not have used the said expression 'which is not less than a room' in respect of land. The 'land' only is clearly intended to be excluded from the ambit and purview of this section"
This is a construction made by a reputed author on the Rent Act a and there being no decision indicating support for the opposite view. It accepts the same as correct. On the basis it cannot be said that the Defendant was granted a licence which came to be protected by Maharashtra Act 17 of 1973. Let me emphasize that the defendant does not claim to have been let or permitted to occupy a built structure. What was given to him was an open space and nothing more. Thus on his own showing, the contention that the defendant has become a protected licensee is not available to him.
9. The next contention raised on behalf of the defendant is that assuming the transaction between him and the Gandhis be a licence, the licence was one coupled with transfer of property and/or acting upon which licence he has executed a work of a permanent character and incurred expense in the execution. Therefore, the grantor or his successors-in-interest cannot revoke the licence. Mr. Walawalkar is at pains so emphasize that the expression 'work of permanent character' is not limited to immoveable property. Learned Counsel contends that defendant by bringing his crusher on the site and installing it there has executed a work of a permanent character. The installation is one which cannot be shifted with ease. The installation required the incurring of expenditure. In support of his contention learned Counsel has referred to a number of reported decisions. First, he says that the permanency is to be judged not by any rigid standard, but permanency having regard to the factor of duration. In this connection, he relies upon a note from Second Appeal No 186 of 1976 decided by Bhatt, J., of the Gujarat High Court, reported at A.I.R. 1983 NOC 54 :
"The permanency is not related to the material used for the purposes of construction but is stated to be related to the duration for which it intended to be used".
Next, he refers to certain observations appearing in P.M. Jacob v. The Executive Officer Mulanthuruty Panchayat, . In that
case it was remarked that what was not merely of a temporary nature must be treated as a work of permanent character. The important question is not as to the nature of the work that has been done by the appellant. The major hurdle that he has to cross is whether the work was done by him by acting upon the licence. A licensee is not entitled to plead irrevocability because he has carried out a work of permanent nature by incurring expenditure. He has to show that what he has done viz. executing a work of permanent nature, is pursuant to a right granted to do upon the land of the grantor something which would be unlawful in the absence of such a right. To quote from Gujarat Ginning and Manufacturing Co. Ltd. v. Motilal Hirabhai Spinning and Manufacturing Co. Ltd. :
"A man does not 'act upon a licence' if he does work and incurs expense upon his own property. That he can do without anyone's licence. Work done by the licensee on his own land may be done without the knowledge of the licensor, and the alleged licensor's land cannot be held to be bound in perpetuity (subject to section 62) as the result of some work done by the alleged licensee on his own property of which the former was unaware."
Here the defendant does not say that the licensor Kashibai has permitted him to instal the crusher in such a way as to make it irremoveable or removeable only with some difficulty. He was certainly not allowed by the licensor to put up a structure. This is inferable from his statement in the examination-in-chief itself that he had put up a shed without any express permission from the licensor. Initially the shed put up by him was made of tin sheets. Because that did not make a presentable appearance, the defendant removed the shed of made of tin sheets and replaced it by a ceiling of white cloth. Later on, the cloth was replaced by a shed of asbestos cement sheets. All this has been done by the defendant on his own and without permission either from the licensor or the BMC. He admits that he did not take the permission of the BMC to put up the shed. Therefore, the fact that money was spent on the installation of a crusher and a bench at the site, and, further assuming that this entitled some expenditure, would not make the licence irrevocable as is assumed by the defendant. The contention is that consent of the licensor must be presumed or otherwise, the defendant would not have been allowed to continue with the installation of the crusher or the shed since as far back as 1956. The inaction of Kashibai and the other Gandhies does not lead to the inference that they had permitted the Defendant to instal the crusher or put up a structure of any sort whatsoever. It only entails that no action was taken by them until they assigned the property to the plaintiffs. The inaction of a licensor to the encroachment or advances made by a bare licensee does not convert that bare licence into a licence coupled with the grant of an interest in the property. It was argued that the defendant has obtained licence to do sugarcane juice business from the BMC and the police. Next, he has taken an electric connection from the BEST to work the crusher and possibly to illuminate some part of the site where the juice is sold. As one doing business within the territorial limits of the BMC and doing business in a natural beverage, he had to take licences from the BMC and the Police. This liability is placed upon all persons doing business in edibles on a particular site, irrespective of their relation thereto. Even a squatter doing business has to take out licences from the aforementioned authorities. That would not render the owner of the encroached-upon-site, a privy to the doings of the squatter. Therefore, neither clause (a) nor (b) of section 60 of the Easement Act is available to the defendant for protecting his possession.
10. Coming to the main issue the question is whether the defendant was a licensee or a tenant. There are some errors on the judgment of the trial Court which have to be dealt with at the inception Defendant had produced Exh. D 2 bearing the handwriting and signature of Kashibai. This document was proved by the defendant's testifying that the handwriting and signature on the document were that of Kashibai While testifying the defendant seems to have said that Exh. D-2 was given by Kashibai "merely in order to save me from Police harassment". This has led the learned trial Judge to treat the writing as not reflecting the true facts and intended only to protect the defendant from Police harassment. It is not possible to agree with this construction placed upon the writing by the learned trial Judge. Exh. D-2 is dated 10 June 1959 and it is in the nature of a declaration by Kashibai that she had given her land to the defendant for doing business in sugarcane juice on a monthly rental of Rs. 15/- and that she had no objection to the grant of a licence to him to carry on that business. It is not possible to read this document as nominal or meant to protect the defendant against Police harassment. What the Defendant was trying to say was that the writing was given to him by Kashibai so as to enable him to secure a licence from the Police Before grant of such a licence, the Police were treating him as a squatter and one not entitled to vend cane juice in the site in which he was carrying on the business. Unless some writing was forthcoming, he would continue to be subjected to Police questioning and obstruction in the doing of the business. To enable him to overcome this constant interference, Kashibai made a available Exh. D-2 to him. There is no reason to believe that the contents of Exh. D-2 did not reflect the correct position. Of course the words used therein may require interpretation and are not to be taken literally. That however is far different from holding that the letter was nominal and meant to ensure peace to the defendant from police prosecution.
11. Now, I turn to the disability imposed upon the Gandhis vide Exh. P-2. Exh. P-2 is the grant of the land by BMC to the Gandhis. There are some clauses in Exh. P-2 which have to be read as an absolute bar upon the granting and allowing the open land being built upon. In particular, reliance is placed upon Clause 2, which to the extent relevant reads thus:---
"Not to use or permit to be used such portion of the land hereby demised as shall for the time being be unbuilt upon for any purpose whatsoever other than as a garden or open space without the previous consent in writing of the Commissioner and not to place or store or permit to be placed or stored upon the land for the time being unbuilt upon or any part thereof any article or thing whatsoever which may interfere with the use of such land as a garden or open space .............."
Providing space meant to kept open and unobstructed in the installation and placement of the cane juice crusher and a bench for the seating of customers would be a violation of clause 2 That however would be a matter between the grantor and the grantee. But it would not render void the transaction statutorily permissible. No part of the law prohibits a grantee from the BMC, leasing out and which he has covenanted to keep open That the grantor BMC can take action against the grantee for a breach of the terms, would not create a legal impediment so far as the validity of the lease, in the hands of the lessee is concerned. The other clause in Exh. P-2 is Clause 13 and to the extent relevant it reads thus:---
"To use the buildings for the time being on the demised land only for residential purposes and not to use the said premises or any part thereof or permit the same to be used for any business, trade, occupation or purpose whatsoever other than as aforesaid without the previous consent in writing of the commissioner ................."
This again cannot be pleaded by a party to the wrong-doing viz. the grantee, and that too, in a suit as against the lessee. The trial Judge was in error in holding that the disability which Exh. P-2 subjects the grantee to, could have been invoked by the grantee as against the alleged lessee.
12. Kashibai was not the sole owner of Shobha Sadan then known as Gandhi Bhavan. That was pressed as a reason to void the transaction set up by the defendant. From what the defendant says and from Exh. D-2, it is clear that Kashibai who though not the sole owner, was virtually the manager of the property. Exh. D-2 shows that the defendant is telling the truth insofar as he claims to have been brought on the site by Kashibai, and, for a consideration. A co-owner managing the property can bind the other co-owners, unless her action be a fraud upon the rights of the other co-owners. Here, Kashibai's inducting the defendant was to enable the owners to earn an income which escaped the income-tax as also the property tax note. The transaction, whatever it was, to the benefit of the body of owners and not to their detriment. It is unthinkable that they were unaware or had not connived at what Kashibai had done. Had it been otherwise, action would have certainly been taken against the Defendant much prior to the sale in favour of the plaintiffs. One managing the property on behalf of the body of owners is entitled to create a tenancy, and the tenancy so created, is binding upon all the owners. Therefore, the alleged disability of one of the co-owners to create a tenancy does not stand scrutiny.
13. Last there remains the conclusion of the learned trial Judge that the defendant was never placed in exclusive possession of the said space. For this purpose it will be necessary to go into the factual position first. Plaintiffs know nothing of the details of the transaction between their predecessors-in-title and the defendant. Whatever plaintiff No. 4 has chosen to say rests upon either hearsy or conjecture or his interested gloss thereupon. Therefore, it becomes necessary to turn to the evidence of the defendant. We find him fumbling from the very start. Beginning by saying that his place of business consists of an area measuring 300 sq. ft. the defendant in his examination-in-chief itself is compelled to make the declaration "nothing was agreed about the place". The conclusion from this admission is that no area of the open site appurtenant to Shobha Sadan was carved out for his exclusive use even to the extent of placing his wares or the equipment for the juice extraction and sale thereof. With a view to make himself and his customers comfortable, the defendant without so much as by-your-leave went on doing what he wished over the open space. First, he put up a tin shed and because this did not look inviting enough, he replaced the same with a cloth covering. The photographs show that in recent times the defendant has effected a number of changes. Some sign boards in Gujarati as also in Marathi advertising himself and the juice he vends, appear to have been put up on the plot. Next, a shed of asbestos cement sheets has sprung up. Then there are chairs and a counter placed on the spot When exactly these came upon the spot is now known. Defendant does not say that all this was done with the permission of the previous owners. Mr. Walawalkar argues, that having regard to the situation, it cannot be believed that the previous owners were not consenting parties to the fixtures, additions and improvements made by the Defendant on the site. Inaction is not be construed as a sign of consent whether implied or expressed. Irrespective of whether the transaction be a licence or a lease, it can be brought about only by the parties to the transaction being of the same mind. This identity of minds is missing when one party goes on doing something and the other party sits back passively, doing nothing. Great emphasis was laid on the duration as if the long duration of any happening is the last word in proof of whatever is set up. Duration is a factor of some consequence where direct evidence is missing. But where the party to the transaction is examined as a witness, and, where that party is arraigned as a defendant, recourse cannot be had to assumptions, inferences and conjecture. This is because the party is under an obligation to set out the terms and conditions embodying the grant which he sets up, to escape an action for ejectment. Defendant says not a word about the shed or expansions being the result of a permission sought from and granted by Kashibai or any of the other previous owners of Shobha Sadan. In fact there is not even evidence to show that the crusher installed at the site is embeded to the earth. For all we know, that contraption may be moveable from place to place, however heavy it be. The bench must be the usual sort of furniture---easily removeable and shiftable from place to place. On defendant's own showing the space in between the crusher and the bench was not given to his exclusive use. It was used for passage by the tenants, occupants, agents and visitors to and for the Shobha Sadan. However, all this cannot do away with defendant having came to the site in the second half of 1950s, and his being there for a consideration. Exh. D-2 shows that the rent paid by him-atleast in the initial years---to Kashibai was Rs. 15/- per month. Defendant speaks of there having been increases in the rent and his last paying Rs. 70/- per month, even on plaintiffs' behalf payment is said to have been made to a sweeper on a direction given by the plaintiffs. This payment on behalf of the plaintiffs may have been made-if ever it was because the defendant was dirtying the place for carrying on his business. It does not appear to have been a part of an adjustment towards rent. Mr. Walawalkar argues that an inference of lease is inescapable having regard to the recitals in Exh. D-2. Now it is true that in Exh. D-2 the consideration by defendant is described as "monthly rent". But one cannot go by mere words. It is the substance that has to be seen. The words used by Kashibai would be correct were it possible to hold that the defendant was inducted as a tenant. It is elementary that there cannot be rent where there is no lease or tenancy. Section 105 of the Transfer of Property Act, 1882, defines lease, lessor, lessee and rent. A lease of an immoveable property is the transfer of a right to enjoy such property, and the service or other thing to be rendered by leasee, is called the rent. From the Defendant's testimony one learns that no particular spot was assigned to him and the site which he was using was not given in his exclusive occupation. The other inmates of the building had a right of free passage thereon. The nature of the contraption used by him for extraction of can juice as also the bench meant for the customers, has not been described. For all we know, these were filmsy articles capable of being moved with case. That defendant obtained a variety of licenses or an electric connection or that he put a shed and expanded the business, is neither here nor there. These are expansions done unilaterally and not the result of any agreement. What then is the nature of the transaction that governed the induction of Defendant into the site ? The distinction between a lease and a licenee is well known though difficult of application, unless the facts are properly determined. A lease is the transfer of a right to enjoy the premises whereas a license is a privilege to do something on the premises which otherwise would be unlawful......... Transaction is a lease if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties chose to put up on the transaction though relevant, is not decisive B.M. Lal v. Dunlop Rubber Co., . Tested thus, the record reveals the factual position to be thus : Shobha Sadan initially belonged to Gandhis and one of the viz. Kashibai permitted the defendant to do business in sugarcane juice at the mouth of the building. No particular spot was earmarked for the placement of the crusher and the bench by him. The area in which he could do business was and could be freely used by the occupants and visitors of and to the building. Defendant was paying consideration for the grant made to him. That consideration was Rs. 15- per month. Receipts were not given by the erstwhile owners and it is impossible to believe that they allowed the defendant to continue free of charge for near about 18 years, before their transferring the property to the plaintiffs. The better probability is that the defendant paid the occupation charges and that these charges were not acknowledged in writing because the Gabdhis did not want to get caught by the BMC for violating the restrictions in Exh. P-2 and also wanted to enjoy a tax free income But because there was no transfer of an interest in property, the transaction in favour of the defendant could not be said to be a lease. A lease of an open space is permitted in law. In the Rent Act the word premises embraces open site not used for agricultural purposes. Nonetheless, having regard to the nature of the business that defendant was carrying on, it cannot be said that he was granted the lease of any site. In fact at the very start of his testimony he had to say that site given to him for doing business was not even agreed upon. Therefore, a bare licence, is, the name of the transaction between Kashibai and the defendant. Defendant in his fashion understood this to be the position, for, he ends his examination in-chief by the significant exclamation that all that he desires to get from the case is, that he should have a place to carry on his livelihood. Now a bare licence comes to an end in various ways. Being a bare licence it is revocable at Will. Gandhis did not revoke the licence and the mere fact that Kashibai has died would not result in the revocation of the licence. This is because she had acted for and on behalf of herself and the other co-owners. However when the transfer in favour of the plaintiffs was made, he licence came to and an end. This is the effect of section 59 of the Easements Act. Plaintiffs have not chosen to be bound by the licence. In fact, no secret is made by defendant of their unwillingness to continue him as before. The very first act they did was to make him pay for the sweeper's expenses. As if this were not enough, there is the definite indicative of their not wanting to continue the licence by their filing a suit for eviction against him. Therefore, the decree for eviction passed by the trial Court has to be upheld, though not on all the counts which commended themselves to the learned trial Judge. No other points are can vassed and therefore, the order :
14. The appeal fails and is dismissed. Having regard to the complex issues that have arisen for determination, I have the parties to bear their own costs in this Court. Appellant defendant would like to test the correctness of this verdict in a higher Court. For that purposes, I stay his eviction for a period of six months as from today. This will him giving a written undertaking within 7 days from today incorporating the usual terms and conditions. Defendants shall further pay the upto date occupation charges within 2 months from today at rate Rs. 75/- per month and keep on paying the same until expiry of the aforementioned 6 months period. Plaintiffs will be at liberty to move this Court in case of defendant's default in furnishing the undertaking and in payment of occupation charges.
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