What is difference between lease and license?

 A lease is a transfer of a right to enjoy immovable property for a certain time in consideration of rent or premium, while a license is only a permission to do something on the property without transfer of any interest.

For Judicial service interview, the safest short distinction is: lease creates an interest in the property and usually gives exclusive possession; license creates no interest and only permits use, generally without exclusive possession.

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Can a municipal corporation evict its lessee by issuing a notice granting just three days to vacate suit shop?

 It must be noted here that the notice threatened forcible eviction of respondent by granting him just 3 days time to vacate the suit shop, and, therefore, the notice was in clear violation of Section 106 of the Transfer of Property Act, with the agreement between the appellant and the respondent being one of lease and not the licence. The said Act does not confer any special power on the Corporation to forcibly evict the tenants or lessees facing a situation as in the present case, bypassing the provisions of the Transfer of Property Act and powers of Civil Court. Therefore, the rejection of its objection by both the Courts below is legal and proper and cannot be interfered with.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

S.B. SHUKRE, J.

Nagpur Municipal Corporation Vs. Bhaurao s/o. Marotrao Mohod (D) thr. Legal Heirs

Second Appeal No.205 of 1993

22nd April, 2014

Citation: 2014(6) ALL MR 537

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Whether court can treat conducting agreement as a leave and license agreement if the word rent is used in said agreement?

 In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to  note that the extension of the contract was on same conditions. {Para 16}

17. On consideration of the matter, the High Court erred in

appreciating the ambit of Section 95, which led to consideration of

evidence which only indicates breach rather than ambiguity in the

language of contract. The evidence also points that the license was

created for continuation of existing business, rather than

license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term ‘rent received’. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law.

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10827 of 2010

Mangala Waman Karandikar (D) TR. LRS. Vs  Prakash Damodar Ranade 

N.V. RAMANA, CJI

Dated:  MAY 07, 2021

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Whether the City civil court can entertain an eviction suit if the plaintiff had given suit premises to the defendant for conducting business?

  Section 41(1) of the Presidency Small Cause Courts Act would apply

only to the suit and proceedings between the licensor and licensee or

landlord and tenant relating to recovery of the possession of any immovable

property situated in Greater Bombay or relating to the recovery of license

fees or charges or rent therefor irrespective of the value of the subject matter

of the suit suits or proceedings. In my view, since the Small Causes Court

has already recorded the finding that the suit business was given by the husband of the plaintiff to the predecessor of the defendants on conducting

and there being no relationship of a landlord and tenant or licensor or

licensee, Section 41(1) of the Presidency Small Cause Courts Act, 1882

would not apply to the facts of this case. Perusal of the prayers in the plaint

and more particularly, prayer clause (a) clearly indicates that the plaintiff

had applied for declaration that the defendants were trespassers and have no

right, title or interest in the suit premises or in her business after the period

prescribed under the Conducting Agreement was over. In prayer clause (b),

the plaintiff had prayed for an order and direction against the defendants to

vacate the suit premises and its business being carried therein.

65] In my view, the reliefs sought in prayer clause (b) is incidental to the

prayer clause (a) and more particularly, would depend upon whether the

plaintiff had given the suit business to the defendants on conducting suit

business. The premises were given to the defendants for conducting the suit

business. In my view, prayer clause (b) thus, even otherwise could not be

considered as a suit for recovery of possession of the licensee premises. The

period of Conducting Agreement was admittedly over much before the date

of filing suit by the plaintiff. The alleged rights and interest claimed by the

defendants in the suit premises were already rejected by the Small Causes

Court by recording detailed findings of fact which findings have admittedly,

attained finality. The defendants thus being trespassers in respect of the suit

business and also the premises, the Suit filed by the plaintiff for various reliefs claimed in the plaint was thus maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

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Is finding recorded by small cause court upheld by the high court is binding on the party before city civil court in a parallel proceeding?

 The Trial Court dealt with the orders passed by the Small Causes

Court in the declaratory suit filed by the defendants, order passed by the

Appellate Bench of the Small Causes Court and the order passed by this

Court in Writ Petition No. 3521 of 1999 filed by the original defendant

recording various findings in favour of the plaintiff herein and against the

defendants. The Trial Court, accordingly, rightly held that the original

defendant was judicially held to be just conductor of the business and

nothing more, which finding had attained the finality. In view of the fact that

various issues which were raised by the defendants in this Suit were already

concluded by the Small Causes Court and upheld by the Appellate Bench

and this Court, those submissions made by both parties were rightly not

considered by the Trial Court once again in the impugned judgment and

decree. In my view, the findings rendered by the Small Causes Court,

Appellate Bench of the Small Causes Court and this Court in respect of the

suit premises were binding on the parties in the parallel proceedings raising

similar issues.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 19th MAY 2020

Citation: 2020(6) MHLJ 86

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What is the distinction between agreement to lease and agreement for lease?

 For the reasons above recorded, we concur with the view taken by the learned Single Judge that the Indentures are a license and is not a lease. They envisage lease deeds to be executed upon the respondent No.1 complying with the obligations under the Indentures and reaching the stage where the right to have the lease executed is triggered. In conformity with its caption: `Agreement to Lease', the Indenture is a license with features of Agreement to Lease. It is not an Agreement for Lease. The distinctions between the two is that in an Agreement for Lease the transaction is completed and possessory interest is transferred in favour of the lessee to the exclusion of the lessor and an Agreement to Lease requires an Agreement for Lease to be executed. No right, title or interest passes under an Agreement to Lease.

 Bombay High Court

The State Of Maharashtra And Ors vs M/S.Jasubhai Business Services ... on 14 November, 2019

CORAM: PRADEEP NANDRAJOG, CJ. &SMT. BHARATI DANGRE, J.

 [ Per Pradeep Nandrajog, CJ.] 

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Whether licence granted to the licensee is revoked on the filing of eviction suit?

Also, it is clarified that the plea of the defendant she had never received the legal notice dated 18.04.2015, has not been factored in this adjudication because in view of Section 61 of the Easements Act, 1882, the licence of the defendant to stay at the second and third floor of the suit property, stood definitely revoked, with effect from the day, when the defendant had received the summons for settlement of issues of this suit.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

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Whether the court must frame an issue and record evidence if the defendant takes plea of Benami joint owner of the property?

Reliance was also placed on behalf of the respondents on the verdict of this Court in Bhavna Khanna Vs. Subir Tara Singh decided on 01.02.2019 in CS (OS) No. 356/2016 with observations in para 23 thereof wherein it was observed to the effect:

"Be that as it may, the Benami Transactions (Prohibition) Act, 1988 which came into force on 5th September, 1988 i.e. much prior to the sale deed dated 16th December 2003, defined a benami transaction as a transaction in which property is transferred to one person for a consideration paid or provided by another persons. Section 3 thereof barred all persons from entering into benami transaction. Section 4 of the Act barred any defence in any suit, claim or action based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person. The claim of the defendant that out of total sale consideration of Rs. 55 Lacs, Rs. 39.5 was contributed by him but the sale deed of the property obtained in the exclusive name of his wife Dr. Rachana Khanna falls within the definition of benami transaction and which transaction was barred on the date of sale deed and the defendant is also barred from defending this suit on the plea of being the benami joint owner of the property. The said Act was, vide amendment of the year 2016, renamed as Prohibition of Benami Property Transactions Act,1988 and through there has been an overhaul of all the provisions of the earlier statute but the effect remains the same. Section 4 bars a defence in respect of any property held benami. The defence of the defendant in the present suit is thus barred by the said law and once the defence is barred, again permitted evidence to be led would be only at the cost of the valuable time of this Court and the Court ultimately after recording of evidence also will be bound to decide in accordance with law. It is for this reason that I say that the defence of the defendant of joint ownership does not raise any material proposition of fact or law for an issue to have been framed thereon."

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1402/2020

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Whether property allotted on the license to the deceased is partible among his legal heirs?

The undersigned, after the hearing of this Second Appeal on 13th July, 2018 had observed that the appeal was entitled to be allowed, being of the view that once the land had been allotted to the father of the parties as far back as in the year 1968 and the father of the parties had raised construction of a permanent nature thereon and continued in occupation thereof till his demise in 1975 and that further since after his demise his heirs had been allowed to continue in occupation for 30 years, at least till the institution of the suit and even thereafter, without any disturbance from the grantor i.e. the DDA, the allotment even if any by way of a license, was of a right and the license was not of such a nature which was determinable by demise of the licensee. Even a license with respect to immovable property, once allowed to continue after the demise of the licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. In this context, I have in Shyam Behari Vs. Ram Kishan (MANU/DE/3688/2013) and Surjit Singh Vs. Ekta Gulati (MANU/DE/3916/2012, appeal where against was dismissed by the Supreme Court in its order dated 3rd March, 2016 in Civil Appeal No. 7332/2013 titled "Inderjit Kaur Vs. Ekta Gulati") held that the law of inheritance/succession covers all assets of the deceased including possessory rights of the deceased to any movable and immovable property. Parity was also drawn with tenancy/leasehold rights, which also are determinable by nature and with respect whereto also it is settled law [Iresh Duggal Vs. Virender Kumar Seth MANU/DE/3068/2014 : 2015 (221) DLT 216, Dalip Kumar Vs. Om Prakash MANU/DE/2534/2015 Ram Lal Sachdev Vs. Sneh Sinha MANU/DE/0222/2000, UOI Vs. Mohinder Pratap Soni MANU/DE/1035/2016, Madan Lal Vs. Kuldeep Kumar MANU/DE/4039/2013, Pragun Buildtech (P) Ltd. Vs. Sarla Aggarwal MANU/DE/1348/2012 : 190 (2012) DLT 164, Surendra Pal Singh Vs. Ravindra Pal Singh MANU/DE/1128/2014, Satish Kumar Chojar Vs. Subhasini Chopra MANU/DE/1460/2014] that the said rights are partible. It was also felt that the Trial Court as well as the First Appellate Court had fallen in error in dismissing the claim of the appellant/plaintiff for partition for the reason which was not pleaded by the respondents/defendants in the written statement and on which no issue had been framed.

IN THE HIGH COURT OF DELHI

RSA No. 394/2015

Decided On: 29.04.2020

Gopi Chand  Vs.  Geeta Devi and Ors.

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Whether to constitute a licence, license fee should be in monetary terms?

The Apex Court reversing the concurrent judgments, observed thus:

10. It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub tenancy .This frustrates and defeats the purpose of the rent Act. Take for instance a case where a person renders services to the landlord in lieu of rent but this will completely erode the provisions of Rent Act and defeat the claims for services. Work performed by subtenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of agricultural tenancies. But in urban area in civilized times that cannot be so. The Rent Act, 1956 cannot be fitted into a position where the services can be rendered in exchange of the right of occupation.

12. The structure of the Rent Act in the instant case, as indicated above would also indicate that. We hold therefore that second ingredient, viz. rent agreed, was not there. And as such on the case pleaded and proved there could not have been any sub tenancy.

It can clearly be seen that the Apex Court in clear terms has held that insofar as tenancy in urban area is concerned, for creating sub tenancy, an agreed rent is an essential ingredient.

 If the words used in Sub-Section 4(A) of Section 5 are given its plain and simple meaning, the words used 'licence fee or charge' in my view will have to be given a meaning that the said license fee or charge has to be in the monetary terms. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6215 of 2008

Decided On: 04.05.2011

 Shashikant G. Mehta Vs.  Soonoo Minoo Khajotia and Ors.

Hon'ble Judges/Coram:

B.R. Gavai, J.

Citation: 2011(4) MHLJ 247

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How to ascertain whether particular agreement is lease deed or leave and licence agreement?

Here, the residential portion was let out only as a stopgap

arrangement, and the licence was terminable on the happening of a

contingency. That contingency—the return of the landlady’s son—will

terminate the agreement, the agreement period notwithstanding.

Besides that, there have been restrictions on the use: for example, how

and only for what purpose the bathroom could be used.

70. In Tulsi, the Supreme Court has held that a licensee gets the

possession only with the consent of the licensor and is liable to vacate

when so asked. Then, Shrikant contends that he has had uninterrupted

possession. According to him, though the alleged licence expired in

1989, until 1994 his possession had not been disturbed. That said, once

it is a licence, merely because the licensor has not asked the licencee to

vacate soon after the licence period does not transform the licence into

lease. The length of the period is not, I must say, a determinative factor.

71. In Achintya Kumar Saha, the Supreme Court has reiterated

that the nature of lease and licence to be gathered from surrounding

circumstances. In Amratlal Valji, this Court has relied on the Supreme

Court’s proposition in C.M. Beena’s case. It has held that the difference

between lease and licence is to be determined based on the document

and surrounding circumstances.

(b) What sort of possession does the occupier have?

72. Shrikant contends that it would have been impossible for him

to enjoy the property, had he not been in possession. A person’s

occupying a residential property speaks volumes about that occupier’s

possessing the property, and enjoyment without possession, according

to him, is unthinkable and impracticable.

73. In this context, I may note that there are many shades of

possession: say, corporeal possession, incorporeal possession,

constructive possession, adverse possession, de facto possession, de jure

possession, mediate possession, and immediate possession. Indeed,

immediate possession is a direct or primary possession. The person in

direct possession has a higher control over the thing possessed. It means

there is no intermediary or medium. On the contrary, if someone

possesses something through another, the thing remains in possession

of another. That is, the possessor has a lesser control over the thing he

has physically possessed, though.

74. Lexically speaking, ‘possession’ is a chameleonhued

word. G.

W. Paton in his A Textbook of Jurisprudence has ‘pessimistically states’

that the search for its proper meaning is likely to be a fruitless one.[26]

The expression 'possession' is a polymorphous term which assumes

different colours in different contexts. It may carry different meanings

in contextually different backgrounds. It is impossible, as was observed

in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil

Kumar Bhunja[27], to work out a completely logical and precise

definition of "possession" uniformly applicable to all situations in the

context of all statutes.

75. As noted in Gunwantlal v. The State of M.P.[28], possession in

a given case need not be physical possession but can be constructive,

having power and control over the article in case in question, while the

persons to whom physical possession is given holds it subject to that

power or control. That is, the word 'possession' means the legal right to

possession. In an interesting case, it was observed that where a person

keeps his firearm in his mother's flat which is safer than his own home,

he must be considered to be in possession of the same. (See Sullivan v.

Earl of Caithness.[29]

76. Here, I must hold that what Shrikant has is mediate

possession, like the mother’s possessing the son’s firearm in Sullivan. To

conclude, his possession is mediate and permissive.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 2219 OF 2006

Shrikant Dattatraya Deshpande  Vs  Shalini Waman Bhat 

CORAM

: DAMA SESHADRI NAIDU, J.

DATE OF PRONOUCEMENT : 13th September 2019.

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Whether a person can be treated tenant on basis of inspection report?

It must be noted that simply because a man is in occupation over a particular property he cannot be termed as a tenant or a licensee on the basis of his occupation. A tenancy like any other fact is a fact which is to be proved by evidence. A person cannot be held to be tenant merely on basis of inspection report showing him to be in possession of the disputed property when neither any lease deed nor any rent note or any other piece of paper was placed on record in support of the contention.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 372 of 1993

Decided On: 01.07.2008

 Francis  Vs.  Andrew and Ors.

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation: 2008(6) MHLJ 450

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What are necessary conditions for getting deemed tenancy as bombay rent Act?

In that view of the matter, only questions that falls for consideration is as to whether the payment of corporation taxes and electricity charges would be covered by the term "license fee or charge" under Sub-Section 4 A of Section 5 of the said Act. Undisputedly, for bringing a license under the ambit of licensee as defined under Section Sub-Section 4(A) of Section 5 of the said Act, a person who is in occupation of the premises has to be so under a subsisting agreement for a license given for a license fee or charge. Only in that event, the licensee who is in occupation of the premises on 1st February, 1973 would be deemed to have become tenant for the purposes of the said Act.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6215 of 2008

Decided On: 04.05.2011

Shashikant G. Mehta Vs. Soonoo Minoo Khajotia and Ors.

Hon'ble Judges/Coram:

B.R. Gavai, J.

Citation: 2011(4) MHLJ 247

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Whether tenant can offer his services in lieu of rent?

Shri Godbole submitted that the tenant is not necessarily required to pay a rent in money and can be permitted to pay it in kind. He specifically referred section 105 of the Transfer of Property Act, whereunder in a lease of immovable property a service rendered can be the consideration for the lease. He drew my attention to the fact that it was the understanding between the parties that apart from his service in the School, Hasan Jahagirdar was to look after the Hostel. Shri Godbole submitted that this service was the consideration for the tenancy. Shri Godbole, therefore, submitted that the premises occupied by Hasan Jahagirdar were covered under the Bombay Rent Act and the first respondent landlord was required to take action under the provisions of that Act only and could not file a civil suit to evict Hasan Jahagirdar and his family members from the suit premises.

Shri Jamdar drew my attention to the judgment of Hon'ble Supreme Court in the case of Dipak Banerjee v. Lilabati Chakraborty, reported in MANU/SC/0752/1987 : [1987]3SCR680 , wherein the question before the Supreme Court was as to whether the sewing activity can be considered to be the rent paid in kind and in a para 10, the Hon'ble Supreme Court in terms held that under the provisions of the particular Rent Act, service cannot be a consideration for sub-lease is the question. The Court observed "It is however, not possible to accept that services in lieu of the right of occupation would amount to receipt of rent... This frustrates and defeats the purpose of the Rent Act".

 Shri Jamdar took me through the provisions of the Rent Act and particularly the provisions regarding fixation of the standard rent, arrears of rent, additions to the rent etc., and submitted that if any such interpretation is accepted, a number of provisions of the Act would become redundant and in that context he drew my attention to the observations of the Supreme Court in the case of M/s. Alphali Pharmaceuticals Ltd. v. State of Maharashtra and others, reported in : 1989 (44) ELT 613 (SC) , that the provisions should be so construed in the context of the Act that no word of the statute is rendered redundant, superfluous or meaningless. There need not be two views on what Shri Jamdar canvassed. The provisions of the Rent Act are quite clear. If one looks into a number of provisions contained in the Act, it is very clear that the rent has to be paid through money. If that was not so in number of provisions of the Act relating to the arrears of rent, additions to the rent, standard rent etc., would become redundant. The notice to be given by the landlord to the tenant calling upon him to pay the rent has also to be for payment in money and it cannot be in service. Under these circumstances, the submission of Shri Jamdar, is required to be accepted that the provisions of section 105 of the Transfer of Property Act, cannot be invoked for urban residential tenancy which are specifically covered under the Acts of the tenancy such as Bombay Rent Act.

6. In the circumstances, stated above, it is very clear that Hasan Jahagirdar was not required to pay any rent per month and was not a tenant of the first respondent institution. His occupation was at the highest a personal privilege of occupation and not tenancy. 

IN THE HIGH COURT OF BOMBAY

S.A. No. 758 of 1997

Decided On: 12.07.1999

Chinnupashabi  Vs.  Fatesingh Sikshan Sanstha and Ors.

Hon'ble Judges/Coram:

H.L. Gokhale, J.

Citation: 1999 (4) ALL MR 405

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Whether court can dispense with consent of landlord for renewal of trade licence for business to be carried on by tenant?

On the above legal issue, we may benefit by referring to the pronouncement in Sudhakaran v. Corporation of Trivandrum reported in [(2016) 14 SCC 263] where the Supreme Court on the issue of the renewal of a trade licence, stated that a tenant cannot be deprived of running a lawful business merely because the landlord withheld his consent, and further that, a valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant.

9. In the above case itself, the Supreme Court quoted with approval the ratio laid down by this Court in Marimuthu v. Director General of Police [1999 (3) KLT 662] where the following was recorded:—

“…………………………………………………………………………………………

16. A statutory tenant under the Kerala Buildings (Lease and Rent Control) Act can be evicted only as per the provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. In the instant case, we are satisfied that the landlord is purposefully and with malafide intention withholding consent inspite of the directions from this court. Under such circumstances, the Corporation also cannot insist upon production of written consent from the landlord for the purpose of issuance of licence for the conduct of business in the premises in question. For carrying on business in readymade dresses a licence issued under Sec.492 of the Kerala Municipality Act is necessary. As on date, the petitioner is not having any licence to carry on such business. A person in occupation can be allowed to carry on a trade or business which requires a licence, only after obtaining such licence. In view of the facts and circumstances of the case as above, we direct the Corporation of Thiruvananthapuram to consider Ext.P7 application for licence without insisting upon the production of a written consent of the owner of the premises and pass appropriate orders after giving an opportunity to the petitioners or their representative or their advocate, within two weeks from today. The petitioners are at liberty to file any further documents, if need be, before the Corporation authorities. The Corporation shall pass a reasoned order after hearing the necessary parties and communicate the same to the petitioners within two weeks from today. We make it clear that till such time the petitioners shall not conduct the textile business in the premises in question. Ext.P8 order of the Corporation of Thiruvananthapuram is set aside and Ext.P7 is restored to file for fresh consideration as directed above.”

………………………………………………………………………………………….”

10. In the facts of the present case what would have a bearing is that in the judgment of the Supreme Court, the necessity for dispensing with the requirement of providing consent from the landlord for considering the renewal of the trade licence in a situation where the relationship between the landlord and tenant are strained, was held to be applicable both in a situation where fresh application is applied or it is a case of renewal of a trade licence that is applied by the tenant. Therefore the direction to this effect issued in the impugned verdict would merit our approval.

In the High Court of Kerala at Ernakulam

(Before Hrishikesh Roy, C.J. and A.K. Jayasankaran Nambiar, J.)

W.A. No. 2426 of 2018

C.S. Babu  v.  C. Vijayan @ Raghavan,

Decided on December 14, 2018

Citation: 2018 SCC OnLine Ker 5783

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What reliefs can be claimed before small cause court?

 Mr. Sanghavi also submitted that in the plaint the plaintiff has claimed a sum of Rs. 35,625 by way of damages for trespass for the period June 1, 1970 till the date of the suit, that is, till April 1978, at the rate of Rs. 375 per month and for a sum of Rs. 375 per month from the date of the suit till possession of the said flat is handed over to the plaintiff either by way of future mesne profits or damages or compensation for wrongful use and occupation of the said flat. Mr. Sanghavi argued that Section 41 of the Presidency Small Cause Courts Act did not in terms include a suit for damages for trespass or for compensation for wrongful use and occupation or for mesne profits. In his submission, the section only related to recovery of licence fee or charges and that the licence having been determined, all that the plaintiff could recover from the defendant was either damages for trespass or compensation for wrongful use and occupation of the property or mesne profits. This argument by Mr. Sanghavi overlooks the language used in the said Section 41. The said Section 41 speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". It is significant that the words used in the said Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Rule 12 of Order 20 of the Civil P. C., 1908, provides as to how a Court is to proceed "Where a suit is for the recovery of possession of immovable property and for rent or mesne profits." The contrast between the language used in Order 20, Rule 12 and the said Section 41 immediately strikes one. The phrase "relating to the possession of any immovable property" is wider than the phrase "for the recovery of possession of any Immovable property." The words "relating to" are intentionally and designedly used in the said Section 41 not to confine the section only to a suit for the recovery of possession of immovable property situate in Greater Bombay but also to permit to be included within the ambit of such a suit all other reliefs which the plaintiff can claim in a suit for the recovery of possession of immovable property on the termination of a licence or a tenancy.

IN THE HIGH COURT OF BOMBAY

Short Cause Suit No. 890 of 1978

Decided On: 08.02.1979

Nagin Mansukhlal Dagli  Vs. Haribhai Manibhai Patel

Hon'ble Judges/Coram:

Balkrishna Narhar Deshmukh, C.J. and D.P. Madon, J.

Citation: AIR 1980 Bombay 123.

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Whether small cause court has jurisdiction to try suit if tenancy is determined?

 In other words, whether it is a suit between the
licensor and the licensee or between the landlord
and the tenant, such types of suits fall under
Section 41 of the Small Cause Courts Act and are,

therefore, cognizable by the Courts of Small Causes,
Bombay.
30) This takes us to deal with the next argument
of Mr. Naphade, learned senior counsel for the
appellants that once the tenancy is determined such
suits would not come within the purview of Section
41 of the Small Cause Courts Act. This argument
was rejected by the Division Bench and, in our view,
rightly by placing reliance on the law laid down by
the Bombay High Court in the case of Nagin
Mansukhlal Dagli vs. Haribhai Manibhai Patel
(AIR 1980 Bombay 123) (Para 8 of the said decision
quoted in the impugned order). We approve the law
laid down by the Bombay High Court in the case of
Nagin Mansukhlal Dagli (supra) as laying down the
correct principle of law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.57535754
OF 2011

Mahadev P Kambekar Vs Shree Krishna Woolen Mills Pvt. Ltd. 
Dated:January 31, 2019

Abhay Manohar Sapre, J.
Citation: 2019(1) RCR(Rent) 273 SC,2020(1) MHLJ 157

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Whether licensee will become tenant if his license was not subsisting on the date when S 15A Bombay rent Act came in to force?

 Defendants 2 and 3 came to the suit flat by virtue of Ex. 20-1 dt. 9-10-1967. Under Ex. P-7 the licence granted to defendant 1 stood terminated as from the last day of June 1966. Of course, defendant 1 did not comply with the demand to vacate and deliver possession of the flat. Would continuance in occupation authorise defendant 1 to create a sub-licence and would the beneficiary of the said sub-licence get the benefit of section 15-A of the Rent Act ? Ex. 2-D-1 was for a period of 11 months as from 9-10-1967, with the licensee having an option to renew it for a further eleven months period. Thus the extended period would end in about September 1969. There was no further extension. The argument is that defendants 2 and 3 continued in occupation and defendant 1 accepted the compensation. This would therefore make the license a subsisting one on the day section 15-A came into the statute book by virtue of Mah. Act XVII of 1973. It is not possible to accept this contention. Section 15-A conferred protection upon a specified class of licensees. As section 5(4-A) makes clear the expression 'licensee' referred to is "a person in occupation under a subsisting agreement for a licence". Now on 1-2-1973 neither defendant 1 nor defendant 2 and 3 could be said to be in occupation as licensees whose licence was subsisting. Defendant 1's licence had been expressly determined and the licence in favour of defendant 2 ended by efflux of time. Licence is a matter of agreement and cannot be left to inferences. This is all the more so when Ex. 2-D-1 specifies a period of 22 months as the termination point, and, as reckoned from 9-10-1967. If there had been a renewal it would have been in writing. Reliance is placed upon Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and others, Civil Appeal No. 1369 of 1990 decided by the Supreme Court on 8-3-1990: 1990(1) B.C.R. (S.C.)796. Far from that decision supporting the contention of defendants 2/3, it reaffirmed the view taken in earlier decisions that a person not in occupation of the premises under a subsisting licence as on 1-2-1973, could not invoke the protection of section 15-A of the Rent Act. Quoted with approval in the other case relied upon by defendants 2/3 i.e. A.V.R. and Co. and others v. Fairfield Co-operative Housing Society Ltd. 1989(1) B.C.R. 325 : 1989 M.R.C.J. 103 : is this passage from D.H. Maniar v. Waman Laxman Kudav, MANU/SC/0350/1976 : [1977]1SCR403

"In order to get the advantage of section 15-A of the Bombay Rent Act, the occupant must be in occupation of the premises as a licensee as defined in section 5(4-A) on February 1, 1973. If he be such a licensee the non-obstante clause of section 15-A(1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract ......... But if he is not a licensee under a subsisting agreement on February 1, 1973, then he does not get the advantage of the amended provision of the Bombay Rent Act."

10-A. To sum up, the plea that defendant 1 was a tenant of the society is not true on facts and is barred by res judicata on the competing claims of defendant 1 and Sadashiv vis-a-vis title as tenant members, the matter has to be found in favour of the latter-again on facts and by virtue of an earlier decision. Lastly, and on the same basis, is the finding that defendant 1 was inducted into the flat as a licensee by Sadashiv and was therefore estopped from questioning his licensor's title. The claim to protection under section 15-A of the Rent Act is not available to defendants 1 to 3. In fact defendant 1 does not make that claim in the proper sense of the concept for he has set up an adverse title to his licensor. A licensee recognises the superior title of his licensor and where the claim set up by him conflicts with the licensor's title, he is not a licensee or entitled to the benefit of section 15-A. I emphasise this for defendants 2/3 have pleaded that defendant 1 was or had represented himself to be a tenant that it was on this representation that they had entered into the licence transaction with him. In Ex. 2-D-1 there is an averment about defendant 1 being a tenant. This of course has to be construed as a reference to his claiming to be a tenant-member from the society and not a tenant of Sadashiv. I deduce this from the contents of Ex. P-8 which is defendant 1's reply to plaintiff's quit notice Ex. P-7. In Ex. P 8 appears the assertion that defendant 1 is a yearly tenant of the society. It is doubtful if a licence created by a sub licensor setting up a title hostile to the head tenant, even though in force on 1-2-1973, can get the protection of section 15-A. But it is not necessary to go further into the matter for on the facts proved no licence subsisted on 1-2-1973 in favour of either set of defendants. And that suffices to find the issues against defendants.

IN THE HIGH COURT OF BOMBAY

Suit No. 595 of 1976

Decided On: 16.04.1990

 Narayan Sadashiv Bhalerao Vs.  Navnitdas Narayandas Barshikar and Ors.

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Whether statutory tenant prior to 1973 could have created license?

 It must be emphasised that as a result of the various decisions referred to hereinbefore, it must be accepted that statutory tenant was in the same position as a contractual tenant until the decree for eviction was passed against him and the rights of a contractual tenant included the right to create licence even if he was the transferor of an interest which was not in fact the transfer of interest. {PARA 67}

In the premises

it must be held that all licensees created by landlords or by the tenant before 1st February, 1973 and who were in actual occupation of a premises which was not less than a room as licensee on 1st February, 1973 would be the licensees of the landlord or tenant and whether there be any term in the original agreement for tenancy permitting creation of such tenancy or licences or not they would become tenant and enjoy the rights granted under the Act specially those mentioned in Section 14(2) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 840 of 1986

Decided On: 25.09.1986

Chandavarkar Sita Ratna Rao Vs.  Ashalata S. Guram

Hon'ble Judges/Coram:

K.N. Singh and Sabyasachi Mukherjee, JJ.

Citation:AIR 1987 SC 117

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Whether a person can acquire easementary right over property which is owned by him?

 With regard to the nature of occupation of the defendant and the finding that the license in his favour was irrevocable under Section 60 of the said Act, it is necessary to refer to the respective pleadings of the parties. While the plaintiff came up with a specific case that he was the owner of the suit property by virtue of the sale-deed dated 16th August, 1983, according to the defendant this document was nominal in nature and executed by way of security for the amount borrowed. It was pleaded that the ownership of the defendant continued and the defendant did not lose his title by virtue of the sale-deed. In alternate, it was pleaded that the occupation of the defendant was by way of a license and a permanent structure had been constructed. As noted above, the relief with regard to declaration of title was rightly granted in favour of the plaintiff by the trial Court.

10. The Full Bench of this Court in Raychand Vanmalidas [supra] has held that though a party may raise inconsistent pleas of ownership and easement in the alternative in the same suit, such party has to elect one of the pleas through the course of the proceedings. Even if a party does not choose one of the alternate pleas, he can lead evidence on both and it is for the Court to decide whether he is entitled to succeed on one of his pleas. This judgment of the Full Bench was considered by the Hon'ble Supreme Court on Chapsibhai Dhanjibhai Dand [supra] and the same came to be affirmed. It was observed that after taking the plea of ownership and failing in the same, a party cannot subsequently turn around and claim that right as an easement by prescription. For establishing the right based on easement, such right has to be exercised on the property owned by somebody else and not as an incident of his own ownership of that property. In the light of this legal position, it is clear that the defendant having failed to prove his ownership cannot now be permitted to turn around and claim that by virtue of easementary right, he had undertaken a permanent construction and, therefore, was not liable to be evicted. In Shankar Gopinath Apte [supra], this position has been reiterated by emphasizing that the party undertaking the work of a permanent character should do so while "acting upon the license" under Section 60(b) of the said Act.

11. In view of this legal position, it is found that both the Courts committed an error in refusing the relief of possession to the plaintiff by relying upon the provisions of Section 60(b) of the said Act. Having failed to prove his title, it was not open for the defendant to fall back upon his other plea that he had easementary right in the suit property. Both the Courts refused the relief of possession by wrongly applying the law. Substantial question of law No. 2 is answered by holding that the defendant is not entitled to claim that on account of permanent construction being made, the license was irrevocable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 384 of 2003

Decided On: 09.02.2018

 Tulshidas  Vs. Madhukar

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