Full Judgment Text
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2008:BHC-AS:2480
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE
CIVIL REVISION APPLICATION NO.816 OF 1995 CIVIL REVISION APPLICATION NO.816 OF 1995 CIVIL REVISION APPLICATION NO.816 OF 1995
Shri Ravindra Nainsukh Sanghavi
Age: 43 yrs., Occ: Business,
R/at: 617/B, Kasba Peth,
Pune 411 011 ...Applicant.
v.
1. Laxman Rangnath Nagarkar
since deceased through legal
heirs and representatives
1a. Jagdish Laxman Nagarkar
R/at 617 Kasba Peth, Pune-11.
1b. Sou.Madhuri Balkrishna Deshmukh
R/at Flat No.288, Sector No.28,
Ganga Nagar, Pradhikaran, Pune.
1c. Sou. Neela Laxman Deshmukh
R/at Punit Complex,
Sadashiv Peth, Pune-30.
1d. Sou.Mangala Jagdish Thigale
R/at Bhelke Nagar, Kothrud,
Pune-20.
1e. Sau.Arundhari Chandrashekhar Joshi
R/at 1320, Shukrawar Peth,
Kusumaarti Apartment, Pune-30.
1f. Sau.Vrunda Shrikant Bokil
R/at Bungalow No.16,
Amriteshwar Society, Padmavati,
Pune-9. ...Respondents.
Mr.R.N.Sanghavi, adv. for the Applicant.
Mr.S.P.Thorat, adv. for the Respondent Nos.1a to 1f.
CORAM: CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. J.H.BHATIA,J.
DATE: 7th February, 2008. DATE: 7th February, 2008. DATE: 7th February, 2008.
ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT:
1. The respondents before this Court are the legal
heirs of the original applicant, who was the landlord
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and owner of the suit property. The present revision
applicant is the original opponent and admittedly he is
residing in the premises of the respondent. The
landlord filed Miscellaneous Application No.33 of 1993
under Section 13A(2) of The Bombay Rents, Hotel and
Lodging House Rates (Control) Act, 1947 (In brief ’The
Bombay Rent Act’) for possession of the suit premises.
According to him, an agreement of leave and licence had
taken place between himself and the present applicant
and as per that agreement, Block No.4 admeasuring 467
sq.ft. carpet area, having three rooms, balcony and
toilet bathroom situated on the City Survey No.617/B was
given to the present applicant for residential purpose.
Agreement was entered into on 4th June, 1992. Leave and
licence agreement was reduced to writing and was
executed by the parties on the stamp paper. Period of
licence was 11 months beginning from 4-6-92 and was to
come to an end on 30th April, 1993. The revision
applicant/licencee was to pay an amount of Rs.500/- per
month towards the compensation, which was to be known as
licence fee. On expiry of the licence period, the
licensee had to remove his articles and materials from
the house. According to the landlord in spite of expiry
of the licence period, the licencee had not vacated the
premises. Therefore, he filed proceeding before the
Competent Authority under the Bombay Rent Act for
possession of the premises.
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2. The licensee or the present applicant contested
the said application on several grounds. Firstly,
according to him, he was not licensee but the tenant and
agreement for tenancy had taken place between the
parties. He had also deposited an amount of Rs.50,000/-
with the respondent. The rent was agreed to be
Rs.1,500/- per month. From June, 1993, landlord was
claiming Rs.2,500/- per month as rent and he had
threatened to evict him from the premises. In view of
this, the applicant had filed Civil Suit No.899 of 1993
seeking perpetual injunction restraining the respondent
from dispossessing him from the premises without
following due process of law. In that matter, temporary
injunction was granted in favour of the present
applicant. He also contended that the description of
the suit premises given in the application filed by the
landlord was wrong. He is not in occupation of block
no.4 but the block no.3. According to him, as there was
no agreement of leave and licence but of lease, the
Competent Authority did not have jurisdiction to
entertain the application and the jurisdiction will lie
with the Small Cause Court.
3. The landlord examined himself and several other
witnesses. The present applicant also examined himself
and one Gulabsing as witness in respect of his claim.
After hearing the parties, the learned Competent
Authority came to the conclusion that there was written
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leave and licence agreement between the parties and,
therefore, the present applicant is the licensee and the
respondent is the licensor. He rejected the plea of the
present applicant that he was tenant or that there was
lease agreement between the parties. With these
findings, application filed by the landlord came to be
allowed and the present applicant was directed to vacate
the premises and give possession thereof to the
landlord. This order passed by the Competent Authority
has been challenged by the present applicant before this
Court by filing Revision Application.
4. Heard the learned counsel for the Parties.
5. Mr.Sanghavi the learned counsel for the revision
applicant vehemently contended that no leave and licence
agreement was reduced to writing and executed between
the parties and that the alleged leave and licence
agreement Exhibit 52 dated 4-6-1992 is a forged document
and that it does not bear the signature of the present
applicant. Secondly, he contended that taking into
consideration the terms and conditions of this document,
it was actually a lease agreement and not an agreement
of leave and licence though title of the document is
about leave and licence agreement. According to him,
the title does not indicate the nature of the document.
Thirdly, he contended that there is difference in the
description of the property because the present
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applicant is in occupation of block no.3 and not block
no.4 and, therefore, property has been wrongly described
in the application filed by the landlord. Mr.Thorat the
learned counsel for the respondents however, referred to
the contents of the documents, oral evidence and other
circumstances in support of the claim made by the
respondent.
6. First of all, the objection about the
description of the property can be taken up. As per the
evidence, which has come on record, it appears that
firstly leave and licence agreement Exhibit 127 was
entered into on 1st April, 1991. It was for a period of
eleven months. It had come to an end by the end of
February, 1992. After a few months again leave and
licence agreement took place between the parties and
that agreement is Exhibit 52. In paragraph 1 of Exhibit
52 dated 4th June, 1992 and the earlier leave and
licence agreement, Exhibit 127, description of the
property is given. It shows that block no.4 situated on
the first floor admeasuring 467 sq.ft. carpet area
having three rooms, toilet, bathroom and the balcony
situated on the City Survey No.617/B was the subject
matter of the agreement. Boundaries of this block were
shown as follows:
i. To the East:- property of the licensor/first
party about which some suit was pending before the
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Court.
ii. To the South:- City Survey No.619/A
iii. To the West:- City Survey No.614/1
iv. To the North:- Block No.3 in which the first
party, i.e., the licensor was himself residing.
In the application and in his oral evidence before the
Competent Authority, the landlord gave the same
description of the property. However, in the
cross-examination, he got confused when he stated that
he was not sure if a block number was 3 or 4 but he
maintained boundaries of that block. The learned
counsel for the respondents pointed out that in the
cross-examination, the present applicant had himself
admitted boundaries given in the application as well as
in leave and licence agreement. Not only this, he
admitted that in the Suit No.899 of 1993, which he had
filed against the landlord, he had given the same
description of the property and had also claimed that he
was occupying block no.4. In view of this documentary
evidence and the oral evidence as well as admission of
the present applicant, I find that the property has been
rightly described and the objection has no substance.
7. The respondent/licensor deposed that the stamp
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paper for the agreement Exhibit 52 was purchased by the
present applicant and on that stamp paper an agreement
was reduced to writing and it was executed by the
parties. It was also signed by both the parties and the
attesting witness in his presence. P.W. Jagdish
Thigale was the attesting witness of this document. He
has also supported the respondent. He has deposed that
the document Exhibit 52 was executed and signed by both
the parties. He himself had put his signature as
attesting witness on the said document. P.W.Rangnath
Chaudhari was a stamp vendor. According to him, the
present applicant had purchased stamp paper of Rs.10/-
on 21-5-1992 and about this entry was taken in his stamp
register at Sr.No.4028. That serial number is also
mentioned on the stamp paper sold. Exhibit 52 reveals
same serial number on the stamp paper. According to
him, Ravindra Sanghavi had put his signature in register
as well as on the stamp paper as a purchaser of the
document. It is true that in the cross-examination, he
admitted that he was not knowing Ravindra Sanghavi
personally. He also did not know who had come and
described himself as Ravindra Sanghavi. In view of this
admission, it appears that stamp paper vendor was not
personally acquainted with Ravindra Sanghavi and he did
not know whether the present applicant Ravindra Sanghavi
was the same person, who had purchased the stamp paper
from him. Therefore, much importance can not be given
to the signature put by the purchaser in the register as
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well as well as on the stamp paper in presence of this
witness. However, evidence of stamp vendor gains
importance in view of the fact that the stamp paper,
used for the purpose of writing and executing leave and
licence document Exhibit 52 bears serial number 4028 and
this number is also found in the register maintained by
the stamp vendor wherein he used to take entries about
the sale of the stamp papers. Thus, evidence reveals
that the stamp paper was infact purchased on 21-5-1992
from the stamp vendor. In view of this, it can be
safely held that the stamp paper purchased from this
witness on 21-5-1992 was used for the purpose of
preparing leave and licence agreement, Exhibit 52. On
the basis of this, one can safely come to conclusion
that the document was not created after the disputes
arose between the parties.
8. The learned counsel for the present applicant
vehemently contended that Jagdish Thigale, who claims to
be attesting witness is son-in-law of the landlord and,
therefore, his evidence can not be believed. Merely
because of relationship of the witness with the
respondent, his evidence can not be discarded. It is
material to note that according to the present
applicant, there was agreement of lease and in the
cross-examination, he deposed that the lease agreement
was reduced to writing. He admitted that there was
written proof that he was inducted as tenant. However,
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he did not produce any such document to prove the
tenancy. He examined Gulabsing Gondhale in support of
his claim. But Gulabsing only deposed that the
agreement had taken place in 1991 and since then the
present applicant was residing in the premises of the
respondent. According to him, rent was agreed to be
Rs.1,500/- per month and an amount of Rs.50,000/- was
deposited. However, there is no such document either
about the lease agreement or any deposit. There are no
rent receipts showing that Rs.1,500/- per month was paid
by the present applicant. It is true that evidence
reveals that he was living in the premises from April,
1991. About that respondent himself produced leave and
licence agreement dated 1st April, 1991 and it is marked
Exhibit 127. This document was proved by Chandrashekhar
Joshi, who is also attesting witness of this document.
From the oral and documentary evidence, it appears that
firstly, the present applicant was allowed to occupy the
suit premises on 1st April, 1991 for a period of 11
months. Thereafter, he had vacated the premises and
after a few months from 4th June, 1992, he again came to
occupy the same and at that time, fresh leave and
licence agreement Exhibit 52 was executed. On the basis
of that agreement, present proceeding has commenced.
9. The learned counsel for the applicant contended
that the applicant had made an application before the
Competent Authority to refer this document to
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handwriting expert for comparison of the signature.
However, that request was refused. In the present case,
besides, the evidence of the landlord, there was also
evidence of attesting witness to prove that there is
signature of the present applicant on the leave and
licence agreement, Exhibit 52. The Competent Authority
noted that it had compared this signature with the
admitted signature of the present applicant on his
pursis, Exhibit 92 and he was convinced that both the
writings were similar. The learned counsel for the
present applicant contended that the Court can not
itself come to conclusion by comparing admitted
handwriting with the disputed one and it is not safe
method of coming to conclusion about the handwriting.
According to him, it was necessary to refer the matter
to the handwriting expert. It is true that the Court
can not and should not give finding about the
handwriting merely on the basis of comparison by itself
and it has been held by the Supreme Court and several
High Courts that the practice of comparison of
handwriting by the Court itself and coming to conclusion
on the basis of that is not proper and should be
deprecated. However, when there is a evidence of
witnesses to prove that a particular document is signed
by a particular person, for an assurance that the
evidence of the witness is true, the Court may certainly
compare the disputed writing with the admitted writing
of the person. Section 73 of the Indian Evidence Act
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clearly provides that in order to ascertain whether a
signature, writing or seal is that of the person by whom
it purports to have been written or made, any signature,
writing or seal admitted or proved to the satisfaction
of the Court to have been written or made by that person
may be compared with the disputed one. In Satish Satish Satish
Jayantilal Shah v. Pankaj Mashruwala, (1997) 2 Crimes Jayantilal Shah v. Pankaj Mashruwala, (1997) 2 Crimes Jayantilal Shah v. Pankaj Mashruwala, (1997) 2 Crimes
203 203 Gujarat High Court held that under the law the Court 203
has power to compare signatures/handwriting for
strengthening its findings based on other cogent material
and evidence on record. If there is other cogent
material to show that signature on the disputed document
is of the present applicant, the Competent Authority
could certainly compare that signature with the admitted
signature of the applicant only to verify and strengthen
its findings based on the oral evidence. In the present
case, besides evidence of the landlord, there was also
evidence of the attesting witness to prove that the
present applicant had signed leave and licence agreement
Exhibit 52. I find nothing wrong in the Competent
Authority comparing the disputed signature with the
admitted signature of the applicant just to satisfy that
the evidence led by the witnesses was true. It is not
that the Competent Authority came to conclusion only on
the basis of comparison of the admitted signature with
the disputed one. In view of this, objection taken by
the learned counsel for the applicant can not be upheld.
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10. The learned counsel further contended that even
if document Exhibit 52 is found to be document executed
by the parties still taking into consideration the
contents of the same, it can not be called a agreement
of leave and licence but it should be treated as a lease
agreement. In respect of this contention, he relied
upon certain authorities. In Capt. B.V.D’Souza v. Capt. B.V.D’Souza v. Capt. B.V.D’Souza v.
Antonio Fausto Fernandes AIR 1989 Supreme Court 1816 Antonio Fausto Fernandes AIR 1989 Supreme Court 1816, Antonio Fausto Fernandes AIR 1989 Supreme Court 1816
Their Lordships held that mere title or description of
the agreement is not sufficient but to find out whether
it was an agreement of lease or of licence, one has to
find out intention of the parties and that can be
gathered from the terms of the contract. In view of the
specific terms of the contract in that matter, Their
Lordships held that it was lease agreement and not a
leave and licence agreement. Similar view was taken in
Sohan Lal Naraindas v. Laxmidas Raghunath Gadit The Sohan Lal Naraindas v. Laxmidas Raghunath Gadit The Sohan Lal Naraindas v. Laxmidas Raghunath Gadit The
Bombay Law Reporter Volume LXXIV Page 144 Bombay Law Reporter Volume LXXIV Page 144. In that Bombay Law Reporter Volume LXXIV Page 144
matter, the plaintiff had inducted defendant for use and
occupation of a loft. Agreement reveals that the
licensee had no right as a tenant or subtenant and he
would not sublet, allow to use, transfer or assign in
any way the said loft to any other person. The parties
were to give one month’s clear notice about their
intention in writing. The defendant was put in
exclusive possession of the loft. After referring to
the definition of "license" in Section 52 of the
Easements Act and that of "lease" in Section 105 of the
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Transfer of Property Act , Their Lordships observed that
a licence confers a right to do or continue to do
something in or upon immovable property of grantor
which, but for the grant of the right, may be unlawful,
but it creates no estate or interest in the immovable
property of the grantor. A lease on the other hand
creates an interest in the property demised. So the
test is whether interest is created in the property.
The same view appears to have taken in Miss Aninha Miss Aninha Miss Aninha
D’Costa v. Mrs. Parvatibai M. Thakur 1964 The Bombay D’Costa v. Mrs. Parvatibai M. Thakur 1964 The Bombay D’Costa v. Mrs. Parvatibai M. Thakur 1964 The Bombay
Law Reporter Volume LXVIL Page 452 Law Reporter Volume LXVIL Page 452. That matter was Law Reporter Volume LXVIL Page 452
under The Bombay Rents, Hotel and Lodging House Rates
Control Act.
11. It is material to note that all these
authorities that is the judgment in Sohan Lal Naraindas Sohan Lal Naraindas Sohan Lal Naraindas
v. Laxmidas Raghunath Gadit v. Laxmidas Raghunath Gadit and Miss Aninha D’Costa v. v. Laxmidas Raghunath Gadit Miss Aninha D’Costa v. Miss Aninha D’Costa v.
Mrs. Parvatibai M. Thakur Mrs. Parvatibai M. Thakur were rendered prior to 1987. Mrs. Parvatibai M. Thakur
In 1987 the Bombay Rent Act was amended and the special
provision in the form of Section 13A(1) and 13A(2) were
incorporated for the ejectment of the licensee. Section
13A(2) of the Bombay Rents, Hotel and Lodging House
Rates (Control) Act, 1947 reads as follows:
13A(2) Landlord entitled to recover possession Landlord entitled to recover possession Landlord entitled to recover possession
of premises given on licence on expiry of of premises given on licence on expiry of of premises given on licence on expiry of
licence licence licence
(1) Notwithstanding anything contained in this
Act, a licensee in possession or occupation of
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premises given to him on licence for residence
shall deliver possession of such premises to the
landlord on expiry of the period of licence;
and on the failure of the licensee to so deliver
the possession of the licensed premises, a
landlord shall be entitled to recover possession
of such premises from a licensee, on the expiry
of the period of license by making an
application to the Competent Authority; and the
Competent Authority, on being satisfied that the
period of licence has expired, shall pass an
order for eviction of a licensee.
(2) Any licensee who does not deliver possession
of the premises to the landlord on expiry of the
period of licence and continues to be in
possession of the licensed premises till he is
dispossessed by the Competent Authority shall be
liable to pay damages at double the rate of the
licence fee or charge of the premises fixed
under the agreement of licence.
The Competent Authority shall not entertain any
claim of whatever nature from any other person
who is not a licensee according to the agreement
of licence.
Explanation:- For the purposes of this section-
(a) the expression "landlord" does not include
a tenant or a sub-tenant who has given premises
on licence;
(b) an agreement of licence in writing shall be
conclusive evidence of the fact stated therein].
From this, it is clear that the licensee should have
been inducted for residence in the premises of the
landlord and it should have been under a writing. As
per explanation (b) " an agreement of licence in writing
shall be conclusive evidence of the fact stated
therein." In the present case, document Exhibit 52
clearly shows that it was leave and licence agreement.
It shows that it was entered into for a period from
4-6-1992 to 30-4-1993. The applicant/licensee was to
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pay compensation, to be called as licence fee, at the
rate of Rs.500/- per month. On expiry of licence, he
was to remove his goods without any objection and to
hand over the keys to the landlord/respondent/licensor.
As per Clause (9), he did not get any right or interest
as tenant or subtenant in the premises. He could make
use of the house only for residential purpose. In case
of contravention of any condition, by giving 7 days
notice, licence could be terminated and the
respondent/licensor would have right to take back
possession. Having mentioned all the conditions, in
Clause (11) it was specifically mentioned that this
agreement would be subject to the provisions of Section
13A(2) of the Bombay Rent Act as amended in 1987. In
view of these contents, it becomes clear that the
parties were fully aware that the agreement was entered
into as a leave and licence agreement and it was so
described and the relevant provisions of Section 13A(2)
were also referred to. In view of the explanation (b)
to Section 13A(2), an agreement of licence in writing
shall be conclusive evidence of the fact stated therein.
In view of this specific provision, it must be held that
it was an agreement for leave and licence and not for
lease as contended by the present applicant.
12. Taking into consideration the evidence on record
and the legal position, I find no illegality,
irregularity or error in the impugned order. I do not
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find any substance in the present revision application.
13. In the result, Revision Application stands
dismissed.
14. At this stage the learned counsel for the
applicant/licencee makes a request that a reasonable
time may be given to the applicant to vacate the
premises and he is willing to file undertaking that he
would vacate the premises within stipulated period
without any objection or obstruction. To this the
learned counsel for the respondent has no objection.
Therefore, the applicant is granted time upto 15th
March, 2008 to vacate the premises subject to his filing
written undertaking before this Court within two weeks
to the effect that he shall vacate the premises and put
the respondent/licensor in peaceful possession without
any obstruction or objection within the stipulated
period.
(J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)
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