Full Judgment Text
$~2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 21.09.2015
+ RSA 265/2015
SATVINDER SINGH .... Appellant
Through: Mr. Sanjay Kumar, Advocate
versus
JASVINDER KAUR ..... Respondent
Through: Mr. Harminder Singh, Vijay Kumar
Ravi and Sanjay Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The present second appeal is directed against the judgment and decree
dated 31.03.2015 passed by the first appellate court, namely, the Additional
District Judge – 04, New Delhi District, Patiala House Courts, in RCA No.
25/14 preferred by the appellant/defendant to assail the judgment and decree
passed by the trial court, namely, SCJ-cum-RC, Dwarka Courts, New Delhi,
in Civil Suit No. 14/13 filed by the respondent/plaintiff to seek the reliefs of
permanent injunction, recovery of possession, damages and mesne profits.
The trial court by the said judgment and decree dated 30.08.2014, decreed
the suit of the respondents/plaintiffs thereby passing a decree of possession
in respect of the suit property and also directing payment of
interest/damages @ Rs. 3000/- per month with effect from 01.10.2012 till
handing over of possession of the suit property to the plaintiffs. The
RSA No.265/2015 Page 1 of 12
appellant-defendant was also restrained from creating any third party interest
in the suit property by way of sub-letting, transfer, alienation or otherwise
parting with possession of the suit property. The appellate Court dismissed
the first appeal of the appellant by the impugned judgment dated
31.03.2015, and affirmed the original judgment and decree.
2. The case of the respondents-plaintiffs in the suit was that they
purchased the suit property bearing No. A-45, front side of land measuring
605 sq. yds. in the Naraina Industrial Area, Phase II, New Delhi, from Sunil
Garg, Savita Garg, Ankit Garg and Bankim Garg, through a registered
Agreement to Sell, receipt, possession letter and registered General Power of
Attorney dated 06.05.2009 which were led in evidence as Ex.PW1/2 to
Ex.PW1/5 respectively. The plaintiffs claimed that the father of the
defendant was inducted as a licensee in a portion measuring 80 sq. yds. on
the ground floor of the said property vide license agreement dated
01.05.1997 (which was led in evidence as Ex.PW1/7) by the previous
owners, namely, Sushila Devi, Anil Garg and Sunil Garg on a monthly
licnese fee of Rs. 600/-. After the demise of the defendant’s father, the
defendant claimed to have become the licensee in the said property. The
plaintiffs claimed that despite giving intimation by PW1, the special attorney
of the two plaintiffs, who is also the brother of the husband of plaintiff No.
1- Jaswinder Kaur, and husband of plaintiff no.2, regarding purchase of the
suit property by the plaintiffs, and notwithstanding the legal notice dated
10.08.2010 (Ex.PW1/8) sent by the plaintiffs, the defendant did not pay the
license fee to the plaintiffs. Instead, the defendant claimed to be paying
license fee of Rs. 5,000/- per month to one of the previous owners, namely,
RSA No.265/2015 Page 2 of 12
Shri Sunil Garg. Consequently, the plaintiffs terminated the license of the
defendant through a legal notice dated 14.12.2010 (Ex.PW1/10) and gave 30
days’ time to the defendant to vacate the suit premises. Since he did not
vacate the premises, the aforesaid suit was preferred by the plaintiffs. Upon
being summoned, the defendant in his written statement stated that the suit
property was owned by M/s Hind Printing Press, of which Sushila Devi,
Anil Garg and Sunil Garg were partners. He denied the ownership claimed
by the plaintiffs. While he admitted the license agreement dated 01.05.1997
(Ex.PW1/7), he claimed that the defendant was a tenant in the suit property
after the demise of his father. He denied being a licensee in the suit property.
He also raised an objection that the suit was barred under Section50 of the
Delhi Rent Control Act - on the averment that the monthly rent was Rs.
600/-. The trial court framed the following issues in the suit:-
1. Whether the defendant was inducted in the suit property as
licesee or tenant? ….Onus to prove on Parties
2. Whether the suit of the plaintiff is barred under Section 50 of
DRC Act? OPD
3. Whether the plaintiff is entitled for relief of possession as
prayed for? OPP
4. Whether the plaintiff is entitled for mesne profits/damages from
the defendant if so, at what rate and for which period? OPP
5. Whether the plaintiff is entitled for permanent injunction as
prayed for? OPP
3. The plaintiffs led in evidence PW1-the special attorney of the two
plaintiffs (vide Ex.PW1/1 and Ex.PW1/1A) who deposed on the basis of his
personal information and knowledge. As aforesaid, he exhibited the
RSA No.265/2015 Page 3 of 12
documents above referred to and deposed in terms of the averments made in
the plaint. The defendant examined himself as DW1 and led his
examination-in-chief in terms of his written statement. He was subjected to
cross examination by the plaintiffs.
4. On issue No. 1, the trial court applied the test laid down by the
Supreme Court in C.M.Beena and Anr. Vs. P.N.Rama Chandra Rao AIR
2004 SC 2103, to determine whether the nature of the transaction was a
lease or a license. The Supreme Court, in this decision, had placed reliance
on an earlier decision in Associated Hotels of India Limited Vs.
R.N.Kapoor 1960 SCR 368. In C.M. Beena (supra), the Supreme Court
observed;
“8. …… difference between a ‘lease’ and ‘license’ is to be
determined by finding out the real intention of the parties as
decipherable from a complete reading of the document , if any,
executed between the parties and the surrounding
circumstances. Only a right to use the property in a particular
way or under certain terms given to the occupant while the
owner retains the control or possession over the premises
results in a licence being created ; for the owner retains legal
possession while all that the licensee gets is a permission to use
the premises for a particular purpose or in a particular manner
and but for the permission so given the occupation would have
been unlawful (See Associated Hotels of India Ltd. V.
R.N.Kapoor). The decided cases on the point are legion. For
our purpose, it would suffice to refer to a recent decision of this
court in Corporation of Calicut V.K.Sreenivasan.
9. A few principles are well settled. User of the terms like
‘lease’ or ‘license’, ‘lessor’ or ‘licensor’, ‘rent’ or ‘licence
fee’ are not by themselves decisive of the nature of the right
created by the document . An effort should be made to find out
whether thedeed confers a right to possess exclusively coupled
RSA No.265/2015 Page 4 of 12
with transfer of a right to enjoy the property what has been
parted with is merely a right to use the property while the
possession is retained by the owner. The conduct of the parties
before and after the creation of relationship is of relevance for
finding out their intension.
11. …….. In deciding whether a grant amounts to a lease,
or is only a licence, regard must be had to the substance
rather than the form of the agreement, for the relationship
between the parties is determined by the law and not by the
label which they choose to put on it .”
(emphasis supplied)
5. The trial court then proceeded to consider the terms of the license
agreement (Ex.PW1/7) in the light of the aforesaid observations of the
Supreme Court. The discussion found in the trial court judgment on the said
aspect reads as follows:
“13. Undoubtedly, the agreement dated 01.05.1997 i.e.
Ex.PW1/7 fixed a monthly rate of Rs. 600/- as license fee, the
agreement was for three years and recognized the occupation
of the father of the defendant over the suit property. The
agreement also recognized the use of the suit property as a
shop by the father of the defendant. These terms may at first
look suggest the transfer of possession and recognition of the
rights of the father of defendant to use the suit property for a
period of three years. In this view, the agreement could well
have been treated as a lease deed notwithstanding the use of the
term license in the same but for a crucial clause incorporated
by the parties. This clause is reproduced below:
5. That the licensee shall ensure that none of
its workman creates any disturbance or
demonstrations inside the property. This license
permits licensee to use the premises in day only i.e.
8 AM to 8 PM. The licensee violates the said
clauses licensor in full to lock the premises
RSA No.265/2015 Page 5 of 12
immediately.
14. Since the transfer of exclusive possession by the granter
of the premises in favour of the recipient is of determinative
value for deciding the existence of a lease, the incorporation of
the above clause negates such transfer by the original owners
of the property in question in favour of the father of the
defendant. If the intention of the owners was to induct the
father of the defendant as a tenant, they would not have
restricted the use of the suit property to certain houses in the
day. That the owners permitted use only between 8 a.m. to 8
p.m. is a manifest indication of their intention to retain
possession of the suit property with themselves. Evidently, the
father of the defendant was granted only permissive use of the
suit property for only a limited portion of the day. Exclusive
possession was thus not handed over to him. Consequently, the
terms of the license agreement dated 01.05.1997 are consistent
only with the incidents of a license viz. the permission to use
and occupy a premises with the possession remaining in the
hands of the licensor. The term with respect to the monthly rate
of Rs. 600/- is therefore to be read as described in the document
viz. license fee.
15. In this view, clause 4 cannot be construed as referring to
a lease when it expressly records the status of the father of the
defendant as a licensee. The said clause reads as under:
4. That the license expressly agrees and
declares that it shall in occupation of the licensed
premises purely as a licensed and that it shall not
over contend that it is a leases or has any other
interest in the licensed premises.
16. The court finds that the license agreement dated
01.05.1997 was, in operation, precisely what it purported to be
in description i.e. a license agreement. The status inherited by
the defendant would remain the same as his father. The
defendant cannot claim the benefit of being a tenant in the suit
property after the demise of his father who was a licensee and
RSA No.265/2015 Page 6 of 12
not a tenant.”
xxxx xxxxxxxxxxx xxxxxxxxx
18. The present defendant fits the character of a licensee for
another reason. It has emerged from the evidence led by both
parties that the previous owners of the premises in question
were operating a printing press at the premises. The
respondent (DW1) admitted during cross-examination that his
business related to the work of motor rewinding and that
motors are used for the work of a printing press. He also
admitted that his father was also engaged in the same business.
Though he denied the suggestion that he used to repair the
motors of M/s Hindi Printing Press i.e. the concern of the
previous owners, the court finds it to be a reasonable
proposition that a mechanic for motors used in a printing press
would repair the motors of the printing press operated by the
persons who inducted him into the property. To assume
otherwise would be to hold that although the respondent was a
motor mechanic he refused to repair the motors of M/s Hindi
Printing Press situated in the same premises. Such a
conclusion would be opposed to ordinary principles of
probability and common sense.
19. Having reached the conclusion that the respondent did
repair the motors of the Hindi Printing Press, it follows as a
strong natural corollary that the respondent was inducted as a
permissive user in the premises by the previous owners vide
agreement dated 01.05.1997 only because he was engaged in
work i.e. motor repair commensurate with the business of the
licensor. Such induction must be treated as a license and not a
lease.”
6. Since the finding returned by the trial court was that the appellant-
defendant was a licensee and not a tenant, issue No. 2 was decided against
the appellant-defendant. The plaintiffs were held entitled to relief of
possession – being the licensors and having derived interest in the suit
RSA No.265/2015 Page 7 of 12
property from the original owners/licensors vide Ex.PW1/2 to Ex.PW1/5.
The objection to PW-1 not being a competent witness – he being an attorney
of the plaintiffs, was negated by observing that PW1 had deposed not merely
in his capacity as the special attorney of the plaintiffs, but on the basis of the
personal knowledge on account of his relationship with the plaintiffs. PW1
is the husband of plaintiff No. 2 and the brother-in-law of plaintiff No. 1.
The trial court also held that the license was terminated vide Ex.PW1/10.
Consequently, the suit was decreed. The respondent was held entitled to
recover damages @ Rs. 3,000/- per month with effect from 01.10.2012. The
said damages were assessed on the basis that the license agreement was
executed on 01.05.1997 fixing license fee of Rs. 600/- per month.
Consequently, suit was decreed as aforesaid.
7. The first appellate court has affirmed the said judgment and decree
while dismissing the appellant’s first appeal.
8. The submission of learned counsel for the appellant is that the
perpetual lease in respect of the suit property stand cancelled by the DDA
six years ago. Counsel submits that the respondents have taken no action till
date to challenge the said cancellation of the perpetual lease. Consequently,
the respondents, according to the appellant, had no locus standi to file or
continue the suit against the appellant-defendant. Counsel for the appellant
has placed reliance on two decisions, namely, Suresh Chand Gupta Vs.
MCD & Ors. 2013(135) DRJ 351 and National Textile Corporation (MN)
Ltd. Vs. Durga Trading Co. & Ors. 2015(2) Scale 464 to submit that on
account of cancellation of the perpetual lease, the respondents had no locus
standi to seek dispossession of the appellant-defendant.
RSA No.265/2015 Page 8 of 12
9. Counsel for the appellant further submits that the respondents are not
the recorded owners of the suit property, as they are claiming their rights in
the property only on the basis of an agreement to sell, registered General
Power of Attorney and the other documents mentioned above. The same
does not amount to sale under the Transfer of Property Act and thus cannot
be given effect to. In this regard, reference is made to Suraj Lamp &
Industries Pvt. Ltd. Vs. State of Haryana & Anr. 2012 (1) SCC 656. It is
also argued by learned counsel for the appellant that the nature of the
appellant’s occupation in the suit property was in the capacity of a tenant,
and not a licensee.
10. On the other hand, learned counsel for the respondent submits that the
cancellation of the perpetual lease dated 03.04.1969 in respect of the suit
property has been assailed by the predecessor-in-interest of the respondent
in W.P.(C.) No.8587/2011, which is still pending consideration before this
Court. Learned counsel has produced before this Court the orders passed in
those proceedings, including the order dated 05.01.2012, whereby this Court
has directed the Delhi Development Authority not to take coercive steps in
respect of the suit premises against the petitioners. The said interim order
was confirmed by this Court on 17.09.2012. Thus, it cannot be said that the
cancellation of the perpetual lease has attained finality and that the
respondents have no locus-standi to file the suit in question.
11. Learned counsel has placed reliance on the judgment of this Court in
Shanti Sharma & Others Vs. Ved Prabha & Others , 1981 (20) DLT 127.
In this case, the perpetual lease of the leasehold plot had been cancelled.
The issue arose whether the landlord, who had let out the built-up building
RSA No.265/2015 Page 9 of 12
on the said leasehold plot, had the locus-standi to seek ejectment of the
tenant on the ground of bona fide requirement under section 14 of the Delhi
Rent Control Act. This Court held that the landlord remained the owner of
the super structure even after the cancellation of the lease deed of the plot
and was, thus, entitled to seek ejectment of the tenant. Learned counsel,
therefore, submits that this decision answers the issue sought to be raised by
the appellant with regard to the respondent’s locus-standi to file the suit.
12. So far as reliance placed on Suraj Lamp (supra) is concerned, learned
counsel for the respondent submits that this decision is prospective in its
application and does not seek to affect the transaction which had already
taken place on the basis of registered General Power of Attorney, Will and
unregistered Agreement to Sell, etc.
13. The decision in Suraj Lamp (supra) is dated 11.10.2011. The
transaction in question between the respondents and the erstwhile owners
took place in the year 2009. The decision in Suraj Lamp (supra) applies
prospectively and, therefore, would not affect the transaction, whereby the
respondents derive their rights in the suit property, of the year 2009.
14. In the present case, the two Courts below have returned consistent
findings of fact with regard to the nature of occupancy of the respondent.
Both Courts have consistently held that he was merely a licensee in the suit
premises and not a tenant, as claimed by him. The Courts have relied upon
clause 5 of the agreement between the parties dated 01.05.1997 (Ex.PW-
1/7), which limited the right of the premises by the appellant only between
08:00 a.m. to 08:00 p.m. Both the Courts have held that such a clause
RSA No.265/2015 Page 10 of 12
negates the transfer of the property by the original owners in favour of the
father of the defendant by way of a lease. Exclusive possession, thus, could
not be said to have been handed over by the original landlord to the original
defendant – the father of the defendant appellant. The parties had expressly
agreed and declared that the occupation of the licensed premises shall be
purely on license basis and shall not be treated as a lessee. Thus, not only
the parties had expressly and consciously agreed that the transaction
pertained to a license granted in respect of the suit property, but also the
terms & conditions thereof support that conclusion.
15. It cannot be said that the finding returned by the Trial Court and the
First Appellate Court with regard to the interpretation of the agreement
(Ex.PW-1/7) is either perverse, or not premised on cogent evidence or that
the same has been arrived at for extraneous considerations. This Court, in
second appeal, cannot interfere with consistent findings of fact, particularly
when they appear to be rational, and no perversity is pointed out in the same.
16. The submission of the appellant that the perpetual lease in respect of
the suit property stands determined, and that, therefore, the respondent/
plaintiff had no locus-standi to file the suit has been sufficiently met by the
respondent. Firstly, the said cancellation has not been accepted and is
pending challenge before this Court. This Court has already granted interim
protection to the petitioners in the said writ petition. Moreover, merely
because the perpetual lease may have been cancelled in respect of the
leasehold plot, the right of the respondent – owners of the built-up structure,
to seek possession from the occupant – be it a lease or license, remains intact
as held by this Court in Shanti Sharma (supra). The decisions relied upon
RSA No.265/2015 Page 11 of 12
by the appellant, viz. Suresh Chand Gupta (supra) and National Textile
Corporation (supra) have no relevance to the present case and do not
advance the submission of the appellant.
17. For all the aforesaid reasons, I find no merit in the present second
appeal. No substantial question of law arises for consideration of this Court.
The appeal is, accordingly, dismissed leaving the parties to bear their
respective costs.
VIPIN SANGHI, J
SEPTEMBER 21, 2015
sl /B.S. Rohella
RSA No.265/2015 Page 12 of 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 21.09.2015
+ RSA 265/2015
SATVINDER SINGH .... Appellant
Through: Mr. Sanjay Kumar, Advocate
versus
JASVINDER KAUR ..... Respondent
Through: Mr. Harminder Singh, Vijay Kumar
Ravi and Sanjay Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The present second appeal is directed against the judgment and decree
dated 31.03.2015 passed by the first appellate court, namely, the Additional
District Judge – 04, New Delhi District, Patiala House Courts, in RCA No.
25/14 preferred by the appellant/defendant to assail the judgment and decree
passed by the trial court, namely, SCJ-cum-RC, Dwarka Courts, New Delhi,
in Civil Suit No. 14/13 filed by the respondent/plaintiff to seek the reliefs of
permanent injunction, recovery of possession, damages and mesne profits.
The trial court by the said judgment and decree dated 30.08.2014, decreed
the suit of the respondents/plaintiffs thereby passing a decree of possession
in respect of the suit property and also directing payment of
interest/damages @ Rs. 3000/- per month with effect from 01.10.2012 till
handing over of possession of the suit property to the plaintiffs. The
RSA No.265/2015 Page 1 of 12
appellant-defendant was also restrained from creating any third party interest
in the suit property by way of sub-letting, transfer, alienation or otherwise
parting with possession of the suit property. The appellate Court dismissed
the first appeal of the appellant by the impugned judgment dated
31.03.2015, and affirmed the original judgment and decree.
2. The case of the respondents-plaintiffs in the suit was that they
purchased the suit property bearing No. A-45, front side of land measuring
605 sq. yds. in the Naraina Industrial Area, Phase II, New Delhi, from Sunil
Garg, Savita Garg, Ankit Garg and Bankim Garg, through a registered
Agreement to Sell, receipt, possession letter and registered General Power of
Attorney dated 06.05.2009 which were led in evidence as Ex.PW1/2 to
Ex.PW1/5 respectively. The plaintiffs claimed that the father of the
defendant was inducted as a licensee in a portion measuring 80 sq. yds. on
the ground floor of the said property vide license agreement dated
01.05.1997 (which was led in evidence as Ex.PW1/7) by the previous
owners, namely, Sushila Devi, Anil Garg and Sunil Garg on a monthly
licnese fee of Rs. 600/-. After the demise of the defendant’s father, the
defendant claimed to have become the licensee in the said property. The
plaintiffs claimed that despite giving intimation by PW1, the special attorney
of the two plaintiffs, who is also the brother of the husband of plaintiff No.
1- Jaswinder Kaur, and husband of plaintiff no.2, regarding purchase of the
suit property by the plaintiffs, and notwithstanding the legal notice dated
10.08.2010 (Ex.PW1/8) sent by the plaintiffs, the defendant did not pay the
license fee to the plaintiffs. Instead, the defendant claimed to be paying
license fee of Rs. 5,000/- per month to one of the previous owners, namely,
RSA No.265/2015 Page 2 of 12
Shri Sunil Garg. Consequently, the plaintiffs terminated the license of the
defendant through a legal notice dated 14.12.2010 (Ex.PW1/10) and gave 30
days’ time to the defendant to vacate the suit premises. Since he did not
vacate the premises, the aforesaid suit was preferred by the plaintiffs. Upon
being summoned, the defendant in his written statement stated that the suit
property was owned by M/s Hind Printing Press, of which Sushila Devi,
Anil Garg and Sunil Garg were partners. He denied the ownership claimed
by the plaintiffs. While he admitted the license agreement dated 01.05.1997
(Ex.PW1/7), he claimed that the defendant was a tenant in the suit property
after the demise of his father. He denied being a licensee in the suit property.
He also raised an objection that the suit was barred under Section50 of the
Delhi Rent Control Act - on the averment that the monthly rent was Rs.
600/-. The trial court framed the following issues in the suit:-
1. Whether the defendant was inducted in the suit property as
licesee or tenant? ….Onus to prove on Parties
2. Whether the suit of the plaintiff is barred under Section 50 of
DRC Act? OPD
3. Whether the plaintiff is entitled for relief of possession as
prayed for? OPP
4. Whether the plaintiff is entitled for mesne profits/damages from
the defendant if so, at what rate and for which period? OPP
5. Whether the plaintiff is entitled for permanent injunction as
prayed for? OPP
3. The plaintiffs led in evidence PW1-the special attorney of the two
plaintiffs (vide Ex.PW1/1 and Ex.PW1/1A) who deposed on the basis of his
personal information and knowledge. As aforesaid, he exhibited the
RSA No.265/2015 Page 3 of 12
documents above referred to and deposed in terms of the averments made in
the plaint. The defendant examined himself as DW1 and led his
examination-in-chief in terms of his written statement. He was subjected to
cross examination by the plaintiffs.
4. On issue No. 1, the trial court applied the test laid down by the
Supreme Court in C.M.Beena and Anr. Vs. P.N.Rama Chandra Rao AIR
2004 SC 2103, to determine whether the nature of the transaction was a
lease or a license. The Supreme Court, in this decision, had placed reliance
on an earlier decision in Associated Hotels of India Limited Vs.
R.N.Kapoor 1960 SCR 368. In C.M. Beena (supra), the Supreme Court
observed;
“8. …… difference between a ‘lease’ and ‘license’ is to be
determined by finding out the real intention of the parties as
decipherable from a complete reading of the document , if any,
executed between the parties and the surrounding
circumstances. Only a right to use the property in a particular
way or under certain terms given to the occupant while the
owner retains the control or possession over the premises
results in a licence being created ; for the owner retains legal
possession while all that the licensee gets is a permission to use
the premises for a particular purpose or in a particular manner
and but for the permission so given the occupation would have
been unlawful (See Associated Hotels of India Ltd. V.
R.N.Kapoor). The decided cases on the point are legion. For
our purpose, it would suffice to refer to a recent decision of this
court in Corporation of Calicut V.K.Sreenivasan.
9. A few principles are well settled. User of the terms like
‘lease’ or ‘license’, ‘lessor’ or ‘licensor’, ‘rent’ or ‘licence
fee’ are not by themselves decisive of the nature of the right
created by the document . An effort should be made to find out
whether thedeed confers a right to possess exclusively coupled
RSA No.265/2015 Page 4 of 12
with transfer of a right to enjoy the property what has been
parted with is merely a right to use the property while the
possession is retained by the owner. The conduct of the parties
before and after the creation of relationship is of relevance for
finding out their intension.
11. …….. In deciding whether a grant amounts to a lease,
or is only a licence, regard must be had to the substance
rather than the form of the agreement, for the relationship
between the parties is determined by the law and not by the
label which they choose to put on it .”
(emphasis supplied)
5. The trial court then proceeded to consider the terms of the license
agreement (Ex.PW1/7) in the light of the aforesaid observations of the
Supreme Court. The discussion found in the trial court judgment on the said
aspect reads as follows:
“13. Undoubtedly, the agreement dated 01.05.1997 i.e.
Ex.PW1/7 fixed a monthly rate of Rs. 600/- as license fee, the
agreement was for three years and recognized the occupation
of the father of the defendant over the suit property. The
agreement also recognized the use of the suit property as a
shop by the father of the defendant. These terms may at first
look suggest the transfer of possession and recognition of the
rights of the father of defendant to use the suit property for a
period of three years. In this view, the agreement could well
have been treated as a lease deed notwithstanding the use of the
term license in the same but for a crucial clause incorporated
by the parties. This clause is reproduced below:
5. That the licensee shall ensure that none of
its workman creates any disturbance or
demonstrations inside the property. This license
permits licensee to use the premises in day only i.e.
8 AM to 8 PM. The licensee violates the said
clauses licensor in full to lock the premises
RSA No.265/2015 Page 5 of 12
immediately.
14. Since the transfer of exclusive possession by the granter
of the premises in favour of the recipient is of determinative
value for deciding the existence of a lease, the incorporation of
the above clause negates such transfer by the original owners
of the property in question in favour of the father of the
defendant. If the intention of the owners was to induct the
father of the defendant as a tenant, they would not have
restricted the use of the suit property to certain houses in the
day. That the owners permitted use only between 8 a.m. to 8
p.m. is a manifest indication of their intention to retain
possession of the suit property with themselves. Evidently, the
father of the defendant was granted only permissive use of the
suit property for only a limited portion of the day. Exclusive
possession was thus not handed over to him. Consequently, the
terms of the license agreement dated 01.05.1997 are consistent
only with the incidents of a license viz. the permission to use
and occupy a premises with the possession remaining in the
hands of the licensor. The term with respect to the monthly rate
of Rs. 600/- is therefore to be read as described in the document
viz. license fee.
15. In this view, clause 4 cannot be construed as referring to
a lease when it expressly records the status of the father of the
defendant as a licensee. The said clause reads as under:
4. That the license expressly agrees and
declares that it shall in occupation of the licensed
premises purely as a licensed and that it shall not
over contend that it is a leases or has any other
interest in the licensed premises.
16. The court finds that the license agreement dated
01.05.1997 was, in operation, precisely what it purported to be
in description i.e. a license agreement. The status inherited by
the defendant would remain the same as his father. The
defendant cannot claim the benefit of being a tenant in the suit
property after the demise of his father who was a licensee and
RSA No.265/2015 Page 6 of 12
not a tenant.”
xxxx xxxxxxxxxxx xxxxxxxxx
18. The present defendant fits the character of a licensee for
another reason. It has emerged from the evidence led by both
parties that the previous owners of the premises in question
were operating a printing press at the premises. The
respondent (DW1) admitted during cross-examination that his
business related to the work of motor rewinding and that
motors are used for the work of a printing press. He also
admitted that his father was also engaged in the same business.
Though he denied the suggestion that he used to repair the
motors of M/s Hindi Printing Press i.e. the concern of the
previous owners, the court finds it to be a reasonable
proposition that a mechanic for motors used in a printing press
would repair the motors of the printing press operated by the
persons who inducted him into the property. To assume
otherwise would be to hold that although the respondent was a
motor mechanic he refused to repair the motors of M/s Hindi
Printing Press situated in the same premises. Such a
conclusion would be opposed to ordinary principles of
probability and common sense.
19. Having reached the conclusion that the respondent did
repair the motors of the Hindi Printing Press, it follows as a
strong natural corollary that the respondent was inducted as a
permissive user in the premises by the previous owners vide
agreement dated 01.05.1997 only because he was engaged in
work i.e. motor repair commensurate with the business of the
licensor. Such induction must be treated as a license and not a
lease.”
6. Since the finding returned by the trial court was that the appellant-
defendant was a licensee and not a tenant, issue No. 2 was decided against
the appellant-defendant. The plaintiffs were held entitled to relief of
possession – being the licensors and having derived interest in the suit
RSA No.265/2015 Page 7 of 12
property from the original owners/licensors vide Ex.PW1/2 to Ex.PW1/5.
The objection to PW-1 not being a competent witness – he being an attorney
of the plaintiffs, was negated by observing that PW1 had deposed not merely
in his capacity as the special attorney of the plaintiffs, but on the basis of the
personal knowledge on account of his relationship with the plaintiffs. PW1
is the husband of plaintiff No. 2 and the brother-in-law of plaintiff No. 1.
The trial court also held that the license was terminated vide Ex.PW1/10.
Consequently, the suit was decreed. The respondent was held entitled to
recover damages @ Rs. 3,000/- per month with effect from 01.10.2012. The
said damages were assessed on the basis that the license agreement was
executed on 01.05.1997 fixing license fee of Rs. 600/- per month.
Consequently, suit was decreed as aforesaid.
7. The first appellate court has affirmed the said judgment and decree
while dismissing the appellant’s first appeal.
8. The submission of learned counsel for the appellant is that the
perpetual lease in respect of the suit property stand cancelled by the DDA
six years ago. Counsel submits that the respondents have taken no action till
date to challenge the said cancellation of the perpetual lease. Consequently,
the respondents, according to the appellant, had no locus standi to file or
continue the suit against the appellant-defendant. Counsel for the appellant
has placed reliance on two decisions, namely, Suresh Chand Gupta Vs.
MCD & Ors. 2013(135) DRJ 351 and National Textile Corporation (MN)
Ltd. Vs. Durga Trading Co. & Ors. 2015(2) Scale 464 to submit that on
account of cancellation of the perpetual lease, the respondents had no locus
standi to seek dispossession of the appellant-defendant.
RSA No.265/2015 Page 8 of 12
9. Counsel for the appellant further submits that the respondents are not
the recorded owners of the suit property, as they are claiming their rights in
the property only on the basis of an agreement to sell, registered General
Power of Attorney and the other documents mentioned above. The same
does not amount to sale under the Transfer of Property Act and thus cannot
be given effect to. In this regard, reference is made to Suraj Lamp &
Industries Pvt. Ltd. Vs. State of Haryana & Anr. 2012 (1) SCC 656. It is
also argued by learned counsel for the appellant that the nature of the
appellant’s occupation in the suit property was in the capacity of a tenant,
and not a licensee.
10. On the other hand, learned counsel for the respondent submits that the
cancellation of the perpetual lease dated 03.04.1969 in respect of the suit
property has been assailed by the predecessor-in-interest of the respondent
in W.P.(C.) No.8587/2011, which is still pending consideration before this
Court. Learned counsel has produced before this Court the orders passed in
those proceedings, including the order dated 05.01.2012, whereby this Court
has directed the Delhi Development Authority not to take coercive steps in
respect of the suit premises against the petitioners. The said interim order
was confirmed by this Court on 17.09.2012. Thus, it cannot be said that the
cancellation of the perpetual lease has attained finality and that the
respondents have no locus-standi to file the suit in question.
11. Learned counsel has placed reliance on the judgment of this Court in
Shanti Sharma & Others Vs. Ved Prabha & Others , 1981 (20) DLT 127.
In this case, the perpetual lease of the leasehold plot had been cancelled.
The issue arose whether the landlord, who had let out the built-up building
RSA No.265/2015 Page 9 of 12
on the said leasehold plot, had the locus-standi to seek ejectment of the
tenant on the ground of bona fide requirement under section 14 of the Delhi
Rent Control Act. This Court held that the landlord remained the owner of
the super structure even after the cancellation of the lease deed of the plot
and was, thus, entitled to seek ejectment of the tenant. Learned counsel,
therefore, submits that this decision answers the issue sought to be raised by
the appellant with regard to the respondent’s locus-standi to file the suit.
12. So far as reliance placed on Suraj Lamp (supra) is concerned, learned
counsel for the respondent submits that this decision is prospective in its
application and does not seek to affect the transaction which had already
taken place on the basis of registered General Power of Attorney, Will and
unregistered Agreement to Sell, etc.
13. The decision in Suraj Lamp (supra) is dated 11.10.2011. The
transaction in question between the respondents and the erstwhile owners
took place in the year 2009. The decision in Suraj Lamp (supra) applies
prospectively and, therefore, would not affect the transaction, whereby the
respondents derive their rights in the suit property, of the year 2009.
14. In the present case, the two Courts below have returned consistent
findings of fact with regard to the nature of occupancy of the respondent.
Both Courts have consistently held that he was merely a licensee in the suit
premises and not a tenant, as claimed by him. The Courts have relied upon
clause 5 of the agreement between the parties dated 01.05.1997 (Ex.PW-
1/7), which limited the right of the premises by the appellant only between
08:00 a.m. to 08:00 p.m. Both the Courts have held that such a clause
RSA No.265/2015 Page 10 of 12
negates the transfer of the property by the original owners in favour of the
father of the defendant by way of a lease. Exclusive possession, thus, could
not be said to have been handed over by the original landlord to the original
defendant – the father of the defendant appellant. The parties had expressly
agreed and declared that the occupation of the licensed premises shall be
purely on license basis and shall not be treated as a lessee. Thus, not only
the parties had expressly and consciously agreed that the transaction
pertained to a license granted in respect of the suit property, but also the
terms & conditions thereof support that conclusion.
15. It cannot be said that the finding returned by the Trial Court and the
First Appellate Court with regard to the interpretation of the agreement
(Ex.PW-1/7) is either perverse, or not premised on cogent evidence or that
the same has been arrived at for extraneous considerations. This Court, in
second appeal, cannot interfere with consistent findings of fact, particularly
when they appear to be rational, and no perversity is pointed out in the same.
16. The submission of the appellant that the perpetual lease in respect of
the suit property stands determined, and that, therefore, the respondent/
plaintiff had no locus-standi to file the suit has been sufficiently met by the
respondent. Firstly, the said cancellation has not been accepted and is
pending challenge before this Court. This Court has already granted interim
protection to the petitioners in the said writ petition. Moreover, merely
because the perpetual lease may have been cancelled in respect of the
leasehold plot, the right of the respondent – owners of the built-up structure,
to seek possession from the occupant – be it a lease or license, remains intact
as held by this Court in Shanti Sharma (supra). The decisions relied upon
RSA No.265/2015 Page 11 of 12
by the appellant, viz. Suresh Chand Gupta (supra) and National Textile
Corporation (supra) have no relevance to the present case and do not
advance the submission of the appellant.
17. For all the aforesaid reasons, I find no merit in the present second
appeal. No substantial question of law arises for consideration of this Court.
The appeal is, accordingly, dismissed leaving the parties to bear their
respective costs.
VIPIN SANGHI, J
SEPTEMBER 21, 2015
sl /B.S. Rohella
RSA No.265/2015 Page 12 of 12