Full Judgment Text
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PETITIONER:
SRI TULSI
Vs.
RESPONDENT:
SMT. PARO (DEAD)
DATE OF JUDGMENT: 06/11/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the judgment
of the learned Single Judge of the Himachal Pradesh High
Court, dated June 16, 1980 in RSA No. 138/79. The trial
Court had decreed the suit and appellate court allowed the
appeal and dismissed the suit. In the second appeal, the
High Court reversed the judgment and decree of the appellate
Court and confirmed that of trial Court. Thus, this appeal.
The admitted facts are that the suit properties of
various Khasra nos, admeasuring 12.4 bighas and 22.4 bighas
situated in Mohal Kanyarka Pargana Churah Tehsil Bhattiyat
District Chamba in the State of Himachal Pradesh, belonged
to the respondent. She had filed a suit for possession
against the appellant pleading that the he is a licensee and
had agreed to cultivate the lands or her behalf as licensee
and, therefore, he is liable to be ejected by a decree of
eviction in the suit. It is the case of the appellant that
though the parties are related, he is only a tenant giving
the produce to the respondent-landlady for her as he was
looking after her. The admitted position is that the Revenue
records for the appellant had been shown as ’Gar Marusi’. It
would appear that it means "tenant at will" Section 105 of
the Transfer of Property Act defined lease thus: "A lease of
immovable property is a transfer of a right to enjoy such
property made for a certain time, express or paid or
promised, or of money, a shore of crops, service or any
other thing of value, to be rendered periodically or on
specified occassions to the transferor by the transferee,
who accepts the transfer on such terms". It is not necessary
that lease should always be reduced to writing. What is
necessary is transfer of a right of enjoyment of the
property made for certain time, expressed or implied and for
consideration of the price, paid or promised, the transferee
must have been put in possession of the demised property. It
is also necessary that an agreement can be entered into for
rendering periodical service and for consideration thereof
and on transfer of the land to the transferee and acceptance
thereof, either orally or in writing, the lease comes into
existence. It is seen that when the name of the appellant
has successively founded place in the records for period
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from 1951-52 to 1971-72 as "tenant at will", the necessary
conclusion is that he is tenant at will liable to eviction
according to law. The theory that he is a licensee, as has
been accepted by the High Court and the trial Court, is
untenable. A licensee has no right in the property, not to
speak of any right to the exclusive possession of the
property and animus of possession always remains with the
licensor; the licensee gets the possession only with the
consent of the licensee and is liable to vacate when so
asked. In this case, since the appellant remained in
uninterrupted possession and enjoyment of the property for
over 20 years, it is unthinkable to conclude that they are
only licensee. The High Court and the trial Court,
therefore, were clearly in error in reaching the conclusion
that the appellant is only a licensee. On the other hand,
from the facts, it is clear that the appellant is a tenant
and he will be liable for ejectment only in accordance with
law. If he is otherwise entitled to tenancy right of the
property, the right can be had in accordance with law and it
is open him to work out the same in accordance with law.
The appeal is allowed in the light of the above facts
and circumstances. No costs.