Full Judgment Text
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PETITIONER:
KHALIL AHMED BASHIR AHMED
Vs.
RESPONDENT:
TUFELHUSSEIN SAMASBHAI SARANGPURWALA
DATE OF JUDGMENT13/11/1987
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
OZA, G.L. (J)
CITATION:
1988 AIR 184 1988 SCR (1)1057
1988 SCC (1) 155 JT 1987 (4) 342
1987 SCALE (2)1034
CITATOR INFO :
D 1988 SC1845 (21)
RF 1989 SC1642 (36)
ACT:
Presidency Small Causes Courts Act, 1882: Section 41-
Suit for ejectment-Question whether occupant a
licensee/tenant-Intention of the parties to the agreement
decisive consideration-Lease and license-Distinction
between.
Transfer of Property Act, 1882: Sections 105 and 108-
Lease and license-Distinction between-Interest in immovable
property entitling transferee to enjoyment created-Effect
of-Whether agreement creates relationship of landlord/tenant
or licensor/licensee-Intention of parties-Decisive
consideration.
Practice & Procedure: High Court-Jurisdiction of-
Whehter entitled to interfere with view of Trial Court which
is a possible and plausible one merely because another view
is attractive.
HEADNOTE:
%
The appellant, who was stated to be a monthly tenant of
the suit premises, entered into an agreement, which was
described as an agreement of ’leave and licence’, with the
respondent on 9th February, 1965 and the respondent and the
appellant were described therein as licensor and licensee
respectively. It was stated in the agreement that the
licensor was seized of the premises in dispute as a monthly
tenant and gave and granted ’leave and license’ to the
licensee to use and occupy the said premises for a period of
five years, merely for the purpose of workshop business, at
a monthly compensation of Rs.225 that the licensor shall be
entitled to terminate the agreement and cancel and revoke
and withdraw the leave and licence granted earlier and to
take possession forthwith of the said premises if the
licensee committed any default of any terms and conditions
or failed to pay the compensation for two months or if the
licensee at any time put up false or adverse claim of
tenancy or sub-tenancy, that the licensee shall pay the
electric charges in respect of consumption of electricity
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and the rent of the said premises should be paid by the
licensor only, and that the licensor shall have the full
right to enter upon the premises and inspect the same at any
time.
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In November 1970, the respondent filed an ejectment
proceedings against the appellant under section 41 of the
Presidency Small Cause Courts Act, 1882. It was contended by
the appellant that there was sub-tenancy by the respondent
in his favour as monthly tenant.
The trial court passed a decree and ordered the
appellant to vacate the premises holding that the agreement
was for leave and licence and that the appellant was a
licensee and not a subtenant.
On the case being remanded by the Supreme Court in a
Special Leave Petition filed by the respondent against the
earlier decision of the High Court, allowing the appellant’s
special civil application, the High Court upheld the order
of the Court of Small Causes, and ordered eviction of the
appellant.
In the Special Leave Petition against the aforesaid
decision, it was contended that the document in question
read as a whole was a lease and not a license.
Dismissing the appeal by special leave,
^
HELD: 1.1 If an interest in immovable property
entitling the transferee to enjoyment was created, it was
lease; if permission to use land without exclusive
possession was alone granted, a licence was the legal
result. [1067D-E]
1.2 In determining whether an agreement creates between
the parties the relationship of landlord and tenant or
merely that of licensor and licensee, decisive consideration
is the intention of the parties. [1068B-C]
In view of the intention of the parties in the document
and the facts and circumstances of the instant case, it was
a licence and not a lease. This is clear from the language
used and the restrictions put upon the use of the premises
in question by the appellant. In the document in question
the expression "licence" was introduced and clause (2) said
that it was only for the business purposes. The licence fee
was fixed. It permitted user only for 20 hours. Restriction
in the hours of work negates the case for lease. Clause (12)
gives to the licensor right to enter upon the premises and
inspect the same at any time. [1067E-F]
1059
1.3 Where two views are possible and the trial court
has taken one view which is a possible and plausible view
merely because another view is attractive, the High Court
should not interfere and would be in error in interfering
with the finding of the trial court or interfering under
Article 227 of the Constitution over such decision. [1068E-
F]
H. Maniar and others v. Woman Laxman Kudav, [1977] 1
S.C.R. 403; Miss Mani J. Desai v. M/s. Gayson & Co. Pvt.
Ltd. 73 Bombay Law Reporter 394; Associated Hotels of India
Ltd. v. R.N. Kapoor, [1960] 1 S.C.R. 368; Mrs. M.N. Clubwala
and another v. Fida Hussain Saheb and others, [1964] 6
S.C.R. 642 at page 653; Sohanlal Naraindas v. Laxmidas
Raghunath Gadit, 68 Bombay Law Reporter 400; Sohan Lal
Naraindas v. Laximdas Raghunath Gadit, [1971] 3 S.C.R. 319;
Qudrat Ullah v. Municipal Board, Bareilly, [1974] 2 S.C.R.
530; Booker v. Palmer, [1942] 2 All ER 674 at 676, 677;
Venkatlal G. Pittie & Anr. v. M/s. Bright Bros. (Pvt) Ltd.,
[1987] 2 scale 115; M/s. Beopar Sahayak (P) Ltd. & others v.
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Shri Vishwa Nath & 5 others, [1987]2 scale 27; Satyanaryan
Laxminarayan Hegde and others v. Mallikarjun Bhavanappa
Tirumale, A.I.R. 1960 S.C. 137 and Halsbury’s Laws of
England., Fourth Edition, Volume 27 page 13, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1377 of
1982.
From the Judgment and Order dated 17.11.1980 of the
Bombay High Court in Special Civil Appeal No. 251 of 1977.
F.R. Nariman, E.K. Jose, P.H. Parekh and Miss Sunita
Sharma for the Appellant.
Y.H. Muchhala, B.R. Aggarwala and Miss. S. Manchanda
for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This appeal by special leave
arises from the judgment and order of the High Court of
Bombay dated 17th of November, 1980. The main question
involved in this appeal is whether the appellant was a
licensee or a tenant and also incidentally the question
whether the Court of Small Causes, Bombay had jurisdiction
to deal with the eviction petition in this case. The
premises in question belongs to the Bombay City Weavers
Cooperative Limited. They filed ejectment proceedings
against one
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Sugrabhai Mohammed Husain, their tenant and obtained a
decree. It is stated that the appellant was a monthly tenant
of the suit premises since about 2nd February, 1965. On or
about 9th of February, 1965 a fresh document of that date,
was executed and it is alleged that the appellant continued
by virtue of that agreement. It is alleged that this
agreement was entered into between the parties since the
respondent wanted to charge more rent or mesne profits. This
agreement is in writing and this was for a period of five
years, i.e., from 1st September, 1965 to 31st of August,
1970. The main contention involved in this appeal is whether
the appellant was a tenant or a licensee? The answer would
be dependent upon the construction of the aforesaid
document. It is necessary, therefore, to refer to the said
agreement in little detail. The agreement is described as an
agreement of ’leave and licence’ entered into between the
respondent on the one hand and the appellant on the other
wherein the respondent had been described as the ’licensor
and the appellant had been described as the licensee’ and
the recitals therein recite that the licensor was seized and
possessed of and was otherwise well entitled as the monthly
tenant of the workshop premises situated at 231, Ripon Road,
Cooperative Building, Bombay, being the premises in dispute,
and whereas the licensee had approached the licensor to
allow him to occupy and use the said premises for the
purpose of carrying out his business of workshop for a
period of five years and whereas the licensor had agreed to
allow the licensee to use the premises under the said leave
and licence of the licensor for a period of five years from
1st of September, 1965 till 31st of August, 1970, that
agreement was being executed. it was stated that the
licensor gave and granted his ’leave and licence’ to the
licensee to use and occupy the said premises for the period
of five years. Clause 2 of the said agreement recites that
the licensee had agreed to use the premises as above and
merely for the purpose of workshop business. It further goes
on to state that the "licensee shall not under any
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circumstances be allowed to use the premises for the
residential purposes or any other purpose save and except
specified therein". The period of leave and licence was to
commence from 1st of September, 1965 to 31st of August, 1970
and it was further submitted that the licensee and the
licensor shall not terminate the said agreement earlier save
and except on the ground of breach of any of the terms and
conditions written therein. The licensor was entitled to
terminate the agreement earlier notwithstanding the fact
that the period of the agreement might not have expired. It
further stipulated that the licensee should deposit a sum of
Rs.2,500 for the due performance of the terms and conditions
of the agreement. The said deposit was to be kept free of
interest and the same was to be refunded to the
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licensee on the licensee surrendering possession of the said
premises by removing himself and his belongings on the
expiry of the period of the agreement or sooner termination
or determination thereof after deducting all the dues if any
for payment of compensation. It further stipulated that the
licensee shall pay to the licensor a monthly compensation of
Rs.225 per month. It is further stipulated that the licensee
would be entitled to keep the keys of the said premises with
him and shall be at liberty to work in the said premises for
twenty hours subject to restriction of rules and regulations
imposed by the Municipal or any other local authority or
authorities. It is further provided that the licensee shall
be alone responsible and liable for any breach or
contravention of any rule or regulation of the said
authorities and he shall indemnify the licensor therefor.
The document further stipulated that the licensee shall be
at liberty to construct loft and electric fittings and
apparatus and tools and shall be entitled to the ownership
thereof and shall be free to carry away such articles and
the licensor agreed and undertook that he shall not obstruct
the removing of such articles at the time of the delivery of
the possession of the said workshop. It is further mentioned
in the said agreement that it was agreed by the licensee
that if he commits any default of any terms and conditions
or fails to pay the compensation for two months or if the
licensee at any time puts up false or adverse claim of
tenancy or sub-tenancy the licensor shall be entitled to
terminate the agreement and cancel and revoke and withdraw
the leave and licence granted earlier and shall be entitled
to take possession forthwith of the said premises. It is
further stipulated that the licensee shall pay the electric
charges in respect of consumption of electricity and the
rent of the said premises should be paid by the licensor
only. The agreement recited that the licensee shall not
allow any other person to use and occupy the said premises
and shall not do any unlawful or illegal business therein.
The agreement further recited that the licensor shall have
the full right to enter upon the premises and inspect the
same at any time. In setting out the terms of the agreement
the emphasis has been supplied to the relevant clauses to
highlight the points in controversy.
On or about 9th November, 1970, the respondent herein
filed an ejectment proceeding against the appellant under
section 41 of the Presidency Small Cause Courts Act, 1882.
It is well to refer to section 41 of the said Act which is
in Chapter VII and deals with summons against person
occupying property without leave and provides that when any
person has had possession of any immovable property situate
within the local limits of the Small Cause Court’s
jurisdiction and of which the annual value at rack-rent did
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not exceed two
1062
thousand rupees, as the tenant, or by permission, of another
person, or of some person through whom such other person
claims, and such tenancy or permission has been determined
or withdrawn then a suit can be filed by a summons against
the occupant calling upon him to show cause therein. It was
only when the person was in occupation by permission of the
grantor that after the recovery of the permission a suit for
possession could have been instituted under section 41 of
the said Act.
On or about 9th of November, 1970 the owner of the
premises filed an ejectment proceeding against one Sugrabhai
Mohammed Husain and obtained a decree. The trial Judge in
the instant case passed a decree in ejectment petition filed
by the respondent and ordered the appellant to vacate the
premises before 31st of January, 1975. Before the Judge,
Court of Small Causes the points of defences were filed in
which the appellant had stated that the application was not
maintainable and the plaintiff was himself occupying the
premises under one Sugrabhai Mohammed Husain who himself had
adopted ejectment proceedings against the respondent. The
appellant was contending that he was a direct tenant of the
respondent. Without prejudice to the above contention it was
contended by the appellant that the respondent was not the
owner of the workshop and also denied that he had given the
workshop to respondent for conducting business. The
submission was that there was sub-tenancy by the respondent
in favour of the appellant as a monthly tenant of the
business with the articles and machinery belonging to the
appellant and not to the respondent. On those grounds it was
contended that ejectment proceedings was liable to be
rejected.
It was recorded by the court with the expression "B.C",
a term of some ambiguity as explained later, that the
appellant was not claiming protection as a sub-tenant under
the Rent Act but only the subtenancy as such and therefore,
it was recorded that as agreed ’B.C’. no preliminary issue
was to be framed. The learned Judge, noted that the only
point that arose for consideration was whether the appellant
proved that he was a sub-tenant as such or not. It is
interesting to note that in the judgment of the Small Cause
Court and also of the High Court at several places the
expression "B.C." was used; this is intriguing as we find
that it intrigued Vaidya, J. because he stated in his
judgment dated 9th of December, 1975 what the expression
"B.C." was meant by Court. He recorded further that he
thought that "B.C." meant ’by consent’. The learned Judge
recorded further that it was practice in the Court of Small
Causes, Bombay of using the expression
1063
"B.C.". The said learned Judge, however, observed that the
use of the words in the paragraph which we have stated
hereinbefore made the entire paragraph meaningless. We could
not agree more.
In order to go back to the findings of the learned
Judge of the Court of Small Cause and the learned High Court
Judge found that the appellant had failed to prove that he
was a sub-tenant of the respondent and the learned Judge
found him to be a licensee. On an analysis and examination
of evidence recorded and in the background of the documents
in question the learned Judge came to the conclusion
factually that it was an agreement for leave and licence and
the appellant was a licensee and not a sub-tenant. It was an
agreed position as the learned Judge noted that the
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respondent therein was a tenant of the entire suit premises
and had produced a rent receipt for the month of April, 1971
for a monthly rent of Rs.56.25 p.m. inclusive of municipal
taxes and had also produced light bill for the period
20.10.65 and 19.11.65. The learned Judge observed that from
the evidence it would be seen that it was not the case of
the appellant even that he had gone to occupy the suit
premises any time before that date and the dispute started
only from the date of the agreement. In the light of the
legal position and also the fact that the rent, light bill
stood in the name of the respondent showed that there was no
desire to create any lease by the document mentioned
hereinbefore and the appellant regarded him as a mere
licensee. There was no error of fact as such on that. To
this finding our attention was drawn and great reliance was
placed. To go back to the narration of events, the appellant
filed special civil application in the High Court of Bombay
under Article 227 of the Constitution. The High Court of
Bombay allowed the special civil application on 9th
December, 1975. Thereafter in 1977 a special leave petition
to this Court under Article 136 of the Constitution was
filed being S.L.P. No. 274/77 and an order was passed in
Civil Appeal No. 2181 of 1977 by which the case was sent
back to the High Court for a fresh decision, keeping in view
the decision of this Court in D.H. Maniar and others v.
Waman Laxman Kudav, [1977] 1 S.C.R. 403. Thereafter the High
Court disallowed the special civil application by its order
dated 17th of November, 1980.
That decision was a case where the appellants therein
had granted a licence in respect of certain shop premises in
Bombay to the respondent under a Leave and Licence Agreement
which expired on 31st March, 1966. Thereafter the appellants
had served a notice upon the respondent calling upon him to
remove himself from the said premises. The respondent
refused to do so. In July, 1967 the appellants
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filed an application for eviction under section 41 of the
Presidency Small Cause Courts Act. The contention of the
respondent that he was a tenant was negatived by the Small
Cause Court, Bombay. The respondent approached the High
Court under Article 227 of the Constitution. The High Court
refused to interfere with the finding of the Small Cause
Court that the respondent was a licensee and not a tenant.
The Bombay Rent Act was amended by Maharashtra Act 17 of
1973. By the amending Act, sections 5(4A) and 15A were
introduced in the parent Act to confer on the licensee, who
had a subsisting agreement on February 1, 1973, the status
and protection of a tenant under the Bombay Rent Act.
The respondent in that case by an amendment had taken
the plea of protection under the Maharashtra Amendment Act
17 of 1973 on the ground that he was in occupation of the
premises on 1st February, 1973 under a subsisting agreement
for licence. The Small Cause Court, Bombay negatived the
plea on the ground that there was no subsisting agreement
for licence on the 1st of February, 1973 as there was
nothing on record to show that after 31st March, 1966 the
leave and licence agreement between the parties was renewed
or any fresh agreement was entered into. The respondent had
filed a revision petition under section 115 of C.P.C. in the
High Court. The High Court allowed the revision on the
ground that the licence was not put an end to by the
appellants and that in any event by filing the application
for eviction the appellant licensor had granted an implied
licence to the respondent licensee to continue in possession
till a decree of eviction was passed in his favour. This
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Court allowing the appeal held that in order to get the
advantage of section 15A of the Bombay Rent Act, the
occupant must be in occupation of the premises as a licensee
as defined in section 5(4A) on the 1st of February, 1973. If
he was such a licensee, the non-obstante clause of section
15A(1) give him the status and protection of a tenant in
spite of there being anything to the contrary in any other
law or in contract. But if he was not a licensee under a
subsisting agreement on the 1st of February, 1973, then he
did not get the advantage of the amended provision of the
Bombay Rent Act. It was further held that a person
continuing in possession of the premises after termination,
withdrawal or revocation of the licence continued to occupy
it was a trespasser or a person who had no semblance of any
right to continue in occupation of the premises. Such a
person could not be called a licensee at all. It was futher
held that a person continuing in occupation of such premises
after revocation of the licence was still liable to pay
compensation or damages for its use and occupation. It was
further held that filing an application under section 41 of
the
1065
Presidency Small Cause Courts Act might in certain
circumstances have the effect of putting an end to the
licence if it was subsisting on the date of its filing. But
that cannot possibly have the effect of reviving the licence
as opined by the learned Judges. Such a proposition of law,
it was further concluded by this Court, was both novel and
incomprehensible. It was further held that it was right that
the Court should act in consonance with the spirit of the
Maharashtra Amending Act 17 of 1973, but the Court cannot
and should not cast the law to the winds or twist or stretch
it to a breaking point amounting to almost an absurdity. It
was observed that the finding of the High Court that the
respondent was in occupation of the premises under a
subsisting licence was wholly wrong and suffered from
serious infirmities of law and fact and deserved to be set
aside.
The High Court disallowed the special civil application
under Article 227 of the Constitution on 17th of November,
1980 and that is the judgment impugned in this appeal. The
High Court in the judgment under appeal noted that if it was
held that the document created a lease rather than a licence
than the tenant would be entitled to protection. The Bombay
High Court in Miss Mani J. Desai v. M/s. Gayson & Co. Pvt.
Ltd., 73 Bombay Law Reporter 394 had held that the Court of
Small Causes would have no jurisdiction to proceed with the
application filed under section 41 of the Presidency Small
Cause Courts Act. The learned Judge rejected the contention
of the appellant that he was a tenant and having found that
the period of licence had come to an end, he passed an order
of eviction against the appellant. The High Court in the
judgment under appeal noted the facts mentioned hereinbefore
by this Court in the decision of D.H. Maniar and allowed the
appeal. This decision was remanded back to the High Court
and it was directed that the appellant should be heard
afresh in accordance with law because in a previous decision
Vaidya, J. by the judgment dated 9th of December, 1975 as
mentioned hereinbefore had allowed the appellant’s appeal.
The learned Judge referred to the several decisions and
background of the facts and affirmed the decision of the
learned trial judge that the payment to be made to the
respondent for the use and occupation was compensation and
not rent. The High Court affirmed the decision of this Court
and upheld the order of the Court of Small Causes and
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ordered eviction.
In support of this appeal Sree R.F. Nariman very
laboriously took us through the documents. He submitted that
the document in question in the instant case read as a whole
was lease and not a licence. He referred us to the decision
of this Court in the case of Associated
1066
Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 S.C.R. 368
where at page 383 this Court noted that there was a marked
distinction between a lease and a licence. Section 105 of
the Transfer of Property Act, 1882 defined a lease of
immovable property as a transfer of a right to enjoy such
property made for a certain time in consideration of a price
paid or promised. Under section 108 of the said Act, the
lessee is entitled to be put in possession of the property.
A lease involves a transfer of an interest in land, Subba
Rao, J. as the learned Chief Justice then was, observed in
that case. This Court referred to the well-known decision in
the case of Errington v. Errington, [1952] 1 All E.R. 149
where Lord Denning reviewing the case law on the subject
summarized the position as follows:
"The result of all these cases is that, although a
person who is let into exclusive possession is,
prima facie, to be considered to be tenant,
nevertheless he will not be held to be so if the
circumstances negative any intention to create a
tenancy."
The Court of Appeal in England again in Cobb v. Lane, [1952]
1 All E.R. 1199 considered the legal position and laid down
that the intention of the parties was the real test for
ascertaining the character of a document. Somervell, L.J.,
had observed:
"... The solution that would seem to have been
found is, as one would expect, that it must depend
on the intention of the parties."
Denning, L.J. also reiterated the same decision. Reviewing
these decisions Denning, L.J. had observed at page 384 of
the report (1) that to ascertain whether a document created
a licence or lease, the substance of the document must be
preferred to the form; (2) the real test was the intention
of the parties-whether they intended to create a lease or a
licence; (3) if the document created an interest in the
property, it is a lease; but if it only permitted another to
make use of the property, of which the legal possession
continued with the owner, it was a licence; and (4) if under
the document a party got exclusive possession of the
property, prima facie, he was considered to be a tenant; but
circumstances might be established which negative the
intention to create a lease.
Mr. R.F. Nariman very strenuously relied on the
decision of this Court in Mrs. M.N. Clubwala and another v.
Fida Hussain Saheb and
1067
others, [1964] 6 S.C.R. 642 at page 653. This Court
emphasised the if the exclusive possession to which a person
was entitled under an agreement with a landlord was coupled
with an interest in the property, the agreement would be
construed not as a mere licence but as a lease. Mr.
Nariman’s point was that the facts of the case were
identical to the facts of the present case. Our attention
was drawn to a decision of the Bombay High Court in the case
of Sohanlal Naraindas v. Laxmidas Raghunath Gadit, (68
Bombay Law Reporter 400) where Tarkunde, J. Observed that
the intention of the parties and exclusive possession were
important elements. This decision was approved in appeal by
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this Court in Sohan Lal Naraindas v. Laxmidas Raghunath
Gadit, [1971] 3 S.C.R. 319 where this Court reiterated that
the test of exclusive possession was important point. He
drew our attention to the observations of Shah, C.J. at page
321 of the Report. Reliance was also placed on the
observations of Krishna Iyer, J. in the decision of Qudrat
Ullah v. Municipal Board, Bareilly, [1974] 2 S.C.R. 530
where at page 533 of the report Krishna Iyer, J. Observed
that there is no simple litmus test to distinguish a lease
as defined in section 105, Transfer of Property Act from
licence as defined in section 52 of the Easements Act, but
the character of the transaction turns on the operative
intent of the parties. To put precisely if an interest in
immovable property entitling the transferee to enjoyment was
created, it was a lease; if permission to use land without
exclusive possession was alone granted, a licence was the
legal result. we are of the opinion that this was a licence
and not a lease as we discover the intent. For this purpose
reference may be made to the language used and the
restrictions put upon the use of the premises in question by
the appellant. In the document in question the expression
"licence" was introduced and clause (2) said that it was
only for the business purposes. The licence fee was fixed.
It permitted user only for 20 hours. Restriction in the
hours of work negates the case for a lease. Clause (12) is
significant which gave to the licensor the right to enter
upon the premises and inspect the same at any time. In our
opinion the background of the facts of this case and the
background of the entire document negate the contention of
the appellant that it was a lease and not a licence.
good deal of submission was made before us that if it
was a lease and not a licence, then this point could be
taken in aid of the submission that the Court had to
jurisdiction, and there was no estoppel. It was contended
that estoppel was a plea in equity and that there was no
equity in favour of the respondent. We were invited to
embark upon the traded field of estoppel and equity and very
many learned passages from judgments of eminent Judges of
Calcutta, Bombay and
1068
of this Court were cited. But in this case we had not been
tempted. Our attention was drawn to several decisions but in
the view we have taken we cannot say that the view taken by
the High Court or the Court of Small Causes was incorrect.
It was a possible view. That is sufficient for us.
The distinction between leave and licence has been well
summarised in Halsbury’s Laws of England, Fourth Edition,
Volume 27 page 13. In determining whether an agreement
creates between the parties the relationship of landlord and
tenant or merely that of licensor and licensee the decisive
consideration is the intention of the parties. Lord Greene
MR had observed this in Booker v. Palmer, [1942] 2 All ER
674 at 676,677. This is a salutary test.
The intention here is manifest. In any event this is a
possible view that could be taken. This Court in Venkatlal
G. Pittie & Anr. v. M/s. Bright Bros. (Pvt). Ltd., [1987] 2
Scale 115 and M/s. Beopar Sahayak (P) Ltd. & others v. Shri
Vishwa Nath & 5 others, [1987] 2 scale 27, held that where
it cannot be said that there was no error apparent on the
face of the record, the error if any has to be discovered by
long process of reasoning, and the High Court should not
exercise jurisdiction under Article 227 of the Constitution.
See in this connection the observations of this Court in
Satyanarayan Laxaminarayan Hegde and others v. Mallikarjun
Bhavanappa Tirumale, A.I.R. 1960 S.C. 137. Where two views
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are possible and the trial court has taken one view which is
a possible and plausible view merely because another view is
attractive, the High Court should not interfere and would be
in error in interfering with the finding of the trial court
or interfering under Article 227 of the Constitution over
such decision.
In the aforesaid view of the matter, we are clearly of
the opinion that in view of the intention of the parties in
the document and the facts and circumstances of this case,
it was a licence and not a lease. We need not detain
ourselves with the question of estoppel upon which very
interesting arguments were advanced before us by Mr. Nariman
is noted above.
In the aforesaid view of the matter this appeal must
fail as we find no ground to interfere with the decision of
the High Court. The appeal fails and is dismissed. In the
facts and circumstances, there will be no order as to costs.
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In view of the fact that the appellant has been
carrying on business for some time, we give the appellant
time upto 31st March, 1988 to give up and deliver vacant
possession provided the appellant files the usual
undertaking with the Registrar of the Court of Small Causes,
Bombay within three weeks from this date.
N.P.V. Appeal dismissed.
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