Guru Vishwakarma Mandir, Labour Union (Regd.) Ambala vs Om Parkash

A.S. Nehra, J.—This appeal has been filed by the plaintiffappellant against the judgment and decree dated 20.11.1978 passed by Senior Sub Judge (exercising the enhanced appellate powers), Ambala, by which the appeal of the defendantrespondent was allowed and the judgment and decree dated 24.11.1976 passed by the trial Judge was set aside and the suit filed by the plaintiffappellant was dismissed.

Briefly stated, the facts of the case are that the plaintiff appellant is a registered Union and Bhagwan Dass is the General Secretary of this Union and he has been authorised to file suit, vide resolution dated 29.5.1975; that there is a garden attached to the Mandir and the plaintiff Union gave that garden to the defendant on Chakota at the rate of Rs. 200/ for the period from 10.2.1974 to 9.1.1975 but the defendant executed all agreement in favour of the plaintiffUnion on 11.2.1974 and agreed to pay the amount in instalments of Rs. 50/ each and it was further agreed that, in the case of default in the payment of any instalment on the part of the defendant, the plaintiffUnion would be entitled to revoke the agreement and eject the defendant from the garden. It has been alleged by plaintiffUnion that the period of Chakota has expired but the defendant being a licensee only, has not vacated thee garden land and he paid Rs. 150/ and the remaining amount of Rs. 50/ is still due to be paid by the defendant. It has also been alleged that the breach was committed by the defendant and, accordingly, a notice was given to defendant on 24.4.1975 to vacate the land within a week and deliver the possession to the plaintiff Union. On these facts, this suit for recovery of Rs. 50/ as well as a mandatory injunction has been filed by the plaintiff Union with the prayer that the defendant may be directed to vacate the garden belonging to the plaintiffUnion.

On the other hand, it was contended by the defendantrespondent that the Court has no jurisdiction to entertain and try this suit, as the defendant is a tenant of the plaintiffUnion ; that Guru Vishwakarma Mandir Labour Union is not a juristic person and is not entitled to bring the suit, as the same is not registered; and that Bhagwan Dass is not competent to file this suit. It is further stated by the defendant respondent that he has constructed a tubewell, a permanent structure, at a cost of Rs. 14,000/ on the explicit understanding that he would never be ejected from the garden and, as such, the plaintiffUnion is not entitled to bring this suit for the dispossession of the defendantrespondent. It has been further contended by the defendant respondent that he took the garden on oral rent of Rs. 200/ for one year and he is a tenant under the plaintiffUnion and is not a licensee and that the defendant is willing to pay Rs. 50/ which is the remaining instalment, to the authorised representative of the plaintiffUnion.

On the pleadings of the parties, the following issues were framed :

(1) Whether the defendant is in possession of the garden, in question, as licensee ? If so, on what terms and the effect thereof ?

(2) Whether defendant is a tenant on the garden, in dispute, under the plaintiff ? If so, its effect ?

(3) Whether plaintiff is entitled to the injunction claimed ?

(4) In case issue No. 2 is proved, whether this Court has no jurisdiction to try the present suit ?

(5) Whether plaintiffSociety is a registered Society ? If not, its effect ?

(6) Whether the plaint has been signed and filed in the Court by a duly authorised person ? If not, its effect ?

(7) Whether the plaintiff is not entitled to file the present suit ?

(8) Relief.

Issues No. 1, 2 and 3 are interconnected. Therefore, the trial Court discussed these issues together. To prove these issues, the plaintiffUnion have produced evidence, oral and documentary. PW1 Kishori Lal has stated that there is a land attached to the Mandir and that the defendant is in possession of this land as a licensee, vide licence deed Exhibit P1. He also stated that this land was given to the efendant for one year for Rs. 200/. PW2 Bhagwan Dass, General Secretary to the plaintiffUnion, has stated that the land was in possession of the Mandir and it was given to the defendant for one year as a licensee and the defendant, being a licensee, had right only to pluck flowers and agreement Exhibit P1 was entered into between the parties. He also stated that the defendant violated the conditions of the agreement, and a notice was given, a copy of which is Exhibit P6. He further stated that agreement Exhibit P1 was written by Harbans Lal. A perusal of the agreement would show that there were flowers in the garden and the defendant was allowed to maintain that garden and, after the expiry of the period, the defendant would hand over the possession to the Secretary of the plaintiff Union. It is also mentioned in that agreement that, in case of default of payment of any instalment, the Secretary of the plaintiffUnion would be entitled to eject the defendant from the garden. A perusal of this agreement would show that complete possession of this garden was not handed over to the defendant and that he was only allowed to use the flowers and maintain the garden properly. From it, the inference that can be drawn is that the defendant was allowed to use the garden to take flowers and fruits. The learned counsel for the plaintiffUnion submitted before the trial Court that the defendant was a licenscee and not a tenant in respect of the garden in question. Learned counsel for the plaintiff referred to Mitroo and another v. Youngmen''s Christian Association, New Delhi, 1956 PLR 478, wherein it has been held that where the document executed by the defendants expressly makes their occupation a permissive one and is expressly stated to be a licence and all the conditions and subsequent relationship between the parties has been on the basis of the mere licence and not a lease, the contract between the parties is a licence and not a lease. This judgment is fully applicable to the facts of the present case. It was further argued by the learned counsel for the plaintiffUnion that even if the plaintiffUnion is not a paramount owner of the garden, in question, the defendant cannot escape his responsibility and cannot deny the title of his landlord i.e. the plaintiffUnion. The learned counsel for the plaintiffUnion also referred to Shri Sain Das Farngu v. Pandit Sant Ram Jaishri Ram, AIR 1959 Punjab 564, wherein it is held that section 116 of the Evidence Act accords statutory recognition to the wellknown doctrine that during the existence of the relationship of landlord and tenant, the tenant is estopped from denying his landlord''s title or from asserting that another person has a better title than the landlord. It was further argued by the learned counsel for the plaintiffUnion that the defendant had committed default in not paying the amount of Rs. 50/ by the due date and, on this account, he is liable to be evicted from the garden, in question, as the defendant is a mere licensee and not a tenant under the plaintiffUnion.

Learned counsel for the defendant submitted that section 116 of the Evidence Act does not apply where the licence is void and, in this connection, he referred to Shamsher Bahadur v. The State of Uttar Pradesh and others, AIR 1964 Allahabad 395, wherein it has been held that the principle of section 116 of the Evidence Act can also be applied to subtenants visavis their principals (tenants), but the words "during the continuance of the tenancy" are of great significance and make it clear that where there is no legal tenancy or subtenancy, the provisions of this section shall be inapplicable and that the relationship as between tenant and subtenant can be created only by contract valid according to the law in force at the time of the execution of such contract, or can be created or continued by operation of law. Learned counsel for the defendant further argued before the trial court that the defendant constructed a tubewell over the land in question and when such a construction has been raised, even a licensee cannot be ejected from the land. In this connection, the referred to section 60 of the Indian Easement Act wherein it is mentioned that (if) a licensee has executed a work of permanent character and incurred expenses in the execution of that work, the licence cannot be revoked.

According to agreement Exhibit P1, it is clear that the garden land has been given only for a specific purpose and the tubewell was constructed by the defendant without the consent of the plaintiff appellant. The defendant produced several witnesses to prove the raising for the tubewell and, from this evidence, it is clear that the tubewell was constructed by the defendant but there is no evidence that this tubewell was got constructed with the permission of the plaintiffUnion.

It was further argued by the learned counsel for the defendant that the plaintiffUnion had no right to eject the defendant from the land, in question, which belongs to the Cantonment Board and the plaintiffUnion had no title to lease out that land to the defendant as the plaintiffUnion is not a lessee of the Cantonment Board. There is no documentary evidence to prove this contention of the defendant that the plaintiffUnion has nothing to do with the land in dispute, and taking into consideration the agreement entered into between the plaintiffUnion and the defendant, that defendant raised the construction of the tubewell without the consent of the plaintiffUnion and as the defendant has committed default of the agreement, the plaintiffUnion is entitled to the injunction for dispossession of thedefendant from the land, in dispute.

In view of the abovementioned discussion, it was held by the trial Court that the defendant is a I licensee over that land, in question, and he is not a tenant under the plaintiffUnion. It was further held by the trial Court that the plaintiffUnion is entitled to the injunction, prayed for. Issues Nos. 1, 2 and 3 were decided accordingly in favour of the plaintiff Union and against the defendant.

Issue No. 4 was also decided in favour of the PlaintiffUnion and it was held that the civil Court has got jurisdiction to try the suit. Issues No. 5, 6 and 7 were also decided in favour of he plaintiffUnion. The trial court decreed the suit of the plaintiff against the defendant.

Aggrieved by the judgment and decree dated 24.11.1976 of the trial Court, the defendant Om Parkash filed an appeal before the Senior Sub Judge (exercising the enhanced appellate powers). It was submitted by the defendant before the lower appellate Court that document Exhibit P constituted a lease and not a licence and, according to principles laid done in section. 60 of the Indian Easement Act, the plaintiffUnion was not entitled to possession of the property; that an amount of Rs. 18,000/ was spent for installation of the tubewell; that no suit for mandatory injunction was maintainable; that the Court had no jurisdiction to try the suit; and that the plaintiff was not a registered Union. The lower appellate Court held under issue No. 1 that the defendant had led sufficient documentary evidence to say that the tubewell had been installed several years ago on the property in dispute, and that document Exhibit P1, in question, and the act and conduct between the parties gave rise to the fact that there was a lease executed between the parties and the intention was to depart possession of the garden to the defendant: Relying upon section 60 of the Indian Easement Act, the appeal of the defendant was allowed and the judgment and decree dated 24.11.1976 of the trial Court was set aside.

Learned counsel for the plaintiffappellant has argued that the lower appellate Court has absolutely misread and misinterpreted the written agreement dated 11.2.1974 between the parties; that this document is clearly a licence and not a lease deed or a rent note; that the conditions mentioned in agreement Exhibit P1 have been ignored; that, according to this agreement, complete possession of this garden was not handed over to the defendant respondent as be was only allowed to use flowers and maintain the garden properly; that, from the above facts, the inference that can be drawn is that the defendantrespondent was allowed to use the garden to take flowers and fruits only; and that the defendantrespondent, therefore, cannot be held to be a tenant but only a licensee. It is further argued that Mitroo''s case (supra) clearly applies to the facts of the present case.

It was further argued by the learned counsel for the plaintiffappellant that the lower appellate Court referred to Kidar Nath v. Swami Parshad, 1977 PLJ 492 but did not properly appreciate the observations of the Hon''ble Judge in that case. The learned counsel submitted that there is no dispute with the legal proposition that, firstly, the substance of a document should be preferred to the form; secondly, the intention of parties whether they intended to create a lease or a licence should be seen; thirdly, it should be seen whether the documents creates interest in property; and fourthly, the nature of exclusive possession should be determined. Agreement Exhibit P1 read in this context, in the circumstances, clearly makes a licence in law and not a lease. Merely that the defendantrespondent installed a tubewell without the permission of the plaintiffappellant, section 60 of the Indian Easement Act has no application and installing of a tubewell is not a permanent structure as contemplated by law. It was further argued by the counsel for the plaintiffappellant that the lower appellate Court has erred in law in reversing the findings of the trial Court on issues No. 1 and 2.

I am of the opinion that there is force in the argument raised by the learned counsel for the plaintiffappellant. A perusal of agreement Exhibit P1 would show that there were flowers in the garden and, after the expiry of the period, the defendantrespondent would hand over possession to the Secretary of the plaintiffappellant Union. It is also mentioned therein that, in case of default in the payment of any instalment, the Secretary would be entitled to eject the defendantrespondent from the garden. A perusal of this agreement would show that complete possession of this garden was not handed over to the defendantrespondent and he was allowed to use the flowers and maintain the garden properly and, from it, the inference that can be drawn is that the defendantrespondent was allowed to use the garden to take flowers and fruits and the defendantrespondent was a licensee and not a tenant in respect of the garden, in question. The document Exhibit P1 executed by the defendantrespondent makes his occupation as a permissive one. Therefore, the defendantrespondent is merely a licensee and not a tenant under the plaintiffappellant Union.

According to agreement Exhibit P1, it is clear that, as the garden land has been given only for a specific purpose and the tubewell was constructed by the defendantrespondent without the consent of the plaintiff appellant, therefore, the defendantrespondent is a licensee of the plaintiffappellant and, as the defendantrespondent has committed default in the payment of the instalment, the plaintiffappellant is entitled to the injunction claimed for, i.e., a mandatory in junction for dispossession of the defendantrespondent from the land, in question.

In view of the abovementioned discussion, it is held that the defendantrespondent is a licensee over the land, in question, and the is not a tenant under the plaintiffappellant. It is further held that the plaintiffappellant is entitled to the injunction, prayed for. The findings of the lower appellate Court on issues No. 1, 2 and are set aside and these issues are decided in favour of the plaintiffappellant.

The finding of the lower appellant Court on issue No. 7 is also set aside and the same is decided in favour of the plaintiffappellant.

As a net result of the above discussion, the appeal of the plaintiffappellant is allowed, the judgment and decree dated 20.11.1978 passed by the Senior Sub Judge (exercising the enhanced appellate powers) is set aside, and the judgment and decree dated 24.11.1976 passed by the trial Court is restored. There will be no order as to costs.