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Judgment
R. Mala, J.—This Second Appeal has been filed against the judgement and decree made in A.S. No. 15 of 2004, dated 30.07.2004, on the file of the Subordinate Judge, Devakkottai revising the judgement and decree made in O.S. No. 50 of 2003, dated 30.09.2003, on the file of the District Munsif, Devakkottai.
The gist and essence of the averments in he plaint is as follows:
The suit property is belonging to the plaintiff. It consists of a residential house with a tiled roof built in the year 1935 and the same is one among the four houses in a row. He purchased the same in a court auction on 28.08.1978 and the same was confirmed on 08.11.1978. Sale Certificate was granted in favour of the plaintiff. He got delivery of the suit property through Court in E.A. No. 261 of 1978. The second defendant is a distant relative of the plaintiff and the first defendant is the wife of second defendant. The plaintiff is residing in Maviduthikotai and the suit property and the adjoining property is in a distance place from his residence. The plaintiff had inducted the second defendant and his family about 12 years ago. Both the defendants occupied the suit property as a licensee. As the plaintiff was a handicapped and as he found inconvenient to move from place to place, he allowed the defendants to collect the rent for the adjoining property, paying electric bills amd water tax. Taking advantage of possession of few receipts, the first defendant as a plaintiff has filed a suit in O.S. No. 33 of 2002, for bare injunction stating that he will not be evicted from the suit property other than the due process of law. He paid the rent regularly, but, he alleged that the plaintiff has demanded a sum of Rs. 15,000/- as advance and on her failure to pay the advance, the plaintiff has threatened to kidnap her. The suit was finally dismissed on 19.12.2002 and a copy of the judgement and decree is filed herein as Ex.A1 and Ex.A2. The defendants herein acted upon the ill advise of some people under assumption that one who is in possession of a property for more than 12 years, will become their property by adverse possession and they started to give trouble saying that they are going to sell the property. So the plaintiff herein cancelled the license on 15.05.2002 and asked them delivery vacant possession of the suit property within fifteen days orally. Aggrieved by the plaintiff''s direction, to cause inconvenience and mental agony to the plaintiff, the defendants have filed O.S. No. 33 of 2002. The plaintiff has already cancelled the licence on 15.05.2002 and the same is given to these defendants. Hence the plaintiff has come forward with this suit for recovery of vacant possession of the suit property to the plaintiff and for costs.
The gist and essence of the Written Statement filed by the defendants is as follows:
The defendants filed the suit in O.S. No. 33 of 2002 for permanent injunction restraining the plaintiff from evicting the defendants through police or henchmen. Now the plaintiff has come forward with the present suit with ulterior motive. It is false to contend that the defendants have made an attempt to sell the property as they were residing in the house for more than 12 years. The plaintiff never cancelled the licence. There is no cause of action for the suit. Hence they pray for the dismissal of the suit.
The trial court after considering the averments both in the plaint and written statement framed two issues and after considering the evidence of P.w.1, D.W.1 and D.W.2 and Ex.A1 and Ex.A2, decreed the suit in favour of the plaintiff stating that the licence has been cancelled and hence, the defendants are liable to handover the property to the plaintiff. Against that, the defendants have preferred an appeal in A.S. No. 15 of 2004 before the Subordinate Judge, Devakkottai and the first appellate court has allowed the appeal stating that the defendants are only tenants and hence the plaintiff ought to have filed a R.C.O.P before the Rent Controller but not a suit. Aggrieved by the same, plaintiff/appellant had preferred the present Second Appeal.
This Court after considering the entire material records, admitted the Second Appeal on the following substantial questions of law:
Whether the lower appellate court is correct in rejecting the case of the appellant that the respondents are mere licensees and are not tenants when the respondents have admitted the title of the appellant but have not produced any evidence to show that they have ever paid any rental or advance to the appellant all these years?
Whether the lower appellate court is justified in placing the burden on the appellant to prove that the respondents are not tenants when the assertion that they are tenants have been made by the respondents?
Whether the lower appellate court is justified in holding that a license can be terminated only by issuing notice in writing when there is no such legal requirement?
Substantial question No. 1 and 2:
The appellant as the plaintiff filed a suit for recovery of possession stating that the property belonging to him. The defendants/respondents are only licensee. The second defendant and his family was inducted to look after and to take care of the property of the plaintiff/appellant. The plaintiff/appellant cancelled the license on 15.05.2002. So the respondents have filed a suit in O.S. No. 33 of 2002, for injunction and that has been dismissed. In that, it was held that the defendants are only licensees. The respondents/defendants have raised the fact that the license has not been cancelled and the suit is not maintainable.
After considering the oral and documentary evidence, the trial court has decreed the suit, stating that the defendants/respondents are only licensees and the same has been cancelled on 15.05.2002. Aggrieved by the same, the defendants have preferred an appeal before the first appellate court and the first appellate court has allowed the appeal and dismissed the suit by stating that there is landlord-tenant relationship between the plaintiff/appellant and defendants/respondents and that the suit is not maintainable and only R.C.O.P has to be filed. Against that, the plaintiff/appellant herein had filed the present Second Appeal.
The learned Counsel for the appellant would contend that admittedly, the appellant is the owner of the suit property. There is no doubt as per Ex.A1, the judgement of the earlier suit in O.S. No. 33 of 2002, it was decided that the respondents are only the licensees. There is no appeal and it has become final. So the respondents are only licensees and moreover, the plaintiff/appellant has cancelled the license and hence he is entitled for recovery of possession. He would further submit that the first appellate court has committed an error in allowing the appeal and dismissing the suit.
The learned Counsel for the respondents would contend that the suit itself is not maintainable. The respondents are tenants and so the plaintiff/appellant ought to have filed a a R.C.O.P before the Rent Controller. Hence the first appellate court has considered all the aspects in a proper manner and come to a correct conclusion and further submitted that there is no infirmity in the decree and judgement passed by the first appellate court. Hence, he pray for the dismissal of the Second Appeal.
It is true that the appellant is the owner of the suit property. The respondents are in possession of the suit property. The only question that has to be decided is whether the respondents are tenant or licensee? In earlier proceeding in O.S. No. 33 of 2002, filed by the respondent herein for bare injunction, the second respondent herein raised a plea that he is a tenant. But, the appellant herein raised a plea that he is a licensee. The trial court has considered all the aspects in a prospective manner and decided that the defendants/respondents are only licensees and paragraph 16 of Judgment-Ex.A1, reads as follows:
Here it is be seen firstly that whether the plaintiff is a tenant as per the version of the plaintiff or licensee as per the contentions of the defendant. The plaintiff deposed that she has been a tenant under the defendant from 1986 but there is not even a single receipt produced on the side of the plaintiff to show that she paid rent. The plaintiff in cross-examination deposed that she has not obtained receipts for the payment of rent from the plaintiff and it could not be believed because even after the filing of this Court the plaintiff has not been receiving receipts from the defendant for the payment of rent is against nature. Eventhough P.W.1 deposed in cross-examination that the defendant has received rent through his men from the plaintiff, it is unnatural to say that even after filing of the suit the plaintiff has not obtained receipts for payment of rent by her. Further there is no material produced before the court to show that the defendant has demanded Rs. 15,000/- from the plaintiff as advance. So the contention of the defendant is probable that the plaintiff''s husband could have been asked to occupy in the suit property only as a licensee and not as tenant. It is clear that the plaintiff has not proved that she has been a tenant under the defendant Rs. 15,000/- as advance. Further the evidence of the plaintiff that there is no written tenancy agreement between himself and the defendant, goes to show that the plaintiff contention of tenancy is only for the purpose of the case. Ex.A2 and Ex.A3 the electricity bills are standing only in the name of the defendant and are supporting the case of the defendant that the plaintiff has been asked to pay the water charges and electricity charges by collecting the rent from the other occupants. In these circumstances I hold that the plaintiff has not been a tenant under the defendant and further I hold that the plaintiff has not proved that the defendant has demanded Rs. 15,000/- as advance.
So the contention of the defendants is probable that the defendants have been asked to occupy the suit property only as a licensee and not as a tenants.
Against Ex.A1 and A2, the respondents herein have preferred an appeal and that has been withdrawn by the respondents herein. So the finding in Ex.A1 is final and it binds both the plaintiff/appellant and defendants/respondents. In the above circumstances, the respondents herein are estopped from raising the contention that they are the tenants under the appellant herein and the suit is not maintainable, so the arguments advanced by the learned Counsel for the respondent is unacceptable one. So as per Ex.A1, the defendants/respondents are licensees . Hence the suit is maintainable. Accordingly the substantial questions 1 and 2 are answered.
Substantial question No. 3:
The learned Counsel for the respondents would contend that there is no revocation of license. At this juncture, the learned Counsel for the appellant would rely upon Section 61 of the Indian Easements Act, 1882, which reads as follows:
Revocation express or implied.-- The revocation of a license may be express or implied.
and argue that in the earlier suit, the appellant herein has raised a plea that he has cancelled the license. Moreover in Plaint paragraph 7, he has clearly mentioned that he cancelled the license on 15.05.2002. In the above said circumstances, there is a valid cancellation of license. Hence the appellant is entitled for recovery of possession. So the Substantial question No. 3 is answered accordingly.
As narrated above, the appellant is the owner of the suit property, the respondents are the Licensees and the license was cancelled on 15.05.2002 and he filed a suit for recovery of possession and hence he is entitled for recovery of possession. The first appellate court has committed an error that the defendants/respondents are only tenants and dismissed the suit. In view of the above discussion, the judgment and decree of the first appellate court is liable to be set aside and the judgement and decree of the trial court is liable to be restored and confirmed.
In fine, the Second Appeal is allowed. The judgement and decree of the first appellate court is set aside and judgement and decree of the trial court is restored and confirmed. No costs.