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Judgment
A.H. Joshi, J.—This Appeal is preferred by landlord against the Judgment and Decree dated 7.3.2000, dismissing the suit, passed by the learned Civil Judge Senior Division at Panaji, in Special Civil Suit No. 138/89/A, filed for recovery of possession of flat and mesne profits towards wrongful occupation thereof by the defendants.
According to the plaintiff the defendant nos.1 and 2 began to occupy the suit flat as licencees from January 1989, on monthly compensation fixed at Rs. 1200/-.
According to the plaintiff the licence was terminated and the possession of the flat was sought. The defendants however refused to comply and on the other hand claimed that the defendants are the tenants of the suit flat and denied the licence and its termination etc. They claimed that since 1987 they were in the occupation of the suit flat as tenants. The defendants have put up a specific story in the written statement as follows:
But these defendants deny that these defendants requested the plaintiff to grant them licence to reside in the suit flat. The suit flat was taken by the defendants on rent. The suit flat was taken from the plaintiff for residence and business purpose these facts were well within the knowledge of the plaintiff. It is false that the defendants requested that the receipts be issued in the name of "Interconnexion" on account of taxation, in fact the suit flat was taken by the defendants for residence and business purposes and the office of the defendants were operation from the suit flat. It is specifically denied that these defendants began to occupy the suit flat as licences. These defendants states that they are the tenants of the suit flat, in fact the plaintiff who as issuing receipts as Rent Receipt suddenly began issuing receipts stating that the money paid was for occupation of the flat as licence which the defendants noticed when the defendants tried to go through the said receipts minutely on account of the present suit.
(quoted from page No. 23 and 24 of the paper book)
In the back ground of the plaintiff''s plea of licence, and defendant''s plea of house tenancy, the learned Trial Court had framed the following:
Whether the plaintiff proves that the suit premises were given on licence to the defendants?
Whether the plaintiff proves that the defendants are trespassers in the suit flat?
Whether the plaintiff proves that she is entitled to the suit flat?
Whether the plaintiff proves that she is entitled to a compensation of Rs. 2,500/-per month from 1st June 1989 till the flat is handed over to the plaintiff?
(quoted from page No. 28 of the paper book).
Parties had led oral evidence. The plaintiff''s relied upon her testimony in which she has re-iterated her version contended in the plaint and relied upon the copies of notices, reply of the defendants etc.
In the examination-in-chief, the plaintiff did not explain anythings as to the occupation of the suit flat by defendants prior to 1987. In the cross examination, she had denied the rent receipts, relied upon by the defendants.
It is seen that the plaintiff was suggested in her cross- examination, certain things indicating that defendant No. 3''s employee use to visit the flat and also that the defendants were in absolute possession of the suit flat. These suggestions have been admitted by the plaintiff. The relevant version of the witness/plaintiff in her cross examination reads as follow:�
I noticed this employees when I visited this flat. The employees may be there since 1986 or 1987. The cheques in respect to the payment made had the stamp of Micro interconnection Pvt. Ltd. This money was paid by defendant No. 3 with respect to this flat. It is not true to suggest that there was never any leave and licence agreement but there was lease agreement and the defendants were paying rent to me. I know that defendant No. 1 is the Director of defendant No. 3, however I do not know if he is the Director of Inter-connection. The whole flat is the possession of the defendant. I might have visited the defendants for the last time somewhere in 1990/91. From 1986 till today the defendants are in absolute possession of the suit flat.
(quoted from page Nos. 34 and 35 of the paper book)
The respondent No. 1 entered the witness box and has deposed as DW1 and he has deposed that the respondent Nos. 1 and 2 are occupying suit flat and stated that they are running a business under the name and style of Interconnection and also of a firm under the name and style of Micro Interconnection Pvt. Ltd., and claimed tenancy. He has also examined one of the witness is the Company employee.
The learned Trial Judge while dismissing the suit, has recorded findings namely that the plaintiff''s plea that defendants are licences is not proved and in the result held that the transaction in question to be that of house tenancy. Learned trial court found that the relation between the parties have to be held to be of tenancy in the absence of written agreement of licence, and in view of this fact, a civil suit for eviction of a tenant of a house, is barred.
Heard Advocates on both sides.
The learned advocate for the appellant has emphasized on two point as follows:�
The Rent Control Act and Rules, 1968 does not apply in view of Section 3(1)(c) thereof, as the construction of the house was done in 1981, and the alleged tenancy was created within 15 years from construction of the house. Rent Act did not apply and therefore whether it was a licence or tenancy, a suit for possession was maintainable.
The learned advocate for the appellant then has placed reliance on reported Judgment Mohinder Kumar and Others Vs. State of Haryana and Another, .
This Court has perused the evidence of the respective parties, and perused the documents and scrutinized the judgment impugned. This Court has also perused the reported judgment of the Supreme Court, relied upon by the learned advocate of the appellant.
The learned advocate for the respondents in reply submitted as follows:(
1) Admittedly the suit house was constructed in 1981, and this fact has come in the evidence of the plaintiff.
(2) Amending Act by which clause (c) of Sub-Section (1) of Section 3 of Rent Control Act was amended is not retrospective. When the tenancy commenced in 1986, the protection exclusion was only for 4 years.
(3) After 1985 the house subject matter was governed by Rent Act.
(4) The amendment in the Rent Act does not prejudicially affect the right accrued in favour of defendants.
(5) The plaintiff has specifically averred in the plaint about the commencement of licence in January 1989 while in oral evidence in cross examination admits occupation of the suit flat by the defendants since 1986.
(6) The plaintiff has suppressed the existence of tenant landlord relations which exists since 1986.
(7) This suppression has to weigh against the plaintiff.
(8) Therefore on the day when controversy arose the exclusion of application of Rent Act did not exclude the occupation of house by defendants from the application of the Rent Act.
(9) The plaintiff has failed to prove that defendants were licencees.
(10) The findings of the learned Trial Court that in the absence of written agreement the amount paid by the defendants is liable to be considered as rent particularly when the receipts relied upon by the defendants discloses that the amount paid therein is described as occupation charge, is liable to be considered as receipts of rent, and not licence fees, is not shown to be erroneous.
A clear conclusion is emerging from the reported judgment in case of Mohinder Kumar Supra that right accrued either in favour of the tenant or landlord will not be extinguish by virtue of amending act which is the foundation of the plaintiff''s assumption. This judgment therefore does not help the plaintiff.
The appellant has not examined any witness and has failed to plead and reveal before the court truthfully what were the relations such as tenant or otherwise prior to 1989, and in the absence of such disclosures it has to be held that the defendants were not licensees, but were tenants.
Moreover, the findings recorded by the Trial Court that in the absence of documentary evidence, the plaintiff''s story of licence cannot be believed, is most probable conclusion emerges on the fact.
In the result, the findings of the learned Judge of Trial Court as to what appears to it as proved, from the evidence which the court has observed, and appreciated, cannot be interfered unless it is shown that the findings are perverse of rendered without considering any material on record.
It is not the appellant''s case that the evidence on record has not considered.
Even if the defendants are not licensee but are lessees, in that eventuality too it has to be shown by land lord � plaintiff that the lease has been terminated by following the procedure led down by the law. This too is not the plea of the plaintiff.
Therefore no interference whatsoever is called for in the impugned decree.
The appeal has no merit and is dismissed. In the circumstances parties are directed to bear own costs.