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1988 (8) TMI 413
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....efore the High Court. those other points do not survive. 2. The two appellants-mother and son-as owners of the commercial-premises S.C.O, No. 15, Sector 17 E, Chandigarh, granted a lease, under deed dated 25.11.1970, in favour M/s. S. Chokesiri & Co., respondent fierein. The lease was for a term-certain of 10 years from 1.1.1971 under the terms and on conditions particularised in the Deed. Rent was initially Rs. 3,000 per month subject to certain increases stipulated in the lease-deed. Respondent carries on a business in clothing and textiles under the name and style, Saree Sansar" in the demised premises. The principal ground-and the only ground that survives- on which eviction was sought was that the respondent had, in about the year 1973, unauthorisedly and without the consent of the appellants, inducted two sub-tenants in two portions of the premises who,there after, carried-on their respective businesses of their own in the respective portions so sub- let. One was a tailor, a certain Banwari Lal, who carried on his business under the name and style "Royal Star Tailors" and the other. Agia Ram Lamba, Proprietor of M/S. Kwality Restaur- ant who established a business under....
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....legation of sub- letting relied, particularly, on the Report 'and evidence of Sri S.K. Chhabra, Advocate-Court-Commissioner (A.W.I) who in his report substantially corroborated appellants' charge of sub-letting; of Ram Lal Malhotra (A.W. 2.) and Inspector in the Enforcement Office who spoke to the notice stated to have been issued by the authorities in regard to the partitions effected in the premises to accommodate the Tailor and the Ice Cream Vendor; or Ravinder Pal Singh (A.W.4) A customer of the Ice Cream Parlour who spoke about the exclusiveness of its possession, of Nirmal Singh (A.W. 5) who gave a similar account respecting the tailoring establishment; of Davinder Singh (A.W. 7), the husband of the first appellant and father of the second. who spoke about the nature and extent of the alleged sub-letting and of the exclusiveness of the possession of the sub-tenants of the portions in their respective occupation and certain other matters; and of Kul Rajinderlal (A.W. 8) who took photographs (Exhibits AW 8/1 to 4) which are stated to disclose that the Ice Cream Parlour was open late in the night even after the respondent's textile business had been closed. Mehtab....
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....the proceedings the Tailor gave up his business and vacated the portion in his occupation. In about the year 1980 the Ice Cream Vendor is also stated to have gone away. Learned Rent Controller held that the evidence on record indicated the exclusive possession of the Kwality Ice Cream and that in the circumstances of the cases it was also legitimate to draw an inference, and raise a presumption, that monetary consideration alone had prompted the respondent into the transactions. Accordingly the learned Rent Controller by his order dated 2.3. 1979 allowed the appellants' application and made an order granting possession. 6. The appeal preferred by the respondent before the District Judge was unsuccessful and the order of eviction came to be upheld. The Appellate Authority also found that even in the case of M/s. Royal Star Tailors, there was a sub- letting. The Appellate Authority held: "So in the cases in hand, two exclusive portions have been parted with for M/s. Royal Star Tailors and for M/s. Kwality Ice Cream and the only conclusion in view of the evidence on record could be that the premises has been sublet and the documents Mark A and Mark B, could not be term....
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....port itself, the High Court had this observation to make: "The Local Commissioner made a report Exhibit A-1 to the effect that there are three separate portions on the ground floor where the demised premises were situated and each of these portions had a separate access. A material part of this report is that none of the above portion is approachable from inside the demised shop. If this report of the Local Commissioner would have been correct, there may be something to say in favour of the land-lords on the points of the conferment of exclusive possession of the portions to the third parties. There are, however, circumstances to show that this report is not factually correct." The High Court placed reliance on certain plans said to have been submitted for effecting certain alterations to the building which are stated to have contained the signature of the first appellant to come to the conclusion that, consistent with the structural dispensations indicated in the plans, the alleged sub-tenants could not have had exclusive possession. On this aspect, the High Court observed: "These plans were proved by M.L. Sharma, Senior Architect (RW. 3) who testified that th....
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....of the High Court contending, in the main, that, where a finding of fact is shown to have been rendered infirm and vitiated by a misreading of evidence and a non-consideration of material evidence, and where the inference and conclusion drawn from the evidence is non-sequetor the Revisional jurisdiction under the 'Act' which is wider than that under Section 115 C.P.C. could be invoked to correct errors even in findings of facts and that, at all events, the finding of a question of sub-tenancy being a mixed questions of fact and law, this Court, even on an independent consideration of the whole matter, should not interfere as one of the essential ingredients in the concept of a sub-lease, viz., the existence of monetary-consideration, in the form 'Rent', as distinct from consideration by way of services was wholly lacking. Learned counsel, however, emphasized the correctness of the finding of the High Court on the lack of exclusive-possession, on which alone, according to the learned counsel the appeal should fail. 10. Such controversy as exists in the case turns solely on whether the relationship between the Respondent on the one hand and " M/s.'Kwality Resta....
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....e possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive-possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called 'Possessory-Licences' which confer a right of exclusive-possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. (See: John Dewar; "Licences and Land Law". Modern Law Review Vol. 49 No. 6 Nov. 1986 and S. Moriorty "Licences and Land Law: Legal principles and public policies"1984 100 L.Q.R. 37) Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive -possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmustest to distinguish one from the other. The "solution that would seem to have been found is, as one would expect, that i....
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.... "..... If an interest in immovable property, entitling the transferers to enjoyment, is created, it is a lease; if permission to use without right to exclusive possession is alone granted, a licence...." In Board Revenuer v. A. M. Ansari,[1976] 3 SCR 661 at 665 it was again observed: ".... it is the creation of an interest in immovable property or right to possess it that distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in lease ......" In Dipak Banerjer v. Smr. Lilabati Chakrobory, 4 JT 1987 3 454 at 456 Sabyasachi Mukharji, J. observed: "But in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must in lieu of payment of some compensation or rent. However in regard to the second requirement of 'consideration'for the transfer of the right to enjoy the property, it was in that case held that though Section 105 of the Transfer of ....
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....dispute may arise between the very parties to the written instrument, where on the construction of the deed one party contends that the transaction is a licence' and the other that it is a lease'. The intention to be gathered from the document read as a whole has, quite obviously, a direct bearing. But in cases where, as here, the landlord alleges that the tenant has sub-let the premises and where the tenant, in support of his own defence sets-up the plea of a mere licencee and relies upon a deed entered into, inter-se, between himself and the alleged licencee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed. At best, it is a piece of evidence, the weight to be accorded to which will necessarily depend upon all the other circumstances of the case. The tenant and the sub-tenant, who jointly set up a plea of licence against the landlord may choose to camouflage the truth and substance of the transaction behind a facade of a self-serving and canveniently drafted instrument. The transaction, might be collusive and a mere mask the parties choose to wear to confuse and confound third parties. In such a case the realities....
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....in the course of their evidence. Learned counsel drew attention to the deposition of Krishan Lal (R.W. 9) who, while admitting his identity in the photograph Ex. AW 8/4 said: "In Exh. AW 8/4, I am sitting. I was cleaning the Machine. My one hand was near the mouth. Portion of Softy is separate. It is correct to suggest that the Proprietor of 'Saree Sansar, opens the shop separately. (Emphasis Supplied) Sri Sanghi also referred to the following statement of Das Raj jain (R.W. 10) a partner of the respondent's firm, which, according to the Iearned counsel, amounts to an admission of the exclusiveness of his possession: "The Ice-Cream premises can be locked from outside independently." Sri Sanghi, quite understandly, placed strong reliance on the report of the Commissioner (A.W. 1) whose report substantiated the appellants' case. So far as the admissions attributed to Das Raj Jain (R.W. 10) is concerned, Dr. Chitaley would say that the statement of the witness that the premises could be looked from outside indepen- dently does not militate against or detract from the internal inter-connection between the main premises of "Saree Sansar'? and "....
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....uctural alterations and the alleged damaged caused to the building thereby and to show that the structural alterations had been authorised by the first-appellant. It is quite plain that Respondent itself did not seek to rely on this evidence on the point of exclusive-possession or lack of it. Not even a suggestion was put to A.W. 7 or A.W. 9 to the effect that the structural alterations as evidenced by Ext. R. 4 rendered the exclusive-possession of M/s. Kwality Ice Cream impossible. Nor, indeed even one out of the 26 grounds in Memorandum of appeal before the appellate Court or the 24 grounds raised in the revision application before the High Court, refer to this inference to be drawn from Ext. R.4. More importantly., even Das Raj Jain (R.W. 10) partner of the Respondent firm does not himself claim this import and significance for Ext. R. 4. No witness stated that the structural alterations were strictly in accordance with the plan, Ext. R. 4. Apparently, this was not also the aspect on which Respondent placed reliance before the Courts-below. Reliance on the plans to take away the effect of the positive evidence on record was not, therefore, justified. 16. The scope of the r....
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....tated thus: (1). Where a question of fact has been tried by a judge without a jury, and there is no question of mis-direction of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trail judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion, (II). The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; (III). The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court." But in cases where there is no question of credibility or reliability of any witness or the question is one of a proper inference to be drawn from proved facts, the appellate Court is-and should be generally in as good a posit....
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....estimony, the demeanour and manner of witnesses who, have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on question of fact as on questions of law to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence, and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect." (p.854-55) ".... Not to have seen witnesses puts appellate Judges in a permanent position of disadvantage against the trial Judge, and unless it can be shown that he has failed to use or has palpably misused his advantage-for example has failed to observe inconsistencies or indisputable fact or material probabilities (ibid. and Yuill 1945 P. 15: Watt v. Thomas, [19473 A.C 484)-the higher Court ought not take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities of the case..." (P. 855)....
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....hat the High Court did was perhaps even an appellate Court, with full fledged appellate jurisdiction would, in the circumstances of the present case, have felt compelled to abstain from and reluctant to do. Contention (c) would also require to be upheld. 20. Re, Contention (d) The High Court was of the view that the proceeding of the Commissioner was vitiated by the absence of a notice to the respondent preceding the order appointing the Commissioner. It is true that some High courts had taken the view that no order appointing a local Commissioner under Order 26 CPC could be passed ex-parte. (See Latchan Naidu and Anr. v. Rama Krishan Ranga Rao Bahadur Bobbili Samasthanam, AIR t934 Madras 548. But subsequent pronounce- ments of several High Courts, including the Madras High Court, have inclined to the better view that there might be circumstances which may necessitate and justify even an ex- parte order appointing a Commissioner. But the requirements of Rule 9 of Order 26 are construed to apply to a stage after the making of an order appointing the Commissioner. In the present case, it is no doubt true, that the order dated 3.2. 1975 of the trial court appointing a Commission....
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.... not even a pleading by the appellant on the point of money- consideration for the parting of possession and that no amount of evidence adduced on a point not pleaded could at all be looked into. As a general proposition the submission is unexceptionable; but in the present-case, the point, in our opinion, is not well taken Appellants specifically pleaded "sub-letting" . Respondent understood that pleading as to imply all the incidents of' sub-letting including the element of 'Rent' and specifically traversed that plea by denying the existence of considerations. Parties went to trial with full knowledge of the ambit of the case of each other. In the circumstances the pleadings would required to be construed liberally. In Rum Sarup Gupta v. Bishun Narain Inter College. AIR 1987 SC 1242 this Court said this of the need to construe pleadings liberally. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the su....