IMPORTANT POINTS
1. When the core issue is not adjudicated upon, it results in a substantial question of law under Section 100 Civil Procedure Code.
2. Where Courts are required to consider the nature of transactions and the status of the parties thereto, one cannot go by mere nomenclature and in order to ascertain the substance of the transaction, Court has to ascertain the purpose and substance of the agreement.

Headnote:(i) RENT LAWS-Civil Procedure Code, 1908-Sections 100 and 103-West Bengal Premises Tenancy Act, 1956-Nature of transactions and status of parties thereto-Determination of-One cannot go by mere nomenclatures such as licence, licensee, licensor, licence fee etc.-In order to ascertain the substance of transaction, we have to ascertain purpose and substance of the agreement-In such cases, intention of parties is the deciding factor-In order to ascertain the intention, we have to examine the surrounding circumstances including the conduct of parties. (Para 7)
       (ii) RENT LAWS-Civil Procedure Code, 1908-Sections 100 and 103-West Bengal Premises Tenancy Act, 1956-License or tenancy-Determination of-Owner of properties died leaving behind him his wife, son and daughter-He left a Will bequeathing all his properties to his widow for period of her natural life, but with no right to alienate the property and thereafter to his son, Respondent No. 4-Widow executed an agreement of licence for 11 years in favour of Printers firm carried on by respondents 1 and 2-Appellant bought the entire property from respondent 4-Appellant filed Title suit for eviction against respondents 1 and 2-A declaration was sought to the effect that they were in unauthorised occupation of suit premises-Respondents 1 and 2 alleged that they were monthly tenants in suit premises; that purported agreement was a tenancy in disguise-Under the agreement, Printers firm were permitted to install electricity and telephone in premises-Respondents 1 and 2 had raised a permanent construction and extension over the existing structure-Trial Court dismissed Title suit holding that respondents 1 and 2 were licensees and not tenants and that license being for 11 years they were not trespassers-Appeal-First Appellate Court passed order of eviction without adjudicating upon the issue as to whether the agreement was a license or a tenancy-Second appeal-Whether maintainable-(Yes)-When the core issue is not adjudicated upon, it results in substantial question of law.
       Held : Although the core issue of tenancy arose before the first appellate court the same was not adjudicated upon and in the circumstances the High Court was right in invoking Section 103 C.P.C. Moreover as can be seen from the record, the plea of tenancy was allowed to be argued before the first appellate court but the said point was not adjudicated upon. Lastly, in the High Court in second appeal, this point was argued by both sides whereupon the High Court gave its finding to the effect that respondent Nos. 1 and 2 were tenants and their tenancy cannot be terminated without notice under Section 13(6) and the failure of appellant making out any of the grounds under Section 13(1) of the said Act 1956. (Para 9)
       The Title Suit filed by the appellant was on the basis that the agreement dated 5th July, 1976 was a licence which stood revoked and on revocation the said respondent Nos. 1 and 2 became trespassers. However, in view of the above finding of the High Court that the said agreement dated 5th July, 1976 was a contract of tenancy and that the said respondents were tenants, the entire substratum of the original Title Suit falls. (Para 10)

JUDGMENT

Kapadia, J.-Ashok Kumar Bose (since deceased) was the owner of the premises No. 119/1A, Harish Mukherjee Road, Bhowanipore, Calcutta - 700 026. He died leaving behind him his wife Smt. Madhuri Bose, (since deceased), Shri Ajoy Kumar Bose (son) and a daughter. Ashok Kumar Bose left a Will dated 1st March, 1974 bequeathing all his properties to his widow Smt. Madhuri Bose for the period of her natural life, but with no right to alienate the property and thereafter to his son Ajoy Kumar Bose (respondent No.4 herein). On 5th July, 1976 Smt. Madhuri Bose executed an agreement of licence for 11 years in favour of M/s Nanee Printers, a proprietary firm carried on by one Ranaji Ganguly (respondent Nos. 1 and 2 herein). On 10th October, 1980, the appellant herein bought the entire property No. 119/1A including the suit premises consisting of a Printing Press in a Katcha shed from Ajoy Kumar Bose (respondent No.4) to which the deceased Smt. Madhuri Bose was a confirming party. On 7th July, 1981, the present appellant filed a Title Suit for eviction against respondent Nos. 1 and 2 herein and sought possession of the suit premises. In the Title Suit, a declaration was sought to the effect that M/s Nanee Printers were in unauthorised occupation of the suit premises as trespassers on revocation of the leave and licence agreement dated 5th July, 1976. M/s Nanee Printers contested the Title Suit. In the written statement, they alleged that they were monthly tenants in the suit premises; that the purported agreement dated 5th July 1976 was a tenancy in disguise of a licence; that Shri Ajoy Kumar Bose (respondent No. 4 herein) was a consenting party to the agreement dated 5th July, 1976 and since respondent No. 2 herein was in need of accommodation, he had no option but to sign the agreement dated 5th July, 1976. By the written statement, M/s Nanee Printers denied that Smt. Madhuri Bose (since deceased) had no right to let out the suit premises on rent. It was further alleged by M/s Nanee Printers that under the agreement dated 5th July 1976, M/s Nanee Printers were permitted to install electricity and telephone in the premises and under the circumstances they were tenants in respect of the premises. In the alternative it was alleged that even if they were held to be licensees, the said licence was irrevocable and therefore, the suit was liable to be dismissed with costs.

2. In the said suit, the following issues were framed by the trial court:

"1. Is this suit maintainable?

2. Has the suit been properly value?

3. Has the Court fees been paid sufficient?

4. Has this Court jurisdiction to try the suit?

5. Are the defendant Nos. 2 and 3 thika tenants in respect of the suit premises?

6. Is there any relation of landlord and tenant between the parties?

7. Are the defendants tenants or licensees in respect of the suit premises?

8. If the defendants Nos. 2 to 3 are found to be licensees, whether the said license is revocable or not?

9. Is the plaintiff entitled to get a decree as prayed for?

10. To what other reliefs, the plaintiff is entitled?"

3. By judgment and order dated 29th August 1992, the trial Court came to the conclusion that respondent Nos. 1 and 2 herein were licensees and not tenants; that the licence was for 11 years for running a Printing Press with liberty to the licensor to renew the licence for further 11 years and therefore, respondent Nos. 1 and 2 were not trespassers as alleged by the appellant (plaintiff) herein. The trial Court further found that Shri Ajoy Kumar Bose (respondent No.4) was fully aware of the agreement dated 5th July, 1976 between his mother Smt. Madhuri Bose on one hand and respondent Nos. 1 and 2 herein on the other hand and that he had consented to the agreement dated 5th July, 1976 by his conduct. However, the trial court found

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2004 Supreme(SC) 122

Cases Referred (3)