Judgment

BHAGWATI, J.:- This appeal, by special leave, arises out of a suit filed by the appellant to recover possession of certain premises from the respondents. In order to appreciate the contention that has been raised in the appeal, it is necessary to notice the facts giving rise to the appeal in some detail.

2. The appellant is the owner of two bungalows in Navsari, a town situate in South Gujarat. One bungalow is known by the name of Truth Bungalow while the other is known by the name of Hill Bungalow. The Truth Bungalow consists of only one tenement with a separate room on the ground floor. It was common ground between the parties and that appears clearly from the evidence and has also been found by the High Court as well as the lower courts, that this separate room on the ground floor of the Truth Bungalow was at all material times in the possession of the appellant. The rest of the Truth Bungalow was, some two and a half to three years prior to the recording of the evidence, let out to a tenant, but after a period of about one year and quarter the tenant surrendered possession and thereafter it was given by the appellant to one Dr. Bharucha on leave and licence on payment of compensation of Rs. 50/- per month. The appellant in his evidence could not state precisely when this leave and licence was granted by him. He said that it was given in January 1966 or it may be in January 1967. We shall, for the purpose of this appeal, proceed on the basis that it was given in January 1967, for that would be more favourable to the respondent than taking January 1966 as the time when it was granted. Dr. Bharucha was thus in occupation of the Truth Bungalow, barring the ground floor room in the possession of the appellant, from January 1967 on leave and licence from the appellant.

3. The Hill Bungalow consists of two tenements, one on the ground floor and the other on the first floor. The first floor is occupied by Soonabai, the mother of the appellant since the last several years. She is an old lady, aged about 82 years at the time of giving evidence but, as the evidence shows age does not seem to have withered away her interest in life. There was some controversy before the lower courts as to whether in respect of the first floor occupied by her, Soonabai was a tenant or a licencee of the appellant. The lower courts held that she was a tenant, while the High Court took the view that she was a licencee. We shall presently examine this controversy but one thing may be made clear at this stage namely, that Soonabai was paying a sum of Rs. 50/- per month to the appellant for the occupation of the first floor and receipts in respect of such payment were produced by the appellant. The ground floor of the Hill Bungalow was let out by the appellant to one Mahendra Prasad as far back as 1957 at a rent of Rs. 65/- per month. Mahendra Prasad died in September 1966 leaving him surviving as his legal representatives is widow the fifth respondent, his son the first respondent and his daughter the second respondent. Sometime prior to the death of Mahendra Prasad, respondents 3 and 4 together with the members of their respective families had come to reside in the ground floor premises and after the death of Mahendra Prasad, they continued to stay with the first respondent. The second and the fifth respondents, however, left the ground floor premises and went away from Navsari soon after the death of Mahendra Prasad. The appellant, by a notice dated 15th Oct. 1966, terminated the tenancy of respondents 1, 2 and 5 on the ground that they had unlawfully sub-let the ground floor premises to respondents 3 and 4. Though the tenancy in respect of the first floor premises was thus terminated by the appellant, the respondents failed to hand over vacant possession of the ground floor premises to the appellant and the appellant was accordingly constrained to file regular suit No. 26 of 1967 in the court of the Civil Judge, Senior Division, Navsari on 18th Jan