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IN THE HIGH COURT OF BOMBAY AT GOA
M.S. SONAK, J.
Ana Francisca Braganza & Another – Appellant
Versus
Jawaharlal Edwin do Carmo Moniz, son of late Inacio Moniz & Another – Respondents
Second Appeal No. 42 of 2012
Decided On : 12-02-2021
Leave and License - Relationship between the parties - Agreement dated 1/03/1973 - Summary of Acts and Sections: The court discussed the provisions of the agreement dated 1/03/1973 and 1/11/1979, and the legal principles from C.M. Beena v. P. N. Ramachandra Rao, Sardar Pruthisingh v. Kanchanlal Purushottamdas Desai, Sohan Lal Naraindas v. Laxmidas Raghunath Gadit, and other cases to determine whether the agreements constituted a relationship of licensor and licensee or lessor and lessee. The court emphasized the intention of the parties, the meaning and words used in the document, and the conduct of the parties in ascertaining the real relationship between the parties.
Fact of the Case:
The plaintiffs sought a declaration that the occupation of the defendants in a shop was illegal and for a decree to vacate the premises. The Trial Court found in favor of the plaintiffs, and the First Appellate Court dismissed the appeal. The Second Appeal was based on substantial questions of law regarding the nature of the agreement between the parties.
Finding of the Court:
The court found that the agreements between the parties constituted a relationship of licensor and licensee, and not lessor and lessee. The court emphasized the intention of the parties, the meaning and words used in the document, and the conduct of the parties in reaching this conclusion.
Issues: The main issue involved in this appeal was whether the agreements between the parties constituted a relationship of licensor and licensee or lessor and lessee.
Ratio Decidendi: The court emphasized the intention of the parties, the meaning and words used in the document, and the conduct of the parties in determining the nature of the relationship between the parties.
Final Decision: The appeal was dismissed with no order as to costs, and the interim relief, if any, was vacated.
JUDGMENT :
1. Heard C. A. Coutinho with Mr. I. Santimano for the Appellants and Mr. A. F. Diniz, Senior Advocate along with Mr. Ryan Menezes and Mr. Nigel Fernandes for the Respondents.
2. This appeal was admitted on 24.08.2012 on the following substantial questions of law:
(i) Whether the Courts below have misconstrued the agreement dated 1/03/1973 entered into between the appellants and the respondents to come to the conclusion that the agreement between the appellants and the respondents was a licence agreement.
(ii) Whether non-consideration of the fact that the agreement between the parties was not renewed for a period of nearly 25 years has vitiated the findings of the Courts below to the effect that the relationship between the appellants and the respondents is that of a licensor – licencee.
3. The appellants are the original defendants and the respondents are the original plaintiffs in Regular Civil Suit No.136/2002/D instituted in the court of the Civil Judge, Senior Division, Margao (Trial Court).
4. The plaintiffs had sought a declaration that the occupation of the defendants in Shop No.5 bearing Panchayat House No.1279 admeasuring about 14 sq. meters. (suit premises)is illegal and for a decree to vacate the suit premises and to hand over the possession thereof to the plaintiffs. The mesne profits at the rate of `300/- per month from the date of filing of the suit were also claimed.
5. The Trial Court framed and answered the issues in the suit in its judgment and decree dated 26.11.2010, in the following manner:
|
| ISSUES | FINDINGS |
| 1. | Whether the plaintiffs prove that the suit premises Were given on Leave and Licence basis to the defendants specifically to run the business of Restaurant? | Proved. |
| 2. | Whether the plaintiffs prove that the defendants were maintaining a kitchen in the suit premises as against the condition of Leave and Licence agreement? | Proved. |
| 3. | Whether the plaintiffs prove that the defendants are in illegal occupation of the suit premises and they are entitled for direction of this Court to vacate the suit premises and hand over the vacant possession of the suit premises to the plaintiffs? | Proved. |
| 4. | Whether the plaintiffs prove that they are entitled for a mesne profits from the defendants @ Rs. 300/per month from the date of filing of the suit till the suit premises are vacated by the defendants? | Disproved. |
| 5. | What relief? What order? | As per final order. |
|
| ADDITIONAL ISSUES | FINDINGS |
| 1. | Whether the plaintiffs prove that the suit premises were given to the defendants on Leave and Licence? | Proved. |
| 2. | Whether the defendants prove that the suit premises were given to them on Lease basis? | Disproved |
6. Aggrieved, the defendants appealed to the District Judge, South Goa vide Regular Civil Appeal No.8/2011. By judgment and decree dated 13.05.2011, the First Appellate Court dismissed the appeal. Hence the present Second Appeal on the aforesaid substantial questions of law.
7. Mr. Coutinho, learned counsel for the appellants submits that the mere nomenclature of a document is quite irrelevant and the two Courts were required to look to the intention of the parties which could be gathered from the surrounding circumstances. He submits that there was intrinsic evidence in the agreement dated 01.03.1973 which made it clear that the same was a deed of lease and not merely a deed of leave and license.
8. Mr. Coutinho pointed out some of the clauses of the agreement dated 01.03.1973 to submit that the same was a deed of lease. He pointed out that in clause 6 there was a bar to the defendants leasing or sub-leasing the suit premises and submitted that such a bar was unnecessary if the parties intended to only create a license. He pointed out that there was a clause for automatic renewal. He pointed out that
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