Back
High Court Of Calcutta
Bhaskar Bhattacharya, Rajendra Nath Sinha
MADHULATA KANKANI - Appellant
Versus
HOMANT BANGUR - Respondent
F. M. A. T. 4391 Of 2004
Decided On : 02/09/2005
LICENCE COUPLED WITH GRANT - TENANCY - IRREVOCABLE LICENCE - SECTION 60 OF THE INDIAN EASEMENTS ACT - APPLICABILITY - PRINCIPLES OF JUSTICE, EQUITY AND GOOD CONSCIENCE - INJUNCTION - PRIMA FACIE CASE - BALANCE OF CONVENIENCE AND INCONVENIENCE - IRREPARABLE LOSS AND INJURY.
Fact of the Case:
Plaintiff, a tenant in a building, filed a suit for declaration of a licence coupled with grant in respect of a lawn/garden situated at the premises and for permanent injunction restraining the defendants from making any construction on the suit property. The plaintiff claimed that she had acquired the licence from the inception of her tenancy and that the same was irrevocable under Section 60 of the Indian Easements Act.
Finding of the Court:
The court held that the plaintiff had failed to establish a prima facie case to obtain an injunction. It found that the licence claimed by the plaintiff was not coupled with the grant of tenancy and was not incidental to the enjoyment of the tenancy. The court also held that the balance of convenience and inconvenience was in favour of refusing the injunction, as the defendants, as owners of the property, had the right to construct a building thereon, and that the plaintiff could be compensated for any loss suffered if she ultimately succeeded in the suit.
Issues: 1. Whether the plaintiff had acquired a licence coupled with grant in respect of the lawn/garden. 2. Whether the licence was irrevocable under Section 60 of the Indian Easements Act. 3. Whether the plaintiff had established a prima facie case for grant of injunction. 4. Whether the balance of convenience and inconvenience was in favour of granting the injunction.
Ratio Decidendi: 1. A licence coupled with grant must be one which is incident to the grant. 2. A permission given by a landlord to a tenant to use his other property which is not incidental to the enjoyment of the tenancy confers a revocable right of licence in favour of the tenant. 3. The provisions of Section 60 of the Indian Easements Act cannot be extended to cases where the Act has no application, and in such cases, the principles of justice, equity and good conscience must be applied. 4. In order to succeed in an application for temporary injunction, the plaintiff must prove the existence of three conditions: (a) a strong prima facie case to go for trial; (b) the balance of convenience and inconvenience must be in favour of granting temporary injunction; and (c) the plaintiff must establish that if the temporary injunction as prayed for is not granted, he will suffer irreparable loss and injury.
Final Decision: The appeal was dismissed, and the order of the trial court refusing to grant a temporary injunction was upheld.
( 1 ) THIS first miscellaneous appeal is at the instance of a plaintiff in a suit for declaration and permanent injunction and is directed against Order No. 14 dated October 7, 2004 passed by the learned judge, 4th Bench, City Civil Court at Calcutta in Title Suit No. 972 of 2004 thereby dismissing an application for temporary injunction filed by the present appellant.
( 2 ) THE appellant herein filed a suit being the aforesaid Title Suit No. 972 of 2004 in the City Civil Court at Calcutta thereby praying for declaration that she has acquired a licence coupled with grant in respect of a lawn/garden situated at premises No. 10, Bakery Road, P. S. Hastings, Kolkata - 700 022 comprising an area of 12 cottahs of land and for permanent injunction restraining the defendants, their servants, agents and successors-in-office from making any construction on the suit property or changing the nature and character of the same.
( 3 ) IN connection with the aforesaid suit, the plaintiff-appellant also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure thereby praying for temporary injunction restraining the defendants from carrying on any construction at the suit property or changing the nature and character of the same during the pendency of the said suit.
( 4 ) THE case made out by the appellant in the plaint as well as in the application for temporary injunction may be summarised thus: (A) The property situated at 10, Bakery Road is a trust property of M/s. M. B. Commercial Trust of which defendant Nos. 1 to 4 are the trustees. (B) The said premises consist, inter aha, of a two-storied building, temple, servants' quarters, garages and a lawn/garden. The said lawn and garden situated at the said premises comprises an area of approximately 12 cottahs and such garden is the subject-matter of the suit. (C) The said building situated by the side of the suit property has eleven flats, six flats are on the ground floor and five flats on the first floor. Each of the said eleven flats except one is occupied by various tenants being the plaintiff and the proforma defendant Nos. 5 to 16. Since january, 1992, the plaintiff is a tenant in respect of a flat situated on the first floor of the building together with servants' quarters and garages. The plaintiff has also the right to use and enjoy the roof-top of the said building and other common areas of the said building and together with the suit property. (D) The plaintiffs right has been confirmed by endorsement on a letter dated May 4, 1994 bearing signature of the Secretary of the Trust showing that the plaintiff has right over the first floor flat together with servants' quarters, garages and the right to use and enjoy the roof-top of the said building and other common areas together with the suit property. (E) The suit property has all along been occupied and enjoyed by the plaintiff from the inception of the tenancy and the same is being used for the purpose of holding various social functions, and as a regular playground of all the children residing at the said building and also for various other common purposes. The suit property was in exclusive use and occupation of the plaintiff and other tenants of the said premises and all expenses towards maintenance of the suit property have all along been incurred by the tenants. (F) The plaintiff has, thus, acquired a licence coupled with grant in respect of the suit property and plaintiff and other tenants have the exclusive right to occupy, use and enjoy the suit property. (G) On June 15, 2004 at about 9:30 a. m. the plaintiff found that some outsiders had entered into the suit property and started cutting down the trees and hedges grown on the suit property and when the husband of the plaintiff approached those people, the latter represented themselves to be the men and representatives engaged by the respondent Nos. 1 to 4 for cutting down all the trees from the suit property and putting u
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
