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IN THE HIGH COURT AT CALCUTTA
Tapabrata Chakraborty, Raja Basu Chowdhury, JJ.
Bhargav Chatterjee & Anr. - Appellants
Versus
Infinity And Associates & Anr. - Respondents
First Appeal No. 147 of 2018
Decided On : 08-12-2022
Licensee - Recovery of Possession - Section 116 of the Indian Evidence Act - [Section 116 of the Indian Evidence Act] - The court allowed the appeal and set aside the judgment and decree passed by the lower court, directing recovery of possession of the suit property in favor of the plaintiff no.1. The court emphasized the admission by the respondent no.2 that he was a licensee in respect of the suit property and was willing to surrender the license and hand over vacant possession. The court also highlighted the estoppel provision under Section 116 of the Indian Evidence Act, which prevented the respondents from denying the title of the appellants over the suit premises.
Fact of the Case:
The plaintiffs filed a suit for recovery of possession, mesne profits, and other reliefs against the defendants, claiming that the defendants, who were initially granted a leave and license to occupy the suit property, failed to vacate the property after the expiration of the agreement and converted it into a commercial space.
Finding of the Court:
The court found that the respondents failed to adduce positive evidence to dislodge the appellants' contention that they were licensees in respect of the suit property. The court dismissed the suit on the grounds that the appellants had failed to prove their title over the suit property.
Issues: The issues framed by the court included the maintainability of the suit, cause of action, the nature of the relationship between the parties (licensee or tenant), and the entitlement of the plaintiffs to the prayed-for decree and other reliefs.
Ratio Decidendi: The court emphasized the admission by the respondent no.2 that he was a licensee in respect of the suit property and was willing to surrender the license and hand over vacant possession. The court also highlighted the estoppel provision under Section 116 of the Indian Evidence Act, which prevented the respondents from denying the title of the appellants over the suit premises.
Final Decision: The appeal was allowed, and the judgment and decree passed by the lower court were set aside, directing recovery of possession of the suit property in favor of the plaintiff no.1.
JUDGMENT
Tapabrata Chakraborty, J. - The present appeal is directed against the judgment and decree dated 22nd December, 2017 passed by the learned Civil Judge (Senior Division), 10th Court, Alipore in Title Suit No.7 of 2012.
2. The plaintiffs, being the appellants herein, preferred a suit for recovery of possession, mesne profits, injunction and other reliefs against the defendants, being the respondents herein, stating, inter alia, that though the plaintiffs have their permanent residence in the suit property but ordinarily they used to reside at Bangalore and that in early January of 2010, defendant no.2, the sole proprietor of defendant no.1, approached the plaintiffs for taking the suit flat in Schedule 'A' on leave and license basis for a period of 11 months commencing from 1st March, 2010 along with fixtures and fittings and car parking space as detailed in Schedule 'B' for the purpose of establishing his business and for carrying on his business therefrom and the plaintiffs agreed to allow the defendants to occupy the suit flat temporarily for 11 months commencing from 1st March, 2011 on conditions that the defendants would pay Rs.30,000/- only per month and an amount of Rs.1,20,000/-, as security deposit to be refunded on determination or termination of license and that the fittings and fixtures mentioned in Schedule 'B' would be used by the defendant no.2 with all reasonable care for a period of 11 months commencing from 1st day of March, 2010 and that the defendant no.2 would be allowed to use the car parking space between 8.00 a.m. to 8.00 p.m. and that defendant no.2 would pay a fixed sum of Rs.10,000/- only per month in advance within 7th of each month. Incorporating such conditions an agreement for leave and licence was entered into by the plaintiff no.1 with the defendant no.2 and an agreement of hire was entered into by the plaintiff no.2 with the defendant no.2. However, after expiry of the full term of the said agreements though defendant no.2 by his letter dated 31st December 2010 assured the plaintiffs to hand over vacant possession on surrendering the license, he neglected to hand over the possession of the suit flat and the possession of the fittings and fixtures together with the car parking space and furthermore, in breach of his obligation, defendant no.2 converted the suit flat in an 'Archies Gallery' and in such circumstances, the plaintiff no.1 by a letter dated 6th June,2011 called upon the defendants and particularly the defendant no.2 to quit and vacate the suit properties within 15 days from the date of receipt of such letter but the defendants wilfully failed and deliberately neglected to vacate the suit flat and neglected to pay license fees and hiring charges and as such the suit.
3. The defendants initially entered appearance and filed a written statement stating that the plaintiffs have no right to file the suit. The defendants claimed themselves as lawful tenant under the plaintiffs stating that they had deposited a huge amount to the plaintiffs for taking the suit property for the purpose of running their business and as a result, the defendants started a business of food for commercial exploitation of the suit property and decorated the suit schedule property by spending Rs.60,00,000/- and they started their business after taking prior permission from the plaintiffs but immediately thereafter the plaintiffs started raising objections before different authorities and also did not issue any consent letter for obtaining the license from the competent authority and such acts destroyed the defendants' entire effort and money. The said amount of Rs.60,00,000/- is due and payable by the plaintiffs and the defendants are not defaulters in payment of rent.
4. Records would reveal that the respondents did not file the written statement within time and preferred an application under Order 8 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as CPC). The said application was dispose
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