Determining the nature of a property agreement hinges on its substance over form, with legal protections applicable only if established tenant status exists.

JUDGMENT :

(Siddhartha Roy Chowdhury, J.)

1. Challenge in this appeal is to the judgement and decree passed by learned 10th Court, Civil Judge, Senior Division at Alipore in Title Appeal No. 153 of 2008, affirming thereby the judgement and decree passed by learned Civil Judge, Junior Division, 2nd Court, Alipore in Title Suit No. 193 of 2003.

2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.

3. Briefly stated, the plaintiff being the owner of the suit property granted leave and licence to the defendant to possess the suit property and for that they entered into an agreement dated 29th December, 1997 for a period of five years commencing from 1st February, 1994 which would continue till the last day of January, 2003. It was agreed upon by and between the parties that the licence fee would be Rs. 1800/- per month for first three years and Rs. 2000/- per month for the remaining two years. The plaintiff through Advocate gave a letter to the defendant asking him to quit and vacate the suit property and to deliver peaceful possession thereof with the expiry of last day of February, 2003. But the defendant claimed that he was occupying the suit property as a tenant and not as a licensee with license fees.

4. The defendant contested the suit by filing written statement denying all material allegations and also filed a counter claim. According to the defendant of the suit he paid a sum of Rs. 42,000/- as advance to the plaintiff, who received the said amount and it was agreed upon by and between the parties that the said sum of Rs. 42,000/- would be adjusted at the rate of Rs. 300/- per month. Therefore, according to the defendant, the plaintiff could not maintain any suit for his eviction before adjustment of the said sum of Rs. 42,000/- or till the end of 2011.

5. In his counter claim the defendant stated that he is not a licensee. The alleged agreement of license is obtained fraudulently by way of misrepresentation. It is contended further that the defendant of the suit, being the plaintiff of the counter claim that they are the tenants governed under the West Bengal Premises Tenancy Act, 1997 under the defendant of the counter claim in respect of suit premises.

6. The plaintiff of the original suit as defendant of the counter claim by filing separate written statement denied the contention made in the counter claim.

7. Learned Trial Court after considering the pleadings of the parties framed issues and answered the issue in favour of the plaintiff of the suit and dismissed the counter claim, filed by the defendant. Aggrieved by the said judgement of learned Trial Court the defendant preferred the appeal and made an unsuccessful attempt to get the judgement reversed. But the defendant did not challenge the judgement in connection with the counter claim.

8. The second appeal was admitted on substantial questions of law and one such substantial question of law is : “In view of the admitted fact the parties were not relations and that period of induction was for 5 years that too on payment of amount of money, which was to be enhanced after the expiry of three years from the date of induction, the learned courts below ought to have held for the parties of overcoming the provision of the West Bengal Premises Tenancy Act, the agreement was described as that of creation of a licensee.”

9. Heard Ms. Sabita Mukherjee, learned Counsel for the appellant. It is submitted by Ms. Mukherjee that admittedly Exhibit-3 is an agreement prima facie creating relationship bet