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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Vinod Chaerji Koul, J.
Gh. Mohammad Mir – Petitioner
Versus
Mohd. Akbar Thoker – Respondent
CSA No. 05 of 2013
Decided On : 07-07-2022
Licence Deed - Property Dispute - Transfer of Property Act, Indian Easement Act, Evidence Act - The court discussed the provisions of law, including Section 105 of Transfer of Property Act, Section 52 of Indian Easement Act, Section 92 of Evidence Act, and relevant legal principles. The court emphasized that when a transaction is reduced into writing, the writing becomes the exclusive memorial thereof and no extrinsic evidence is admissible to prove independently the transaction or to contradict, add to, or subtract from the terms of the document.
Fact of the Case:
The appellant claimed that the respondent forcibly demolished old tenanted premises and arranged a settlement through negotiations, resulting in the execution of a document styled as Licence Deed. The Trial Court and 1st Appellate Court commanded the appellant to vacate the premises and pay arrears of licence fee/damages. The appellant challenged both judgments in a Civil Second Appeal.
Finding of the Court:
The court dismissed the appeal, upholding the judgments and decree passed by the Trial Court and 1st Appellate Court. It emphasized that the 1st Appellate Court had exercised its discretion in a judicial manner and found no error of law or procedure requiring interference in the second appeal.
Issues: The issues included the nature of possession, default in payment of rent, illegal occupation, establishment of a tea stall, and the intention behind the execution of the licence deed.
Ratio Decidendi: The court emphasized that the existence of a substantial question of law is a condition precedent for entertaining and deciding a Second Appeal. It highlighted the need for a substantial question of law and the distinction between questions of law and substantial questions of law.
Final Decision: The appeal was dismissed, and the judgments and decree passed by the Trial Court and 1st Appellate Court were upheld.
JUDGMENT :
1. This is a Civil Second Appeal against judgement dated 11th December 2012, passed by Principal District Judge, Anantnag (for brevity "1st Appellate Court") in an Appeal titled Ghulam Mohammad Mir v. Mohammad Akbar Thoker as also judgement and decree dated 17 September 2012, passed by Sub Judge, Anantnag (for short "Trial Court") and for setting aside the same.
2. It is the case of appellant that respondent is a resourceful person having huge property in Anantnag, including a building having five shops in its ground floor at Achabal Adda, Anantnag. The said building is said to have been constructed by respondent after forcible demolition of old building in 1998, depriving tenants, including appellant from tenanted premises. It is stated that unlawful demolition of old tenanted premises was carried out during intervening night of 11th/12th July 1998 and that in this regard FIR no. 168/1998 at police station Anantnag was registered. Contention of appellant is that in order to escape from prosecution which might have led to conviction of appellant and his brothers, he arranged negotiations and settled their dispute through the offices of Byopar Mandal and its Chairman and that in this regard a document was also executed. It is claimed in the instant appeal by appellant that as against two shops, he was given one shop on lease basis at a rent of Rs. 6600/- per annum. It is also contention of appellant that contents of the deed specifically mention that tenanted premises was handed over to appellant along with possession through the said document and that respondent's brother, Ghulam Ahmad Thoker, is a practicing advocate at Anantnag and he is an associate of draftsman of the so-called licence deed and are sharing the same chambers in the premises of District Court, Anantnag. After execution of settlement, appellant, who seems to be a most innocent person, has been called to Sadder Court, Anantnag, for reducing into writing the rent deed in respect of the shop which was given to him along with possession during settlement arrived at by the parties in the meeting held on 17th July 1997.
3. It is also stated by the appellant in the instant appeal that he believed the story and being anxious to have a legal document reduced into writing on the basis of settlement came to the chambers of Mohammad Amin, Advocate, who drafted the document wrongly styled as Licence Deed and signed it. According to appellant the document was cleverly drafted with a view to show that it is a licence deed. It is also averred that on the basis of the said document, respondent filed a suit for mandatory injunction against appellant/defendant directing vacation of premises and recovery of Rs. 3791/- as arrears of fee for occupation of shop along with damages and there is no claim made by respondent/plaintiff for handing over the possession to him. Written statement was filed by appellant/defendant.
4. As can be seen from the perusal of the file, the Trial Court framed following issues for adjudication of the suit:
(2) Whether the said deed has expired on 30th of July 1999, and the defendant has failed to pay the rent since 1st January 1999 and is running in arrears to the tune of Rs. 3791.70? OPP
(3) Whether the defendant is illegally occupying the said premises since he has defaulted and the terms of licence deed has also expired and as such, he is liable to vacate the premises? OPP
(4) Whether the defendant has established tea stall in the suit premises fraudulently? OPP
(5) Whether the defendant was in occupation and use of shop as tenant almost six years prior to July1998 that is execution of licence deed? OPD
(6) Whether the plaintiff with the help of his relatives dismantled the suit premises and after intervention of Trade Association the defendant put in possession of the suit shop as tenant @ Rs. 6600/- per annum? OPD
(7) Wh
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