The distinction between a lease and a license, and the maintainability of a suit for mandatory injunction against a tenant who refuses to vacate the property after the termination of the tenancy.

( 1 ) THIS is defendants second appeal against the judgment and decree dated 25-9-1985 of the Civil Judge, Roorkee whereby he dismissed the first appeal filed by the defendant against the judgment of the trial Court, decreeing the plaintiffs suit for mandatory injunction directing the defendant to vacate the house in his occupation, and restraining him from using the same. The late plaintiff respondent-Shitalpuri filed the suit in the trial Court alleging therein that he is permanent lessee of a plot situate in Mohalla Subhasganj of Roorkee town described and bounded at foot of the plaint. In the eastern portion, thereof there is a room belonging to the plaintiff. The said room was lying vacant and locked, as the plaintiff lives elsewhere. Some time ago the defendant with certain influential persons acquainted with the plaintiff approached him and requested to allow him to reside in aforesaid room as licensee. The plaintiff accordingly gave a right to the defendant to occupy this room as a licensee with condition that as and when he was allotted a departmental quarter he will vacate the same. This promise was also repeated subsequently as and when plaintiff enquired as to when the defendant will vacate the room. Since the plaintiff wanted to construct a house over his plot after demolishing the existing room, a few days before filing the suit he requested the defendant to vacate the room but he refused to do so. Ultimately by notice dated 29-9-1981 duly served on the defendant the licence was revoked. The defendant instead of complying gave a false reply to it hence the suit was filed for permanent injunction and Rs. 200/- per month as pendente lite and future damages. The possession of the room it is further alleged always remained with the plaintiff who paid at all the taxes and the defendant was only given privilege of residing in the said room.

( 2 ) THE defendant appellant in his written statement denied the allegation that he is a licensee and pleaded that he is a tenant of the room in question on Rs. 35. 00 per month rent. Originally it was the land which was vacant, was let out to defendant on Rs. 70. 00 per month as rent and the defendant at his cost constructed the room in question in a portion. It was agreed between the parties that so long the defendant shall be paying rent, he will not be liable to ejectment. In 1981 about half of the open land was got released by the plaintiff room tenancy and rent of the remaining portion was reduced to Rs. 35. 00 per month. Since the defendant is regularly paying the rent he is entitled to the Protection of Act 13 of 1972. The suit is cognisable by J. S. C. C. and a suit for permanent injunction is not maintainable and is also barred by Ss. 39 and 41 of the Specific Relief Act, it is under-valued and the Court-fee paid is insufficient.

( 3 ) THE findings recorded by the learned trial Court were to the effect that the defendant is a licensee and not lessee of the disputed room. The said room has not been constructed by the defendant. The defendant is not entitled to the Protection of Act 13 of 1972. The suit for mandatory injunction to deliver possession after termination of licence is maintainable, accordingly he decreed the suit. The learned Ist Appellate Court while dismissing the appeal confirmed the aforesaid findings of the trial Court. It further held that the Court-fee has rightly been paid according to law on 1/5th of the market value of the property in suit.

( 4 ) THE substantial questions on which second appeal has been admitted are to the following effect :i) Whether in the circumstances of the case the accommodation was given on lease or licence ? ii) Whether the S. 7 (v) of the Court-Fees Act applied to the case and the Court-fee should have been paid on the relief of possession and not injunction ? iii) Whether the relief of injunction could be granted in such a case when the appellant was in exclusive possession ? iv) Whether the appellant was