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IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
BHOLA NATH - Appellant
Versus
MAHARAO RAJA SAHEB BUNDI STATE - Respondents
Second Appeal 941 Of 1976
Decided On : 09/01/1983
LEASE - DISTINCTION FROM LICENCE - TRANSFER OF PROPERTY ACT, 1882, SECTION 105 - INDIAN EASEMENTS ACT, 1882, SECTION 52 - PISCICULTURE RIGHTS IN A POND - CONSTRUCTION OF DOCUMENT - INTENTION OF PARTIES - ADVERSE POSSESSION - ESTOPPEL - U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1956 - APPLICABILITY - URBAN AREAS ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1956 - APPLICABILITY - AGRA TENANCY ACT, 1926 - DEFINITION OF LAND - U. P. TENANCY ACT, 1939 - DEFINITION OF LAND - REGISTRATION ACT, 1908 - GENERAL CLAUSES ACT, 1897 - DEFINITION OF IMMOVABLE PROPERTY - TRANSFER OF PROPERTY ACT, 1882, SECTION 107 - LEASE OF IMMOVABLE PROPERTY - REQUIREMENTS - EXECUTION OF INSTRUMENT - REGISTRATION - ORAL AGREEMENT - DELIVERY OF POSSESSION - DISTINCTION BETWEEN LEASE AND LICENCE - INTENTION OF PARTIES - CREATION OF INTEREST IN PROPERTY - EXCLUSIVE POSSESSION - REVENUE BOARD V. A. M. ANSARI, AIR 1976 SC 1813 - ASSOCIATED HOTELS OF INDIA LTD. V. R. N. KAPOOR, (1960) 1 SCR 368 : (AIR 1959 SC 1262) - LAKSHI RAM V. VIDYUT CABLE, 1970 ALL WR (HC) 136 - ADVERSE POSSESSION - ESTOPPEL - SECTION 116 OF THE INDIAN EVIDENCE ACT.
Fact of the Case:
Plaintiffs claimed ownership of a pond in Varanasi, alleging they had been in possession as pattedars since 1891. The defendant, the Maharao Raja Saheb Bundi State, Rajasthan, had given a patta for pisciculture in the pond to one Bedi in 1946. Bedi tried to dispossess the plaintiffs but was unsuccessful. A proceeding under Section 145, Cr. P. C. was initiated, and the pond was attached but later released in the plaintiffs' favor. Bedi filed a suit, which was dismissed on appeal. The plaintiffs filed the present suit for a perpetual injunction restraining the defendant from interfering with their possession of the pond, claiming they had acquired ownership by adverse possession or were permanent licensees.
Finding of the Court:
The court held that the plaintiffs were lessees of the pond and not permanent licensees. The document executed between the parties in 1938 was a lease and not a license, as it created an interest in the property and transferred the right to enjoy the pond for pisciculture to the plaintiffs. The court also held that the plaintiffs had continued in possession of the pond and had not been dispossessed. The court further held that the plaintiffs were estopped from denying the defendant's title during the continuance of the tenancy, as they had entered upon the pond for purposes of pisciculture either as lessees or licensees.
Issues: 1. Whether the document executed between the parties in 1938 was a lease or a license. 2. Whether the plaintiffs had continued in possession of the pond or had been dispossessed. 3. Whether the plaintiffs had acquired ownership of the pond by adverse possession.
Ratio Decidendi: 1. The court held that the document executed between the parties in 1938 was a lease and not a license, as it created an interest in the property and transferred the right to enjoy the pond for pisciculture to the plaintiffs. The court relied on the definition of a lease in Section 105 of the Transfer of Property Act, 1882, and the definition of a license in Section 52 of the Indian Easements Act, 1882. The court also considered the intention of the parties, as evidenced by the terms of the document, and found that they intended to create a lease. 2. The court held that the plaintiffs had continued in possession of the pond and had not been dispossessed. The court relied on the fact that the plaintiffs had been in possession of the pond since 1891 and that they had successfully resisted Bedi's attempt to dispossess them. The court also considered the fact that the plaintiffs had paid rent to the defendant for the pond. 3. The court held that the plaintiffs were estopped from denying the defendant's title during the continuance of the tenancy, as they had entered upon the pond for purposes of pisciculture either as lessees or licensees. The court relied on Section 116 of the Indian Evidence Act, which estops a tenant from denying the title of his landlord during the continuance of the tenancy.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the lower courts, and decreed the plaintiffs' suit for a perpetual injunction restraining the defendant from interfering with the plaintiffs' right to enjoy and possess the pond as lessees for purposes of pisciculture on the terms contained in the lease dated 16th July 1938. The plaintiffs were directed to pay the rent for the period from 15th July 1946 to 14th July 1983 at the rate of Rs. 250/- per year as a condition for the issue of the injunction.
( 1 ) THE plaintiff-appellants in this Second Appeal claim that a pond bearing Khasra no. 1553/2 situate in Mohalla Surajkund of the city of Varanasi. was originally the sole property of the defendant. Maharao Raja Saheb Bundi State, Rajasthan. on which the plaintiff, ancestors and the plaintiff had been in possession as pattedars since the settlement of 1291 F. However, in denial of the plaintiffs right, the defendant gave a Patta for pisciculture in the said pond to one Bedi on the 2nd Dec. 1946. After obtaining the Patta. Bedi tried to dispossess the plaintiff, but was unsuccessful. We thereupon initialed a proceeding under Section 145. Cr. P. C. In respect of the pond, which was attached. but after inquiry. it was released in the plaintiffs favour and its possession was restored to the plaintiff on the 14th Dec. 1947. Bedi thereupon instituted a suit, which was decreed by the trial Court, but was dismissed on appeal by the plaintiff. Bedi filed a second appeal in this Court. That was dismissed on the Ist Dec. 1959. The plaint goes on to state that it is apparent from the aforesaid fact that Bedi could not get possession of the pond under the patta executed by the defendant rather the plaintiff continued in possession, and, in this manner, the plaintiff has continued in adverse possession for over 20 years in denial of the defendants rights over the pond in suit and has prescribed full ownership thereof. No suit was filed by the defendant for possession against the plaintiff. The defendants rights over the pond have been lost on the enforcement of the Urban Areas Zamindari Abolition and Land Reforms Act. 1956, and he has now no right of ownership, or of any kind whatsoever, in the pond. It was also pleaded in the alternative that in case the court found that the possession of the plaintiff was not adverse against the defendant, he continued as a tenant by holding over after the expiry of the patta in his favour, and, under the terms of the Patta. he is a permanent licensee and not liable to ejectment from the pond. By an amendment of the plaint. It was pleaded that Pattas were granted to the plaintiffs ancestors from time to time and the last such document was Ext. A-5 for the period 15th July, 1941 to the 14th July, 1944. Since the relationship of lessor and lessee had already come into existence under earlier document, it was not necessary to get Ext. A-5 registered, and even if it was necessary to have it registered, the plaintiff and his ancestors had continued to be lessees and the document (Ext. A-5) is admissible for collateral purposes of determining the nature of their possession. It was further pleaded that the right of fishing was a licence coupled with a grant and profit a prendre. The relief claimed was a perpetual injunction restraining the defendant from interfering with the plaintiffs possession over the pond in suit.
( 2 ) THE defendant claimed to be the owner in possession of the pond in suis and also having given the right of pisciculture to Bedi in the year 1946, but denied the plaintiffs claim. It was pleaded that the pond was being given for pisciculture to different persons from time to time and was given to the plaintiff also on one or two occasions and he had executed a Qabuliat in favour of the defendant, which way duly registered on the 16th July, 1938 for permission to carry pisciculture during the period 15th July, 1938 to 14th July, 1941. It was always a condition of those documents that the defendant could without notice, revoke the permission and to make a new settlement of the pond with any other persons, and the plaintiff or persons like him were also bound to leave the pond forthwith on being ordered to do so by the defendant or his officers. It was then pleaded that whenever anyone was permitted to carry on pisciculture in the pond, he executed a Qabuliat for the same. About Bedi, it was pleaded that he never carried on any pisciculture in the pond, and the defendant was
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