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Allahbad High Court
DEOKINANDAN
Swaran Singh - Appellant
Versus
Lakhi Prasad Musaddi - Respondent
Decided On : 04/29/1983
LEASE - LICENSE - DISTINCTION - IRREVOCABLE LICENSE - SECTION 60 OF THE EASEMENTS ACT, 1882 - APPLICABILITY - TENANCY FROM MONTH TO MONTH - NOTICE TO TERMINATE - VALIDITY.
Fact of the Case:
Defendant took possession of the land on a monthly rent of Rs. 15/- for the purpose of constructing a petrol pump and shop buildings. The plaintiff, as the owner of the land, served a notice to terminate the tenancy under Section 106 of the Transfer of Property Act, 1882. The defendant claimed permanent tenancy rights and refused to vacate the land, leading to a suit for possession and mesne profits.
Finding of the Court:
The court held that the transaction between the parties was a lease from month to month, not a license. The permission to fix the petrol pump and erect a permanent building was considered a license coupled with the transfer of property by way of the lease. However, the lease being from month to month, it could be determined by notice under Section 106 of the Transfer of Property Act, 1882, and the license became revocable upon termination of the lease.
Issues: 1. Whether the defendant was a permanent licensee of the land in suit? 2. Whether the defendant was liable to eviction even if not held to be a permanent licensee? 3. Whether there was an agreement between the parties that the plaintiff would eject the defendant on giving the latter one month's notice? 4. Whether the constructions existing on the land in dispute were raised by the defendant in pursuance of the agreement as alleged in the written statement? 5. Whether the defendant is liable to remove the constructions existing on the land in dispute, on his eviction? 6. Whether the suit was barred by estoppel or acquiescence? 7. Whether the plaintiff was entitled to the benefit of Section 14 of the Limitation Act? 8. Whether the defendant was entitled to the protection of U.P. Act No. III of 1947?
Ratio Decidendi: 1. A lease is a transfer of property and creates an interest in the land, while a license does not amount to an easement or an interest in the property. 2. A license coupled with a transfer of property is irrevocable only so long as the transfer continues to be in force. 3. A lease from month to month can be determined by notice under Section 106 of the Transfer of Property Act, 1882. 4. Upon termination of a lease from month to month, the license coupled with the transfer of property becomes revocable.
Final Decision: The appeal was dismissed with costs. The court directed the executing court to grant the defendants-appellants reasonable time to remove the petrol pump and materials of the buildings standing on the land.
2. Defendant admitted the taking of the land on payment of the monthly rent of Rs. 15/- subject to additional pleas, whereunder he claimed that the land was taken some 27-28 years ago, the date of the written statement being the 5th Feb., 1965, for the purposes of construction of petrol pump and shop buildings on payment of Rs. 15/- per month and constructed a pucca and permanent petrol pump and shop buildings thereon spending a substantial amount of money amounting to Rs. 20,000/- thereon in the knowledge of the plaintiff and has continued in possession as such ever since. The defendant claimed that he was not liable to ejectment and his position was that of a permanent Parjawatdar or licensee of the land in suit which could not be terminated by a simple notice. Estoppel was also pleaded as a bar to the suit and before the amendment of the plaint an objection was also raised that the plaintiff was not entitled to relief as he has not claimed removal of the constructions which existed on the land. By an amendment of the written statement, it was further pleaded that the petrol tank and buildings existed on the land in suit since before 1947 and it was an accommodation to which U. P. Act No. III of 1947 was applicable and that consequently the suit was barred by want of the District Magistrates permission under Section 3 of that Act.
3. As many as 13 issues were framed by the trial Court. The first issue, whether the defendant is a permanent licensee of the land in suit as alleged, was the most material issue in the case and on that the trial Court held that the allegation made in para 1 of the plaint that the defendant was a tenant of the plaintiff, was admitted in para 1 of the written statement and in the additional written statement (Paper No. 60-A) the only allegation about Paper No. 20 dated the 4th April, 1938 was that the original did not contain the last clause, although Ext. 1 dated the 6th April, 1938 written by the defendant was admitted by his learned counsel. The trial Court held it "firmly established" from these papers that the land in suit "was taken on a monthly rent of Rs. 15/- by the defendant and now it is too late in the day for the defendant to allege that he was a licensee and not tenant of the land in dispute." The trial Court further observed that at any rate there is no evidence on the record that the defendant was a mere licensee and not a tenant of the land in dispute" and answered the issue in the negative.
4. The next issue taken up by the trial Court for adjudication was issue No. 12: "Whether there was an agreement between the parties that the plaintiff would eject the defendant on giving the latter one months notice. If so, its effect?" The trial Court found that in view of the defendants letter dated the 6th April, 1938 it could not be said that the proposal made by the plainti
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