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2007 Supreme(UK) 611
2008 UAD 373
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Rajesh Tandon
Second Appeal No. 100 of 2007
M/S KESHAR ENTERPRISES LIMITED AND ANOTHER – Appellants
Versus
SMT. KUSHUM MANRAL AND OTHERS – Respondents
Decided on : 14.12.2007
For the Appellants : Mr. V.B.S. Negi, Adrovate
For the Respondents:Mr. I.S. Mehra, Advocate
Headnote:(A) Lease and licence — Plaintiff paying rent for the accommodation in question against receipt of payment of rent since 1967 to 1998 as also electricity charges of different amounts — Occupation of such person not being as a part of employment — Person held to be a tenant and not licensee. (Para 24)
(B) Suit for injunction by tenant against landlord for restraining defendant-landlord from evicting plaintiff-tenant forcibly — Plaintiff held entitled to injunction — Law being well-settled that a person in peaceful possession is entitled to retain has possession until he is evicted in due course of law. (Paras 19, 22)
(C) C.P.C., 1908, Sec. 100 — Second appeal — Scope of — Existence of substantial question of law — Mandatory for admission of appeal — Mere question of law does not amount to substantial question of law.
(Paras 25, 26, 27)
¼v½ iV~Vk o vuqKfIr & oknh] fookfnr LFkku dk] 1967 ls 1998 rd Hkqxrku dh jlhn ij fdjk;k o vyx&vyx dher ds fctyh ds fcyksa dk Hkqxrku djrk gS & ,sls O;fDr dh fjgkbZ'k] ukSdjh dk Hkkx ugha gS & O;fDr dks fdjk;snkj ekuk x;k] vuqKfIr/kkjh ughaA ¼izLrj 24½
¼c½ fdjk;snkj }kjk] edku ekfyd ds fo#)] izfroknh edku ekfyd }kjk] oknh&fdjksnkj dks tcjnLrh csn[ky djus ls jksdus gsrq] fu"ks/kkKk ds fy, okn oknh dks fu"ks/kkKk dk vf/kdkjh ik;k x;k & ;s LFkkfir fof/k gS fd ,d O;fDr] ftlds ikl 'kkafriw.kZ dCt+k gS] og dCt+k cuk;s j[kus dk vf/kdkjh gS tc rd fd mls fof/kor izfd;k }kjk u csn[ky fd;k tk;sA ¼izLrj 19] 22½
¼l½ nhokuh izfd;k lafgrk] 1908] /kkjk&100 & f}rh; vihy & dk foLrkj & fofèk ds izeq[k iz'u dk gksuk & vihy ds nkf[kys gsrq vfuok;Z gS & dkuwu dk iz'u ek= gksuk] fof/k dk izeq[k iz'u gksuk ugha gSA ¼izLrj 25] 26] 27½
Heard Shri V.B.S. Negi, counsel for the appellants and Shri I.S. Mehra, counsel for the respondents.
2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 1.11.2006 passed in Civil Appeal No. 49 of 2004 passed by District Judge, Udham Singh Nagar.
3. Briefly stated, a suit was filed by the plaintiff before the Court of Civil Judge (Jr. Division), Udham Singh Nagar (Rudrapur) for a decree for declaration and permanent injunction. The suit was decreed. Against the said decree the defendants preferred the appeal. The appeal was dismissed by the appellate court. Hence, the present second appeal has been filed.
4. The second appeal has been admitted on the following substantial question of law :
"1. Whether the courts below have erred in law in treating the license as lease, on the basis of long permission to occupy the premises by the plaintiff?"
5. According to the plaint averments, the plaintiffs are the tenant of the shop and house, boundary of which are given below, on a sum of Rs. 20/- towards rent.
Boundary of shop :
Towards the North : After field, house of Sher Bahadur
Towards the South : After Road, office of Khurpia Farm
Towards the East : House of Shiv Dayal
Towards the West : Road
Boundary of House :
Towards the North : Road
Towards the South : House of Narendra Verma after garden
Towards the East : House of Gopal Kishna Gandhi
Towards the West : House of Baliram
6. It has been stated that a sum of Rs. 70/- each towrads electricity charges for the shop and for the house were being realized by the Khurpia Agriculture Farm by Sri Jeet Singh (since deceased). Sri Jeet Singh has paid total rent alongwith the electricity charges but the defendants have given the receipt for electricity charges only. The plaintiffs sent a notice on 21.8.1998 to the Khurpia Agriculture Farm, Kichha through its Farm Manager for correction in receipts. But, the electricity connections of the shop and the house were disconnected. Thereafter, the plaintiffs were threatened that they will be dispossessed by the defendants forcibly. The plaintiffs have prayed for a decree for declaration as well as for permanent injunction restraining the defendants to dispossess the plaintiffs except in accordance with law.
7. A written statement has been filed on behalf of the Birendra Singh Solanki and M/s Keshar Enterprises Limited Baheri, Bareilly submitting therein that defendant No. 2 M/s Kesar Enterprises Ltd. Baheri District Bareilly having its Head Office at 7 Jamshed Jee Tata Road, Bombay is a Registered Company incorporated under the Indian Companies Act, 1956. The defendant's company possess a sugar Unit and distillery at Baheri. The company also possess a Research and Development Farm known as Khurpia Farm situated at Village Khurpia Tehsil Kichha District Udham Singh Nagar. The defendant company is Bhumidhar of the entire land comprising of Khurpia Farm and the defendant company is the owner in possession of the entire buildings built in the said farm for residential purposes of its employees during the service period. The defendant company started a Canteen in the farm for providing better facilities to its employees and for smooth functioning of this Canteen the defendant allotted the plaintiff the house and the shop in question. It has been submitted that the allotment of the shop and the house were conditional and the plaintiffs were to pay the maintenance charges only. There was no relationship of landlord and tenant between the defendant and the plaintiffs. The plaintiffs agreed to the terms of the defendant and occupied the house and the Canteen with the permission of the defendant as a Licensee. The plaintiffs continued the Canteen till October, 1998. Thereafter, on receiving various complaints against the plaintiffs, they were asked to vacate the house as well as the Canteen within one month. The plaintiffs failed to pay the main
