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1992 JLJ 315
RC. Lahoti, J.
Khasgi Trust Shri and another v. Mahesh Kumar Naraindas Khandelwal
S.A. No. 340 of 1978; Decided on 28.2.1992.
(2) Civil P.C., 1908 -- O.1, R. 10 and O.31, R. 2 -- trust instead of trustees thereof made defendant -- objection not raised at initial stage -- it is a case of mis-description of parties u trustees can be allowed to be substituted even in second appeal.
Though the suit was filed against a Trust in the name of the Trust without impleading all or any of the trustees, the error or omission was not a deliberate one, the plaintiff had intended to sue the trustees and the name of the Trust impleaded as defendant No.1 should be deemed to be a collective description of the trustees who should have been sued. If only the defect would have been pointed out at a proper stage the plaintiff would certainly have taken prompt steps, as he has done, in rectifying the same. The suit cannot be thrown out on the belated objection raised for the first time before this Court and here too belatedly. Order 1, Rule 10 C.P.C. is clearly attracted to the facts of the case and impleading of the trustees, if allowed at this stage, would not be a case of new parties being joined but would have the effect of curing the defect retrospectively. AIR 1978 SC 484, AIR 1969 SC 1267, AIR 1988 SC 1970, AIR 1954 MB 156, (1963) 2 Andh. WR 138 and 1978 JLJ 208 relied on. [Paras 9 to 15
(3) Lease and Licence -- distinction between -- person having lease hold right -- may sue for injunction and if dispossessed for restoration of possession -- holder of licence has no such right -- he can only claim damages if dispossessed. AIR 1982 AP 253, AIR 1954 Born 358, AIR 1916 All. 219, AIR 1919 Born 97, and AIR 1976 SC 2340 relied on. [Paras 19 to 23
(4) Lease and Licence -- ascertainment of -- real test is intention of the parties to be gathered from various terms of the document itself.
Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. AIR 1959 SC 1262, AIR 1965 SC 610, (1988) 1 SCC 155 and AIR 1988 SC 1845 followed. [Paras 25 to 28
(5) Easements Act, 1882 -- S. 64 -- right personal and not heritable -- no exclusive possession transferred -- transaction is licence and not lease.
The right created in the plaintiff was a personal one, of limited duration, and not heritable. The very nature of the premises, being part of Otala situated by the side of the way in the building leading to the temple (the seat of the idol) did not permit exclusive right to possess and enjoy being transferred. The intention of the parties as spelled out from their conduct, the correspondence preceding the creation of the right and the terms and conditions incorporated in the deed of licence Ex. D/3, do suggest that the intention of the parties was to create a licence and not a lease. No right, title or interest in the Otala was created in the plaintiff. [Para 34
(6) Words and Phrases -- word ‘rent‘ -- in its wider sense means payment for use of land or building -- payment made by licensee is covered by the word "rent". AIR 1968 SC 919 followed.
¼1½ flfoy izfØ;k lafgrk] 1908 && vk- 31 fu- 2 && U;kl ds fo#) okn && lHkh U;klh vko‘;d i{kdkj gS && U;kl fof/kd O;fDr ugha gksus ds dkj.k ml in okn ugha pyk;k tk ldrkA , vkb vkj 1949 ih lh 143] , vkb vkj 1945 ih lh 23] , vkb vkj 1934 bykgkckn 1 rFkk , vkb vkj 1922 enzkl voyfacrA ¿ iSjk 7À ¼2½ flfoy izfØ;k lafgrk] 1908 && vk- 1 fu- 10 rFkk vk- 31 fu- 2 && U;klhx.k ds LFkku ij U;kl dh izfroknh cuk;k x;k && vk{ksi izkjafHkd izØe ugha mBk;k x;k && ;g i{kdkjksa ds xyr o.kZu dk ekeyk gS && U;klhx.k dks f}rh; vihy esa Hkh izfrLFkkfir djuk vuqKkr fd;k tk ldrk gSA ;|fi okn U;kl ds fo#) U;kl ds uke ij] lHkh vFkok vuesa ls fdlh U;klh dks i{kdkj cuk, fcuk Qkby fd;k x;k Fkk] xyrh vFkok yksi tkucw> dj ugha Fkk] oknh dk] vk‘k; U;klhx.k ij okn pykuk Fkk rFkk izfroknh Ø- 1 ds :i esa i{kdkj cuk, x, U;kl ds uke dks U;klhx.k dk] ftu ij okn pyk;k tkuk pkfg, Fkk] lkewfgd o.kZu le>k tkuk pkfg,A ;fn ;g =qfV mfpr izØe ij crk nh tkrh rc oknh mlds ifj‘kks/kku ds fy, rRij dne mBkrk] tSlk mlds fd;k gSA bl U;k;ky; ds le{k izFker% mBk, x, foyafcr] vkSj ;gk¡ vfr foyafcr] vk{ksi ij ls okn [kkfjt ugha fd;k tk ldrkA vkns‘k 1] fu;e 10] flfoy izfØ;k lafgrk ekeys ds rF;ksa ij Li"Vr;k fd;k tkrk gS] u, i{kdkj la;ksftr fd, tkus dk ekeyk ugha gksxk( vfirq =qfV dks Hkwry{kh :i ls ifj‘kksf/kr djus dk izHkko j[ksxkA , vkb vkj 1978 ,l lh 484] , vkb vkj 1969 ,l lh 1267] , vkb vkj 1988 ,l lh 1970] , vkb vkj 1954 e/;Hkkjr 156] ¼1963½ 2 vka/kz MCY;w vkj 138 rFkk 1978 ts ,y ts 208 voyafcrA ¿ iSjk 9 ls 12À ¼3½ iV~Vk rFkk vuqKfIr && foHksn && iV~Vk/k`fr vf/kdkj j[kus okyk O;fDr && O;kns‘k ds fy, rFkk vkSj ;fn csdCtk fd;k x;k gS rc dCts ds izR;korZu ds fy, okn yk ldrk gS && vuqKfIr /kkjd dks ,slk dksbZ vf/kdkj izkIr ugha gS && og csdCtk gksus ij dsoy uqdlkuh dk nkok dj ldrk gSA , vkb vkj 1982 vka/kz izns‘k 253] , vkb vkj 1954 cacbZ 358] , vkb vkj 1916 bykgkckn 219] , vkb vkj 1919 cacbZ 97 rFkk , vkb vkj 1976 ,l lh 2340 voyafcrA ¿ iSjk 19 ls 23À ¼4½ iV~Vk rFkk vuqKfIr && vfHkfu‘p; && okLrfod dlkSVh Lo;a nLrkost ds fofHké fuca/kuksa ls vuqfer fd;k tkus okyk i{kdkjksa dk vk‘k; gSA fdlh djkj }kjk i{kdkjksa ds chp Hkw&Lokeh vkSj vfHk/kkjh dk vFkok ek= vuqKkid vkSj vuqKfIr/kkjd dk laca/k l`ftr gksrk gS] blds fu‘p; ds fy, i{kdjksa ds vk‘k; ij /;ku fn;k tkuk pkfg,A ;g vk‘k; djkj ds lHkh lqlaxr mic/kksa ij fopkj djds vfHkfuf‘pr fd;k tkuk gksrk gSA rFkkfi] iz:fid nLrkost ds vHkko esa] i{kdkjksa dk vk‘k; ifjfLFkfr;ksa rFkk i{kdkjksa ds vkpj.k ls vuqfer fd;k gh tkuk pkfg,A , vkb vkj 1959 ,l lh 1262] , vkb vkj 1965 ,l lh 610] ¼1988½ 1 ,l lh lh 155 rFkk , vkb vkj 1988 ,l lh 1845 vuqlfjrA ¿ iSjk 25 ls 28À ¼5½ lq[kkpkj vf/kfu;e] 1882 && /kkjk 64 && vf/kdkj oS;fDrd gS nk; ;ksX; ugha && vuU; dCtk varfjr ugha && laO;ogkj vuqKfIr gS] iV~Vk ughaA oknh esa l`ftr vf/kdkj oS;fDrd] lhfer vof/k dk Fkk nk;;ksX; ugha FkkA ifjlj dk Lo:i] eafnj ¼ewfrZ dk LFkku½ dh vksj tkus okys ekxZ ds ik‘oZ esa fLFkr vksVYkk dk Hkkx gksus ds dkj.k dCtk j[kus rFkk miHkksx djus ds vuU; vf/kdkj dk varj.k mlds }kjk vuqKkr ugha FkkA i{kdkjksa ds vkpj.k ls ;Fkk lwfpr mudk vk‘k;] vf/kdkj ds l`tu ls iwoZorhZ i=&Oogkj rFkk vuqKfIr ds foys[k izn‘kZ Mh@3 esa lfEefyr fuca/ku vkSj ‘krsZ] vo‘; gh bafxr djrh gS fd i{kdkjksa dk vk‘k; vuqKfIr l`ftr djus dk Fkk] iV~Vs dk ughaA vksVyk esa oknh dk dksbZ vf/kdkj] gd vFkok fgr l`ftr ugha gqvkA ¿ iSjk 34À ¼6½ ‘‘kCn rFkk okD; && ‘‘kCn *HkkM+k* && mlds O;kid Hkko esa vFkZ gS Hkwfe vFkok Hkou ds mi;ksx ds fy, lank; && vuqKfIr/kkjh }kjk fd;k x;k lank; *HkkM+k* ‘‘kCn ds varxZr vkrk gSA , vkb vkj 1968 ,l lh 919 vuqlfjrA ¿ iSjk 35À
R.C. Lahoti, J. -- 1. The defendants have come up in appeal aggrieved by the judgment and decree of the lower appellate Court directing a suit for restoration of possession to be decreed in reversal of the decree of the trial Court which had dismissed the suit.
2. On 16.6.69 the plaintiff filed the suit, initially seeking relief of issuance of permanent preventive injunction simply alleging that he was a tenant holding the suit property on tenancy having raised thereon a Takhat (wooden platform) with the permission of the Municipal Corporation and that in denial of the right of the plaintiff to occupy the suit property, the defendants in collusion were attempting at interfering with his right to enjoy it. It appears that the plaintiff has also sought for an ad-interim injunction protecting his possession which having been denied, the plaintiff amended the plaint by alleging further that he had ,been deprived of the possession and was entitled to restoration thereof.
3. The defendants in their written statement denied the case of the plaintiff and submitted that the plaintiff was granted on 4.9.67 merely a licence to use the premises which licence having been terminated on account of the plaintiff having defaulted in payment of licence money and also having committed a breach of the conditions of the licence, the defendant No.1, the licensor, had resumed the use of the premises and with effect from 13.2.69 the defendant No. 2 was inducted into use of the premises as a licensee; the suit was, therefore, not maintainable.
4. The trial Court held that the plaintiff was not a tenant but a licensee merely and hence not entitled to sue. The finding has been reversed by the lower appellate Court.
5. On 28.9.78 certain questions of law were framed by this Court while admitting the appeal for hearing parties. However, having heard the learned counsel for parties on all the contentions raised by them, this Court is convinced that the following are the only questions of law arising for decision in appeal and on these the learned counsel have addressed the Court:
(1) Whether the deed dated 4.9.67 (Ex. D/3) creates a lease or a licence merely?
(2) Whether the plaintiff was ejected from the property otherwise then in due course of law and if yes, then the remedy to which he is entitled?
6. On 20.11.78, this Court had framed the following additional question of law on which also the learned counsel have been heard -"Whether the suit is not maintainable for the reason that defendant No. 1 Shri Khasgi Trust is not a juristic person?"
7. It is further submitted by the learned counsel for the defendant/appellants that the suit as filed by the plaintiff/respondent was not a properly constituted suit and hence the suit being a nullity in the eye of law as having been instituted against a non-entity was liable to be dismissed forthwith at the very outset and if it was not done, still the decree passed in such a suit was liable to he set aside. Developing the argument further the learned counsel submitted that the suit was instituted impleading the Trust as a trust without implicating trustees and a trust being not a legal entity the suit was not a properly constituted one. The learned counsel referred to the provisions contained in Order 31 C.P.C. entitled "Suits by or against trustees etc." specially Rule 2 there of providing that in the event of there being several trustees they shall all be made parties to a suit against one or more of them. Adding force to his contention, the learned counsel referred to the observations of the Privy Council in para 16 in Govt. of Province of Bombay v. Pestonji (AIR 1949 PC 143 pr. 28); in Lala Man Mohan Das v. Janki Prasad & Ors. (AIR 1945 PC 23) and to a Division Bench decision of the Allahabad High Court in Ram Ghulam & anr. v. Shyam Sarup & ors. (AIR 1934 All. 1). The Allahahad High Court has taken view that a trust cannot act in its own name and one of the trustees cannot represent the other trustees and in
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