10th June, 2025 (AK)

S.A.T 265 of 2024 IA No: CAN 1 of 2025 Ananda Gopal Mukherjee Vs.

Tapas Banerjee and others Mr. Kushal Chatterjee Mr. Saikat Chatterjee ...for the appellants.

1. Learned counsel for the appellant hands over photocopies of documents to indicate that the deficit court fees have since been put in.

2. The office shall furnish a revised report in that regard.

3. Insofar as the other defect is concerned, it is submitted that the name of the defendant no.5 in the suit was incorrectly recorded in the trial court’s decree.

4. The records be sent down for such correction.

5. Subject to the above, we take up the appeal for hearing under Order XLI Rule 11 of the Code of Civil Procedure.

6. The present appeal has been preferred by the defendant in an eviction suit against a judgment of affirmance, whereby both the courts below granted eviction on the premise that the defendant/appellant was a licensee in respect of the suit premises.

7. Learned counsel appearing for the appellant cites Bharat Petroleum Corporation Limited vs. Chembur Service Station reported at (2011) 3 SCC 710 in support of his proposition that if exclusive possession of an immovable property is given to a person, the same, although captioned as a licence, tantamounts to a lease.

8. Learned counsel further submits that as per the plaint case itself, the plaintiffs/respondents became owners of the suit property by virtue of purchase from the original owner in the year 2005, to be precise, on November 29, 2005, whereas admittedly the licence was granted by the plaintiffs to the present defendant/appellant on August 1, 2004 which is evidenced by a Bengali “Licence Patra”

exhibited by the plaintiffs themselves.

9. Hence, as on the date of induction of the defendant/appellant, the plaintiffs were not owners of the property and as such, it is submitted that the plaintiffs did not have locus standi to evict the defendant.

10. Learned counsel further submits that the factum of exclusive possession being transferred in favour of the defendant is borne out by the “Licence Patra”

itself, which was exhibited by the plaintiffs/respondents.

11. Secondly, it is contended that there was a misdescription in the schedule of the sale deed by virtue of which the plaintiffs/respondents allegedly purchase the property.

12. In terms of the said schedule of the sale deed, it transpires that the plaintiffs only purchased a portion of the suit property.

13. It is argued by learned counsel for the appellant that unless the plaintiffs proved before the learned courts below that the plaintiffs became owners of the particular portion of the property in respect of which licence/tenancy was given to the defendant, the eviction suit could not be decreed in favour of the plaintiffs.

14. The learned courts below, it is submitted, by-

passed the issue by relying on certain precedents which pertain to incorrect description in the schedule of the plaint, in contradistinction with discrepancies in the schedule of the very purchase deed of the plaintiffs themselves.

15. It is contended, thus, that the learned courts below overlooked such aspects of the matter and as such, the impugned judgments ought to be interfered with.

16. A perusal of the judgment cited by the appellant, that is, BPCL vs. Chembur Service Station (supra) shows that the proposition for which the same has been cited is not apt to the circumstances of the present case.

17. In paragraph no.17 of the said report, relied on by the appellant, Section 52 of the Easements Act, 1882 was quoted.

18. In supplementing the same, the Hon’ble Supreme Court observed that the definition of “licence” makes it clear that a licence granted by the owner enables a licensee a right to do or continue to do certain specified things in or upon an immovable property.

19. In Illustration-A at paragraph-22 of the said judgment, it was recorded by the Hon’ble Supreme Court that an owner of a property enters into a lease thereof but to avoid the rigours of rent control leg