The classification of property agreements as tenancy or leave and licence hinges on specific agreement language, prior conduct, and established legal principles.

ORAL ORDER :

1.Present appellant is plaintiff in Regular Civil Suit No.1001 of 2009, which was filed for simplicitor perpetual injunction against the respondent-defendant. The subject matter of the proceedings is, property bearing CTS No.18349/14 Complex.

2. First leave and licence agreement was entered into between the parties on 20th April, 2004, which was for the period of 33 months and s Second agreement was entered on 19th January, 2007 for the period 20th January, 2007 to 19th April, 2007. Both these agreements are at Exhibits-137 and 138 of the suit.

3. Since there arose dispute between the parties, present appellant-original plaintiff filed suit for simplicitor injunction without praying any declaration that he is tenant of the suit property. The suit came to be dismissed by judgment and order dated 20th February, 2013, which was further confirmed in Regular Civil Appeal No.66 of 2013 decided by District Judge-2, Aurangabad on 14th November, 2016. As such, this second appeal.

4. Mr Dixit, learned Senior Counsel appearing for the plaintiff-appellant would urge that present appeal needs to be entertained on the following ground.

Whether agreement at Exhibits-137 and 138 could be termed as tenancy agreement or leave and licence agreement?

5. While countering the above referred submissions, Mr. Bhandari, learned Counsel for the respondent would invite attention of this Court to the provisions of Section 116 of Evidence Act , which reads thus :

“116. Estoppel of tenant; and of licensee of person in possession.—No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”

6. Once present appellant-plaintiff having admitted the relationship between the appellant and respondent, according to him, is now estopped from disputing the said issue and would rely upon the pleadings to that effect raised by the appellant in the plaint. He would then urge that perusal of the recitals in both the agreement i.e. Exhibits-137 and 138 in clear manner speak of leave and licence agreement and not tenancy agreement. He would harp upon clause-5 of the agreement at Exhibit-137 for the said purpose. In the aforesaid background, he submits that the appeal lacks any merit and as such, deserves to be dismissed.

7. Having considered rival submissions, it is required to be noted that though Mr. Dixit, learned Senior Counsel had taken me through recitals of document at Exhibit-137 and 138 so as draw conclusion that the property was put in exclusive possession of the appellant-plaintiff and there exists tenancy agreement and not leave and licence agreement, however, it is required to be noted from the evidence of both the parties that present appellant was required to establish before both the Courts below that he remained in lawful possession of the suit property, by virtue of these two agreements. The Courts below have proceeded to evaluate the recitals of these two agreements at Exhibits-137 and 138. From the language employed therein and also in view of past conduct of the parties in the backdrop of recitals, pleadings in the proceedings, both the Courts below have inferred that the agreement in question by virtue of which the appellant was put in possession of the suit property was held to be leave and licen