JUDGMENT
1. The plaintiff–respondent (hereinafter to be called the respondent) filed a suit under S. 39 of the Specific Relief Act, 1963, for issuance of a mandatory injunction against the defendant–appellant (hereinafter to be called the appellant) to vacate the shop in dispute and not to interfere with his possession. According to the averments in the plaint, the said shop had been given to the appellant as a licensee with effect from 12-4-1959 in terms of the licence–deed, dated 11-4-1959 executed by the appellant in favour of the respondent. The licence fee had been fixed at Rs. 50/-per mensem. At the time of the execution of the deed the respondent was a minor and later on became major on 27-6-1966. The appellant failed to pay the licence–fee regularly after 12-12-1965 as a result of which the licence was revoked by the respondent by means of a notice, dated 6-3-1967, and the appellant was asked to vacate the shop on 12-4-1967. As the appellant refused to comply with the notice, the suit was filed.
2. The allegations in the plaint were traversed by the appellant in his written statement. Inter alia it was contended that the relationship between them was of landlord and tenant and that the appellant was in exclusive actual possession of the shop where he had installed hosiery machinery worth about Rupees 20,000/-. Non–payment of rent after 13-12-1965, however, was admitted. In view of the pleadings of the parties the following issues were framed:–
1. Whether the relationship of licensor and licencee existed between the parties?
2. If issue No. 1 is proved whether the suit is not maintainable in the present form?
3. Whether the plaintiff is entitled to the injunction prayed for?
4. Whether notice dated 6-3-1967 is not valid?
5. Relief.
Both the trial Court and the first appellate Court have held that the appellant was a licensee and not a lessee and that the deed in dispute, Exhibit P–1, was a licence deed and not a lease deed. The suit was consequently decreed by the trial Court and the appeal was dismissed trial Court and the appeal was dismissed by the first appellate Court. It is against the judgment and decree of the lower appellate Court that the present appeal has been filed.
3-4. It has been vehemently contended that the deed, Ex. P–1, has been wrongly and arbitrarily interpreted as a licence deed. For appreciation of the controversy between the parties it is essential to refer to the relevant terms and conditions of the deed, which are to the following effect:–
The deed was executed by Kidar Nath appellant and he is described there in as a licensee. It is stated that he took the premises for the purpose of its use and occupation for hosiery trade as a licensee. He promised to use the same as a licensee with effect from 13-4-1959. For the use and occupation of the shop he promised to pay the licence fee at Rs. 50/-per mensem. If the payment as promised was not made, the owner of the shop was entitled to put an end to the rights of the appellant as a licensee and the licence fee could be recovered from the person and property of the appellant. Control of the shop under the license was to be that of the owner. It was further stated that the permission to use the shop had been given to the appellant as a licensee. Possession was given to the appellant. It was further stipulated that the electric expenses and the rent of the meter would be the responsibility of the licensee. The appellant also undertook not to make any changes in the building. The appellant had no authority to transfer possession of the shop and it was his responsibility to deliver back its possession to the owner.
5. According to the learned counsel for the appellant, the mere description of the deed in question as a licence deed and the parties as licensor and licensee is not enough to determine the true character of the document and the relationship of the parties as licensor and licensee. It was stressed that for the purpose of arriving at a correct conclusion as to whether the relationship between the parties was as landlord and tenant, or as licensor and licensee, the substance of the document and the real intention of the parties has to be determined. Reliance was placed on Associated Hotels of India Ltd. v. R. N. Kapoor AIR 1959 SC 1262, in which the document in question had been described as a deed of licence and the parties were also designated as licensor and licensee; and in the preamble it was stated that the licensee had approached the licensor to permit the former to allow the use and occupation of the space. Their Lordships of the Supreme Court after examining the arguments advanced held as under (at p. 1269):–
“The following propositions may, therefore, be taken as well–established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties–whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, ‘prima facie’, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. Judged by the said tests, it is not possible to hold that the document is one of licence. Certainly it does not confer only a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellants. The covenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. The solitary circumstance that the rooms let out in the present case are situated in a building wherein a hotel is run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document–writer hardly conceals the real intent. I, therefore, hold that under the document there was transfer of a right to enjoy the two rooms, and, therefore, it created a tenancy in favour of the respondent.”
These tests were reiterated in M. N. Clubwala v. Fida Hussein, AIR 1965 SC 610; Konchada Ramamurthy Subudhi v. Gopinath, AIR 1968 SC 919; Lakhiram Ramdas v. M/s. Vidyat Cable and Rubber Industry, Bombay, 1970 Ren CJ 40(SC) and Qudrat Ullah v. Bareilly Municipality, AIR 1974 SC 396. Keeping the tests which have been laid down in the abovementioned decisions in view, we have to examine the true nature of the deed in dispute in the present case. It is clear that the exclusive possession of the premises was given to the appellant and he was required to pay a monthly rent of Rs. 50/-though described as licence–fee. It is in the statement of the appellant himself as D. W. 9 that machinery for the purpose of manufacturing hosiery goods had been installed by him in the said premises and that electric–meter was also in his name. These facts are not denied on behalf of the respondent. There was no stipulation that the appellant was not competent to make any repairs in the premises. The only stipulation was that he could not make changes in the building. In these circumstances the only conclusion possible is that interest of the appellant had been created in the premises and exclusive possession had also been transferred to him. According to the above–mentioned decisions of the Supreme Court, though exclusive possession does not determine conclusively the relationship of landlord and tenant, but the same is a prima facie proof of the fact that the party in possession is there as tenant. However, it is open to the owner to bring such circumstances on the record which may negative the intention to create a lease. In the present case the circumstance that the appellant was allowed to have the electric meter and the electric connection of the premises in his own names, gives a clear indication of the real intention of the parties that the appellant was to be on the premises as a tenant and a lessee. No evidence has been brought on the record on behalf of the respondent to show as to what were the special circumstances that he did not need the premises for his own use and was impelled by some special considerations to allow the use and occupation of the same by the appellant exclusively. The payment of Rs. 50/-per mensem can also not be considered to be such that it could not be treated as rent. If the respondent was forced to go out the city where the premises were situated due to some special reasons and he had the intention to return and start his own business in these premises, this could be some factor in his favour to give some clue to the intention of the parties. Here the premises were given to the appellant clearly for the purpose of getting monthly return as rent from the appellant. The fact that due to the enforcement of the East Punjab Urban Rent Restriction Act, once the premises, which are rented for non-residential purposes, cannot be got vacated except under very restricted and exceptional circumstances, cannot be lost sight of while determining the true character and nature of relationship between the parties. It is natural that the attempt and anxiety of the owner of the premises will be to adopt such a camouflage so that his right to evict the other party may not in any manner be curtailed under the law relating to eviction.
6. The learned counsel for the respondent besides contending that the deed was correctly interpreted as a licence–deed by the Courts below has also emphasised that the finding regarding the intention of the parties is a finding of fact which cannot be reversed in second appeal. Reliance in this connection has been placed on Balasubrahmanya v. Subbayya, AIR 1938 PC 34, Balmukand v. Munna Lal, AIR 1970 Punj 516, and d. Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57. In the last mentioned case it has been undoubtedly held by their Lordships of the Supreme Court that the finding of fact cannot be reversed in second appeal, but the following observations are very significant (at p. 59):–
“The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge, therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding.” Their Lordships, in the above–mentioned decision, also noticed the following observations of the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan, AIR 1923 PC 187:
“If the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed.”
From this it is clear that the interpretation of documents of title or those documents which constitute the direct foundation of rights is a question of law and not of fact. In the present case the document, Ex. P–1, is the sole foundation of the rights of the parties. Thus the finding of the Courts below, that the document. Ex. P–1, created relationship of licensor and licensee and not that of landlord and tenant, being erroneous and unwarranted is a question of law, and can be interfered with in second appeal.
7. For the reasons mentioned above, the appeal is allowed with costs and the judgment and decree of the Court below are set aside, and consequently the suit of the respondent stands dismissed.
8. Appeal allowed.
