JUDGMENT
Kamleshwar Nath, J.
1. This second appeal is directed against dismissal of the appellant’s First Appeal No. 218 of 1980 by IIIrd Additional District Judge, Sitapur, who confirmed the decree passed by Sri S. K. Saxena, Munsiff, Sitapur in Regular No. 151 of 1979, in favour of plaintiff-respondents Smt. Laxmi Agar-wal and Sandeep Agarwal, ordering ejectment of the defendant-appellant Turab Ghosi from a portion of house No. 216-430, Mohalla Vijai Laxmi Nagar, Sitapur.
2. One Smt. Shyama Devi Tandon, widow of Sri GUR Prasad Tandon, was admittedly the original owner of the house which was purchased by the plaintiffs from her on 19-2-1979. The defend-ant-appellant had been in occupation of the disputed portion of the house since the times of Smt. Shyama Devi Tandon.
3. The case of the plaintiff-respondents was that the defendant-appellant Turab Ghosi had been permitted by Smt Shyama Devi Tandon to live in the disputed portion (which consists of two rooms) as a licencee, Smt. Shyama Devi Tandon had given a registered notice dt. 14-11-1977 terminating the licence, but she could not file a suit for ejectment and ultimately after purchase of the house of the plaintiff-respondents, they gave a registered notice dt. 19-3-1979 to the defendant-appellant revoking the licence and asking him to vacate the accommodation and further claiming damages at the rate of Rs. 15/- per month from 15-11-1977 the date on which the licence was revoked by Smt. Shyama Devi Tandon.
4. The defendant-appellant claimed that he was a monthly tenant of Smt. Shyama Devi Tandon at the rate of Rupees 16/- per month and was carrying on the business of milk dairy while living in the disputed rooms. It was said that on 17-12-1976 Smt. Shyama Devi had given him a telegram purporting to terminate his domestic services and asking him to vacate the disputed accommodation whereafter she also refused to receive rent even sent by money order, in consequence of which he started depositing rent under Section 30 of U. P. Act No. 13 of 1972.
5. The main question for consideration was whether Turab Ghosi, the defendant-appellant, was a tenant or a licensee of the disputed accommodation. The trial Court held that he was only a licensee and not a tenant and decreed the suit. The lower appellate court agreed with these findings and held that the defendant-appellant had been permitted by Smt. Shyama Devi Tandon to live in the rooms for the purpose of security of the house without any payment as he used to supply milk to her and his wifs occasionally rendered service to her. The first appeal having been dismissed, this second appeal was filed.
6. Learned counsel for the appellant says that the evidence on record proves that the appellant was in exclusive possession of the disputed accommodation and, therefore, having regard to the decision in the case of Associated Hotels v. R.N. Kapoor (AIR 1959 SC 1262) the appellant must be held to be a tenant and not a mere licensee. Learned counsel for the respondents said that the licence or the alleged contract of tenancy is not evidenced by any document and rests primarily on the parties’ oral evidence coupled with circumstances. The concurrent finding of the courts below that the appellant is a licensee and not a tenant is a finding of fact with which this court may not interfere. It is also urged that the mere permission to live in the accommodation, even if undisputed, does not constitute exclusive possession as contemplated in the abovementioned Supreme Court decision.
7. The first point for consideration is the definition of the expressions ‘lease and licence’ in the respective enactments and then to see how lhc findings of the courts below, on the material facts fit into those definitions.
8. Section 105 of the Transfer of Property Act defines ‘lease’ as follows:–
“A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”
Among other ingredients, the section contemplates a transfer of a right to enjoy the property in consideration of a price paid or promised to be paid. The finding of the court below is that no price was promised to be paid. In this connection the lower appellate court noticed that according to the statement of the defendant-appellant himself he did not get any receipt for any rent ever paid by him to Smt. Shyama Devi Tandon or her husband (or even to the plaintiff-respondents), and that he did not even know up to what period rent had been paid by him. He further noticed that the defendant-appellant himself admitted that the original owner Smt. Shyama Devi Tandon had taken steps for demolition of the Kothris through the Nagar Mahapalika, to which he had raised objections, but, even thereafter he continued to pay rent to Smt. Shyama Devi Tandon for two years without obtaining any receipt which, according to the lower appellate court, was strange and unconvincing. He further noticed that both the witnesses for the defendant-appellant had stated that the defendant-appellant never paid any rent to Smt. Shyama Devi Tandon in cash and only used to supply milk in the price of which the rent used to be adjirsted. With this evidence on record, there is no legal error in the finding of the lower appellate court that the defendant-appellant never paid any rent.
9. The lower appellate court further noticed that there was material inconsistency in the evidence of defendant-appellant regarding duration from which he was in possession of the accommodation in dispute. He found that having stated his duration of possession as tenant since 28 years in para 10 of the written statement, he reduced it to 20 years in para 13 thereof and similarly in Ms application under Section 30 of U. P. Act No. 13 of 1972 he stated the duration to be
17 years. Referring to the statement of the appellant in the witness box (made in 1980) that he had obtained the rooms from Gur Prasad (the husband of Smt. Shyama Dcvi) 3 or 4 years before Gur Prasad’s death (about 9 or 10 years earlier), he observed that the occupation should have commenced from 1966-67. On this basis he held that the defendant-appellant could not even say when his alleged tenancy commenced. There is no legal error in this inference also. Now, if a person cannot even plead consistently or establish the period of time since when he is in occupation of a premises, it will be very difficult to hold in law that he has established his possession over the property. Mere ‘occupation’ is not ‘possession’, although every actual physical possession is occupation. Possession is a legal concept and one of the ingredients which is essential to it is the specification of actual period of time when an act of possession, as possession, commenced–not merely as an act of occupation.
10. A ‘licence’ is defined under Section 52 of the Indian Easements Act 1882 as follows:–
“Where one person grants to another, or to a definite number of other persons, a right of do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.”
The findings of the court below that the defendant-appellant was in occupation of the property without payment of any money and for thr purposes of safety of the property, and the failure of defendant-appellant to specify the exact time when his possession of the property commenced, would show that his possession was such as could fall within the definition of a licence and as, indicated above, was certainly not in the nature of a lease.
11. Learned counsel for the appellant, however, said that the courts below committed a legal error in arriving at their findings of farts by failing to appreciate properly the extract of the Municipal Assessment 1975-80 filed by the defendant-appellant. According to this extract the building had seven occupants. Besides the name of the owner, the extract provides for the names of the occupants
(without indicating the nature of the occupation) and the rental value of the property. The entries mentioned the occupation of an office of P. W. D. at a value of Rs. 415/-, occupation of Kasim, Rustam, Lalta Prasad and Chhotcy Lal at a value of Rs. 12/- each, occupation of Turab at a value of Rs. 8/-, and the occupation of the owner at a value of Rupees 29/-. The plaintiff-respondents had admitted that the office of the P W. D. was occupying the accommodation as tenant at the rate of Rs. 415/- per month. It was, therefore, urged that the entries of occupation and valuation relate to tenancy and monthly rent respectively. The lower appellate court observed that according to the own case of the defendant-appellant, the monthly rent was Rs. 16/-and, therefore, the entry of Rs. 8/- was erroneous. It was similarly noticed that the defendant’s own witness Kasim stated to be a tenant at the rate of Rs. 10/-p.m., but the entry was Rs. 12/- p.m. he, therefore took the view that the entries in the document do not represent the correct picture of the nature of possession and only indicate the assessment of rental valuation made for the use of the municipal authorities. Learned counsel for the appellant has not been able to show that this view of the lower appellate court was either perverse or not in accordance with law.
12. Learned counsel for the appellant then urged that the lower appellate court had erroneously observed that there was a heavy burden on the defendant-appellant to prove that he was a tenant. Learned counsel for the respondent con-lends that this observation has been made after the discussion of the evidence on both sides, in consequence of which the lower appellate court had accepted the plaintiffs’ evidence and had rejected the defendant’s evidence and in that context had observed that the burden of proving tenancy was upon the defendant. I think the initial burden of plaintiff-respondents that the defendant was permitted to occupy the accommodation in dispute, as a licensee, has properly been found by the lower appellate court to have been discharged by the testimony of Smt. Shyama Devi Tandon & Krishna Kumar, in whose presence, according to the lady, the permission had been granted. Once the plaintiffs’ evidence regarding licence was accepted, it was clearly a burden upon defendant-appellant to prove his
tenancy. The observation, made by the lower appellate court, therefore, cannot be said to be erroneous in law. Moreover, the question of burden of proof pales into insignificance when the parties have entered upon evidence and the evidence has been duly considered by the court in its totality.
13. Learned counsel for the appellant lastly contends that there is no evidence that the original owners of the property had any control over the rooms in the occupation of the appellant. He said that some sort of restriction on user must be proved. The transaction between the parties, admittedly, was oral. The only facts on which the parties made their pleadings and led evidence was a permission to reside for safety of the property without payment, as alleged by the plaintiff- respondents, or possession as a tenant on payment of rent as alleged by the defendant. No efforts appear to have been made on either side to show whether or not the possession was unrestricted or was coupled with restrictions. Prima facie a permission to occupy for safety of the property would not establish an unrestricted or unconditional use or possession of the property. The possession or use would be confined to the occupier’s obligation to stay for so long as the needs for safety are felt and thereafter to quit. I do not think, therefore, that in the circumstances of the present case, the defendant-appellant could be said to have had an unrestricted and uncontrolled user of the property in his occupation. Even in the case of Associated Hotels (AIR 1959 SC 1262) (supra), the concept of exclusive possession is used only a prima facie evidence of a contract of tenancy and is capable of being rebutted by the attending circumstances which might negative the intention to create a lease. The terms of the written document of the transaction between the parties in that case were found to have established an intention to grunt a lease rather than licence even though it was described as a lease. The facts found concurrently by both the courts below in the present case do not indicate the intention of creating tenancy. Learned counsel for the appellant has not cited any, case law, resting only on oral evidence, to prove the nature of a transaction being lease or licence.
14. No other point has been urged in this appeal which, therefore, should fail, 15. The appeal is dismissed with costs.
