{"id":25209,"date":"1964-11-25T00:00:00","date_gmt":"1964-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aninha-dcosta-vs-parvatibai-m-thakur-on-25-november-1964"},"modified":"2019-04-08T05:17:05","modified_gmt":"2019-04-07T23:47:05","slug":"aninha-dcosta-vs-parvatibai-m-thakur-on-25-november-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aninha-dcosta-vs-parvatibai-m-thakur-on-25-november-1964","title":{"rendered":"Aninha D’Costa vs Parvatibai M. Thakur on 25 November, 1964"},"content":{"rendered":"
Bombay High Court<\/div>\n
Aninha D’Costa vs Parvatibai M. Thakur on 25 November, 1964<\/div>\n
Equivalent citations: AIR 1966 Bom 113, (1965) 67 BOMLR 452, ILR 1965 Bom 873<\/div>\n
Author: Patel<\/div>\n
Bench: Patel, Tulzapurkar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Patel, J.  <\/p>\n
 (1) This is an appeal  by the defendant who  has failed  in both the courts is a suit which  arose out the occupation of the suit premises  by the defendants  apparently as licensee.  The plaintiff  is the owner  of the flat in suit  situate in the Churchgate Co – operative  Housing  Society  Ltd.  On the 15th of the November 1959,  the defendants  was let in the possession of the her agreeing to execute a document of leave and license  and the document was actually  executed between  the parties on the 6th  November 1959.  The documents is at exhibit a. It purported to be for a period of 11 months.  In terms of the document an attempt  was made to obtain  forcible possession  without  resort to court,  but the plaintiff did nonsuccess, with the result  that the  present suit was  filed in the city civil court at the Bombay as short causes suit for  recovery of the possession from the  defendants on the basis of that the license was  ended to  terminated. The relieves  claimed  were endear to the terminated. The  relief claimed were those  a mandatory inject and court – fee and was paid on the footing that the suit  was one for mandatory  inject contending that the was tenant,  that the premises  were  let out  to her as the tenant and that court has no jurisdiction as the dispute  was one between  landlord  and tenant.  She contended that the amount  charged for the occupation  was excessive and the she had already filled and application an the under the Rent Act for  determination of standard  rent before the  court of small causes  at Bombay. She objected to the frame of the suit contending that suit for mandatory injunctions  was not maintainable. The learned  of trial judge constructed the agreement  between the parties a agreement  of leave and  license.  He negative  the contentions  of the defendants  and decreed  the suit.  Against his  judgment the  defendants the  come in appeal  this which was  heard by Mr.  Justice Naik sitting  singly. He agreed with the   conclusion of the learned  judge of the city civil court and dismissed the appeal.   Before him, three point were argued by the Advocate  for the defendants  viz.., (1) that  the frame of the suit was  improper  and it wasn’t therefore  maintainable (ii) that on proper valuation of being made  the court would have a jurisdiction of the being to deal with the suit  was (iii) that the agreement  between the  suit  parities and one of tenancy  and therefore  the  plaintiff  and wasn’t entitled  an to any relief.   All these  three  contentions were negative byte  learned  judge.\n<\/p>\n
 (2) The learned  Advocate  for the  defendants is this appeal  has urged the same  three contentions before us.  His first  contention  is that the suit  for injunction  as prayed for by  the plaintiff is not  maintainable  as  inasmuch  has the defendants  was in exclusive  possession of the  premises  and the plaintiff remedy   was therefore  to ask to  plaints possession of the property.  I this contention  he s supported by a judgment  of the Division  Bench  of this court  (in which  I was a member)  I the case of the Lakhiram v. Vidyut  Cable  and the Rubber Industries,  65 Bom  LR 604,  But in the  that  case we also  pointed out that the court  would be entitled  to contour  the plaint and if on a conclusion of the that  was really  intended the plaint was  claim to  possession,  then the suit  ought not to be dismissed  only on the   ground  the court – fee  had been paid  as on an injunctions. In view of this judgment  of Naik j. Constructed  the plaint  was  and directed  the plaintiff  to pay the  court – fee  which she would  have been  bound to pay  as on a suit  for possession on the basis  of the valve of the property  affixed  by him. In our ,view  the learned  judge was  right in the course that the adopted in the  matter.  These contention  therefore ought to fail.\n<\/p>\n
 (3) The next question  is about  the market  value of the property.  Mr. .patel for the appellant invited  out attention  to the decision  oft Division  Bench  consisting  of myself  and S.M.  Shah J., dated  3-4-1963 In L.P.A. No. 3 of 1963 {Bom} Where we held hat ordinarily  the market  valve  of the  property  could be arrived by  taking the licenses  fee as the  return of the property,  and multiplying it by 12 1\/2 i.e.,  at 12 1\/2  years purchases.  While adopting  that rules,  we mad some basis  assumptions which we  thought  would be appreciated  by most.  But it seems necessary  to amplify  the reasons  for our  doing  so.\n<\/p>\n
 (4) Now  the court fee act is a finance Act.  It requires  that proper  court fee should  be paid on plaint  in accordance’s  with the nature  of the subject – matter  of the suit.  The section  which  imposes  the court  – fee is S. 6 and it deals with a large  number of the  subjects  I respect of each  of whiteout prescribed  different  amounts  of court = fee.  In respite of  some of the matters,  the court  – fee  that is  required be paid to is proportionate to the market  valve of the property  depending  upon the nature of the relieves  claimed the  plaintiff.  We do not  think it is necessary  to refer  to these   sub – section  specifically  section 8 enables  the court, whenever   question  of valuation  of the subject t matter  of the suit is  raised to decide inquiry  as it  deems  proper”.  The languages  shows that the mane of inquiry  is left to he subjects  and the matter oft suit.  The reason forth  giving  of this decoration is property  quite under standby.  The valuation  of the property for the purposes  of court – fee  is not the real dispute between  the parties  which halls  to the we decided by the court,  but is only a collateral matter and he  that is  why the  strict  procedure which applied to such  and  inquiry.  I order to the reduce its work  not to waster  of its time in the  reduce its  work and not to  was to time in this inquiry, S. 9 enable  to the court to appoint  even as commissioners  for certain  investigation.  Section 10  gives some  of the  powers  if courts  under the Civil  procedure  code to either   the court or the commissioners  marking the inquiry. This may  suggest  that the inquiry  ma not even be regard strictly as judicial.  Thus the section does not prescribe  that the court  which make the inquiry  shall follow  a particular  procedure  such as in done the Bombay rent act and Tenancy Act.  An analysis  of the provisions of S. 6 of the  court = fee and act shows that in the respect of the certain  kind of property  the method  of computing  the valve is the laid down  and in such  case  if difficulty arises.  It only  arises  in other cases where  market valve of is to  be determined.\n<\/p>\n
 (5) Now, the  words “market  value”  mean the price  which a willing purchaser  would pay to a willing seller  for the property  on the day  when the suit  the is filed.  The method  o the day  when the suit Acquistion cases.  Two methods  are very frequently adopted for determining the market  valve.  Ones by  the production of the sale  deeds oft comparable  properties in the  vicinity  of the property in question,  during the  period near about  the date with respect  to which the price has to be determined.  The  is by refer en to the  determined. The other is y refine to the net income  to the proper the which it earns.  One method  is used to also check  the result  arrived at by the  other.  Whoever ,  with  al the  care ,the  court cannot determine the exact value. Something’s  expert,  evidence is called testate the  value of the property, but  the experience  has show  in many  cases that the  expert  for one party  of will say that the  value  is Rs. 100 and  the expert for the other  valve will say that the  it is  Rs. 1,000. Though discretion is duress as to the  it deems necessary for making the valuation of the it has to  determine the value of the property fairly  though, of course,  the same exactness as one may  expect  of under the  Land Acquisition of as one may expect of under the therefore, adopted the a ready method  for determining the  value of the ready method of the for deterring the  where it is earning the income  of the above cases.\n<\/p>\n
 (6) At this stage, it is also  desirable to the explain why we took only 12 1\/2  years’ purchases  and not longer.  If the market  valve of the property is be assessed on the basis oft net income then the  number of the years  purchase depends of the  rate of the interest  of the  gold = edged securities.  Usually in repeat  of non – agricultural  income it has become of customary to the  adopt a rule  of the 16 –  2\/3 years  purchases  to unto  even 20 years  purchases. But then  this method  is on the hypothesis  and the income method normal income and likely  to the recovered  for are reasonably  long period.  Now the  license  fees which the  are earned  intake present  days are very  exorbitant  and the good  or bad days  cannot be  expected to last for a considerable  longtime.   We therefore,  took only 12 1\/2 year’s  purchase  of the license fee.\n<\/p>\n
 (7) The learned  Judge Says: “Section 10 of the Bombay  Court – fee Act provides the mode and the  manner in the which the  inquiry is the be conducted for arriving  at the market  value the property in the question.  All that  S. 8 of the court – fees act lays  down in that the  correct  valuation of the property  is to be  arrived  at in all cases  where the suit has been  wrongly  valued by the plaintiff.  I do not think  that the learned  judge intended to  lay down a rule which  will have the effect of the superseding  the provisions  of the statute.”, the  underlying  suggestion being that the  court in  L.P.A.  No. 13 of 1963 [Bom]  laid down a rule contrary to the provision of the court – fee Act,  which to say the least  is hardly fair to the learned  judges.  It is almost  elementary that the function of the court is to construe  an not be provisions  of the court fee act, which to say  the least  is hardly fair to the learned  judges.  It is almost  elementary that the function  of the  court its construe  an not to legislate.  With all respect to the leaned Judge, neither S. 8 nor S. 10 lays down any special procedure for the inquiry. As pointed out above, S. 8 only gives discretion of theocrat  to hold “Such inquiry  as it deems proper”  and S. 10  only confers powers of a court open  the court of the  commissioners  holding  the inquiry.  The word  “ordinarily”  in our judgment is indicative  enough.  Mr. Lulla for the  Respondents practically disowned  the arguments.\n<\/p>\n
 (8) Now, the   present case,  it is true that in 1954 the vendor had paid  approximately Rs. 10,000 for this property.  But then  that was six years  before the when the question arose.  Evidently it the property  was being acquired,  the plaintiff  hirable  would not have  relied upon the purchases price  paid be her in the view of a fact that the prices of properties in Bombay  are rising  by leaps and bonus. Even Mr. Lulla while addressing us onto  reasonableness of the addressing us onto  compensation stated that the prices had risen very high during  the six years  prices  fixing the amounts of the  compensation the prices of the property,  at that date  that  prices had  very high  during  the six years and in fixing  the amount of communization the price of the  property at that date was  taken into account.  If  that is so,  we do not see what  injustice  can there by  in applying the rule that the we have laid  down.  It was suggested by Mr. Lulla Before  the learned judge that the compensation for the  furniture  should be assessed at Rs. 75. Before the such figure can reasonable be accepted one  must be put  as  on an inquiry  as to what is that value  of the furniture,  because very often  furniture is used as pretext for earning very  high compensation and avoiding  the payment of the taxes of the municipal  corporation. The Rent Act which defines the words “premises” includes  by S. 5 clauses (8) in the words “any furniture supplied by the  landlord for use in  such building  or part of the building.”  It that  is so  the frames  or the act clearly intended  that the  furniture should earn only  reasonable  compensation  of and not any  exaggerated  compensation  for its use. In the present case, he  documents  between the  parties mentions have  five pieces of furniture – a cupboard, 1 kitchen  cupboard, 1 ceiling  fan 2  chairs and 1 bed – and  hang regard to the fact that the  we are not  valuing  the furniture of the a millionaire  in palatial flat, the value of the furniture  can hardly  the be about,  Rs. 1,000 even  on a liberal basis. As we  said however,  that the is matter  of evidence  and this  is only  a conjecture.\n<\/p>\n
 (9) However  we do not  think  that any useful purposes can now be  served be going  further into this  question.  After all, in assessing the market  valve, one has to some  extent  enter into the  realms  the of conjecture.  The defendant into the  raised the question  of valuation  in the trial court and raised it for the  first  time in court  of appeal.  In order  to arrive at the net  income,  the outgoing  such as  taxes  and other chugs of which  there is no evidence,  have to be  ascertained.  I the case decided by the breach  the license fee was the net income  of the tenant.  We do not  think,  therefore  o the whole  that we will be justified  in holding  on the whole,  that we will do  not think, therefore  on the whole,  that we will be justified  in holding  that the mark valve if more than Rs. 15,000 fixed by the  learned judge.\n<\/p>\n
 (10) Even assuming  that the  value of the property  is Rs.  25,000 or more Mr. Patel in concluded  by S. 11 of the suits  valuation Act,  which requires  that before  a judgment of can be set aside on the ground  of over  or under valuation oft property  and consequential  want of  jurisdiction  in the court  in must be shown  that prejudice is caused t the Appellant.  None has been  out by Mr. Patal  and accordingly his contention must  fail.\n<\/p>\n
 (11) The third and the  important contention is whether  the agreement  between  the parties creates relationship of landlord  and tenant.\n<\/p>\n
 (12) It is well to bear in mind the relevant  definitions in our law.  Section 105 of the  Transfer of property Act defines a lease of the  immovable property  as a transfer of a rights of the enjoy the property  fro a certain time in consideration  for price  for certain  paid or  promises.  The price paid is called rent.  On the other hand  under  S .52 o the Indian  Easements, Act licenses  of  is “Where  openers  grantees another….. a rights to do or  continue  to do in  upon  immvoable property  of the grantor,  something’s  which would,  In the absence  of such  a right be unlawful, and such  right does not  amount of the  easement of the  interest in the property., the right  it called to the  license”  the underlying  assumption of the in case of license being that the owner continues  to be in possession  and control  of the property  but this in not all.  The attributes  of the licenses  can be seen from  some to the subsequent  provisions  in the Easement Act.  By S .56 a entertainment’s is made non – transferable ,and is not execrable  even by  the servants or agents.  By S. 60 the  licenser’s  transferee to the  property  is not  bound as such by the  license.  By this section is also  made revocable  except  in certain  cases.  In  the case of the license, therefore,  there is something’s the less than  a right to enjoy the property of the I the licensee., it connote be  exercised  by servants of the and agents,  is terminable and transferee of the property  is not as such  bound by the license, on the other hand in the case of the lease,  there is transfer  of the right  to enjoy o the property  or in other  words of the  lessee  is entitled  to enjoy  the  property.  Having  regard to the statutory  provisions, we think that the case  test of the exclusive possession must be  regarded  as a very important test of the tenancy.\n<\/p>\n
  (13) The question  has come  before  courts since very early times and the test than  adopted was  that if  exclusive  possession of was given  to a party,  the agreement of the between  the parties must be  regarded as  a lease.  Difficulties were felt in the application of this  principles by reason of the stringent  provisions of the  rent act and in order to meet these,  the test has since been  modified.  In Booker v. Palmer, 1942  2 All ER 674,  the owner  had allowed as a matte  of concession of the Appellant  whose home was  destroyed to live in one o the cottages belonging to him.  The Appellant  then claimed  right s  tenancy.  This claim was  negative by the  court.  They  learned judge said [at p.  676] : “Whether or not  parties  intend to the create between  themselves  the relationship  of landlord in the  tenant,  under which  an estate is created in the tenants  and certain  mutual obligations arise by implication  of law, mutual  in the  last report  be question of the intention.”  In was held there that having  regard to the all circumstances  n tenancy  was intended.  It is needless  in this  connection  to refer  to all the  cases, butte may refer to Errigton v. Errignton, 1952  1 KB  290, where  after  referring to decided cases,  Denning L.J.  Says:\n<\/p>\n
 “The  result of the all these  case is that,  although a person who is let into exclusive  possession is prima he facie to the very considered a tenant,  nevertheless he will not be held  to bees if the circumstances  negative any intentions  to create tenancy.  Words alone cannot a suffice.  Parties cannot turn a tenancy into a license merely by calling it one. But if the  circumstances merely and the conduct of the parties show that all that the was intended  was that the occupier  should be  granted a personal  was that the with on interest in the land, he will be held  only to be  licensee.”\n<\/p>\n
 (14) In this  connection,  we may refer with  the advantage to the  case  of  Addisombe  Garden Estate Ltd v.  Crabbe,  1958 1 QB 513, wherein the observations  of Denning  L.J., in the  Fecehini  v.  Bryson  1952  1 TLR 1386, to the following  effect are referred  to. He says:\n<\/p>\n
 “We have  had many  cases lately where an occupier  has been  held to be a license and not attendant.  In addition  to those which  I mentioned in  1952 1 KB 290,  we have recently had three  more, Gorham  [Contractors] Ltd v. Filed  1952 CPL 255,  Forman v.  Rudd, Unreported,  and Cobb v. Lane,  192 1 TLR 1037.  In all the  cases  where an occupier has been held  to be licensee there has been something in the  circumstances  such as a family  arrangement, to an act of friendship of generosity,  or such like, to negative  of any intentions  and  to create a tenancy.  I such circumstances  it would be  tenancy unjust  to saddle the owner with a tenancy., with all  the, when  there was  no intention to create  a tenancy,  at all. In the present   case however  there are no special  circumstances. It is simply  case where the employer s  let  a man  of into  occupation of the  house employee let main into  occupation of the house in consequence of his  employment’s of at a weekly sum payable by him……..”\n<\/p>\n
 The court held  that the relationship  was that the of service  tenant and landlord and thither  relationship  was determined by the law  and not  by the  label  which they  chose  to put on it. After citing  the case of the customs of and excise Commrs v. Pools  Finance 1937 Ltd.,  1952 1 TLR  792,  the learned  judge proceeds:\n<\/p>\n
 “It is  not necessary  to go so far as to find that document a sham it is simply a matter  of finding  the true  relationship oft parties.  It inmost important that we should be and her  to this principles or else  we might  find all landlords gratings  licenses  and not tenancies,  and we should make a hole in the Rent  act through  which could  be driven – I will  not in  these days say a coach  and four,  but an articulated vehicles.”\n<\/p>\n
 If one  has regard to the conditions  prevailing  in Bombay  and also the at some  other places,  there can be on doubt  about the  truism of the remarks.  In the city  of Bombay  in the case of new  premises, the act particularly  in non -existent.  There are also  unscrupulous  tenants  in by including  what are called  out licensees.  While,  therefore,  constructing  the terms  of a document, the court the would not lose sight to that fact that he ingenious attempts are more  made to  circumvent the provisions of the statute.  Indeed, in such  cases ,it may  even be  possible,  to say that the  documents  is bogus  or sham.  However, ultimately, astute relationship is determined by the law irrespective of the label attached to it be the parties,  one need not go so far.  It is possible of that when exclusive possession is given  having  regard to the special circumstances mentioned by Denning  LJ., in can be  said that in the  given  case a right to the enjoy of the property  was not intended  to be transferred or given.\n<\/p>\n
 (15) In the case, of  Associated Hotel of the India  LTD v. R.N. Kapoor  the<\/a> question  arose  before the  our supreme court  in respect,  of the occupation of two  rooms by the respondents which were  described as lady’s  and Gent’s  Cloak Rooms where he carried  o the business  of a hair – dresser.  S. K.  Das and Sarker,  JJ held the rooms  let, being the rooms in the hotel  were  excluded from the  operation of the ajmer excluded from the  operation if the hotel were  mercer Rent Control Act,  1947. Subbao Rao J. Dissenting  from the above  view considered  the question of whether the relationship  was of landlord and tenant. After the referring  to S. 52 of the Easements,  act the  learned Judge possession., therefore  continues  with license  says: ” The legal  possession therefore  continues to the with the owners  to the property  but the licensee of the  permitted to the make used to the  premises for the  particular purpose.  But for the permission  of  the  occupation of the would be  unlawful.”  The learned judge ultimately  formulates the test of the intention of the between the party as said be the subba  Rao J.,  were apparently  appropriate for license.  Yet he was  to opinion  that the legal relationship  was that the landlord  and tenant.\n<\/p>\n
 (16) The  terms of the  agreement  of in the  present  case are:\n<\/p>\n
 Whereas the Liensor  has agreed to grant  leave and license,  to use and  occupy the flat,  furniture and fitting  for eleven months  renewable at the  option of the licensee every  eleventh  month…… and  whereas  the said  leave and license….. does not confer on the Licensee of any rights  or title  whether  as tenants or subtenants  on the following  terms:\n<\/p>\n
 (1) That the  Licenses shall pay  monthly  compensation  for use and the occupation.\n<\/p>\n
 (2) that the  presumes shall  be used for the residence  and  business by her and her family:\n<\/p>\n
 (3) that the  Licenses  shall deposit  Rs 675  without  any interest  of for the due  performance  of the terms  and indemnifying  the Licenser for loss or damage.:\n<\/p>\n
 (4) that the Licenser, shall  pay all taxes  except  the Chowkindar’s  charges  of Rs. 10 which shall be paid by the  Licensee.\n<\/p>\n
 (5)  that if the  Licensee fails to the observe  the terms of the agreements  or if she commits any nuisances the  license of shall stand revoked and the Licensor shall have  the rights  to eject  the licenses forcibly.:\n<\/p>\n
 (6) that the  licensee shall not  allow any  other persons to use and occupy  the premises  except…..\n<\/p>\n
 (7) that the Licenses shall not  claim any rights as a tenant, and<\/p>\n
 (8) that the  Licensee shall not  make any addition and alternations  in that flat without  the written  premises of the Licenser.\n<\/p>\n
 (17) In the present case, there are many  circumstances connected  with the  transaction of that have to be considered.  The plaintiff had that the  inserted an advertisement in the newspaper  that a license was intended in the  be granted  but then it is  hardly  likely  that a person  to who wants to circumstances  the provisions  of the Rent Act  would say of that the property is t be leased. The giving  of the advertisement in our view,  would indicate  that she  wanted  to give out the  property  to whosoever   was prepared to the take and pay the price.  Merely  from the language employed in the  Advertisement,  it  cannot be inferred  that a license was intended. The second  circumstances  which  emerges from the evidence  is that  admittedly the services of a broker  of were employed  by the plaintiff.  If is obvious therefore  that the intention was not to accommodate any person  who was known to the plaintiff but  to have anyone  who was needy enough to agree per force to the terms proposed by the plaintiff.  The employment’s  of the broker  to  must necessarily suggest that the intention of the was to earn whatever  could be  earned out the  property and no other. The amount  paid to the broker  is also not less.  This circumstances also therefore cannot support  the inference if that it was  because  the plaintiff  intended give  to licences  only that she had  employed  the broker. A fair  reading to the  for doubt  that the first flat was  given  in the excluding  possession of the defendants  for the use of here feels and the members of the her family  and issue  was intended to be for 11 months.  The  parties, however  did intend  that the term   was renewable  at the end of the 11 months as at option of the license. It  was  therefore  not short-term accommodation.  The learned  advert for the respondent of say that  the  which  agreements of the  not in the subsequent  clauses  which lay  down the terms  it should be  held that it was not  intended to the acted  upon the  contention  of the which found  with the  learned judge.  We cannot  agree.  As long as the agreement between  the parties  is cleat  place  where the  terms is to be found cannot  matter much.  While constructing   the documents the court has to consider the whole documents  and cannot  refuse the ground that their is placed  at one place and the not at  the other.  It specifically  says:  “Whereas  the said licenser  has agreed  to  grant  the leave and license…… for the  period  of 11 (eleven)  months  renewable  of every  eleventh moth at the  option of the licenses….. that terms and  conditions……. are as follows” ….. The main and the important  term was  embodied in that paragraph  and the  details in the were a worked  out in the   three subsequent  paragraphs  and it is not  wonder,  therefore, in that we do not a find repetition  of the term  in the  details. To show  that license was intended.  A crude attempt is made by  adding  the rectal  that “the  parties had cordial  relations:.  The evidence of the  both the plaintiff and the defendants  shows hat the they  did not know each  the  defendants shows that each other prior to that date.  In fact,  the plaintiff  has inserted  an advertisement for the finding  a person likely  to occupy the flat and the defendants  was told about the vacancy of the  premises  by somas  who had gone to be unsuitable. This  recital is the  untrue and it shows the working of the mind of the broker  and that of the plaintiff.  Indeed,  the rest of the terms  are such  as are to the found in most  in must tenancy  agreement,  the only difference  being that instead of there unto the  occupational  charges  are descried as compensation.  No  circumstances  such  as  toes descried by Denning  L.J. in the case  hose cited above  are disclosed the parties.  Why then one must  construe the agreement between the parties  as license and allow the between evasion of the Rent Act merely  because the plaintiff  has chosen  to apply the label that it is lichen.\n<\/p>\n
 (18) Mr. Lulla has very  strenuously argued that some of the  terms shows an intention of that the license was intended  by both  parties and also relied upon the  decision of the Ramjibhai  Virpal v. Gordhandas  Maganlal Bhagat   . Clauses 6 makes possession non – transferable to anyone  else, in clauses 5 there is  condition  that if the defendants  commits any act of nuisance  the license shall be deemed  to have been  canceled  and it would be  lawful for the licenser  without prejudice to any other remedy  to forcibly  remove the defendant from that flat,  the defendants would have to pay  of deposit  of Rs. 675 of which works  out compensation of the for 3 months  and that the  monthly  payment is called compensation  Evidently, there are,  leases between landlords and tenants  which may prescribe many such  similar  conditions,  but merely  because  of the existence  of  such  condition, else are not  converted in to license. Calling the occupational price  compensation of the does not make it is license.  Ramjibhai  Virpal  case   has no application. The  principles formulated there are the same as in other  accuse  it have held that circumstances  in the  case it was held  that the tenancy  was not intended to be created.\n<\/p>\n
 (19) Mr. Lulla tried to take us through  the evidence of the parties  and relying  on certain  statement made by the defendants  argued that the she also  intended that there  should be a license and not a tenancy.  Now,  one cannot forget  the circumstances  in which the defendants  in  was. The  hardship  of finding accommodation of the Bombay  are well known. One  need not,  therefore,  wonder at a needy person  agreeing to sing whatever  document is required  to be signed by him  the so long as the he get the  defendants  admitted  that she  agreed  to execute and document as desired by the plaintiff  as that the of license,  but she said that the  was to he  tenant. It is true that she  was in difficulties.  But then this fact  cannot be  overlooked.  Apart from this,  as we have  stated, oral evidence of the prior  communions  between  the parties cannot be allowed by the influence the judgment of the court in the deciding  the relationship  between  the parties.  See Bomanji  v. Secy.  Of state 31 BLR 256; [AIR 1929 PC 34] Now  what is  to be  determined is the legal  relationship  between  the parties  and therefore  what they  called it  is not much material.  Giving   out best  consideration to the terms  between  the parties  and the surrounding  circumstances we hold that the  relationship between  the parties  was that of the landlord  and tenant.  In view  of this conclusion, we must  and  hold that the court  had no jurisdiction to decide the dispute between  the parties.\n<\/p>\n
 (20) In  the result, the suit  was must  fail and  is dismissed.\n<\/p>\n
 (21) The appeal  has been  filed in the for mapauperis.  Looking  to the condition of the plaintiff  herself., we do not  think that we should  require her to pay  that court – fee which she ought  to pay. We also do not think that the  circumstances demands  that we should make  an order for  costs  in these  proceedings.  We  therefore,  direct  the parties  to bear their own costs  throughout.\n<\/p>\n
(22) Such  dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Aninha D’Costa vs Parvatibai M. Thakur on 25 November, 1964 Equivalent citations: AIR 1966 Bom 113, (1965) 67 BOMLR 452, ILR 1965 Bom 873 Author: Patel Bench: Patel, Tulzapurkar JUDGMENT Patel, J. (1) This is an appeal by the defendant who has failed in both the courts is a suit which arose […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-25209","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAninha D'Costa vs Parvatibai M. 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