Case Note & Summary
The appellant-plaintiff filed a suit for possession of a triangular open site admeasuring 60 sq.ft. against the respondents-defendants, alleging that the site was given on license free of charge and that the license was revoked by a notice. The defendants contended that the site was part of the tenanted premises and that the suit was barred without prior permission of the Rent Controller under the C.P. & Berar Letting of Houses and Rent Control Order. The trial court decreed the suit, holding that the site was a license and not part of the tenancy. The first appellate court reversed, holding that the site was part of the tenement and dismissing the suit. The High Court, in second appeal, framed a substantial question of law as to whether the suit site was a license or part of the tenanted premises. It found that the first appellate court's conclusion was perverse and not supported by evidence, as the defendants failed to prove that the site was included in the tenancy. The High Court allowed the appeal, set aside the appellate judgment, and restored the trial court's decree for possession with inquiry into mesne profits.
Headnote
A) Property Law - License vs. Tenancy - Distinction between license and lease - C.P. & Berar Letting of Houses and Rent Control Order - The court considered whether a triangular open site admeasuring 60 sq.ft. was given on license or formed part of the tenanted premises. The trial court found it was a license, but the first appellate court reversed, holding it was part of the tenement. The High Court set aside the appellate judgment, restoring the trial court's decree, holding that the burden to prove tenancy was on the defendants and they failed to discharge it. (Paras 1-6)
B) Civil Procedure - Second Appeal - Substantial question of law - Section 100 CPC - The High Court framed a substantial question of law regarding the nature of the suit site and the applicability of the Rent Control Order. It held that the first appellate court's finding was perverse and not based on evidence, thus interfering under Section 100 CPC. (Paras 5-6)
Issue of Consideration
Whether the suit site was a license or part of the tenanted premises, and whether the suit was maintainable without permission of the Rent Controller under the C.P. & Berar Letting of Houses and Rent Control Order.
Final Decision
The High Court allowed the second appeal, set aside the judgment and order of the first appellate court, and restored the decree of the trial court for possession with inquiry into mesne profits.
Law Points
- License vs. Tenancy
- Burden of Proof
- C.P. & Berar Letting of Houses and Rent Control Order
- Section 100 CPC
Case Details
2010 LawText (BOM) (07) 172
Second Appeal No. 140/2008
Mr A.D. Vyawahare for appellant, Mr D.K. Dubey for respondents
Mohammad Aisanullahuq s/o Haji Mohammad Massom Maniyar
Ramesh Dattatraya Ithape and Dattatraya Pandurang Ithape
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Nature of Litigation
Civil suit for possession of a triangular open site admeasuring 60 sq.ft. claimed to be a license.
Remedy Sought
Appellant sought possession of the suit site and mesne profits.
Filing Reason
Appellant alleged that the suit site was given on license to the respondents, which was revoked, but respondents did not vacate.
Previous Decisions
Trial court decreed the suit for possession with inquiry into mesne profits. First appellate court reversed and dismissed the suit.
Issues
Whether the suit site was a license or part of the tenanted premises.
Whether the suit was maintainable without prior permission of the Rent Controller under the C.P. & Berar Letting of Houses and Rent Control Order.
Submissions/Arguments
Appellant contended that the suit site was a license and not part of the tenancy, and the first appellate court erred in reversing the trial court's decree.
Respondents contended that the suit site was part of the tenanted premises and the suit was barred under the Rent Control Order.
Ratio Decidendi
The burden to prove that the suit site was part of the tenanted premises was on the defendants, and they failed to discharge it. The first appellate court's finding was perverse and not based on evidence, warranting interference under Section 100 CPC.
Judgment Excerpts
By means of this appeal, the appellant has challenged the validity, legality and correctness of the judgment and order dated 18.8.2006 passed by the learned 2nd Adhoc Additional District Judge, Washim in Regular Civil Appeal No.158/1999 whereby the first appellate Court while allowing the appeal, was pleased to direct dismissal of Regular Civil Suit No.226 /1994 which was decreed by learned 9th Joint Civil Judge J. D. on 1.12.1999.
The trial Court found that the suit site was given on licence to defendant no.1 who had constructed one room over the suit site, without permission of the plaintiff and decreed the suit for possession; while also ordering inquiry into mesne profits.
The first Appellate Judge held that the open site claimed was part of tenements and not a licence and, thus, directed dismissal of the suit.
Procedural History
The appellant filed Regular Civil Suit No.226/1994 for possession, which was decreed by the 9th Joint Civil Judge, J.D. on 1.12.1999. The respondents appealed in Regular Civil Appeal No.158/1999, which was allowed by the 2nd Adhoc Additional District Judge, Washim on 18.8.2006, dismissing the suit. The appellant then filed the present Second Appeal No.140/2008 in the Bombay High Court, which was allowed on 13.7.2010.
Acts & Sections
- C.P. & Berar Letting of Houses and Rent Control Order:
- Code of Civil Procedure, 1908: Section 100
