Calcutta High Court: While deciding a second appeal challenging district judge’s order holding that the agreement for accommodation is an agreement for tenancy and not a licence agreement, a single-judge bench comprising of Ajoy Kumar Mukherjee,* J., rejected the appellant’s claim of tenancy due to insufficient evidence and lack of rent receipts.
Factual Matrix
In the instant matter, the plaintiff-respondents initiated an eviction suit, claiming ownership of a property bequeathed to them. The defendant, an acquaintance, sought temporary accommodation in the property in April 1987, paying a monthly license fee. The plaintiffs alleged that the defendant, initially accommodated as a licensee, breached the agreement, leading to the eviction suit.
The trial court vide order dated 31-03-2009, dismissed the suit, reasoning that the original licensee had left, rendering eviction infructuous. The plaintiffs appealed, and the Additional District Judge allowed the appeal, setting aside the trial court’s decision. The court held that the agreement was a leave and license and not a tenancy. Aggrieved by the impugned order of the district judge, the defendant-appellant filed a second appeal, questioning whether the lower court erred in not recognizing the agreement as a tenancy due to stipulations in the document.
Parties’ Contentions
The appellant argued that clauses in the agreement, such as subletting prohibition and alterations control, reflected a tenancy relationship. It was contended the agreement lacked the original defendant’s signature, and renewals occurred without his consent.
The respondent argued that the agreement, renewed for 11 months, was unambiguous as a leave and license. It was emphasised the absence of continuous 12-month tenancy periods, refuting the tenant’s claim. The respondent cited clauses supporting licensee status.
Court’s Analysis
The Court analysed Section 105 of the Transfer of Property Act, 1882 and Section 52 of the Easement Act, 1882 to distinguish between lease and license. The Court considered the intention of the parties, substance over form, and exclusivity of possession.
The Court found the agreement consistently renewed for 11 months, indicative of a leave and license. The Court emphasised clauses allowing inspection, maintaining possession with the licensor, and termination conditions. The Court rejected the appellant’s contentions regarding clauses resembling tenancy grounds and stated that they don’t nullify the license agreement. The Court concluded that the agreement was a leave and license, not a tenancy.
“…attending circumstances coupled with the evidence clearly suggests that the parties really intended to create a licence agreement by execution of the said document which had expired automatically after the expiry of the licence period and as such the defendant is liable to be evicted from the suit premises.”
The Court held that the defendant failed to provide evidence of tenancy, such as rent receipts, and dismissed the contention that the agreement’s clauses resembled those of tenancy. The Court emphasised that the substance of the document, not its label, determined its nature.
Court’s Decision
The Court decreed the title suit in favor of the plaintiffs, ordering the appellant’s eviction within 60 days. The Second Appeal was disposed of on contest.
[Rajendra Sirohia v. Amitava Gupta, 2024 SCC OnLine Cal 260, order dated 10-01-2024]
*Judgment by Justice Ajoy Kumar Mukherjee
Advocates who appeared in this case:
Mr. Buddhadeb Ghosal, Mr. Ganesh Prasad Shaw and Mr. Gaurav Kumar, Counsel for the Appellant
Mr. Tanmoy Mukherjee, Mr. Saunak Bhattacharya, Mr. Sounak Mondal, Mr. Abhirup Halder, Mr. Souvik Das and Mr. Anirban Saha, Counsel for the Respondents
