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PETITIONER: SANT LAL JAIN

       Vs.

RESPONDENT: AVTAR SINGH

DATE OF JUDGMENT12/03/1985

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA

CITATION:  1985 AIR  857            1985 SCR  (3) 184  1985 SCC  (2) 332        1985 SCALE  (1)423

ACT:      East Punjab  Rent Restriction  Act  1949:  Section  13, Grant of  licence for  one year-on  expiry of period licence revoked-Suit  for mandatory injunction filed-Delay in filian of-Whether excusable-Such Suit in effect one for possession- Suit should  be decreed-On termination of licence-Licencee’s possession that of a tres-passer.      Indian Evidence Act, Section 16.      Licensee purchased  property during pendency of suit-It could set  up  title  to  property-eviction  from  property- Whether permissible.

HEADNOTE:      The appellant had taken a plot of land on lease under a lease-deed for  a term  of 10  years for M/s Jain Motors. At that time he was only a partner of M/s Jain Motors but later he became  its sole  owner. The  respondent  took  from  the appellant on  licence for one year under a deed the suitshed for carrying  on work  shop business Since he did not vacate the she  dafter the  expiry  of  the  period  the  appellant terminated the  licence and  filed the  suit for a mandatory injunction directing  the respondent to vacate the premises. The  respondent   opposed  the   suit  contending  that  the appellant sub-let  to him a plot of land and he had raised a new  construction   thereon  and  is  carrying  on  workshop business, and  that the relationship between the parties was that of  landlord and  tenant and  the  suit  for  mandatory injunction  was not maintainable.      The trial  court  dismissed  the  suit,  for  mandatory injunction as not maintainable.       On appeal, the Additional District Judge held that the relationship   between the  parties was only one of licensee and   that suit  for mandatory  injunction was maintainable, allowed   the appeal  decreed  the  suit  and  directed  the respondent to deliver vacant possession of the shed.      In  the   second  appeal,   the  respondent   filed  an application for receiving as additional evidence a sale-deed dated 27.8.1979 whereby he claimed to have  purchased the entire property from its original owner. On a finding called for 185 by the High Court, the trial court found that the respondent

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had purchased  the  property from its original owner by that sale-deed. The  High Court  held that after the commencement of the  tenancy or  the license a tenant or licensee who has purchased the  property from  its original  owner cannot  be evicted from  that property  on the  basis of  the lease  or laciness. The  Second appeal  was allowed,  the judgment and decree of  the additional  District Judge  was set aside and the trial court-s decree dismissing the suit was restored.      Allowing the Appeal, ^      HELD: 1. There is no merger of the whole property by it original owner  in favor  of the  appellant by reason of the sale of  the entire  property by too original owner in favor of the  respondent or  of the license given by the appellant to the  respondent which  had been revoked prior to the date of the  suit. The  lease in favor of the appellant continues and under  the East  Punjab Rent  Restrictions Act 1949 even the tenant  of a  vacant land  cannot be  evicted  therefrom except in  accordance with the provisions of that Act. [188F G]      K.K Verma  & Anr.  v. Union  of India  & Anr., AIR 1954 Bombay 358,  Milka Singh  v. Diana  & Ors., AIR 1964 Jammu & Kashmir 99, relied upon.      2. In  the instant case, it has not been shown that the appellant had  filed the suit for mandatory injunction after considerable  delay   which  will   disentitle  him  to  the discretionary relief.  Even if  there was  some delay,  in a case  of   this  kind   attempt  should  be  made  to  avoid multiplicity of  suits and the licensor should not be driven to file  another suit  with all  the attendant delay trouble and expense. [189E-F]      3. The  suit is  in effect  one for  possession  though couched in  the form  of a  suit for mandatory injunction as what would  be given to the plaintiff in case he succeeds in possession of  the property  to which  he may  found  to  be entitled. Therefore,  the appellant  should  not  be  denied relief merely  because he had couched the plaint in the form of a suit for mandatory injunction.                                                      [189G ]      4. The  respondent was a licensee and he must be deemed to be  always a  licensee. It is not open to him, during the subsistence of  the licence or in the licence or in the suit for recovery  of possession of the property instituted after revocation of the licence to set up title to the property in himself or  anyone else.  It is  his plain duty to surrender possession of the property as a licensee and seek his remedy separately in  case he  has acquired  title to  the property subsequently through some other person. He need not do so if he has  acquired title  to the property from the licensor or from some  one else  lawfully claiming  under him,  in which case there  would be  clear merger.  The respondent  had not surrendered the  possession of the property to the appellant even  after   the  termination   of  the   licence  and  the institution  of  the  suit.  The  appellant  is,  therefore, entitled  to   recover  possession   of  the  property.  The respondent is directed to deliver possession of the property to the  appellant forthwith failing which it will be open to the appellant  to execute  the decree and obtain possession. [189H; 190A-C] 186

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 216 of 1984

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    From the  Judgment and  Order dated 11.9.80 of the High Court of  Punjab &  Haryana  at  Chandigarh  in  R.S.A.  No. 126/76.      Harbans Lal A.K Goel for the Appellant      A.K Gauguli and A.D. Sikri for the Respondent.      The Judgment of the Court was delivered by      VRADARAJAN, J.  This appeal  by special leave is by the plaintiff against  the reversing  judgment of the Punjab and Haryana High  Court in  R.S.A. No.  126 of  1979. The  trial court had  dismissed the  suit but  the  learned  Additional District Judge,  Patiala allowed  the plaintiff’s appeal and decreed the suit.      The plaintiff/appellant’s case was that he had taken on lease under  a lease-deed  dated 26.8.1963  for a term of 10 years a plot! of land measuring 51’ x 118’ situate near the Army Headquarters,  Lower Mall,  Patiala for  M/s Jain Motor from its  owner Lt.  Col. Sadan Singh. He was only a partner of M/s  Jain Motors in 1963, but later became its sole owner in 1967. The defendant/respondent took from the appellant on licence for  one year under a deed dated 10.12.1969 the suit shed for carrying on the work of repair of motors, tractors, etc. But  since he  did not vacate the shed after the expiry of the  period he  terminated the licence and filed the suit on 15.2.1973  for a  mandory  injunction  directing  him  to vacate  the   premises.  The  respondent  opposed  the  suit contending that  the appellant sub-let to him a plot of land in 1966-67  and he has raised a new construction thereon and is carrying  on workshop  business therein  since  then.  He further contended  that the relationship between the parties was that  of landlord  and tenant  and  that  the  suit  for mandatory injunction was not maintainable.      The trial  court found  that M/s  Jain Motors  were the lessees and  that the  respondent become  a sub-tenant  of a piece of land and constructed the suit shed thereon and that the suit  for mandory  injunction is  not  maintainable  and dismissed the  suit. In  the appeal  the learned  Additional District Judge set aside the trial court’s findings recorded in favour  of the  respondent and  found  that  no  rent  is mentioned either in the document executed by the respon- 187 dent in  favour of the appellant or in the written statement and no   rent  receipt was  produced by  the respondent, and that the  relationship between  the parries  was only one of licensor and  licensee. On  the question  of delay in filing the suit  the learned  Additional District  Judge found that the partie remained busy in fighting out criminal cases till the end  and that the present suit had been filed thereafter and there had been no undue delay and also that there was no challenge to  the trial  court’s finding that the respondent had not  put any  construction of  his own and held that the suit  for  mandatory  injunction  against  the  licensee  is maintainable. On  these findings  he allowed  the appeal and decreed the suit, directing the respondent to deliver vacant possession of the shed in dispute to the appellant.      In  the   second  appeal   the  respondent   filed   an application for receiving as additional evidence a sale-deed dated 27.8  1979 whereby  he claimed  to have  purchased the entire property  from its  original owner.  The  High  Court called for finding in that regard from the trial court which thereupon  found  that  the  respondent  has  purchased  the property from  its original  owner by that sale deed. It was contended in  the High  Court that in view of that sales, it is not  open to the appellant to contend that the respondent in whom  the title  to the  property has  come to  be vested after the  date of  the suit, is liable to be ejected on the

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revocation of  the license  granted to him by the appellant. On the  other hand,  it was contended for the appellant that the fact that the respondent had purchased the property from its owner  subsequent to  the grant of the licence in favour of the  respondent does  not  make  any  difference  to  the appellant’s claim for recovering possession of the suit shed and that  it  is  obligatory  on  the  respondent  to  first surrender possession  of the  property after the licence had been revoked  and  hen seek his remedy, according to law, on the basis  of the  title claimed  by  him.  It  was  further contended that in view of the provisions ofs. 13 of the East Punjab Rent  Restrictions Act,  1949, the  appellant who was the tenant  of the  property under its original owner cannot be dispossessed  except in accordance with the provisions of that Act.      The learned Single Judge of the High Court rejected the appellant’s contention  that his  rights under  the lease by the original owner cannot be interfered with the  provisions of the  said Act, observing that from the decisions referred to by him H 188 and the  provisions of s. 116 of the Indian Evidence Act, it is clear  that after  the commencement of the tenancy or the licence a  tenant or licensee who has purchased the property from its original owner cannot be evicted from that property on the lease or licence. He rejected the contention that the present suit  for a  mandatory    injunction  directing  the respondent to  vacate and  hand over  possession of the suit shed is  in effect  a suit for possession and he allowed the second appeal  and set  aside the judgment and decree of the learned Additional  District Judge  and restored  the  trial court’s decree dismissing the suit.      Now the  parties are  bound by  the  following  factual findings recorded  by the  learned Additional District Judge in the  first appeal  namely: (1) that the appellant who had become the  sole proprietor  of  M/s  Jain  Motors  in  1967 through at  the time  of the  lease of  the property  by the original owner  Lt. Col.  Sadan Singh  to M/s Jain Motors in 1963 he  was only one of its partners, was the lessee of the property; (2)  that the  respondent had become a licensee of the suit  shed under the appellant when the appellant was in possession of  the whole  of the  demised premises including the suit  shed as  tenant under the original owner; (3) that the licence  in favour  of the  respondent had  been revoked before the  institution of  the present  suit and  (4)  that subsequent to the decision in the first appeal on 7.12.1978, the respondent  had purchased  the entire  property from the original owner  by a  sale-deed dated  27.8.1979.  In  these circumstances, there, is no merger of the lease of the whole property by its original owner in favour of the appellant by reason of  the sale  of the  entire property by the original owner in favour of the    respondent or of the licence given by the  appellant to  the respondent  which had been revoked prior to  the date  of the  suit. The lease in favour of the appellant continues,  and it  is not disputed that under the Act of  1949 referred  to above, even the tenant of a vacant land in  Patiala town  cannot be evicted therefrom except in accordance with  the provisions of that Act. In K.K. Verma & Anr. v.  Union of  India &  Anr.,(13 Chagla,  C.J. presiding over a  Division Bench has observed that in India a landlord can only  eject his  erstwhile tenant by recourse to law and by obtaining a decree for ejectment. In Milkha Singh v. Dvna & Ors.,(2) it has (1) AIR 1954 Bombay 358 (2) AIR 1964 Jammu & Kashmir 99.

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189 been observed  that the  principle once  a licensee always a licensee would  apply to  all kinds  of licences and that it cannot be  said that  the moment  the licence it terminated, the licensee-s  possession becomes  that of a trespasser. In that case,  one of us (Murtaza Fazal Ali, J.) as he then was speaking for the Division Bench has observed:           "After the termination of licence, the licensee is      under clear  obligation to  surrender his possession to      the owner  and if  he fails to do so, we do not see any      reason  why   the  licensee   cannot  be  compelled  to      discharge  this   obligation  by  way  of  a  mandatory      injunction under  s. 55  of the Specific Relief Act. We      might further  mention that  even under  English law  a      suit for injunction to evict a licensee has always been      held to be maintainable.           Where a  licensor  approaches  the  court  for  an      injunction   within a reasonable time after the licence      is terminated, he is entitled to the injunction. On the      other hand, if the licensor causes huge delay the court      may refuse the discretion to grant an injunction on the      ground that  the licensor  had not been diligent and is      that case  the licensor  will have  to bring a suit for      possession which  will be  governed by  s.7 (v ) of the      Court Fees Act."      In the  present case  it has  not been shown to us that the appellant  had come  to the  court  with  the  suit  for mandatory injunction after any considerable delay which will disentitle him  to the  discretionary relief.  Even if there was some delay, we think that in a case of this kind attempt should be  made to  avoid  multiplicity  of  suits  and  the licensor should  not be driven to file another round of suit with all the attendant delay, trouble and expense. 1 he suit is in  effect one  for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff  in case  he succeeds  is  possession  of  the property to which he may be found to be entitled. therefore, we are  of the  opinion that  the appellant  should  not  be denied relief  merely because  he had  couched the plaint in the form of a suit for mandatory injunction.      The respondent was a licensee, and he must be deemed to be always  a licensee.  It is  not open  to him?  during the subsistence of 190 the licence or in the suit for recovery of possession of the property instituted  after the  revocation of the licence to set up  title to  the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licence  and seek  his remedy  separately in  case he  has acquired title  to property  subsequently through some other person. He  need not  do so  if he has acquired title to the property from  the licensor  or from  some one else lawfully claiming under  him, in  which case  there  would  be  clear merger. The  respondent has  not surrendered  possession  of property to  the appellant even after the termination of the licence and  the institution  Or the suit. The appellant is, therefore, entitled  to recover  possession of the property. We accordingly allow the appeal with  costs  throughout and  direct the   respondent  to  deliver possession  of  the  property  to  the  appellant  forthwith failing which  it will  be open  to the appellant to execute the decree and obtain possession. A.P.J.                                       Appeal allowed. 191

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