1996 JTR(SC) 1868
1997 1 AllCJ 596 ; 1997 1 ALT(SC) 8 ; 1996 4 CurCC(SC) 259 ; 1997 DNJ 152 ; 1996 Supp JT 412 ; 1997 2 RCR(Civ) 6 ; 1997 1 RCR(Rent) 281 ; 1997 1 RLW(Raj) 65 ; 1996 8 Scale 558 ; 1997 2 SCC 706 ; 1996 Supp8 SCR 535 ; 1997 KHC 3582 ; 1996 2 KLT(Online) 1242 ; 1996 8 Supreme 545
1996(8) Supreme 545
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Tulsi -Appellant
versus
Smt. Paro (dead) -Respondent
Civil Appeal No. 2585 of 1980
Decided on 6-11-1996
Act
Referred
:EASEMENTS ACT : S.52
TRANSFER OF PROPERTY ACT : S.105
(A) The Transfer of Property Act, Section 105, which defines a lease as a transfer of a right to enjoy immovable property for a certain time or in perpetuity for consideration, is directly applicable to determine the nature of the occupancy. Read in conjunction with the EASEMENTS Act, Section 52, the analysis focuses on whether the possession granted was a lease creating a tenancy or merely a license. The long, uninterrupted admission of the appellant as a "Gar Marusi" in the Revenue records from 1951-52 to 1971-72, coupled with the transfer of possession for cultivation in exchange for produce, brings the arrangement squarely within the definition of a lease, distinguishing it from a mere revocable license where possession remains with the licensor.
(B) A key legal principle is that a lease does not require a written instrument; what is necessary is the transfer of a right of enjoyment for a specified period with consideration. A tenant at will is entitled to possession and can only be evicted according to law, whereas a licensee has no right to exclusive possession and can be ejected at the will of the licensor. The distinction between a tenant and a licensee hinges on the intention of the parties and the nature of possession and control.
Facts of the case:
The respondent owned agricultural land and filed a suit for possession against the appellant, claiming he was a mere licensee agreeing to cultivate the land on her behalf. The appellant contended he was a tenant at will. The Revenue records consistently showed the appellant as 'Gar Marusi' for over two decades.
Findings of Court:
The trial and appellate courts erred in holding that the appellant was a licensee, as this finding was inconsistent with the evidence of uninterrupted possession and the Revenue records. The High Court's reversal was also deemed erroneous.
Issues:
Whether the appellant was a tenant at will or a licensee, and whether the right to possession attracts the protections of tenancy law.
Ratio Decidendi:
Where a party is shown as a tenant at will in Revenue records for a long period and has been in uninterrupted possession, the arrangement cannot be treated as a mere license; the protections of tenancy law apply, and eviction must follow due process.
Result:
The appeal is allowed, and the decree of eviction is set aside.
(A) The Transfer of Property Act, Section 105, which defines a lease as a transfer of a right to enjoy immovable property for a certain time or in perpetuity for consideration, is directly applicable to determine the nature of the occupancy. Read in conjunction with the EASEMENTS Act, Section 52, the analysis focuses on whether the possession granted was a lease creating a tenancy or merely a license. The long, uninterrupted admission of the appellant as a "Gar Marusi" in the Revenue records from 1951-52 to 1971-72, coupled with the transfer of possession for cultivation in exchange for produce, brings the arrangement squarely within the definition of a lease, distinguishing it from a mere revocable license where possession remains with the licensor.
(B) A key legal principle is that a lease does not require a written instrument; what is necessary is the transfer of a right of enjoyment for a specified period with consideration. A tenant at will is entitled to possession and can only be evicted according to law, whereas a licensee has no right to exclusive possession and can be ejected at the will of the licensor. The distinction between a tenant and a licensee hinges on the intention of the parties and the nature of possession and control.
Facts of the case:
The respondent owned agricultural land and filed a suit for possession against the appellant, claiming he was a mere licensee agreeing to cultivate the land on her behalf. The appellant contended he was a tenant at will. The Revenue records consistently showed the appellant as 'Gar Marusi' for over two decades.
Findings of Court:
The trial and appellate courts erred in holding that the appellant was a licensee, as this finding was inconsistent with the evidence of uninterrupted possession and the Revenue records. The High Court's reversal was also deemed erroneous.
Issues:
Whether the appellant was a tenant at will or a licensee, and whether the right to possession attracts the protections of tenancy law.
Ratio Decidendi:
Where a party is shown as a tenant at will in Revenue records for a long period and has been in uninterrupted possession, the arrangement cannot be treated as a mere license; the protections of tenancy law apply, and eviction must follow due process.
Result:
The appeal is allowed, and the decree of eviction is set aside.
ORDER
This appeal by special leave arises from the judgment of the learned Single Judge of the Himachal Pradesh High Court, dated June 16, 1980 in RSA No. 138/79. The trial Court had decreed the suit and appellate Court allowed the appeal and dismissed the suit. In the second appeal, the High Court reversed the judgment and decree of the appellate Court and confirmed that of trial Court. Thus, this appeal.
2. The admitted facts are that the suit properties of various Khasra Nos. admeasuring 12.4 bighas and 22.4 bighas situated in Mohal Kanyarka Pargana Churah Tehsil Bhattiyat District Chamba in the State of Himachal Pradesh, belonged to the respondent. She had filed a suit for possession against the appellant pleading that the he is a licensee and had agreed to cultivate the lands on her behalf as licensee and, therefore, he is liable to be ejected by a decree of eviction in the suit. It is the case of the appellant that though the parties are related, he is only a tenant at will and he agreed to cultivate the land as a tenant giving the produce to the respondent-landlady for her as he was looking after her. The admitted position is that the Revenue records for the period from 1951-52 to 1971-72 do indicate that the appellant had been shown as Gar Marusi . It would appear that it means "tenant at will". Section 105 of the Transfer of Property Act defines lease thus : "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, a shore of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms". It is not necessary that lease should always be reduced to writing. What is necessary is transfer of a right of enjoyment of the property made for certain time, expressed or implied and for consideration of the price, paid or promised, the transferee must have been put in possession of the demised property. It is also necessary that an agreement can be entered into for rendering periodical service and for consideration thereof and on transfer of the land to the transferee and acceptance thereof, either orally or in writing, the lease comes into existence. It is seen that when the name of the appellant has successively founded place in the records for period from 1951-52 to 1971-72 as "tenant at will", the necessary conclusion is that he is tenant at will liable to eviction according to law. The theory that he is a licensee, as has been accepted by the High Court and the trial Court, is untenable. A licensee has no right in the property, not to speak of any right to the exclusive possession of the property and animus of possession always remains with the licensor; the licensee gets the possession only with the consent of the licensee and is liable to vacate when so asked. In this case, since the appellant remained in uninterrupted possession and enjoyment of the property for over 20 years, it is unthinkable to conclude that they are only licensee. The High Court and the trial Court, therefore, were clearly in error in reaching the conclusion that the appellant is only a licensee. On the other hand, from the facts, it is clear that the appellant is a tenant and he will be liable for ejectment only in accordance with law. If he is otherwise entitled to tenancy right of the property, the right can be had in accordance with law and it is open to him to work out the same in accordance with law.
3. The appeal is allowed in the light of the above facts and circumstances. No costs.
Appeal allowed.
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