TMI Blog1988 (8) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... he explanation of the transaction offered by the respondent having been found by the Courts-below to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forth-coming from the respondent appropriate to the situation as found. This Appeal is allowed, the order of the High Court under Appeal is set aside and the order of eviction passed by the Courts-below restored. Having regard to all the circumstances of the case, we grant time to the respondent to vacate and yield up the vacant possession till 31st December,1988. - C.A. 4077 OF 1982 - - - Dated:- 9-8-1988 - R.S. PATHAK AND M.N. VENKATACHALLIAH, JJ. JUDGMENT This Appeal, by Special Leave, by the Landlord arises out of and is directed against the Judgment and Order dated 23.9. 1982 of the High Court of Punjab and Haryana in Civil Revision Application No. 2588 of 1980, allowing the Respondent tenant's appeal and-in reversal of the concurrent findings of the court below that there was an unauthorised sub-letting d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who frequent this shopping centre, are ultra modern persons. It is a matter of common knowledge that in modern shopping centres, the owners of show-rooms, whatever the nature of their business, keep small booths to provide cold drinks, ice-cream and paup- corns etc., to the customers, who come there with their children and spend considerable time making purchases in the show-rooms. The maintenance of such booths has become a necessary adjunct of all big shops in modern shopping centres. Similarly, is well-known that in order to run the business of selling cloth efficiently, it is necessary to have a tailoring shop on the premises. Every customer, who makes purchase of cloth in any cloth shop of any consequence wants consult a tailor in order to know exactly the length of the material that will be required by him for preparation of garments of his choice and most of the customers also like to have the garments stitched by the tailoring outfit on the premises of the cloth shop, more especially when the customers belong to sophisticated upper class. The respondent also produced and relied upon the agreements dated 13.9. 1973 entered into between Respondent and the said Banwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y: (l) That 1st party will provide Softy Ice Cream Machine along with one employee at their premises and the whole Softy Ice Cream will be supplied by the 1st part at his own risk and costs. (8) That both the parties can terminate the system at any time without any notice. In that case the 1st part will take away the machine from the premises. The relevant recitals in the document (Mark B) dated l3.9.1973 provide : (1) That the first party will do tailoring work only in the portion, i.e., back court yard and he will keep the employees with the prior consent of the second part and the premises will be locked in the evening by the second part. The possession will remain with the second part. (2) That the arrangement has been done as it is beneficial to both the parties and it will boost the business of second part and the first part be licencee in the premises and licence can be revoked will only (sic) at any time without any notice and in that case the 1st part will remove his machine and other articles. The 2nd part will not liable to pay any damages. 5. The learned Rent Controller, on an appreciation of the evidence on the point, was persuaded to the view that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively, on the other. The High Court observed: A look at these documents goes to show that it was specifically mentioned therein that the possession of the demised premises will remain with the petitioner-tenant and only the work connected with the supply of Softy Ice Cream and tailoring was allowed to be carried on. Except for the charges for the electricity consumed no rent is payable by the third parties to the petitioner. The agreements further envisage that the licences could be revoked at any time without any notice. The conditions prescribed in these documents do prima facie indicate that it was a cast: of licences, and not of sub-letting. Referring to what it thought were certain procedural objections in accepting the Report and the evidence of the Court-Commissioner (A.W. 1) which had been accepted by the Courts-below, the High Court was persuaded to this view: It appears that the Authorities below have given great importance to a report of the Local Commissioner who was appointed during the trial for inspection of the demised shop. It is not disputed that the order appointing the Local Commissioner was passed by the Rent Controller ex-parte without notice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by both the Courts-below as to the exclusivity of the possession of M/s. Kwality Ice Cream of the portions in which it was carrying on of its business . This was a pure question of fact the concurrent finding on which was not amendable to interference in execise of revisional powers under the 'Act'; (b) That reliance by the High Court on the evidence of R.W. 3 and Plans Exhibit R. 4 to show that the structural modifications indicated an accessibility between the main premises and the portions in the occupation of sub-tenants was wholly misplaced as, indeed, Exhibit R. 4 was itself produced in a totally different context and for altogether different purpose, viz., to meet the ground of eviction based on unauthorised construction and not for purposes of rebutting exclusive-possession of the sub-tenants; (c) That even if the Revisional jurisdiction of the High Court admitted a re-appreciation of evidence, a finding of a fact which was the result purely of appreciation of oral evidence by the trial court could not be interfered with even by an Appellate-Court and a-fortiorari in Revision; (d) That the view of the High Court as to the alleged infirmity of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of interest: A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful. In Glenwood Lumber Co. v. Phillips, [1904l] A.C. 405 at 4o8 the distinction was pointed out thus: If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further.the grant be for consideration. While the definition of 'Lease' Section 105 of the Transfer Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a 'Licence' under Section 52 of the Indian Easements Act, 1982 consistently with the above, excludes from its pale any transaction which otherwise, amounts to an easement or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther under a contact or not,in which case he is a licensee? 11. In Associated Hotels of India v. R.N.[1960] 1 SCR 368 at 383 this Court referring to the classic distinction between a lease and a licence said: There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the terms of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. In B.M. Lall v. Dunlop Rubber Co.[1968] 1 SCR 23 at 17 the distinction between the two concepts was brought out: A lease .... is the transfer of a right to enjoy premises whereas a licence is privilege to do something on the premises which otherwise would be unlawful....The transaction is a Iease, if it grants an interest in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to use land without exclusive possession was alone granted a licence was the legal result. We are of that opinion that this was a licence and not a Iease as we discover the intent. 13. The question is, whether in the present case, the evidence on record justifies the inference that the tailor and the Ice-Cream-Vend or were put in exclusive possession. Dr. Chitaley contended that the question would require to be determined upon a proper construction of the deeds entered into between the parties, and that alone is decisive of the matter. Indeed, learned counsel placed strong reliance on the following observations by this Court in M. N. Clubwala v. Fida Hussain Saheb, [1964] 6 SCR 642. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the inten-tion of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. (Emphasis Supplied) The proposition of Dr. Chitaley as to the conclusiveness of what emanates from the construction of the documents, has, in this case, its own limitations. The import significance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in favour of tenancy. 14. Contentions (a) and (b) could conveniently be dealt with together. Sri Sanghi's first contention is the non- availability, to the Revisional Court, of the power to reappreciate evidence and substitute a finding of fact of its own in place of the concurrent finding of the Court- below. The cognate question is whether the concurrent finding of exclusive possession of M/s. Kwality Ice Cream is supportable on the evidence and if so, whether the High Court could, in revision, have substituted a finding of its own on the point. It is true, having regard to the language of Section l5(5) of the Act conferring revisional powers which include an examination of the legality or propriety of the order under revision, the High Court can, in an appropriate case. reappreciate evidence and interfere with findings of fact. But the question is whether that was called foe of justified in the present case. 'Sri Sanghi pointed out that finding of the trial-Judge on the question of exclusive possession of M/s. Kwality Ice Cream could not be found fault with on the alleged ground of any non-consideration of material evidence. He submitted that the finding was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Swatantar Kumar (R. W 6), Parveen Jain (R.W.7) Saldev Raj (R.W.8) and Krishan Lal (R.W.9) are the statement of the interested persons who had clearly told a lie with a view to depose in favour of the respondent that the photographs were taken early in the morning. If the photographs were taken earlier in the morning, it would have been possible that the shop of the respondent would be open .... (Emphasis Supplied) No other presumption excepting that of subletting can be raised in the circumstances of the case. The respondent Das Raj (R.W. 10) has admitted that there are bigger cloth merchants in Sector 17 than his shop but none of them has opened such a booth of ice cream in their shops. 15. The view of the High Court, in substance, was that there was conflict between the version of the Commissioner and the state of affairs indicated in the Plans (Ext. R. 4) which did not support the exclusive and separate nature of the Ice-Cream Vendor's possession and that the latter should prevail. But a more careful examination of the context in which M.L. Sharma (R.W. 7) the Senior Architect who produced Ext. R.4. was examined shows that Ext. R. 4 was relied upon in rebuttal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the circumstances, we should agree with Sri Sanghi that the concurrent finding as to exclusive possession of M/s. Kwality Ice-Cream was not amenable to reversal in revision. Contentions (a) and (b), in our opinion, are well taken and would require to be held in appellants' favour. 17. On contention (c) as to the limitation on the powers, even of the appellate Court, to dislodge finding of facts recorded by the trial-court on a re-appreciation of oral evidence, we think, the submissions of Sri Sanghi are not also without substance. The proposition, that the appellate Court should not too lightly interfere with the appreciation of oral evidence made by the trial Court, particularly based on the credibility of the witnesses whose demeanour the trial Court has had the advantage of observing, is too well settled to require reiteration. A clear exposition of the Rule as to what extent the appellate Court should regard itself as bound by the conclusions reached by the trial Court on questions of fact is to be found in the speech of Lord Thankerton in Watt v. Thomas, [1947] A.C. 484 at 487-488: I do not find it necessary to review the many decisions of this House, for it see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t whether or not the defendant had been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or to repeat what I have said, what is perception, what evaluation. 18. Reference on the point could also usefully be made to A.L.Goodhart's article 7-l LQR 402 at405 in which, the Iearned author points out: A Judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion. It is obvious that, in almost all cases tried by a judge with-out a jury, an appellate court, which has not had an opportunity of seeing the witnesses, must accept his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him. (Emphasis Supplied) The following is the statement of the same principle in The Supreme Court Practice (White Book 1988 Edn. Vol. 1). Great weight is due to the decision of a Judge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. 19. The area in which the question lies in the present case is the area of the perceptive functions of the trial Judge where the possibility of errors of inference does not play a significant role. The question whether the statement of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not is the area in which the well- known limitation on the powers of the appellate Court to reappreciate the evidence falls. The appellate Court, if it seeks to reverse those findings of fact, must give cogent reasons to demonstrate how the trial Court fell into an obvious error. With respect to the High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lor who is stated to have established therein a tailoring business. The tenant denying the sub-letting contended that the tailor was allowed to occupy a part of the premises due to pity and charity and that he was sewing in the house without any rent . It would appear that the tenant also did some service for the landlord and the members of his family. The alleged sub-tenant not having entered the box, the plea of sub-letting had come to be accepted. In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific- finding on the question of exclusive possession of the alleged sub-tenant and that, therefore, one of the essential ingredients of a sub-lease was a lacking. It was further held that providing of services could not also be construed as consideration for purposes of the, Rent Acts and that therefore, the second ingredient was also absent. The decision turned on the particular facts of the case. That case could be of no assistance to the respondents. Likewise, the decisions in Khalil Ahmed 'case , where also, on the facts of the case, it was held that the case of a sub-lease had not been made good. 22. Dr. Chitaley than urge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the version of the respondent as to the particular and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in in mind. It is open to the Respondent to rebut this. Such transactions Of sub-letting in th guise of licences are in their very nature , clandestine arrangements between the tenant and the sub-tenant and there and there can not direct evidence got. It is not. unoften, a matter for legitimate inference. The making good a cast of sub-letting is, of course, on the appellants. The burden of burden establishing facts and contentions which support the party who takes the risk of non-persuasion.If at the conclusion of the trial, a party has failed to establish these to the appropriate standard. he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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