ACHINTYA KUMAR SAHA versus M/S. NANEE PRINTERS AND ORS.

Citation: [2004] 2 S.C.R. 28 · Decided: 30-01-2004 · Supreme Court of India · Bench: P. VENKATARAMA REDDI · Disposal: Dismissed

Judgment (excerpt)

A 
ACHINTY A KUMAR SAHA 
v. 
M/S. NANEE PRINTERS AND ORS. 
JANUARY 30, 2004 
[P. VENKATARAMA REDD! AND S.H. KAPADIA, JJ.] 
Rent Control and Eviction: 
C 
West Bengal Premises Tenancy Act, 1956; Ss. 13(/) & /3(6)(g)!Code of 
Civil Procedure, 1908; Ss. 2(h), JOO & 103: Execution of an agreement of 
licence of the suit property-Widow having life estate transferring it in favour 
of alleged licensee-Subsequent sale thereof by her son-Vendee filing a title 
suit for eviction and possession-Dismissed by Trial Court holding that the 
D agreement was an agreement of licence and the licence was irrevocab/e-
Reversed by the first Appellate Court-On appeal, reversed by the High Court 
holding the agreement as agreement <?f tenancy and not licence-On appeal, 
Held: Exclusive possession of the premises given for monetary consideration 
with a clause for renewal of the licence,· and respondent making payment of 
municipal taxes and also made improvement on the properties-Son of the 
E landlady/vendor consented to the agreement-Landlady issuing rent receipts-
Hence, intention, conduct and surrow1ding circumstances go to show that the 
agreement was for tenancy in disguise of a licence. 
F 
Agreement-Nature of-Substantial question of law-Not adjudicated 
upon-Power of the High Court-Held, since plea of tenancy raised before 
the first Appellate Court but not adjud.icated upon, High Court rightly i~voked 
provisions under Section 103 CPC and gave its finding against the Vendee-
Appel/ant/Vendee failed to make any ground uls I 3(1) of the Act nor gave 
notice under Section J3(6)(g) of the Act-Hence, title suit falls. 
Father of respondent No.4, owner of the suit premises, executed a 
G Will bequeathing all his properties to his widow during. her life time but 
with no right to alienate the property and thereafter to his son (resp?ndent 
No.4). Later, mother of respondent No.4 executed an agreement of licence 
for JI years in favour of a firm (respondent Nos. 1 and 2). Thereafter, 
respondent No.4 sold the entire properties including the suit premises to 
H 
28 
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A.K. SAHA v. NANEE PRINTERS 
29 
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I' 
appcllant/Vendee. Vendee filed a Title Suit for eviction against respondent A 
Nos. I and 2. Trial Court dismissed the suit holding that respondent Nos. 
t and 2 were licensees and not tenants; that there was a renewal clause in 
the agreement; that respondent No.4 was fully aware of the said agreement 
and in fact consented to it; and that the licence was irrevocable as the 
respondents had raised a permanent construction thereon with the consent B 
of the landlady (mother of respondent No.4). Aggrieved, Vendee filed an 
appeal. Appellate Court allowed the appeal holding that the mother of 
respondent No.4 had a limited right of ownership and therefore could not 
create any right in the property to transfer the same to the respondents, 
and passed decree of eviction in favour of the Vendee. The Court did not 
adjudicate upon the question of tenancy. 
c 
On appeal, High Court found that the agreement was of tenancy and 
not of licence and that the agreement was given the nomenclature of licence 
with a view to avoid application of the provisions of West Bengal Premises 
and Tenancy Act. Hence, suit of eviction against the respondents was not D 
maintainable; and that in the absence of notice u/s 13(6)(g) and without 
any ground for eviction under Section 13(1) of the Act, the impugned 
decree was a nullity. Hence the present appeal. 
It was contended for. the appellant that the second appeal did not 
involve substantial question of law nor the question was formulated by E 
,... 
the High 'Court. In the circumstances, High Court was not justified in 
entertaining the second appeal; that the High Court entertained a new plea 
of tenancy without following the mandatory provisions of Law; and that 
the High Court erred in invoking Section 103 CPC to the facts of the case. 
Dismissing the appeal, the Court 
F 
HELD: 1.1. In order to ascertain the substance of a transaction, the 
purpose and substance of the agreement require to be ascertained and 
intention of the parties is the deciding factor. To ascertain the intention, 
the surrounding circumstances including the conduct of the parties need 
G 
to be examined. In the present case, the High Court was right in examining 
the terms of the agreement coupled with the circumstances surrounding 
~ 
the agreement in question like exclusive possession of the premises being 
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given to respon

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