CAPT. B.V. D' SOUZA versus ANTONIO FAUSTO FERNANDES

Citation: [1989] 3 S.C.R. 626 · Decided: 01-08-1989 · Supreme Court of India · Bench: L.M. SHARMA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
CAPT. B.V.D' SOUZA 
v. 
ANTONIO FAUSTO FERNANDES 
AUGUST l, 1989 
[LAUT MOHAN SHARMA AND J.S. VERMA, JJ.J 
Goa, Daman and Diu Buildings, (Lease, Rent and Eviction) 
Control Act, 1968: Section 5{r-Bar.of Court's Jurisdiction. 
Rent Control-Deed-Lease or Licence-Determination of-
Jntention of parties-The real test-Test of exclusive possession-
C Whether relevant. 
~ 
D 
Civil Procedure Code, /908:Section JOO IJocument-Whether 
lease or licence-Concurrent findings by Trial Court and First Appel-
late Court-Binding effect of in second appeal before High Court. 
The respondent-landlord inducted the appellant into the suit 
premises pursuant to an agreement. The agreement was described as 
agreement of leave and licence, the parties as licensor and licensee and 
the rent as compensation for use and occupation, and it was provided 
that the appellant (i) shall pay monthly rent regularly on or before the 
Sth day of each consecutive month; (ii) shall not sub-let, under-let or 
E part with possession nor shall keep the premises vacant for more than 
three months without the consent of the licensor; (iii) that on the expiry 
of the deed, it shall berenewable at the will of the licensee. 
Several years after the expiry of the above agreement the respon-
-
dent instituted a civil suit for a decree of eviction of the appellant on tbe 
F ground that the appellant was in occupation as a licensee and bas illeg-
ally refused to vacate. Rejecting the plea of the appellant that he was a~ 
month to month tenant protected by the provisions oi the Goa, Daman -r · 
and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 and 
that the suit was barred by section 56 the Trial Court passed a decree 
G 
for eviction which was conf"ll1Ded in appeal by the District Judge. 
The second appeal filed by the appellant was also dismissed by the 
High Court holding that It was concluded by concorrent findings of 
fact. Hence this appeal. 
Allowing the appeal, and setting aside the decree of the Courts 
H below, 
626 
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I 
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.· . 
\ 
BY D'SOUZA v. A.F. FERNANDES 
627 
HELD: l. The rmdings of the Courts below were not those of fact 
so as to be binding on the High Court under section 100 or the Civil 
Procedure Code. The case has to be decided on the nature of poSses.ion 
of the appeUant which is dependent on a correct interpretation or the 
document. I 628G] 
2. It is well settled that the main purpose or enacting the Rent 
statutes is to protect the tenant from the exploitation of the landlord, 
who being in the dominating position is capable of dictating his terms at 
the inception of the tenancy; and, the Rent Acts must receive that 
interpretation which may advance the object and suppress the mischief. 
By adopting a different approach the Rent laws are likely to be defeated 
altogether. [630H, 63IA] 
3. For ascertaining wh~tber a document creates a licence or lease, 
the substaoce or the document must be preferred to the form. The real 
test is the intention or the parties-whether they intended to create a 
lease or licence. If an interest in the property is created by the deed ii is 
A 
B 
c 
a lease but if the document only permits another person to make use of D 
the property or which the legal possession continues with the owner, it is 
a licence. The test or exclusive possession is not irrelevant but at the 
same time it is not conclusive. If the party in whose favour the docu-
ment is executed gets exclusive possession or the property, prima facie 
be must be considered to be a tenant; although this factor hy itself will 
not be decisive. [629A-B-C, 630B-C] 
E 
Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] I S.C.R. 
368; 
Sohanlal Naraindas 
v. 
Laxmidas Raghunath, 
[1971] 
3 
S.C.R. 319; applied. 
Shell-Mex and BP Ltd. v. Manchester Garages Ltd., [1971] I All F 
E.R. 841; explained. 
4. In the instant case, the terms of the deed are not consistent 
with the respondent's case or licence, and indicate that an interest in the 
property was created in favour of the appellant in pursuance or which 
he was put in possession with a right of renewal. The surrounding G 
circumstaoces are also consistent with the deed being one of lease. The 
notice to vacate the premises was served on the appellant after several 
years or expiry or the agreement. There was no relationship or friend· 
ship bt:_tween the parties, which would have induced the respondent lo 
allow· the appellant to occupy the building. Realisation of rent was 

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