KHALIL AHMED BASHIR AHMED versus TUFELHUSSEIN SAMASBHAI SARANGPURWALA

Citation: [1988] 1 S.C.R. 1057 · Decided: 13-11-1987 · Supreme Court of India · Bench: SABYASACHI MUKHERJI · Disposal: Dismissed

Cited by 1 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

KHALIL AHMED BASHIR AHMED 
v. 
TUFELHUSSEIN SAMASBHAI SARANGPURW ALA 
NOVEMBER 13, 1987 
[SABYASACHI MUKHARJI AND G.L. OZA, JJ.] 
Presidency Small Cquses Courts Act, 1882: Section 41-Suit for 
ejectment-Question whether occupant a licensee 'tenant-Intention of 
the parties to the agreement decisive consitieration-Lease and license-
Distinction between. 
Transfer of Property Act, 1882: Sections 105 and 108--Lease and 
license-Distinction between-Interest in immovable property entitling 
transferee to enjoyment created-Effect of-Whether agreement creates 
relationship of landlordltenant or /icensor'licensee-Intention of 
parties-Decisive consideration. 
Practice & Procedure: High Court-Jurisdiction of-Whehter 
entitled to interfere with view of Trial Court which is a possible and 
plausible one merely because another view is attractive. 
The appellant, who was stated to be a monthly tenant of the suit 
premises, entered into an agreement, which was described as an agree· 
ment of 'leave and licence', with the respondent on 9th February, 1965 
and the respondent and the appellant were described therein as licensor 
and licensee respectively. It was stated in the agreement that the 
licensor was seized of the premises in dispute as a monthly tenant and 
gave and granted 'leave and license' to the licensee to use and occupy 
the said premises for a period of five years, merely for the purpose of 
workshop business, at a monthly compensation of Rs.225 that the 
licensor shall be entitled to terminate the agreement and cancel and 
revoke and withdraw the leave and licence granted earlier and to take 
possession forthwith of the said premises if the licensee committed any 
default of any terms and conditions or failed to pay the compensation 
for two months or if the licensee at any time put up false or adverse 
claim of tenancy or sub-tenancy, that the licensee shall pay the electric 
charges in respect of consumption of electricity and the rent of the said 
premises should be paid by the licensor only, and that the licensor shall 
have the full right to enter upon the premises and inspect the same at 
anytime. 
1057 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
1058 
SUPREME COURT REPORTS 
[ 1988) I S.C.R. 
In November 1970, the respondent filed an ejectment proceed· · 
ings against the appellant· under section 41 of the Presidency 
Small Canse Courts Act, 1882. It was contended hy the appellant that 
there was sub-tenancy by the respondent in his favour as monthly 
tenant. 
The trial court passed a decree and ordered the appellant to 
vacate the premises holding that the agreement was for leave 
and licence and that the appellant was a licensee and not a sub· 
tenant. 
On the case being remanded hy the Supreme Court in a Special 
C Leave Petition filed by the respondent against the earlier decision of the 
High Court, allowing the appellant's special civil application, the High 
Court upheld the order of the Court of Small Causes, and ordered 
eviction of the appellant. 
b 
In the Special Leave Petition against the aforesaid decision, it was 
contended that the document in question read as a whole was a lease 
and not a license. 
Dismissing the appeal by special leave, 
E 
HELD: 1.1 If an interest in immovable property entitling the 
transferee to enjoyment was create_!!, it was lease; if permission to use 
land without exclusive possession was alone granted, a licence was the 
legalresult. [10670-E) 
1.2 In determining whether an agreement creates between the 
F 
parties the relationship of landlord and tenant or merely that of 
licensor and licensee, decisive consideration is the intention of the 
parties. [1068B·Cl 
In view of the intention of the parties in the document and the 
facts and circnmstances of the instant case, it was a licence and not a 
G lease. This is clear from the language used and the restrictions put upon 
the nse of the premises in question by the appellant. In the document in 
question the expression "licence" was introduced and clause (2) said 
that it was only for the business purposes. The licence fee was fixed. It 
permitted nser only for 20 hours. Restriction in the hours of work 
negates the case for lease. Clause (12) gives to the licensor right to enter 
H upon the premises and inspect the same at any time. 11067E-F] 
--
.. 
KHALIL AHMED v. T.S. SARANGPURWALA [MUKHARJI, J.I 1059 
1.3 Where two views are possible and the trial court has taken 
A 
one view which is a possible and plausible view merely bec

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