Decided on September 15,1983

G.CARIAPPA Appellant


Amitabha Dutta, J. - (1.) This is an appeal by the defendant from the decree of the learned Judge, IVth Bench of the City Civil Court, Calcutta in a suit for eviction of an ex-licencee and recovery of arrears of licence fees and electric charges and of mesne profits, which is answered by a claim of tenancy right in the suit property raised in the written statement of the defendant.
(2.) The facts are reasonably clear from the testimony of the plaintiff and the defendant who are the only witnesses and the letter (Ext. 1) written by the defendant and his companions to the plaintiff in September 1969 before entering into the suit property. The plaintiff and her husband Maj. General S. B. S. Roy lived in Flat No. 64 in the 5th Floor of Queen's Mansions at 12, Park Street, Calcutta of which her husband was a monthly tenant at a rent of Rs. 265/-per month under the Life Insurance Corporation of India. The said flat comprised three rooms, drawing room, bath room and kitchen. The plaintiff's husband died in 1969. Her son was then in London. At the request of her son the plaintiff decided to go to him for a short period. Gen. Cariappa and his brother K. M. Nangappa, were friends of plaintiff's husband. Mr. Nangappa told the plaintiff that as she was going to London she might permit his relative, the defendant and the defendant's two friends to stay In her flat as licencees during the period of her absence from Calcutta and that they would vacate after her return from London. The plaintiff agreed. Thereafter in September 1969 the defendant and his two friends wrote the following letter (Ext. 1) to the plaintiff :-- "Mrs. Leila Rinha Roy Dated : 64, Queen's Mansions, 12, Park Street, Calcutta-16. Dear Sir. Your premises No. 64. Queen's Mansions With reference to our discussions with you we confirm the following :-- (1) You should grant us leave and licence to occupy the above premises for a period of six months only with effect from the 16th of September, 1969. (2) We shall pay you as licence fee Rs. 600/- per month and we shall also pay all bills pertaining to electricity, water, gas and telephone used and/or consumed by us during the said period. (3) We undertake to leave the premises on the expiry of the said six months and make over the said premises to you including all the furniture as per list attached. (4) It is clearly understood that this agreement will in no circumstances be construed as tenancy and that the period of the licence shall stand determined on the expiry of the said six months unless extended by mutual agreement. (5) The undersigned shall be responsible jointly and severally for the payment of the licence fee and other abo-venoted dues. This letter is sent to in duplicate and we would request you to sign the duplicate copy in signification of your acceptance of these terms. yours faithfully, Ganapathy Cariappa (Ganapathy Cariappa) C. B. Abyshekar (C. M. Abyshekar) P. N. Devaya (P. N. Devaya)". There is a list appended to the letter which enumerates roomwise articles of furniture, fixtures, refrigerator, kitchen-wares and crockeries of the plaintiff which remained in the flat. The defendant and his friends came to occupy the flat with nothing except their personal belongings. The defendant took charge of the articles of the plaintiff kept in the flat as mentioned in the said list. He also used the telephone of the plaintiff in the flat. The plaintiff after staying with her son for about six months in London returned in the beginning of 1970 and joined the post of Matron and Administrative Officer of the Staff College of Allahabad Bank on the basis of a contract of service under which she was also provided with quarters at Alipore in Calcutta. She served in that post from the beginning of 1970 till October, 1974 when the contract of service expired. In the meantime, the defendant got married and his friends left the suit flat in 1972. The defendant brought his wife to the flat and became the sole occupier with his family. During her stay in the quarters provided by Allahabad Bank, the plaintiff used to come to the suit flat in order to keep or take away articles. As she was expecting her son's visit she got a bathroom constructed with the permission of the landlord for which her rent was enhanced by 10%. In October, 1974 the plaintiff returned to the suit flat and the defendant vacated one room and a bathroom for her use. The plaintiff's version is that at the request of the defendant she allowed him to occupy the remaining portion for some more time and that she also used the drawing room with the defendant. Out of two sets of keys of the main door to the flat, one set remained with the plaintiff. The charges for electricity were to be borne half and half by the parties. Towards the end of 1975 the plaintiff asked the defendant to vacate the flat as her son was coming from London. The defendant refused. The plaintiff's son came to Calcutta in December 1975 and returned to London in January 1976. The plaintiff through her advocate sent a notice dated 14-6-1976 (Ext. 2) in which it was stated in paragraph 1 :-- "That my client granted you leave and licence to occupy four rooms and a bathroom at No. 64, Queen's Mansions, 12, Park Street, Calcutta on the definite understanding that he would vacate the same as and when required by my said client." The defendant was asked to vacate the suit flat by the said notice on the date ' next after the date of receipt of the notice. The defendant received the notice on 19-6-1976. The defendant did not reply to the said notice. But he has claimed in this evidence that he and his friends were joint tenants in the flat and after his friends left he came to occupy the flat as the sole ten ant. He says that he has been in ex clusive possession of the flat since then. But he has admitted in his cross-exam ination that he has nothing to show that he occupies the flat as a tenant.
(3.) The learned Judge of the trial court has decreed the suit for eviction of the defendant holding that the defendant was a licencee in the suit property as the intention of the parties was to create a licence and not a lease. hE has awarded Rs. 2653/- as arrears of licence fees up to 19-6-76, Rs. 462/- as arrears of electric charges and mesne profits at Rs. 400/- per month from 20-6-1976 to the plaintiff.;

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