1989 PLP 3925 (MLD)

(iii) The appellant did not produce any rent receipt, rent agreement and there was no proof of tenancy. (iv) Evidence of tenancy is not in accordance with the defence of case. He thereby disbelieved the tenancy in favour of the appellant. (v) The oral evidence of the plaintiff/respondent also indicates that the appellant had heart attack and in his convalescent state of health he sought permission of the respondent to use the retiring chamber of the respondent's office for taking rest as a mere licensee, which permission was allowed. The lower appellate Court found that due to sympathy and brotherhood the respondent gave the portion of his office to the appellant on license at the rate of Rs. 50 per month. The lower appellate Court found that there is no reliable evidence of any tenancy in favour of the appellant and that the latter was in permissive possession or on licence in a portion of office. He disbelieved the case of the appellant that the appellant was a tenant at the monthly rent of Rs.

50. He said that it is impossible to hold, on the basis of oral testimony. of the appellant that he was tenant of the respondent. This possession of appellant was therefore permissive possession and he was only a licensee and not a tenant. On these findings he confirmed the decision of trial Court. The case of the respondent as set out in the plaint that the appellant had a heart attack. The appellant was asked a number of times to remove his business commodities and also stop using the respondent office, but the appellant had been promising to vacate his possession as a licensee, but his promises never frutified. The respondent sent letter dated 16-5-1977 about vacating the portion of the office which was in the use of appellant as a licensee but the respondent did not receive any response from him. The respondent sent a notice dated 20-5-1978. The appellant sent reply dated 27-5-1978. The respondent again sent a notice dated 30-5-1978 to the appellant. Thereafter, he filed the suit for possession as stated hereinabove. For the first time the appellant took up the contention in his letter dated 27-5-1978 that he was tenant. The respondent who gave his evidence stated that in the year 1974, the appellant had heart attack therefore he wanted to take rest but his office was not sufficient therefore he (respondent) accommodated him and offered a portion of his office to him to take rest. The appellant occupied his office only on one condition that he (respondent) would accept Rs. 50 per month as expenses of the portion of the office. The appellant had brought electric fan and one dewan in the portion which he (respondent) gave him. The appellant and the respondent jointly used the said office. The respondent further stated:-- "The defendant, requested me to take portion which is in his possession and to get the receipt changed in his name. He offered Rs. 10,

000. I contacted the landlord who told me that he would change the receipt after getting Rs. 3,000 and rent would be one rupee per square foot. I told this condition to the defendant but he did not agree on it. The defendant was neither prepared to pay Rs. 3,000 to change the receipt nor agreed to pay rent at the rate of Rs. 150 per month therefore matter to change the receipt was ended. After that my relations with the landlord became strained." The respondent trusted the appellant's word and ultimately the respondent allowed the appellant to use the portion for rest. According to the learned counsel Mr. Chaudhry the defendant/appellant continued to be in possession and his possession was exclusive and as the appellant was in exclusive possession an interest in the portion was created and, therefore, the appellant became a tenant. The learned counsel Chaudhry Iftikhar cited case Azim Khan v. State of Pakistan and another (P.L.D. 1957 Karachi 892), wherein it is held as under:-- " ..The basis of all the decisions is that the essential feature which distinguishes a lease from a licence is the presence of exclusive possession in the case of lease and its absence in the case of licence. It is beyond doubt that the petitioner has been in exclusive possession of the plot and has put up a number of permanent constructions thereon. The plot is practically enclosed by a compound wall. The respondents stipulated rent and have been accepting the same. The petition, therefore, has to be considered on the basis that the petitioner is a lessee and not a mere licensee." Mr. Zaheeruddin Ahmed Khan, the learned counsel for the respondent submitted that the appellant was not in exclusive possession on the premises in dispute but he was a mere licensee. The learned counsel Mr. Zaheeruddin relied upon a decision on Ahmad Din v. Mst. Muhammad Nisa and another (P.L.D. 1961 (W.P.) Kar. 237). It was held in the authority as under:-- "We have given this case our careful consideration and are of the opinion that no weight should have been attached in a case of this character to oral evidence. The plaintiffs were seeking for themselves the status of tenant under Ahmad Din defendant. Tenancy is a status which carries certain advantages. That status must be secured by evidence of a very high order. Defendant Ahmad Din had an evidence of that character in his possession in the rent receipts which he held from the landlord. There is a writing in his favour m support of his tenancy. Muhammad Nisa and Muhammad Farooq, if they desired the status of a tenant against Ahmad Din should have secured a writing from Ahmad Din. The letter dated 17th March, 1948, which they have produced creates no such status in their favour. It contained the invitation of occupying the building only, without showing that the occupation would be in the capacity of a tenant or a licensee. It is true that they are closely related to each other but when relations fall out and one claims a right against the other he has to depend on evidence of very strong character for his right. If orally evidence is totally ignored, as it deserves to be ignored in cases of this character, the writing is in favour of the defendant in the shape of receipt from the landlord. Sub-tenancy or co-tenancy in favour of the plaintiff has not been established by any writing or other reliable evidence." In Abdullah Bhai and others v. Ahmad Din (P.L.D. 1964 S.q106). It is well to bear in mind the relevant definitions in our law. Section 105 of Transfer of Property Act defines a `lease' of immovable property as "a lease is a transfer of a right to enjoy immovable property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined (S. 105, para 2). The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service, or other thing to be so rendered is called the rent:" On the other hand under section 52 of the Easements Act, where one person grants to another or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licensee". The question has come before Courts since very early times and the test then adopted was that if exclusive possession was given to a party, the agreement between the parties must be regarded as a lease. Difficulties were felt in the application of this principle by reason of the stringent provisions of the Rent Act and in order to meet these, the test has since been, modified. In Booker v. Palmer (1942) 2 AER 674, the owner had allowed as a matter of concession the appellant whose home was destroyed to live in one of the cottages belonging to him. The appellant claimed right to tenancy. This claim was negatived by the Court. The learned Judge said (at page 676): "Whether or not parties intend to create as between, themselves the relationship of landlord and tenant, under which an estate is created in the tenant and certain mutual obligations arise by implication of law, must in the last resort be a question of intention." It was held there that having regard to all circumstances no tenancy was intended. In Errington v. Errington and another (1952) I AER (149), (1952) K.B. 290 where after referring to decided cases, Denning, L.J. says: "The result of all these cases is that, although a person who is let into exclusive possession is prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn tenancy into a license merely by calling it one but if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee." In this connection, I may refer with advantage to the case of Addiscomnble Garden Estates Ltd. v. Grabbe (1958) OR 513; (1957) 3 AER wherein the observations of Denning, L.J. in Facchine v. Brylin (1952) 1 TIR 1386, 1952 AER 149 to the following effect are referred to. He says:-- "We have had many cases lately where an occupier has been held to be a licensee and not a tenant. In addition to those which I mentioned in Errington v. Errington & Woods (1952 I A.E.R. 149) we have recently had three more, Gorham (Contractors) Ltd. v. Field (unreported), Forman v. Rudd (unreported), and Cobb v. Lane (1952) I A.E.R. 1199. In all these cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship, or generosity or such like, to negative any intention to create a tenancy. In such circumstances it would be obviously unjust to saddle the owner with a tenancy, with all the momentous consequences that it entails nowadays, when there was no intention to create a tenancy at all. In the present case, however, there are no special circumstances. It is a simple case where the employer let a man into occupation of a house in consequence of his employment at weekly sum payable by him." In Muhammad Miskeen v. Bukhtiar Ahmed Khan (1985 C L C 2722), I held as follows:-- "The following propositions may, therefore, to be taken as well established (1) to ascertain whether a document creates a licence or lease the substance of the document must be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a license; (3) if the document creates an interest in property, it is a lease, but if it only permits another to make use of the property, of which the legal possession continues with the owner it is license; and (4) if under the document a party gets exclusive possession of the property prima facie he is considered to be a tenant, but circumstances may be established which negative the intention to create lease." The applicant filed petition for leave to Appeal (K-107) 1984 before the Supreme Court which was dismissed. It was held:-- "After hearing the learned counsel for the petitioner in the light of the record before us we find that the High Court has given the ding on correct appreciation of the legal position as reflected from the evidence recorded m the case. There is, therefore, no merit in this petition and it is dismissed in limine." In Heslop and another v. Burns and another (1974) 3 A.E.R. 406) at page 415 it has been observed as under:-- "In all cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity or such like, to negative any intention to create a tenancy." The result of all the authorities with the evidence on record would go to show that it was an act of generosity on the part of the plaintiff/respondent that he allowed the defendant/appellant to use the retiring chamber/portion of office for taking rest as a mere licensee. There is absolutely no evidence in this case that when the respondent had allowed the appellant to use the retiring chamber for taking rest, he intended to grant him any interest in the portion of office/retiring chamber apart from the mere privilege of taking rest. There is a prohibition also in Rent Cases. The tenants cannot sublet or part with the possession to any other person. So, in view of this legal bar of subletting or creating any tenancy, the respondent could not grant or confer any right of exclusive possession on the appellant. Under the circumstances the intention of parties I have gathered not only from the evidence on record but from the circumstances existing on record and I am of the clear opinion that in the middle of 1974 when the respondent allowed the appellant to use the portion of office for taking rest he had a clear intention not to create interest in the portion in dispute in favour of the appellant but to create a licence and out of generosity accommodated the appellant. There seems to be no reason to interfere with the finding of fact which is cogently based on the evidence brought on the record. In the result, therefore, there is no merit in, this appeal which is accordingly dismissed. There would be no order as to costs of this appeal. H.B.T./M-868/K Appeal dismissed.