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TMI Blog1964 (2) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... is view we must allow the appeal, set aside the decree of the High Court and dismiss the suit of the respondents inso far as it relates to reliefs (ii) (e), (f) and (g) granted by the High Court against the appellants are concerned. So far as the remaining reliefs granted by the High Court are concerned, its decree will stand. In the result we allow the appeal to the extent indicated above but in the particular circumstances of the case we order costs throughout will be borne, by the parties as incurred. Appeal partly allowed. - C.A. 151 OF 1963 - - - Dated:- 3-2-1964 - J.R. MUDHOLKAR, J. JUDGMENT This is an appeal by special leave from the judgment of the High Court of Madras reversing the decisions of the courts below and granting a number of reliefs to the plaintiffs-respondents. The main point which arises for consideration in this appeal is whether the plaintiffs-respondents are the lessees of the appellants who were defendants 4 and 5 in the trial court or only their licensees. In order to appreciate the point certain facts need to be stated. The appellants are the owners of a private market situate in Madras known as Zam Bazar Market. There are about 500 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passages of sufficient width between the stalls therein for the convenient use of the building. We are told that regulations have been made by the Commissioner in pursuance of the powers conferred upon him by S. 308 of the Act. Thus as a result of the Act as well as the regulations made thereunder a number of duties appear to have been placed upon the owners of private markets. It would also appear that failure to comply with any of the requirements of the statute or the regulations would bring on the consequence of suspension or even cancellation of the licence. We are mentioning all this because it will have some bearing upon the interpretation of the documents on which the plaintiffs have relied in support of the contention that the relationship between them and the appellants is that of tenants and landlord. The suit out of which this appeal arises came to be filed because disputes arose between the plaintiffs and the defendants 1 to 3 who became the contractors for collection of rent as from February 9, 1956. These disputes were with regard to extra carcass fees and extra fees for Sunday Gutha which were claimed by the contractors. The respondents further alleged that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onship between the meat vendors occupying and using some of the stalls in the market (as the plaintiffs- respondents belong to this category) and the appellants- landlords. What relationship subsists or subsisted between the appellants and other stall-holders vending other commodities is not a matter which can be regarded as relevant for the purpose of deciding the dispute between the appellants and the respondents. It is common ground that under the licence granted by the Municipal Corporation, the market is to remain open between 4 A.m. and II P.m. and that at the end of the day the stall- holders have all to leave the place which has then to be swept and disinfected and that the gates of the market have to be locked. None of the stall-holders or their servants is allowed to stay in the market after closing time. In point of fact this market used to be opened at 5 A.M. and closed, at 10 P.m. by which time all the stall-holders had to go away. It is also common ground that the stalls are open stalls and one stall is separated from the other only by a low brick wall and thus there can be no question of a stall-holder being able to lock up his stall before leaving the market at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants and the respondents we must look at the agreements alone and that it was not open to us to look into extraneous matters such as the surrounding circumstances. It is claimed on behalf of the respondents that the lease in their favour is of a permanent nature. But if that were so, the absence of a registered instrument would stand in their way and they would not be permitted to prove the existence of that lease by parol evidence. From the fact, however, that with every change in the contractor a fresh agreement was executed by the stall-holders it would be legitimate to infer that whatever the nature of the right conferred by the agreement upon the stall-holders, it could not be said to be one which entitled them to permanent occupation of the stalls. It could either be a licence as contended for by the appellant or a tenancy from month to month. In either case there would be no necessity for the execution of a written agreement signed by both the parties. Here, the agreements in question are in writing, though they have been signed by the stall-holders alone. All the same, oral evidence to prove their terms would be excluded by s. 92 of the Evidence Act. To that extent M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l-holders was only permissive the condition as to payment of rent, eviction for default in payment of rent for more than 3 days, the provision for annual repairs being carried out by the landlord, the further provision that repairs that might be occasioned by the carelessness of the respondents should be carried out at their expense and the adequate provision for 30 days' notice for vacating the stalls if they were required by the landlord would all seem to be inconsistent and irrelevant, it observed : As a matter of fact, there is no evidence whatsoever to show that any of these plaintiffs were at any time turned out of their possession of their stalls at the will of the landlords or for default of any of the terms and conditions stipulated in the agreements. The specific provision for 30 days' notice for vacating and delivering possession seems to be conclusive of the fact that the plaintiffs were to occupy the stalls as permanent tenants and not as mere licensees. The terms of the agreements further disclose that the plaintiffs were to be in exclusive possession of these stalls for the purpose of their trade as long as they comply with the terms and until there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties must be inferred from the circumstances and conduct of the parties. (lbid p. 427). Here the terms of the document evidencing the agreement between the parties are not clear and so the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. Again, as already stated, the documents relied upon being merely agreements executed unilaterally by the stall-holders in favour of the landlords they cannot be said to be formal agreements between the parties. We must, therefore, look at the surrounding circumstances. One of those circumstances is whether actual possession of the stalls can be said to have continued with the landlords or whether it had passed on to the stall-holders. Even if it had passed to a person, his right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. That is what was held in Errington v. Errington and Woods(1) and Cobb v. Lane(1). These decisions reiterate the view which was taken in two earlier decisions: Close v.Theatrical Properties Ltd. and Westby Co. Ltd.,(1) and Smith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the stated hours and not beyond them and also that the premises were used for no purpose other than of vending comestibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude,. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could, in such circumstances, the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word rent' was used loosely for 'fee. Upon this view we must allow the appeal, set aside the decree of the High Court and dismiss the suit of the respondents inso far as it relates to reliefs (ii) (e), (f) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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