Ch.Pushpa Machilipatnam KRISNA&3 Ors. Vs Medical Spntd Machilipatnam Krishna

This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is filed by the unsuccessful appellant/plaintiff assailing the decree and judgment, dated 28.09.2001, of the learned I Addl. District Judge, Machilipatnam, Krishna District, passed in A.S.No.119 of 1993.

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The 2^nd appellant/plaintiff filed O.S.150/1990 on the file of learned I Addl.Junior Civil Judge’s Court, Machilpatnam, against the respondent/defendant seeking the relief of permanent injunction, restraining the defendant and his men from interfering with the peaceful possession and enjoyment of the canteen by the plaintiff and also for implementing the orders dated 02.02.1988 in Rc.No.SPL/G-1/88. The learned trial Court vide judgment and decree dated 03.08.1993 decreed the suit. The respondent/defendant filed appeal in A.S.119/1993 on the file of learned I Addl.District Court, Machilpatnam, challenging the judgment and decree of the learned trial Court.

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By the said decree and judgment, the learned I Addl.District Judge, Machilipatnam, allowed the first appeal with costs throughout, and reversed the decree and judgment, dated 03.08.1993 of the learned

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1^st Addl.Junior Civil Judge, Machilipatnam, passed in O.S.No.150 of i 1990 and dismissed the suit.

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Heard Sri V.S.R.Anjaneyulu, learned Senior Counsel appearing for the Appellants/Plaintiff and Sri K.L.N.Swamy, learned counsel for Respondent/Defendant. I have perused the material on record.

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The 1^st appellant is the plaintiff and the appellants No.1 to 5 are the legal representatives of the deceased-plaintiff. The respondent is the defendant. The parties in this Second Appeal shall hereinafter be referred to as arraigned in the Original Suit, for convenience and clarity.

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The case of the plaintiff as is borne out by the material on record, in brief, is that the plaintiff filed the suit against the defendant for declaration that the notice dated 28.06.1990 is illegal and for permanent injunction restraining the defendant and his men from interfering with the peaceful possession and enjoyment of canteen by the plaintiff and also in implementing the order dated 02.02.1988 in Rc.No.SPL/G-1/88.

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It is further contended that the plaintiff is owner of the temporary canteen erected in the premises of Government Head Quarters Hospital, Machilipatnam. The plaintiff filed a petition before the District Collector, Krishna, permitting him to run a hotel in the hospital premises and Collector forwarded the application to the Superintendent, Govt.

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Hospital, Machilipatnam, for consideration and on the advice of District Collector, the application was put in general body meeting of hospital and approved the same. The Superintendent addressed a letter to plaintiff permitting him to construct a temporary shed with his own costs and also to run the canteen for hospital staff and also for attendants on patients with some conditions. The plaintiff constructed a thatched canteen and started business. While so, the defendant issued a notice to the plaintiff on 28.06.1990 to vacate the canteen.

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The case of the defendant is that the defendant’s office addressed a letter to the District Court in Rc.981/G-1/82 dated 12.10.82 stating that he may permit the plaintiff to erect a shed for running the canteen business with some conditions. On that Collector sent order to the plaintiff. On the basis of order of the Collector, the defendant permitted the plaintiff to run canteen on the same conditions. The plaintiff made application to the defendant to construct a shed on the vacant site adjacent to maternity ward to run canteen for the convenience of the patients. Then the defendant permitted the plaintiff to run the same vide letter dated 22.02.1988. The defendant received representation from hospital staff members that the plaintiff selling eatables in unhygienic condition. On that defendant issued notice to the plaintiff on 28.06.1990 to vacate the hospital premises and prior to notice, the defendant orally

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advised the plaintiff not to sell eatables in unhygienic condition. The plaintiff did not pay heed to his words and used to stop the business now and then at his choice, due to which, staff members of hospital as well as patients in the hospital facing much inconvenience and prays for dismissal of the suit with costs.

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Taking into consideration the above pleadings, the trial Court

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framed the following issues:

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Whether the plaintiff is entitled for declaration that the notice dated 28.06.1990 is illegal and void?

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Whether the plaintiff is entitled to the permanent injunction as prayed for?

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Whether the suit is bad for non-joinder of necessary parties?

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To what relief?

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At trial, on behalf of the plaintiff, P.W-1 was examined and Exs.A-1 to A-14 were marked. On behalf of the defendant, D.W-1 was examined and Exs.B-1 to B-13 were marked.

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On behalf of the Appellants/Plaintiff the following substantial question of law is involved in this Second Appeal:

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“ Whether the suit can be dismissed on the ground of non-joinder of parties without a finding that the party not impleaed is a necessary party to the proceedings”?

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11. SUBSTANTIAL QUESTION :

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On consideration of the pleadings and evidence on facts, the admitted facts of the case are that the defendant is the owner of the suit schedule premises, and allotted the same to the plaintiff for running a canteen under a licensed agreement on 19.10.1982. Later, the defendant issued notice to the plaintiff to vacate the premises, in the circumstances stated in the notice. Challenging the notice, he filed the suit for declaration and permanent injunction. The trial Court granted decree for declaration and injunction, on the ground that the plaintiff is in possession of the suit schedule premises.

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The learned First Appellate Court on consideration of material on record, came to an opinion that the plaintiff failed to follow the conditions prescribed under Ex.A-2, and therefore, he cannot challenge the Ex.A-13 as illegal. Further, the District Collector is the head of the district, and the suit is bad for non-joinder of proper and necessary party and plaintiff without paying a single rupee for nearly 20 years squatting on the property, causing loss to the State exchequer, and dismissed the suit by setting aside the decree and judgment of the learned trial Court.

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In the case on hand, admittedly the 1^st appellant is only a licensee. His case will not come under the purview of section 60 of the Easements Act. Therefore, the license in favour of the 1^st appellant does not create any right in the property. The owner of the property i.e., hospital can withdraw the license at any time at its pleasure, if the licensee violates the conditions of the license. On facts, it was found that the plaintiff violated the conditions of the license. Further, the license period had already expired. It appears that he was evicted from the suit schedule premises long ago. Therefore, the 1^st appellant cannot maintain the suit for declaration and permanent injunction

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Undisputedly, State is the owner of the suit schedule property. The learned First Appellate Court observed that the State is a necessary party, represented by the District Collector, and hence, the suit is bad for non-joinder of necessary party. In the light of specific finding, the suit fails for non-joinder of necessary and proper party.

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When coming to the issue of license, the Hon’ble Apex Court in the case of C.M.Beena and another Vs. P.S.Ramachandra Rao¹ , held that “the difference between a 'lease' and 'license' is to be determined by finding out the real intention of the parties”. The

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1 AIR 2004 SC 2103

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Hon’ble Apex Court in the case of Associated of Hotels India Limited Vs. R.N.Kapoor² , in para No.27 discussed the difference between the lease and license. “ A mere license does not create interest in the property to which it relates. License may be personal or contractual. A licensee when the grant creates a right in the licensor to enter into a land and enjoy it. License will not create interest in the property ”.

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Section 52 of the Easements Act defines the license:

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"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 immoveable 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 license."

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“ Therefore, the license is a bare permission, without any transfer of an

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interest. A license does not create any right in the property. A license can be withdrawn at any time at the pleasure of the grantor. Exception is section 60 of the Easements Act.

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In the light of foregoing facts and legal position, the 1^st Appellant/plaintiff, who is a licensee cannot maintain the suit for

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2 1959 AIR 1262

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declaration and permanent injunction, after determination of the license. Therefore, the Second Appeal is devoid of any merits and liable to be dismissed.

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