(1) THIS second appeal is directed against the judgment and decree in as No. 82 of 1991 dated 4-11-1994 passed by the learned Additional District Judge, Vizianagaram, wherein the judgment and decree passed in OS No. 81 of 1989 dated 24-11-1991 by the learned District Munsif, Chepurupalli in dismissing the suit, was reversed.
(2) THE appellants are the defendants and respondent is the plaintiff.
(3) THE plaintiff laid suit in OS No. 81 of 1989 seeking perpetual injunction restraining the defendants from interfering with the possession of the plaintiff in respect of plots 10 to 14 of Garvidi Railway siding in any manner whatsoever except in due course of law.
(4) IT is the case of the plaintiff that it is a registered firm dealing in manganese ore. The ore is brought to its allotted leased plots 10 to 14 to transport the same to Visakhapatnam Port in bulk by wagons. The Railway authorities have been allotting these plots to transporters of Ore at Gujjangivalasa, Garividi, Cheepurupalli and other points as a part of its statutory duty to provide facility for transfer of Ore in bulk to Visakhapatnam Port without mixing them with the General merchandise in the General platform. The Government of India through the Minerals and Metals trading Corporation assured monopoly of purchase of Ore and was occupying some plots at all Railway sidings in respect of these plots which were previously held by private transporters. Every plot holder has got additional right and facility of getting number of wagons at a time at the plot. The plaintiff is paying an yearly rent of Rs. 1,089/- to the Railways for plot Nos. 10 to 14 to maintain the goodwill. The Railways by a communication dated 9-5-1983 proposed general increase in rents, but on several representations issued orders keeping the proposal in abeyance. Surprisingly, the plaintiff received a notice dated 7-12-1988 from the 3rd defendant that the yearly rent is Rs. 7,582/- with effect from 1-1-1988. The plaintiff sent a detailed representation to the defendants, which was received by the defendants but, no opportunity was given to the plaintiff. Suddenly, the plaintiff received a notice dated 16-5-1989 that in view of the non-payment of arrears at the revised rate, the plaintiff should surrender possession of the plot. The plaintiff got issued a reply through its advocate on 22-5-1989 to the defendants which satisfies the requirements of Section 80 CPC and which is a continuation of the representation dated 31-12-1983. The defendants 2 and 3 through the 4th defendant are making preparations to take forcible possession of the plot throwing away the huge material helter and Skelter. The Railways should establish their right to enhance rent unilaterally and they should recover arrears by suit. They cannot link arrears with heading of plot. So, there is imposition of higher rent unilaterally. The plaintiff has to be treated as a lessee and it cannot be thrown out without due course of law. Hence the suit.
(5) THE defendants filed their written statement contending that plots 10 to 14 have been given to the plaintiff on execution of tentative agreement, the agreement provided that Railway has right to revise the rents from time to time and also to resume possession of the plots from defaulting parties. By the terms of agreement and from several letters and correspondence, the plaintiff also consented to pay revised rates of occupation fee. The plaintiff applied for occupation of plots 10 to 14 under security deposit and licence fee for the same was fixed at Rs. 1,889/- and Rs. 873/- respectively. The terms of agreement provides that the occupation fee is always payable in advance and the same shall be liable to be enhanced from time to time by the railways at its discretion. The plaintiff applied for plots 10, 11 and 13 and subsequently plots 12 and 14 were allotted. On account of periodical revision of rents, the Railways have decided to collect the difference in licence fee and security deposit. Since, the plaintiff failed to clear the dues, the plaintiff's licence stood cancelled and they are liable to surrender plots. The plaintiff has no right to continue in the plots illegally. The suit itself is not maintainable for want of notice under Section 80 of Code of Civil procedure.
(6) BASING on the above pleadings of both the parties, the following issues were settled for trial :
1. Whether the plaintiff is entitled for permanent injunction as prayed for ? 2. To what relief?
(7) ON behalf of the plaintiff, PW1 was examined and Exsa1 to A12 were marked. On behalf of the defendants, DW1 was examined and Ex. B1 was marked.
(8) AFTER a detailed consideration of the entire evidence on record, the Court below came to the conclusion which reads as under :
"it is evident that the plaintiff has not paid the fee as stipulated by the defendant railways and he squad on the property since a long time without paying the occupation fee. The plaintiff himself exercised and show bona fides to obtain injunction. The plaintiff who willfully failed to pay the arrears to the Railways is not entitled for an equitable relief of injunction. The defendant being a licensor is entitled to evict the plaintiff from the premises since, the period of licence has already been elapsed. In the result, the suit is dismissed with costs. "
(9) AGGRIEVED by the same, the plaintiff filed A. S No. 82 of 1991. The lower appellate Court after reconsideration of the judgment of the trial Court and after re-appreciation of the entire evidence, came to the conclusion that the defendants are not entitled to dispossess the plaintiff-appellant by taking the law into their hands and that the plaintiff is in possession of the property and he shall be evicted only in due course of law, and that the plaintiff-appellant is entitled for permanent injunction, allowed the appeal by setting aside the decree and judgment passed in OS No. 81 of 1989. Aggrieved thereby, the present second appeal is preferred by the defendants.
(10) THE substantial question of law arises for consideration is whether the plaintiff was lessee or a licensee over the suit schedule property and whether an injunction can be granted in favour of the plaintiff?
(11) THE learned Counsel for the appellants strenuously contended that railways never listed their ads whether it is for the purpose of stocking the ore or the general merchandise goods. It has only collected licence fee from the respondent-plaintiff as occupancy fees. In fact in the agreement itself, it was made clear that the plaintiff is only licensee and not a lessee. In this regard, the learned Counsel for the appellants drawn the attention of this court to Clause 13 of Ex. B1 which reads as under:
"that the licence fee of Rs. 873/- per year towards occupation money which is always payable in advance shall be liable to be enhanced by the Railway from time to time at its sole and absolute discretion and the licensee shall be bound to pay the fee at the enhanced rates on receipt of notice of 30 days. "
(12) ON the other hand, the learned counsel for the respondent contended that they cannot be thrown away forcibly except in due course of law.
(13) I have given my earnest consideration to the respective submission made by the learned Counsel on either side and perused the judgment under appeal and other material available on record.
(14) I am of the opinion that the lower appellate Court has committed a gross error apparent on the face of the record. Clause no. 13 of Ex. B1, as noted above, in unequivocal terms indicates that the agreement between the parties is only a licence deed and not a lease. Therefore, the question of granting injunction against a true owner under the licence does not arise. Once the agreement is not a lease, the suit itself is not maintainable. The proposition of law in this regard is well settled and there is no necessity of repeating or considering any case law in this regard. The deed is only a licence and not a lease as contended by the learned Counsel for the appellant. Therefore, the substantial question of law is answered in favour of the appellants-defendants.
(15) IN the result, the second appeal is allowed. The judgment and decree passed in A. S No. 82 of 1991 is set aside and the judgment and decree made in O. S. No. 81 of 1989 is confirmed. No costs.