Aayisa Anees v. K. Vinod

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 RSA NO. 1108 OF 2018 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 16.10.2017 IN A.S.NO.202 OF 2016 OF ADDITIONAL DISTRICT COURT - I, KOZHIKODE ARISING OUT OF THE JUDGMENT AND DECREE DATED 30.07.2016 IN O.S.NO.611 OF 2014 OF ADDITIONAL MUNSIFF COURT – I,KOZHIKODE. ``` ``` APPELLANT/RESPONDENT/PLAINTIFF: ``` ``` AAYISA ANEES, AGED 27 YEARS W/O.ANEES, RESIDING AT PUTHENPURAYIL, 33/706A, PUTHENPURAYIL VEEDU, MERIKUNNU, CHEVAYUR AMSOM AND DESOM, KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER K.A.IQBAL, AGED 52 YEARS, S/O AHAMMED HAJI, KACHERI AMSOM AND DESOM OF KOZHIKODE TALUK. ``` ``` BY ADVS. V.V.SURENDRAN SRI.P.A.HARISH ``` ## **`RESPONDENT/APPELLANT/DEFENDANT:`** ## **`K. VINOD`** ``` AGED 44 YEARS, S/O.KUNCHU, RESIDING AT KIZHAKAYIL VEEDU, P.K.P. ROAD, KACHERI AMSOM AND DESOM, KOZHIKODE, POST NADAKKAVU, KOZHIKODE - 673 011. ``` ``` BY ADV SRI.E.NARAYANAN ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 13.03.2024, ALONG WITH CROSS OBJECTION No.3 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO.1108 OF 2018 & 2 CROSS OBJECTION No.3 OF 2023 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 CROSS OBJECTION NO.3 OF 2023 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 16.10.2017 IN A.S.NO.202 OF 2016 OF ADDITIONAL DISTRICT COURT - I, KOZHIKODE ARISING OUT OF THE JUDGMENT AND DECREE DATED 30.07.2016 IN O.S.NO.611 OF 2014 OF ADDITIONAL MUNSIFF COURT – I,KOZHIKODE. ``` ## **`CROSS OBJECTOR/RESPONDENT/APPELLANT/DEFENDANT:`** ``` K.VINOD AGED 47 YEARS S/O.KUNCHU, KIZHAKKAYIL VEEDU, PKP ROAD,KACHERI AMSOM AND DESOM, KOZHIKODE, PIN - 673011 ``` ``` BY ADV. E.NARAYANAN ``` ## **`RESPONDENT/APPELLANT/RESPONDENT/PLAINTIFF:`** ``` AAYISA ANEES, AGED 31 YEARS, W/O.ANEES, RESIDING AT PUTHENPURAYIL, 33/706A, PUTHENPURAYIL VEEDU, MERIKKUNNU, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER K.A.IQUBAL, AGED 56, S/O.AHAMMED HAJI. KANNANKANDI HOUSE, KOTTARAM ROAD, ERANHIPPALAM P.O, KACHERI AMSOM AND DESOM OF KOZHIKODE TALUK, PIN – 673008. ``` ``` BY ADVS. V.V.SURENDRAN P.A.HARISH ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR ORDERS ON 13.03.2024, ``` ``` ALONG WITH RSA NO.1108 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO.1108 OF 2018 & 3 CROSS OBJECTION No.3 OF 2023 ``` **CR** ## **JUDGMENT** Dated this the 13[th] day of March, 2024 This Regular Second Appeal has been filed by the appellant under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter), against the decree and judgment in A.S.No.202/2016 on the files of the First Additional District Court, Kozhikode, dated 16.10.2017, arose out of the decree and judgment in O.S.No.611/2014 on the files of the First Additional Munsiff Court, Kozhikode, dated 30.7.2016. 2. Heard the learned counsel for the appellant/plaintiff and the learned counsel appearing for the respondent/defendant. 3. I have perused the trial court records. 4. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’, for convenience. ``` RSA NO.1108 OF 2018 & 4 CROSS OBJECTION No.3 OF 2023 ``` 5. On 3.12.2018, my learned predecessor admitted this appeal by raising the following substantial questions of law: _(i) Was the lower appellate court correct in eschewing Ext.A1 document especially when parties rely upon the same to raise other respective plea?_ _(ii) Going by the terms of Ext.A1, was the lower appellate court correct in holding that the respondent is in exclusive possession of the plaint schedule property?_ _(iii) Can a person who is a party to a document contend against the terms of the document?_ 6. On hearing both sides, another substantial question of law also arises for consideration and the same is as under: _(iv) Whether a deed of licence would require mandatory registration in view of Section 17 of the Registration Act, 1908?_ 7. The plaintiff instituted the suit, seeking the ``` RSA NO.1108 OF 2018 & 5 CROSS OBJECTION No.3 OF 2023 ``` relief of mandatory injunction, directing the defendant to vacate the plaint schedule premises, which the defendant obtained as per an agreement of licence executed in the year 2000. Arrears of licence fee and consequential reliefs also sought for. According to the plaintiff, the plaint schedule property, originally belonged to the father of the plaintiff and his siblings, was entrusted to the defendant, as a licensee, as per licence deed executed on 4.8.2000. Thereafter, the plaintiff got ownership over the same, as per settlement deed No.94/2008. According to the plaintiff, after the execution of settlement deed also, the defendant continued payment of licence fee. Since the defendant failed to vacate the premises even after issuance of notice, terminating the licence, present suit was pressed into. 8. The defendant filed written statement, mainly contending that the arrangement in between the defendant and the predecessors of the plaintiff, is a lease ``` RSA NO.1108 OF 2018 & 6 CROSS OBJECTION No.3 OF 2023 ``` and not a licence, since actual possession was parted at the time when the arrangement was entered into. 9. The trial court recorded evidence. PW1 was examined and Exts.A1 to A7 were marked on the side of the plaintiff. DW1 was examined on the side of the defendant. The trial court found, mainly relying on the recitals in Ext.A1 licence deed dated 4.8.2000 and the evidence of PW1, that the arrangement is a licence and accordingly, the relief of mandatory injunction and payment of arrears of licence fee and use and occupation were granted. 10. The verdict of the trial court was challenged before the First Additional District Court, Kozhikode. As per judgment in A.S.No.202/2016, dated 16.10.2017, the first appellate court reversed the finding of the trial court, mainly on two grounds. According to the first appellate court, Ext.A1 licence deed could not be read in evidence, since the same is a compulsorily registerable ``` RSA NO.1108 OF 2018 & 7 CROSS OBJECTION No.3 OF 2023 ``` document, as the same was one executed at will. Accordingly, the first appellate court eschewed Ext.A1 from consideration. Secondly, it was found that, since the defendant is in exclusive possession of the building, the arrangement is not a licence, but a lease. Accordingly, appeal was allowed in part. 11. In this matter, the dispute centered on the nature of Ext.A1 and the arrangement intended by Ext.A1. 12. It is argued by the learned counsel for the plaintiff that, on reading Ext.A1, on its preface, the intent behind execution of deed could be noticed. It is pointed out that, the operative portion of Ext.A1 would state that ‘ _the licensee has approached the Licensor for a licence to use to said property for their business purpose, AND WHEREAS, the licensor has agreed to it, subject to the terms and conditions herein contained’._ The learned counsel also pointed out the other terms of the licence, ``` RSA NO.1108 OF 2018 & 8 CROSS OBJECTION No.3 OF 2023 ``` including clause No.8 to contend that, what is intended by Ext.A1 is a licence and not a lease. 13. Per contra, the learned counsel for the defendant read out clause Nos.7 and 12 of Ext.A1 licence deed to contend that the actual possession of the building was parted and as per clause No.8 also, it is stated that _'the licensor shall be deemed to be in possession of the said property',_ to contend that the sale arrangement is not a licence, but a lease. 14. Since it is essential to extract the operative portion of Ext.A1 and clause Nos.7, 8 and 12 of Ext.A1, for deciding the nature of arrangement between the parties to address the arrangement whether lease or licence, the same are extracted hereunder: “ _WHEREAS the licensor is the absolute owner in possession of 200 sq-ft. (Two Hundred) area in the IIIrd floor, east side of the building of M/s.Kannankandy Chambers, Door No.5/3420 U in ward 5 of Calicut Corporation located at Mavoor Road, Calicut-4_ ``` RSA NO.1108 OF 2018 & 9 CROSS OBJECTION No.3 OF 2023 ``` _(hereinafter referred to as “the said property”) AND WHEREAS the licensee has approached the Licensor for a licence to use to said property for their business purpose, AND WHEREAS the licensor has agreed to it, subject to the terms and conditions herein contained.”_ - _“7. That in case the licence is cancelled by the licensor due default to pay the licence fee for two months, thereafter the licensees shall not be entitled to enter into the said property and the licensor shall be entitled to resume actual possession of the said property._ _8. That the licensees shall not be entitled to transfer the licence. This licence is not a licence coupled with interest. The only licence given to the licensees is to use the said property for their business purposes and the licensor shall be deemed to be in possession of the said property. In case of transfer of this licence by the licensees this licence shall be deemed to be automatically cancelled._ _12. That the licensees may surrender the_ ``` RSA NO.1108 OF 2018 & 10 CROSS OBJECTION No.3 OF 2023 ``` _licence at any time by 3 (three) months notice given to the licensor in writing.”_ 15. The exact distinction between licence and lease has been considered extensively by this Court in the decision in **C.D.Varghese** v. **Joseph Mani and Another** reported in **[2023 (6) KLT 460 : 2023 (7) KHC 123]** and it was held as under: _“20. In view of the above discussions, the cardinal features, which would distinguish `lease’ from `licence’ are as under: `Lease’ is a transfer of a right coupled with exclusive possession with transfer of interest to enjoy an immovable property for certain period expressly, impliedly or in perpetuity. On the other hand, `licence’ is a right to do, or continue to do, in or upon the immovable property of the grantor, given in occupation of the licencee, 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. To put it otherwise, the lessee of a building/premises, who got exclusive possession coupled with transfer of interest therein, has the right to possess and enjoy the_ ``` RSA NO.1108 OF 2018 & 11 CROSS OBJECTION No.3 OF 2023 ``` _building/premises; whereas a licensee of a building, who got only a mere right of occupation of the premises/building without transfer of any interest therein, does not have such a right of absolute possession and enjoyment of the building/premises and his right is to do or continue to do the specific business or trade only in the building/premises for which permission has been granted by the licensor as the occupant of the building/premises.”_ 16. Thus, going by the operative portion of Ext.A1, and the distinction between the licence and lease, as hereinabove extracted, the intention behind the execution of the document is shown as creation of a licence. Clause No.7 of Ext.A1 recites that, on cancellation of licence, _the licensor shall be entitled to resume actual possession of the said property_ . In clause No.8, it has been provided that, _this licence is not a licence coupled with interest. The only licence given to the licensees is to use the said property for their_ ``` RSA NO.1108 OF 2018 & 12 CROSS OBJECTION No.3 OF 2023 ``` _business purposes and the licensor shall be deemed to be in possession of the said property. In case of transfer of this licence by the licensees this licence shall be deemed to be automatically cancelled_ . As per clause No.12, it has been provided _that the licensees may surrender the licence at any time by 3 (three) months notice given to the licensor in writing._ 17. Coming to the evidence, the father and power of attorney holder of the plaintiff, who initially executed Ext.A1 along with his siblings, given evidence in support of contention raised by the plaintiff and also stating payment of licence fee by the defendant upto the year 2013, as admitted in the plaint. Whereas, DW1, the defendant given evidence that, he took the building for rent and his status is that of a lessee in tune with the contention raised in the written statement. During cross examination, when Ext.A1 was shown and confronted, the defendant admitted Ext.A1, before handing over key ``` RSA NO.1108 OF 2018 & 13 CROSS OBJECTION No.3 OF 2023 ``` of the building, to the defendant. He also agreed that he was bound by the terms of the agreement. 18. The learned counsel for the plaintiff placed decision of the Division Bench of this Court in R.C.R.No.141/2016, **(Manholi Purushothaman** v. **Mullaveettil Abu)** , where the Division Bench of this Court considered the dispute in between the parties therein centered on the nature of arrangement as a licence or a lease. It was held that the petitioner therein had no pleadings or evidence to show the real intention of the parties while executing Ext.A1 document was in fact to bring a lease into existence and accordingly, R.C.R. was dismissed, confirming the finding of the Appellate Authority that there was no lease. 19. It is true that, as rightly argued by the learned counsel for the defendant, the nomenclature of the document is not decisive, while considering the nature of the document and the transaction referred therein. ``` RSA NO.1108 OF 2018 & 14 CROSS OBJECTION No.3 OF 2023 ``` Reading the clauses as relied on and extracted hereinabove, it is discernible that the intention of the parties was to create a licence deed and not a lease deed and therefore, the finding of the first appellate court holding the view that exclusive possession by executing Ext.A1, was given to the defendant and therefore, the arrangement is a lease and not a licence, rejecting the finding of the trial court, found to be erroneous and the same is interfered and set aside. 20. Coming to Cross Objection No.3/2023, filed by the respondent herein/defendant, the same would not require much discussion, since it is found by this Court that Ext.A1 is a document intended to create a licence. Therefore, Cross Objection No.3/2023 stands disposed of. 21. The learned counsel for the defendant placed reliance on Section 61 of the Indian Easements Act, 1882, to contend that when the licensor sells or lets the licensed premises, the licence stands revoked. ``` RSA NO.1108 OF 2018 & 15 CROSS OBJECTION No.3 OF 2023 ``` Therefore, the licence, if any, created in Ext.A1 otherwise stands revoked and the plaintiff is not the licensor. In this regard, the learned counsel placed a decision of Punjab and Haryana High Court in **Anil Malhotra** v. **Dr.Chander Malhotra & Ors.** , reported in **[AIR 2015 P&H 196]** in which, paragraph No.40 held that, _after the death of the licensor, Vidya Rani, the licence stood revoked._ 22. In the case at hand, the specific case of the defendant is that, the arrangement in between the defendant and the previous owners of the property, is not a licence, but a lease. At the same time, the learned counsel for the defendant given emphasis to Section 61 of the Indian Easements Act, 1882, as extracted hereinabove. It is true that, on the death of the licensor, the licence would stand revoked. But when the licensee in occupation of the building or premises continue to pay licence fee to the subsequent owner of the licensed ``` RSA NO.1108 OF 2018 & 16 CROSS OBJECTION No.3 OF 2023 ``` building or premises, the licence stands renewed in between the subsequent owner and the licensee in occupation. Here, the said licence also was revoked by issuing notice. Therefore, the suit, at the instance of the licensor, is perfectly maintainable. Holding the view that the licence stands revoked, then also the remedy of the plaintiff, who obtained title of the licensed premises/building, is to file a suit to get back the licensed premises, as rightly done in the present suit. Therefore, the said argument is of no avail to the defendant. 23. Coming to the question as to whether Ext.A1 would require compulsory registration, a decision of the Bombay High Court in **Raj Prasanna Kondur** v. **Arif Taher Khan And Ors.** reported in **[2005 (4) BomCR383]** has been placed to contend that, Section 17 of the Registration Act, 1908, (for short, ‘the Act, 1908’ hereinafter) does not enumerate the agreement for leave ``` RSA NO.1108 OF 2018 & 17 CROSS OBJECTION No.3 OF 2023 ``` and license being one of the documents which is compulsorily required to be registered. In the decision, by virtue of the provisions comprised under Section 55(1) of the Maharashtra Rent Control Act, 1999, (for short, ‘the Maharashtra Act, 1999’ hereinafter), the said document would stand included in or appended to the list of documents provided under Section 17 of the Act, 1908. In the said case, the Bombay High Court dealt with Section 17 of the Act, 1908 as well as Section 55 (1) of the Maharashtra Act, 1999 and it was found that, though Section 17 of the Act, 1908, does not mandate registration of the licence deed, as per Section 55(1) of the Maharashtra Act, 1999, the said document would stand included or appended to the list of documents provided under Section 17 of the Act, 1908 and would require registration. 24. While answering this query, Section 17(1)(b) of the Act, 1908 provides creation of instruments which ``` RSA NO.1108 OF 2018 & 18 CROSS OBJECTION No.3 OF 2023 ``` purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. The very intent of a licence deed is not creation of right, title or interest and therefore, a licence deed would not require any mandatory registration and the fourth substantial question of law answered, holding so. 25. Since it is found, on evaluation of Ext.A1, in support of the evidence adduced, the same is a licence deed, the substantial questions of law answered, holding that the first appellate court went wrong in eschewing Ext.A1 document, merely on the ground that the same was not registered. It is also held that the first appellate court erroneously found that the defendant is in exclusive possession of the plaint schedule property, as against the terms of Ext.A1 and the evidence of DW1, who admitted ``` RSA NO.1108 OF 2018 & 19 CROSS OBJECTION No.3 OF 2023 ``` the terms thereof. 26. The third substantial question of law answered holding that, a person, who is a party to a document cannot contend against the terms of the document, in view of the bar under Sections 91 and 92 of the Indian Evidence Act, 1872 and in such cases, Exceptions 1 and 2 and Explanations 1 to 3 to Section 91 and proviso (1) to (6) to Section 92, would apply. 27. In view of the above discussions, the decree and judgment of the first appellate court stand set aside and the decree and judgment of the trial court stand restored. Accordingly, this Regular Second Appeal stands allowed and Cross Objection No.3/2023 stands disposed of. Sd/- **A. BADHARUDEEN JUDGE** Bb ``` RSA NO.1108 OF 2018 & 20 ``` ``` CROSS OBJECTION No.3 OF 2023 ``` ## **`APPENDIX OF RSA 1108/2018`** ## **`RESPONDENT’S ANNEXURES`** ``` ANNEXURE B1 ``` ``` TRUE COPY OF THE STATEMENT SUBMITTED BY THE COUNSEL FOR THE RESPONDENT (APPELLANT IN THE APPEAL) IN A.S.202/2016 ON THE FILES OF THE DISTRICT COURT 1(A)KOZHIKODE ``` ## **`ANNEXURE B2`** ``` TRUE COPY OF THE RECEIPT FOR PAYING THE ELECTRICITY BILLS ISSUED BY KSEB DATED 22.09.2022 ``` ``` //TRUE COPY// ``` ``` PA TO JUDGE ```