C. Chandran v. N.C. Tahhira

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944** ## **RSA NO. 441 OF 2013** **AGAINST THE ORDER/JUDGMENT IN AS 195/2011 OF III ADDITIONAL DISTRICT COURT** ## **KOZHIKODE** **OS 400/2007 OF PRINCIPAL MUNSIFF COURT II,KOZHIKODE** ## **APPELLANT/APPELLANT/PLAINTIFF:** **C.CHANDRAN AGED 47 YEARS S/O. KORAPPAN, PROPRIETOR, CEECO INDUSTRIES, 8/213 B, RAHMAN BAZAR, PALLITHAZHAM, P.O. KOLATHARA, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK, RESIDING AT CHALIYAKATH HOUSE, P.O. KOLATHARA, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 N.C.THAHIRA, AGED 49 YEARS, D/O. KHALID HAJEE, NANANCHIRAKKAL HOUSE, KOLATHARA, CHERUVANNUR AMSOM & DESOM, KOZHIKODE TALUK - 673 655. 2 N.C. UMMERKUTTY AGED 51 YEARS S/O. USSENKUTTY HAJEE, NANANCHIRAKKAL HOUSE, KOLATHARA, CHERUVANNUR AMSOM & DESOM, KOZHIKODE TALUK - 673 655. BY ADVS. SRI.V.V.ASOKAN SRI.VINEETH KOMALACHANDRAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2022,** **ALONG WITH RSA.444/2013, THE COURT ON 11.07.2022 DELIVERED THE FOLLOWING:** **R.S.A.Nos.441 & 444 of 2013** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944** **RSA NO. 444 OF 2013** **AGAINST THE ORDER/JUDGMENT IN AS 194/2011 OF III ADDITIONAL DISTRICT COURT** ## **KOZHIKODE** **OS 334/2009 OF PRINCIPAL MUNSIFF COURT II,KOZHIKODE** ## **APPELLANT/APPELLANT/DEFENDANT:** **C.CHANDRAN AGED 47 YEARS S/O.KORAPPAN, CHALIYAKATH HOUSE, KANNADIKULAM, CHERUVANNUR AMSOM & DESOM, KOLATHARA, KOZHIKODE TALUK. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **N.C.THAHIRA AGED 49 YEARS D/O.KHALID, NANANCHIRAKKAL HOUSE, CHERUVANNUR AMSOM & DESOM, KOZHIKODE TALUK, PIN - 673 655. BY ADVS. SRI.V.V.ASOKAN SRI.P.RAHUL** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2022, ALONG WITH RSA.441/2013, THE COURT ON 11.07.2022 DELIVERED THE FOLLOWING:** **R.S.A.Nos.441 & 444 of 2013** **3** ## **JUDGMENT** The above appeals were filed against the common judgment in A.S.Nos.149/2011 & 195/2011 on the file of III Additional District Court, Kozhikode, arising out of common judgment in O.S.No.334/2009 & 400/2007 on the file of Principal Munsiff Court-II, Kozhikode. 2. Appellant is the plaintiff in O.S.No.400/2007 and the defendant in O.S.No.334/2009. O.S.No.400/2007 has been filed by the plaintiff, who is the defendant in O.S.No.334/2009 with respect to the plaint schedule property belonging to the defendants. The plaintiff has been conducting a proprietary concern in the name and style “M/s.CEECO Industries” in the plaint schedule building, according to him, as a tenant. The building was taken on lease on 10.05.2003 for a period of 11 months on a monthly rent of Rs.1,250/- and also on payment of security deposit of Rs.30,000/-. The building was taken on lease from the second defendant who prepared a licence agreement as **R.S.A.Nos.441 & 444 of 2013** **4** against the actual entrustment and plaintiff was asked to sign in the agreement and it was told that for the purpose of avoiding payment of stamp duty that it has been prepared as a licence agreement. So according to him the actual arrangement was lease and not licence and monthly rent was enhanced periodically and the present rent is Rs.1,650/-. Appellant/ plaintiff was allowed to use the side room as a godown. Plaintiff obtained a licence from panchayat from 2003 - '08 and obtained Labour Registration from Labour Office, Feroke. Plaintiff is conducting industrial unit in the shed taken on lease from the second defendant. He has no other income for his livelihood and no other suitable building is also available in the locality to conduct the business. During rainy season, due to leakage of water, electric board got wet and complaint was made to the second defendant. But damage was not repaired and the relationship between the parties has become strained and defendant obstructed the employees on 23.11.2006 from coming to the shed and beat the plaintiff and again trespassed to the shed on 24.11.2006. When the defendants demanded enhancement of monthly rent to Rs.5,000/- that was not accepted by the plaintiff and from January, 2007 onwards plaintiff sent the **R.S.A.Nos.441 & 444 of 2013** **5** rent by way of money order. Hence police complaint was filed and ultimately the suit was filed for a perpetual injunction for restraining the defendants by way of permanent prohibitory injunction from illegally evicting or dispossessing the plaintiff from the plaint schedule property by force without recourse to law. 3. Defendants filed written statement contending that the shed was taken on a license arrangement for a period of 11 months by fixing the monthly license fee as Rs.1,250/- and paying Rs.30,000/- towards security deposit. The license was given without creating any interest and possession of the building was with the first defendant. Plaintiff signed the license agreement fully knowing the contents. On termination of the license agreement, defendants orally informed the plaintiff to vacate the plaint schedule building. Plaintiff is making all these allegations to continue in the plaint schedule building. The defendants already issued lawyer notice directing to vacate the premises terminating the licence on 24.11.2006. 4. O.S.No.334/2009 was filed for injunction and recovery of possession against the plaintiff in O.S.No.400/2007. All the **R.S.A.Nos.441 & 444 of 2013** **6** contentions in the written statement regarding the licence arrangement is reiterated. Plaint schedule property is the same as in O.S.No.400/2007. It is also contended that the defendant has not paid any amount towards licence fee for the use and occupation of the building after 01.06.2007 that is after sending the notice directing to vacate the building. The plaintiff has no job and is depending on her husband for her livelihood and the husband has got financial difficulties. Plaintiff intend to start a chapel business in the plaint schedule building as a godown of the business. Since the period stipulated in the licence agreement has been expired, defendant is to be evicted from the building and also sought an amount of Rs.11,000/- by way of damages for use and occupation for the period June, 2007 to March, 2009. 5. Defendant filed written statement reiterating the averments in the plaint in O.S.No.400/2007. Subsequently the plaint was amended incorporating the plea of recovery of possession of the plaint schedule property on the strength of plaintiff's title. Additional written statement was filed contending that the valuation is not correct. **R.S.A.Nos.441 & 444 of 2013** **7** 6. Both cases were tried jointly, taking O.S.No.334/2009 as the leading case. PWs 1 and 2 examined and Exts.A1 to Ext.A8 marked from the side of the plaintiff. DW1 examined and Exts.B1 to B55, CW1-the Commissioner and the report Ext.C1 were marked from the side of the defendant. 7. On evaluating the evidence, facts and circumstances, the learned Munsiff found that the plaintiff in O.S.No.400/2007 is a licensee under the defendant and since the plaintiff in the said suit is in unauthorized occupation of the plaint schedule property after the expiry of licence arrangement O.S.No.400/2007 was dismissed and O.S.No.334/2009 decreed directing the defendant by way of mandatory injunction to vacate the plaint schedule property after removing the articles kept in the plaint schedule building and the prayer for recovery of possession on the strength of title is also allowed. An amount of Rs.5,000/- per month from 01.06.2007 till March, 2009 by way of damages for use and occupation was also awarded. Aggrieved by the common judgment and decree passed in O.S.No.400/2007 and O.S.No.334/2009, A.S.Nos.194/2011 and 195/2011 were filed by the plaintiff in O.S.No.400/2007 and defendant in **R.S.A.Nos.441 & 444 of 2013** **8** O.S.No.334/2009. Both appeals were heard together and a common judgment was passed. Third Additional District Court by common judgment dismissed both appeals. Aggrieved by the same the above R.S.As. were filed. Both the Second Appeals were heard together. Lower court records were called for and perused. 8. When the case came up for admission, this Court formulated the following substantial question of law: - (i) Did the courts below go wrong in interpreting the terms of the documents evidencing grant in favour of the appellant? - (ii) Is not the appellant a tenant liable to be evicted only under the provisions of Kerala Act 2 of 1965 in the light of the decision of the Hon'ble Supreme Court in Beena v. Ramachandra Rao [2004 (2) KLT 336 (SC) ] Since both questions formulated are based on the determination of the arrangement between the parties as to whether it is a lease or licence both points were considered together. The point which arises for consideration is also whether the arrangement between the parties is a lease or licence. 9. Learned counsel for the appellant i.e the plaintiff in **R.S.A.Nos.441 & 444 of 2013** **9** O.S.No.400/2007 and the defendant in O.S.No.334/2009 (hereinafter be referred as the appellant) placed reliance on Smt.Rajbir Kaur & Anr v. M/s. S. Chokosiri & Co. [1989 (1) SCC 19 : AIR 1988 SC 1845 : 1989 KHC 1032] ; Velayudhan Nair v. M/s. Young Men's Christian Association [2016 (2) KHC 640: 2016 (2) KLJ 209] ; Beena v. Ramachandra Rao [2004 KHC 587] to contend that the relationship between the appellant and respondent was of a lessor and lessee and the agreement executed between the parties according to him though named as licence exclusive possession was handed over to the appellant and he is manufacturing cast iron and rolling shutters by erecting machineries and hence there is absolute transfer of interest by the respondent to the appellant and hence both courts below went wrong in finding the relationship as licensor and licensee. 10. Learned counsel for the respondent-the owner of the building on the other hand would contend that there was no transfer of interest to the appellant and only a permission of use of the shed for conducting the business alone has been granted and the terms of agreement also according to him would clearly establish that the arrangement between the parties was only a **R.S.A.Nos.441 & 444 of 2013** **10** licence and not a lease. 11. Learned counsel for the respondent-the owner of the plaint schedule property placed reliance on Rajappan v. Veeraraghava Iyer [1969 KLT 811: ILR 1969 (1) Ker. 1 : 1969 KHC 126] ; Vayallakath Muhammedkutty v. Illikkal Moosakutty [(1996) 9 SCC 382] ; Mangalamusement Park Private Ltd & Anr v. State of Madhya Pradesh & Ors [(2012) 11 SCC 713] ; Moideenkutty Haji v. Muhammedali [1987 (2) KLT 994] . 12. In Smt . Rajbir Kaur relied on by the learned counsel for the appellant question arose whether the transaction between the parties is a lease or licence. Relevant portion of paragraph Nos.10 & 11 of the said judgment are apposite in this context to be extracted, which reads thus: ## 10. x x x x x x It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of 'Lease' in Section 105 of the Transfer Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a 'Licence' under Section 52 of the Indian Easements Act, 1982 consistently with the above, excludes from its pale any transaction which otherwise, amounts to an **R.S.A.Nos.441 & 444 of 2013** **11** "easement" or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz. easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only of the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive-possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called 'Possessory-Licences' which confer a right of exclusive-possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. (See: John Dewar; "Licences and Land Law"; Modern Law Review Vol. 49 No. 6 Nov. 1986) and S. Moriorty "Licences and Land Law: Legal principles and public policies" (1984) 100 L.Q.R. 376. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive - possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmustest to distinguish one from the other. The "solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties" (See Cobb v. Lane, [1952] 1 All E.R. 1199). In Merchant v. Charters, [1977] 3 All E.R.918 at P.(C.A.) Lord Denning MR referred to the tests for determining **R.S.A.Nos.441 & 444 of 2013** **12** ## whether an occupier is a licensee or tenant thus: "Gathering the cases together, what does it come to? What is the test to see whether the occupier of one room in a house is a tenant or a licensee? It does not depend on whether he or she has exclusive possession or not. It does not depend on whether the room is furnished or not. It does not depend on whether the occupation is permanent or temporary. It does not depend on the lable which parties put on it. All these are factors which may influence the decision but none of them is conclusive. All the circumstances have to be worked out. Eventually the answer depends on the nature and quality of the occupancy. Was it intended that the occupier should have a stake in the room or did he have only permission for himself personally to occupy the room, whether under a contact or not, in which case he is a licensee?" 11. In Associated Hotels of India v. R.N. Kapoor [1960] 1 SCR 368 at P. 383: [AIR 1959 SC 1262 at P.1269] this Court referring to the classic distinction between a lease and a licence said: "There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the terms of the lease, and it **R.S.A.Nos.441 & 444 of 2013** **13** follows from it that the lessee gets that right to the exclusion of the lessor." In B.M. Lall v. Dunlop Rubber Co.[1968] 1 SCR 23 at P.27: [AIR 1968 SC 175 at P.177] the distinction between the two concepts was brought out: "A lease .... is the transfer of a right to enjoy premises; whereas a licence is privilege to do something on the premises which otherwise would be unlawful .... The transaction is a lease, if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land...." In Qudrat Ulah v. Municipal Board, Bareilly, [1974] 1 SCC 202 at P. 204 [AIR 1974 SC 396 at P.398] it was stated: "..... If an interest in immovable property, entitling the transferers to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence...." In Board of Revenue v. A. M. Ansari, [1976] 3 SCR 661 at P. 665: [AIR 1976 SC 1813 at P.1816] it was again observed: ".... it is the creation of an interest in immovable property or right to possess it that distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease ......" 13. In Beena v. Ramachandra Rao , referred above, it has **14** been held that in order to determine the question as to whether the transaction is a lease or licence the real intention of the parties is decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Paragraph No.8 of the said decision is relevant in this context to be extracted, which reads thus: “The crucial issue for determination is as to whether there is a lease or licence existing between the parties. Though a deed of licence may have been executed it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it was outwardly styled as a deed of licence to act as a camouflage on the Rent Control Legislation. 'Lease' is defined in Section 105 of the Transfer of Property Act 1882 while 'licence' is defined in Section 52 of the Indian Easements Act 1882. Generally speaking the difference between a 'lease' and 'licence' is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a **R.S.A.Nos.441 & 444 of 2013** **15** particular manner and but for the permission so given the occupation would have been unlawful (See Associated Hotels of India Ltd. v. R.N. Kapoor, AIR (1959) SC 1262). The decided cases on the point are legion. For our purpose it would suffice to refer to a recent decision of this court in Corporation of Calicut v. K Sreenivasan, 2002 (2) KLT 291 (SC). 14. In Velayudhan Nair the agreement actually termed as licence but the landlord filed petition for eviction under Section 11 (3) and 11(7) and the tenant raised a contention that there is no landlord – tenant relationship since the agreement by which he was put in possession was a licence agreement. In the said context it was held that when there is no evidence on record to show that owner of the building had no control over the building, the manner of user and conduct of the business etc. and it was in the exclusive possession of the person in occupation it can be said that the arrangement between the parties partakes the character of lease though the nomenclature in the agreement was licence. 15. Section 105 of the Transfer of Property Act, 1882 defines “lease” as follows: 105. Lease defined. —A lease of immovable property is a transfer of a right to enjoy such property, made for a **R.S.A.Nos.441 & 444 of 2013** **16** 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 .—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. ## 16. Section 52 of the Indian Easements Act, 1882 defined “license”, as follows: 52 "License" defined . -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 license. 17. The Apex Court laid down guidelines to ascertain whether the document is lease or licence in Associated Hotels of India Limited v. R.N. Kapoor [AIR 1959 SC 1262] , which reads thus: “The following propositions may, therefore, be taken as well established: **R.S.A.Nos.441 & 444 of 2013** **17** (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 licence; (3) If the document creates an interest in the 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 licence; 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 a lease”. 18. In Mrs. M.N.Clubwala & Anr v. Fida Hussain Saheb & Ors. [1965 KHC 538] a two-Judge Bench of the Apex Court have dealt with in detail the difference between 'lease' and 'license'. Relevant portion of paragraph No.12 is extracted, thus: x x x x x x x x Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. (See. Halsbury's Laws of England, 3[rd] Edn. Vol.23, P.427). **R.S.A.Nos.441 & 444 of 2013** ## **18** x x x x x x 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. ## 19. Paragraph No.9 of Vayallakath Muhammedkutty is relevant to be quoted, which reads thus: “ …......... In D' Souza's case, this Court has indicated that for a consideration as to whether a document creates a licence or a lease, the substance of the document must be preferred to the form. It is not correct to say that exclusive possession of a party is irrelevant, but at the same time it is also not conclusive. The other tests, namely, intention of the parties and whether the document creates any interest in the property or not, are important considerations.” It has been held that the pith and substance of the agreement executed between the parties to be considered to determine the issue and the substance of the document must be preferred rather than to the form. Exclusive possession of a party cannot be said as irrelevant. But at the same time it is also held to be **R.S.A.Nos.441 & 444 of 2013** **19** not conclusive. The intention of the parties whether the document creates any interest in the property or not are of important considerations. 20. In Mangalamusement Park Pvt. Ltd. , it has been held while dealing with the difference between 'lease' and 'licence', the document has to be read as a whole and when the clauses in the agreement when read together make it clear that the owner retained complete control over the parcel of land and the manner of enjoyment of facilities set up in the licensed land and what all are to be provided there with a clause of right to terminate licence in the violation of any of the terms and conditions it was held to be a licence and not a lease. In Moideenkutty Haji it has been held that in the case of interpretation of deeds the intention of the parties is more relevant and it has to be gathered from the language of a document. In Gilbert v. Vivekanandan [1988 (1) KLT 50 : 1988 KHC 48] a Division Bench of this Court held that nature of transaction has to be determined with reference to the legal effect of the words used in the document and only when there is ambiguity in the language used by the parties which forces court **R.S.A.Nos.441 & 444 of 2013** **20** to look at the surrounding circumstances to determine what the parties actually intended. 21. From the above settled principles it can be deduced that in order to ascertain whether a document is a 'lease' or 'licence', the substance of the document has to be preferred rather than its form and in cases where an interest in property is created as per the document it would be a lease and the intention of the parties is also a relevant factor. The intention can be gathered on a true construction of the agreement between the parties. 22. In the present case, Ext.A1 is the title deed of the respondent/plaintiff proving the right and title of the plaintiff over the plaint schedule property. Exts.A3, A4 and A5 are the licence agreement periodically executed between the appellant and the respondent. Ext.A3 is dated 31.05.2004. It has been specifically stipulated therein that the shed described in the margin of the document has been taken for 11 months by the second party (appellant herein) for conducting an industry from the first party and first party has entrusted the shed with the second party for using it as a licensee and accordingly the **R.S.A.Nos.441 & 444 of 2013** **21** second party had taken the same from the first party for license. It is further clarified that it is only a simple licence arrangement and it is not a license coupled with interest or lease. It is also stipulated and agreed that there would not be any lease hold right to the second party whatsoever. It is further categorically agreed between the parties that the shed would always be in the possession of the first party and the second party has given only a limited right of use and it is for a period of 11 months and licence fee in total is stipulated as Rs.15,400/- to be payable monthly at the rate of Rs.1,400/-. It is further stipulated that if there is any default in paying the licence fee, this licence would be cancelled and the first party has every right to deny the entry of the second party to the shed. 23. Ext.A4 is executed on 01.05.2005 in between the parties with the very same stipulations, enhancing the licence fee as Rs.17,050/-. Ext.A5 is the last licence agreement dated 01.05.2006 with the very same same stipulations, enhancing the licence fee as Rs.18,150/-. So bare reading of Exts.A3, A4 and A5 will not leave any room for doubt about the fact that the arrangement between the parties was only a licence **R.S.A.Nos.441 & 444 of 2013** **22** arrangement and the first party i.e. the respondent agreed to keep the shed in possession always and only a right of use has been given to the appellant. It is further clarified that it is only a simple licence and is not a licence coupled with interest or kudikidappu. So Exts.A3, A4 and A5 would clearly show that periodically on expiry of every licence arrangement a fresh licence agreement is being executed between the parties to make it clear that the arrangement is only a licence and there was no intention to transfer the interest by the respondent to the appellant and only a right of use of shed has been granted to the appellant. So in the present case the document itself has been named as a licence with the express term that no interest has been transferred and further that the possession is continued to be with the respondent and further emphasizing that it is only a simple licence arrangement and would not create any transfer of interest or kudikidappu. So the terms and conditions of Exts.A3, A4 and A5 are very specific and clear and clearly prove the intention of the parties at the time of entrustment of the building and the intention of the respondent to continue in possession of the shed with a limited right of use to the appellant for conducting the business. Though the learned counsel for the **23** appellant placed reliance on Velayudhan Nair , that was a case in which the terms of the agreement named it as a licence but the landlord filed application under Section 11(3) and 11(7) of the Kerala Buildings (Lease and Rent Control) Act, 1965 and the tenant took up a contention that there is no landlord – tenant relationship and he was put in possession by way of a licence agreement. It has been found in that case that the tenant of the building was in exclusive possession and occupation of the building and the landlord has no control over the building and the manner of use and the conduct of the business etc and hence taking into account the attending circumstances it was held that the transaction between the parties is lease and not licence and mere nomenclature of the document as licence is of no avail. 24. The above position has no application in the present case because it has already been found that there was no transfer of interest and the possession was still with the respondent and only a right of use has been given and the intention of the parties is also to create a licence arrangement alone. Hence it has no application to the case in hand. 25. In Beena v. Ramachandra Rao the trial court as well as **R.S.A.Nos.441 & 444 of 2013** **24** the first appellate court in a suit for mandatory injunction filed by the owner of the building dismissed the suit finding that the transaction was a lease and not licence. But, in Second Appeal, High Court set aside the judgment and decrees of the two courts below and decreed the suit as prayed for. In that case the licence agreement was executed for a period of one year from 01.04.1981 with usual terms and it has been pleaded in the plaint that the opposite party is running a stationery shop and allied business activities in the premises. But though the licence expired on 13.03.1982 the appellant continued to remain in occupation and the suit was filed only on 22.09.1989 and in the written statement defendant appellant denied all the plaint averments and pleaded a case of tenancy and deed of licence is a camouflage for evading the applicability of the Rent Control Legislation. 26. So taking all those factors into account like the appellant has exclusive possession over the premises and the owner neither can or nor does interfere therein and a fullfledged stationery shop and allied business activities have been carried on by the appellant in the premises ever since 1972 and **25** appellant was in possession of the premises for more than 20 years before the date of deed of licence though the deed of licence has been executed in 1981 for a period of one year and though the deed of licence has been expired on 1982 the respondent continued the occupation and the respondent did not insist the appellant to put back him in possession and he was permitted to continue the occupation for about 7 years till the date of institution of the suit. So in the said circumstances it was found that the owner of the building has no possession or control of the premises and it was retained by the respondent and accordingly the judgment passed by the High Court was set aside and mandatory injunction was ordered. 27. So evaluating the facts and circumstances and evidence adduced in the present case, I am of the considered view that both the courts below have concurrently found that the arrangement between the parties is licence. 28. Though at the time of argument the learned counsel would contend that he is entitled for permanent licence and it is irrevocable, the learned counsel for the respondent vehemently objects in raising such a contention in the Second Appeal. **R.S.A.Nos.441 & 444 of 2013** **26** 29. Before the trial and the first appellate court the appellant has not raised a plea of irrevocable licence. His contention throughout is that the transaction between the parties is lease and not licence. As per Section 60 of the Indian Easement Act, licence may be revoked by the grantor, unless (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution. The wordings in Exts.A3, A4 and A5 which I have discussed earlier estopps the appellant from raising any such claim of irrevocable licence. It has been specifically stipulated in Exts.A3, A4 and A5 that the appellant is only a mere licensee and no interest in property has been transferred to him and the possession is still with the respondent. It has also been specified that only a right of use of the shed is given to the appellant and possession is kept with the respondent. There is no pleading or evidence adduced by the appellant to claim irrevocable licence also. So at any rate the claim of irrevocable licence at the fag end of the proceedings in the Second Appeal that too without any supporting pleadings and evidence cannot be entertained by this Court. **R.S.A.Nos.441 & 444 of 2013** **27** 30. At the time of argument, the learned counsel for the appellant also submitted that if at all the appeal is ultimately found against him, he should be a given a reasonable time to vacate the premises. So, in view of the facts and circumstances, a period of six months is granted from the date of this judgment on condition that the appellant would file an undertaking affidavit in O.S.No.400/2007 before the Principal Munsiff Court-II Kozhikode within ten days starting from this date agreeing to vacate the shed without any demur within six months from the date of this Judgment. Appellant is also directed to pay damages for use and occupation at the rate of Rs.2,500/- (Rupees two thousand five hundred only) from June, 2007 to March, 2009 and further to pay the damages for use and occupation for six months period which is allowed by this Court and till the respondent/owner is put in actual possession of the building. In the result, R.S.As stands dismissed. Parties shall bear their respective costs. Sd/- ## **M.R.ANITHA** SHG **JUDGE**