K.V. Jayarajan v. Muhammed Rafi

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 RSA NO. 385 OF 2023 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 19.11.2022 IN A.S.NO.53/2019 OF SUB COURT, OTTAPPALAM AROSE OUT OF THE JUDGMENT AND DECREE DATED 18.10.2019 IN O.S.NO.160/2017 OF MUNSIFF MAGISTRATE COURT,PATTAMBI ``` ## **`APPELLANT/RESPONDENT/DEFENDANT:`** ``` K.V.JAYARAJAN AGED 60 YEARS S/O.VELAYUDHAN, KIZHAKKEKKARA HOUSE, KALLADATHUR PO, PALAKKAD, PIN - 679536 BY ADVS. K.MOHANAKANNAN M.A.ZOHRA ``` ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` MUHAMMED RAFI, AGED 57 YEARS S/O.KUNHUMUHAMMED, ORUVIL HOUSE, ANGADI POST, PATTAMBI, PALAKKAD DISTRICT, PIN - 679552 ``` ``` BY ADVS. SREEHARI R HAMZA A.V. VIGNESH S. ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 385 OF 2023 2 ``` ## **JUDGMENT** Dated this the 30[th] day of January, 2024 Defendant in O.S.No.160/2017 on the files of the Munsiff Court, Pattambi, assails the decree and judgment in A.S.No.53/2019 on the files of the Sub Court, Ottapalam, arise from O.S.No.160/2017. Respondent is the plaintiff in the above suit. 2. Heard the learned counsel for the appellant and the learned counsel appearing for the respondent, in detail. Perused the records. 3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’ for convenience. 4. As per order, dated 26.6.2023, my learned predecessor admitted this appeal on substantial questions of law framed in the appeal memorandum. 5. Indubitably, as per the mandate of Section 100 r/w Order XLII of the Code of Civil Procedure, in order to admit a second appeal, the court should frame substantial question of ## **`RSA NO. 385 OF 2023 3`** law. Therefore, it is necessary for this Court to formulate substantial questions of law. 6. On hearing both sides, the only one substantial question of law arises in this matter is, _whether Ext.A1 document satisfies the ingredients of licence contemplated under Section 52 of the Indian Easements Act, 1882? (for short, ‘the Act’ hereinafter)._ Incidentally, another question arises for consideration is _, whether the first appellate court correctly found the arrangement between the plaintiff and defendant as a licence, ignoring the contention raised by the defendant that he is a tenant in the building_ ? 7. In this matter, the plaintiff, being the owner of the plaint schedule rooms, filed suit for mandatory injunction to get vacant possession of the same on asserting that the same was given in occupation to the defendant as a licensee on the strength of licence deed executed on 01.01.2011. According to the plaintiff, since the licence stood revoked, the defendant was liable to surrender vacant possession of the plaint schedule rooms. 8. The defendant resisted the suit, mainly raising ``` RSA NO. 385 OF 2023 4 ``` contention that he took the rooms as a tenant and he has been continuing in the rooms as a tenant, after paying rent. 9. The trial court, on appreciation of evidence confined to that of PW1 and PW2 and Exts.A1 to A5 on the side of the plaintiff as well as DW1 on the side of the defendant, dismissed the suit, holding that the defendant is a tenant in the above rooms. 10. In appeal, the learned Sub Judge found that the arrangement is as stated in Ext.A1 and the defendant is a licensee of the plaint schedule rooms and accordingly, suit was decreed. 11. Insofar as the distinction between licence and lease is concerned, the law is well settled. Different 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_ ``` RSA NO. 385 OF 2023 5 ``` _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 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.”_ 12. Here, evidently, Ext.A1 would go to show that the same is described as a licence, with intention to give occupation of the rooms for the use of the defendant and going by the evidence relied on by the first appellate court, this Court could not hold that there was transfer of interest coupled with absolute possession, so as to treat arrangement as lease in deviation from licence. It is pointed out by the learned counsel ## **`RSA NO. 385 OF 2023 6`** for the plaintiff that, the defendant is estopped from contesting his status as that of the tenant, since he conceded decree in O.S.No.130/2020, filed by the plaintiff against him, claiming arrears of licence fee. Copy of the judgment, dated 25.8.2023 also has been placed in support of this appeal. Going by the above judgment, even though the defendant entered appearance and filed written statement, thereafter, he was absent on the date, when the case was listed for evidence and accordingly, the suit was decreed and licence fee of Rs.1,68,041/- (Rupees One Lakh Sixty Eight thousand and Forty one only) was ordered to be realised from the defendant/appellant herein. The defendant did not challenge the said verdict. Thus, in view of the judgment in O.S.No.130/2020, for which, no challenge raised by the defendant, defendant is estopped from contending that he is a tenant, negating the finding in the judgment that he is a licensee. 13. Going by the materials available, there is no reason to find that the first appellate court went wrong in holding the status of the defendant as a licensee and the same is factually admitted by the defendant, by remaining _ex-parte_ in the suit for ## **`RSA NO. 385 OF 2023 7`** realisation of licence fee. Thus, it is held that Ext.A1 satisfies the ingredients to constitute licence contemplated under Section 52 of the Act. Therefore, it is held that the first appellate court rightly held that the defendant is a licensee in the plaint schedule rooms and ordered grant of mandatory injunction. Thus, the verdict of the first appellate court only to be confirmed. 14. In the result, this Regular Second Appeal is found to be meritless and the same is dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this Regular Second Appeal, stand dismissed. 15. Faced with the situation, the learned counsel for the appellant/defendant sought for a breathing time to vacate the plaint schedule rooms. 16. Having considered the plea for a breathing time, which is not opposed by the other side, I am inclined to grant six months' time to the appellant/defendant to vacate the plaint schedule rooms from today, with direction to deposit the entire arrears of licence fee, granted by the trail court, within a period of two weeks from today. It is specifically ordered that, if the ``` RSA NO. 385 OF 2023 8 ``` arrears, as directed, is not deposited, six months’ time granted hereby shall not be available for the appellant/defendant to vacate the rooms and decree is liable to be executed forthwith. 17. It is also made clear that, if the defendant pays the arrears and continue occupation for a period of six months in view of the time granted hereby, the damages for use and occupation for the said period also should be paid on completion of every month, without fail and in such contingency also, the grace period will be available till the date of default alone, if there will be default in paying the amount. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb ``` RSA NO. 385 OF 2023 9 ``` ## **`APPENDIX OF RSA NO. 385 OF 2023`** ``` APPELLANT’S ANNEXURES NIL ``` ``` RESPONDENT’S ANNEXURES ANNEXURE R1(a)CERTIFIED COPY OF THE JUDGMENT PASSED IN O.S.NO.130/2020 BY THE MUNSIFF- MAGISTRATE COURT, PATTAMBI DATED 25/8/2023 ANNEXURE R1(b)CERTIFIED COPY OF THE DECREE PASSED IN O.S.NO.130/2020 BY THE MUNSIFF- MAGISTRATE COURT, PATTAMBI DATED 25/8/2023 ``` ``` TRUE COPY PA TO JUDGE ```