M. M. Thomas v. Minu Mumtaz and others (RSA No. 428 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945** **RSA NO. 428 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 30.11.2019 IN AS NO.64/2015 ON THE FILE OF THE SUB JUDGE, SULTHANBATHERY IN THE JUDGMENT AND DECREE DATED 14.10.2015 IN OS NO.316/2010 OF THE MUNSIFF MAGISTRATE COURT, SULTHANBATHERY** ## **APPELLANT/APPELLANT/DEFENDANT:** **M. M. THOMAS AGED 66 YEARS S/O. MATHAI, MANNUR HOUSE, MANICHIRA, SULTHAN BATHERY VILLAGE, SULTHAN BATHERY TALUK, WAYANAD. BY ADVS. T.G.RAJENDRAN SRI.CIBI THOMAS** ## **RESPONDENT/RESPONDENTS/PLAINTIFFS:** **1 MINU MUMTAZ AGED 55 YEARS D/O. DR. KEVIDAN ABDULLA, W/O. DR. MUHAMMED KUTTY, C/O. DR. KEVIDAN ABDULLA, ANANDA BHAVAN, MANIKUNI, SULTHAN BATHERY P.O. AND VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT - 673 592. 2 JASMIN AGED 51 YEARS D/O. DR. KEVIDAN ABDULLA, ANANDA BHAVAN, MANIKUNI, SULTHAN BATHERY P.O., SULTHAN BATHERY TALUK, WAYANAD DISTRICT - 673 592. 3 NISHA ROSE AGED 48 YEARS D/O. DR. KEVIDAN ABDULLA, ANANDA BHAVAN, MANIKUNI, SULTHAN BATHERY P.O., SULTHAN BATHERY TALUK, WAYANAD DISTRICT - 673 592. 4 NASREENA AGED 45 YEARS D/O. DR. KEVIDAN ABDULLA, C/O. DR. SHAMSUDEEN, KAMBALAKKAD P. O., VYTHIRI TALUK, WAYANAD DISTRICT - 673 576.** **BY ADVS. ARUN KRISHNA DHAN ARJUN SREEDHAR(K/393/2008) T.K.SANDEEP(K/1076/2003)** **RSA NO. 428 OF 2020** **2** **ALEX ABRAHAM(K/000508/2017) HARIKRISHNAN P.B.(K/002531/2022) SWETHA R.(K/002236/2022)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 428 OF 2020** **3** ## **J U D G M E N T** The defendant in O.S.No.316 of 2010 on the files of the Munsiff Court, Sulthanbathery, who is aggrieved by decree and judgment in the said suit dated 14.10.2015, which was confirmed by the Sub Court, Sulthanbathery in A.S.No.64 of 2015, arising therefrom has filed the Second Appeal under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure ('CPC' for brevity). The respondents herein are the plaintiffs in the above suit. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents, Sri.Arun Krishnadhan. 3. I shall refer the parties to this appeal as 'plaintiffs' and 'defendant'. 4. The suit was filed by the plaintiffs seeking mandatory injunction directing the defendant to vacate the building after termination of the licence arrangement in between plaintiffs and defendant. 5. The defendant filed a written statement and raised contention that the possession of the plaint schedule building by the defendant is not as a licensee on the basis of a licence deed, but the arrangement is lease and the defendant is a tenant in the building. 6. After raising necessary issues, the Trial Court recorded evidence. PW1 examined and Exts.A1 to A4 marked on the side of the **RSA NO. 428 OF 2020** **4** plaintiffs; DW1 to DW4 examined and B1 to B12 marked on the side of the defendant. Exts.X1 and C1 were also marked. 7. The learned Munsiff found ultimately that the arrangement in between the plaintiffs and defendant is a licence and thereby, the defendant was directed to vacate the plaint schedule building and also directed to pay an amount of Rs.3,500/- per month as damages from 01.06.2010 till the date of vacation of the building. 8. Although appeal as A.S.No.64 of 2015 was filed challenging the verdict of the trial court, the learned Sub Judge confirmed the findings of the trial court and dismissed the appeal. 9. While, arguing this appeal, the learned counsel for the defendant submitted that even though Ext.A1 document whereby, the defendant got occupation of the plaint schedule building, is one with nomenclature “license deed”, the same is a lease deed. He also submitted that the mere nomenclature of a document is of no significance and the intention of the parties is to be borne out from the contents of the document. It is also submitted that DW4, who is the Power of Attorney holder of the owner of the building, during cross examination, stated that in Ext.B2 complaint and Ext.B3 report of the police, the defendant is mentioned as a tenant in the plaint schedule building. 10. Per contra, the learned counsel for the plaintiffs submitted that, going by the narration in Ext.A1 along with the evidence of **RSA NO. 428 OF 2020** **5** PW1, the arrangement in between the plaintiffs and defendant is a licence and not a lease. 11. As far as, the distinction between lease and licence is concerned, the law is well settled. Section 105 of the Transfer of Property Act (Hereinafter `T.P Act’ for convenience) defines `lease’ as under: _“105. Lease defined:- A lease of immovable property is a transfer of a right to enjoy such property, made for a 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.”_ ## 12. Section 52 of the Law of Easement and Licences (hereinafter `Easement Act’ for convenience) defines`licence’ as under: _“52. “Licence” 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 licence.”_ Thus a plain reading of the definition of `lease’ as provided under Section 105 of the T.P Act, `lease’ is a transfer of a right to enjoy an immovable property for certain period expressly, impliedly or in perpetuity. On the other hand, `licence’ as defined under Section 52 **RSA NO. 428 OF 2020** **6** of the Enforcement Act is 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. 13. In _**Delta International Ltd. v. Shyam Sundar Ganeriwalla & anr**_ .’s case ( _supra_ ), the Apex Court referred the decision in _**Associated Hotels of India Ltd. v. R.N.Kapoor**_ ’s case ( _supra)_ and enunciated 6 parameters to find out the distinction between `lease’ and `licence’. The same are as under: _“(1) To find out whether the document creates lease or licence real test is to find out `the intention of the parties’, keeping in mind that in cases where exclusive possession is given, the line between lease and licence is very thin._ _(2) The intention of the parties is to be gathered from the document itself. Mainly, intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties._ _(3) In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of_ **RSA NO. 428 OF 2020** **7** _the property would be most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease._ _(4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. But in cases where the landlord alleges that the tenant has sublet the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed entered into, inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed; the tenant and the sub tenant may jointly set up the plea of a license against the landlord which is a camouflage. In such cases, the mask is to be removed or veil is to be lifted and the true intention behind a facade of a self serving conveniently drafted instrument is to be gathered from all the relevant circumstances. Same would be the position where the owner of the premises and the person in need of the premises executes a deed labelling it as a licence deed to avoid the operation of rent legislation._ _(5) Prima facie, in absence of a sufficient title or interest to carve out or to create a similar tenancy by the sitting tenant, in favour of a third person, the person in possession to whom the possession is handed over cannot claim that the sub tenancy was created in his favour, because a person having no right cannot confer any title of tenancy or sub tenancy. A tenant protected under statutory provisions with regard to occupation of the premises having no right to sublet or transfer the premises, cannot confer any better_ **RSA NO. 428 OF 2020** **8** _title. But, this question is not required to be finally determined in this matter._ _(6) Further lease or licence is a matter of contract between the parties. S.107 of the Transfer of Property Act inter alia provides that leases of immovable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. This contract between the parties is to be interpreted or construed on the well laid principles for construction of contractual terms, viz. For the purpose of construction of contracts, the intention of the parties is the meaning of the words they have used and there can be no intention independent of that meaning; when the terms of the contract are vague or having double intendment one which is lawful should be preferred; and the construction may be put on the instrument perfectly consistent with his doing only what he had a right to do.”_ 14. The principle laid down in _**Associated Hotels of India Ltd. v. R.N.Kapoor**_ ’s case ( _supra_ ) is that the distinct factor to decide upon an arrangement either as `licence’ or `lease’ is to see whether any transfer of interest in the premises which was given for occupation. 15. It is true that nomenclature of a document is not decisive to find out what are the nature and characteristics of the document. In a latest decision of the Apex Court reported in [(2023) 7 SCC 227], _**Victory Iron Works Limited v. Jitendra Lohia & anr.**_ , the Apex **RSA NO. 428 OF 2020** **9** Court analysed the difference between `lease’ and `licence’ and in paragraphs 49 and 52, the Apex Court, after referring the decision reported in [(2020) 13 SCC 208], _**Guruashish Constructions (P) Ltd. (Resolution Professional) v. MHADA**_ , observed as under: _“49. As a matter of fact, the only decision of this Court which may probably come close to the facts of the present case, is the one in_ _**Guruashish Constructions (P) Ltd. (Resolution Professional) v. MHADA** . In the said case, there was a tripartite joint development agreement entered into between (i) a society representing a large number of persons occupying 672 tenements in the property; (ii) Maharashtra Housing and Area Development Authority (for short `MHADA’), which was the owner of the land; and (iii) the corporate debtor. After initiation of CIRP against the corporate debtor, MHADA issued a notice for the termination of the joint development agreement. NCLAT refused to treat the property as the asset of the corporate debtor. But this Court reversed the said decision, by holding that Section 14(1)(d) stood attracted in the facts and circumstances of the said case and that even a reference to Sections 18 and 25 may not be necessary. Though the said case arose out of a fact situation where the termination of the joint development agreement was hit by Section 14, the said decision clinches the issue on what constitute a property and the distinction between occupation and possession of a property._ xxxx xxxx xxxx _52. The fact that there were security guards posted in the property is borne out by records. This is why NCLT as well as NCLAT have done a delicate act of balancing, by protecting the interests of Victory to the extent of the land permitted to be occupied. In fact, Victory does not even have the status of a lessee, but is only a licensee. A licence does not create any ” interest in the immovable property._ **RSA NO. 428 OF 2020** **10** 16. In the decision reported in [AIR 2002 SC 2051], _**Corporation of Calicut v. K.Sreenivas**_ , the Apex Court after referring _**Associated Hotels of India Ltd. v. R.N.Kapoor**_ ’s case ( _supra_ ) and [AIR 1968 SC 175], _**B.M.Lall (dead) by his legal representative v. M/s. Dunlop Rubber Co. (India) Ltd.**_ , held as under: _“9. This Court while dealing with distinction between `licence’ and `lease’ has enumerated in various decisions as to what are the rights of a licensee. In the case of_ _**Associated Hotels of India Ltd. v. R.N.Kapoor** [AIR 1959 SC 1262], it was observed at page 1269 thus:-_ _“……. if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful.”_ 17. The crux of the dispute in this case is whether licence was created as per Ext.A1 executed in between the plaintiffs and the defendant or the arrangement is a lease. According to plaintiffs, Ext.A1 is a license deed and according to the defendant, the same is a lease deed. On a meticulous reading of Ext.A1, its nomenclature is **RSA NO. 428 OF 2020** **11** 'license deed'. Coming further down each and every paragraphs following the nomenclature, the specific assertion is that the building was given for the occupation of the defendant with limited right as a licensee after keeping the absolute ownership, title and possession of the same by the licensor. Execution of Ext.A1 is admitted by PW1 though he denied the fact that the same is a licence deed. 18. Even though DW4, the Power of Attorney holder of the plaintiff stated in the the Police records that the status of the defendant is referred as that of a lessee, the same was intended in the ordinary laymen's sense and the arrangement is nothing but a license. 19. 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 building/premises; whereas a licensee of a building, who got only a mere right of occupation of the **RSA NO. 428 OF 2020** **12** 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. 20. On scrutiny of the available materials, it is well discernible that as per Ext.A1, the defendant has mere right of occupation of the building without transfer of any interest therein and therefore, the arrangement is only a license and not a lease as contended by the defendant. 21. The law is settled on the point that a licensor can file a suit for mandatory injunction to compel licensee's legal obligation to surrender vacant possession of the building. 22. In view of the matter, there is no reason to interfere with the findings of the trial court as affirmed by the appellate Court. In this case, in fact, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _“2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the_ **RSA NO. 428 OF 2020** **13** _appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 23. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 24. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168],** the Apex Court held that: **RSA NO. 428 OF 2020** **14** _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]._ 25. In a latest decision of the Apex Court in **Government of Kerala v. Joseph,** reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC],** it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 26. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen **RSA NO. 428 OF 2020** **15** not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 27. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. SD/- ## **A. BADHARUDEEN JUDGE** rp