P. Nabeesa v. V. C. Abdul Latheef

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2014/23RD MAGHA, 1935** ## **RSA.No. 285 of 2013 (A)** **---------------------------------[ON APPEAL FROM THE JUDGMENT AND DECREE DATED 12/10/2012 OF THE SUBORDINATE JUDGE'S COURT, KOYILANDY, IN A.S. NO.9/2012 CONFIRMING THE JUDGMENT AND DECREE DATED 23/12/2011 OF THE MUNSIFF-MAGISTRATE COURT, PAYYOLI IN O.S. NO.123/2010]** **................** ## **APPELLANT/APPELLANT/DEFENDANT :** **---------------------------------------------------------** **P.NABEESA, W/O. MOIDEEN, AGED 48 YEARS, RESIDING AT 'MARIYAM MANZIL HOUSE' MELADI AMSOM DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.C.P.MOHAMMED NIAS.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **-----------------------------------------------------------** **V.C ABDUL LATHEEF, S/O.MAMMAD HAJI, AGED 51 YEARS, RESIDING AT `MUNNAS HOUSE', MELADI AMSOM DESOM, KOYILANDI TALUK,673 573, KOZHIKODE DISTRICT, REPRESENTED BY POWER OF - ATTORNEY HOLDER MUBEEL ABDUL LATHEEF, AGED ABOUT 23 YEARS, RESIDING AT `MUNNAS HOUSE', MELADI AMSOM DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT-673 573.** ## **BY ADV. SRI.K.LAKSHMINARAYANAN.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 285 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of February, 2014 ## **J U D G M E N T** Perennial question as to whether a particular document is a lease or a licence arises again for consideration in this second appeal. The courts below have taken the view that on a proper reading of Ext.A1 document, the arrangement entered into between the plaintiff and the defendant is nothing more than a licence. 2. The plaintiff laid the suit for mandatory injunction seeking the court to direct the defendant to vacate the premises as he does not wish to continue the licence arrangement. 3. The defendant resisted the suit by pointing out that though nomenclatured as a licence, the arrangement was in fact a lease and therefore, he is entitled to protection of the Kerala Buildings (lease and Rent Control) Act, 1965. ## **R.S.A. No.285/2013** **-2-** 4. Issues were raised and parties went to trial. Ext.A1 to A15 were marked from the side of the plaintiff and no oral evidence was adduced by the plaintiff. The defendant examined DW1 and had Ext. B1 series marked. As already stated, the courts below were of the view that Ext.A1 is a licence. 5. Notice was issued on the following substantial questions of law: a) Whether the courts below justified in not considering the true nature of the transaction notwithstanding the description or the recitals of the licence agreement? b) Whether the courts below were justified in simply relying on the recitals in the licence agreement to conclude the nature of the transaction between the parties? c) Whether the courts below justified in holding the view that the suit as framed was maintainable? d) Whether the courts below justified in holding the findings in the previous dismissed suit was binding on the defendant herein? **R.S.A. No.285/2013** **-3-** 6. The learned counsel appearing for the appellant pointed out that the nomenclature of the document is not the criterion to determine whether the arrangement entered into between the parties is lease or a licence. The substance of the document has to be gone into and on a construction of the document, the real transaction intended by the parties has to be discovered. Merely because the words licence, licence fee, occupation etc., are used, that is not a criterion as such to come to the conclusion that the document is a licence. The purpose for which the licence is given, the manner in which the premises is used, the possessory nature, licence fee and also the conduct of the licensor are also matters which have considerable bearings on the issue to be determined. 7. The learned counsel for the appellant pointed out that the purpose for which the arrangement was entered into is for running a guest house and it is very clear that unless exclusive possession is given, he could not have run ## **R.S.A. No.285/2013** **-4-** the business. Further, it is contended that the term of licence was 11 months and as going by the terms of the agreement, if the renewal was intended by the licensee, the licence could be renewed on mutual agreement and a new agreement has to be executed. In the case on hand, a direction for vacating the premises is sought for after four years of execution of Ext.A1 licence agreement. That would show that the arrangement was in fact a lease and not a licence. In support of his above contention, he is relied on the decision reported in **Beena** v. **Ramachandra Rao [2004 (2) KLT 336 (SC), Aspinwall & Co. Ltd.** v. **Soudamini Amma [1974 KLT 681]** . According to the learned counsel for the appellant, by no stretch of imagination, it could be said that for running of the guest house, the purpose of which Ext.A1 is executed, exclusive possession need not be given. He could induct a third person into the premises, for that purpose, at least he should, to that extent, have exclusive possession. Based on **-5-** ## **R.S.A. No.285/2013** these contentions, the finding of the court below that the document in question is a licence cannot be sustained. 8. The learned counsel appearing for the respondent on the other hand contended that it is idle for the appellant to conduct that the document is a licence for the simple reason that he entered into the arrangement with his open eyes and knowing fully well the consequences of having entered into a transaction as evidenced by Ext.A1. A reading of the said document would clearly show that no exclusive possession or any interest in the immovable property is given to the licensee. But he is merely given a permission to occupy the premises for the purpose for which the licence is executed. According to the learned counsel, one cannot ignore the terms of the recitals in the document and come to a conclusion that the document is a lease. The learned counsel also drew attention of this Court that in a previous litigation between the owners of the property in which the defendant in the suit was also impleaded as a party, he in no **R.S.A. No.285/2013** **-6-** less terms admitted that he was only a licencee and he was holding the premises under the licence arrangement. In the light of the categoric admission, he is estopped from contending that the arrangement is not a licence but a lease. It is also contended by the learned counsel that merely because there was some passage of time before seeking return of the premises, it does not lead to the conclusion that it is a lease. None of the criterion that is necessary to attract the transaction of lease are available in the case on hand. It is contended that the courts below were justified in coming to the conclusion that the document is a licence. The learned counsel for the respondent also reminded this Court that this Court is exercising its jurisdiction under Section 100 of C.P.C. and unless it is shown that the findings are either perverse or contrary to the evidence on record, or are unsustainable both on facts and in law, this Court may not be justified in interfering with the judgment and decree of the courts below. ## **R.S.A. No.285/2013** **-7-** 9. Well, the result of this appeal should depend upon the interpretation of Ext.A1 document. True, it is nomenclatured as a licence. It is given for the purpose of running a guest house. The word used is 'occupation'. It is also stated in the document that the electricity and water charges are to be paid by the land lord and the amounts is to be reimbursedby the tenant to the landlord. 10. It will not be inappropriate at this point to refer to the decision stated by the learned counsel for the appellant. In the decision reported in **Beena** v. **Ramachandra Rao [2004 (2) KLT 336 (SC)** , it was held as follows: “A few principles are well settled. User of the terms like 'lease' or 'licence', 'lessor' or 'licensor', 'rent' or 'licence fee' are not by themselves decisive of the nature of the light created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property. What has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the **R.S.A. No.285/2013** **-8-** creation of relationship is of relevance for finding out their intention.” 11. The learned counsel for the appellant drew attention of this Court that the facts of the said case are almost similar to the case on hand and there is no reason as to why Ext.A1 could not be held to be as a deed of lease. 12. It is well settled that there is no straight jacket formula in determining whether a particular document is a lease or a licence. The document has to be read as a whole and the essential test to be applied is what was the intention of the parties at the time of entering into a transaction. The words like 'rent', 'possession' etc., may not be a determining factor. Even in a licence, in a way, possession has to be given for limited extent. If that be so, it could be said that there is possession given to be licensee. It is a qualified possession. It is not similar to the possession given in a lease nor as in an interest created in an immovable property. ## **R.S.A. No.285/2013** **-9-** 13. Coming back to the document once again, it is clearly stated in the document that the licensee undertakes not to raise any claim on the basis of the document, except there is a licence arrangement. It cannot be said that the nomenclature of a document is totally irrelevant. There is no case for the appellant that he is an illiterate person. He is with his open eyes entered into a contract. He ought to have known its consequences. He must know the transaction he was entering into and the conditions stipulated in the document. After having entered into a licence agreement undertaking all the conditions and fully knowing the consequences thereof, it may not be appropriate for the appellant now to turn down and contend that it is a lease. Doubts may arise in cases where there is some difficult in accepting the circumstances under which the document was executed. There is no such circumstance in the case on hand. 14. Further, it is brought to the notice of this Court ## **R.S.A. No.285/2013** **-10-** that there was an earlier litigation between the plaintiff in the suit and the owners of the property. In that suit, the defendant herein, was also a party. He filed a written statement in the said suit accepting that he was in possession of the premises on the basis of a licence arrangement and he was only a licensee of the premises. In this proceedings, he was confronted with the said deposition and he had admitted the same. That means he knew what the consequences were. 15. True, in the decision reported in **Aspinwall & Co. Ltd.** v. **Soudamini Amma [1974 KLT 681]** , it was held as follows: “A mere licence only makes an act lawful which without it would be unlawful. A licensee has only a right of occupation with the permission of his licenser and his possession is not juridical possession. The licensee will be the actual occupant but the licenser will be the person having the control or possession of the property through his licensee. Then on the termination of the licence can the licensee be **-11-** ## **R.S.A. No.285/2013** treated as a trespasser? In the possession of a trespasser there cannot but be an element of animus possidendi which will not be there in the possession which a licensee is having. Even after the termination of the licence the licensee may have to continue to be in occupation of the premises for some time, because in many cases the licensee may require some reasonable time to remove materials belonging to him and quit the place. But during such time the licenser will be deemed to be in possession through his licensee, because the licensee cannot have any independent or separate interest in the premises. In that case a licensee cannot possibly be treated as a trespasser. If on the expiry of the licence an assertion of a hostile title is made by the licensee and the licenser sleeps over the matter then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser. Under such circumstances the licenses will have to sue for recovery of possession and a suit for a mandatory injunction under section 39 of the Specific Relief Act, 1963 will not be the remedy. The plaintiff in this case has come to court with a prayer for a mandatory injunction. **-12-** ## **R.S.A. No.285/2013** Going by the allegations in the plaint the suit is one for that relief mainly. The court-fee paid is sufficient for the relief so asked for in the plaint. The court below has gone wring in going into the question whether the suit is maintainable. Payment of court fee under section 30 of the Kerala Court Fees and Suits Valuation Act 1960 arises only in a suit for recovery of possession. The question of recovery of possession arises only when the defendants are sought to be evicted as trespassers. According to the plaintiff, they are not. It may be a matter to be proved in the case whether the defendants were actually trespassers on the date of suit. If the defendants succeed in this, the plaintiff may be ultimately non-suited. But this is a matter which has to be decided on the evidence to be adduced in the case. At this state the court below will not be justified in coming to the conclusion that the plaint is not properly valued for the purpose of court-fee on the assumption that a suit for recovery of possession will only lie.” 16. On the facts of the case, it was held that a suit for mandatory injunction alone will not be sufficient. But in the ## **R.S.A. No.285/2013** **-13-** case on hand, there is no claim by the appellant that he is in occupation of the premises other than a licensee nor he has a case that he was occupying the premises under some other arrangement or transaction. Under such circumstances, he cannot be heard to say that a suit for recovery of possession has to be failed. 17. As rightly pointed out by the learned counsel appearing for the respondent, both the courts below have considered the transaction in question in detail and have come to the conclusion that the document evidences only a licence arrangement. In the light of the fact that the appellant himself acknowledged that he is in possession of premises as per licence agreement, it comes little grace now to say that the transaction is a lease. 18. This Court finds no grounds to interfere with the judgment and decree of the courts below as no serious error is seen with regard to the findings of the courts below. 19. This appeal is without merits and is accordingly **-14-** ## **R.S.A. No.285/2013** dismissed. 20. The learned counsel appearing for the appellant prayed that he may be granted some time to vacate the premises. Considering the facts that he has been in the premises for some time, he prays for a reasonable time to vacate the premises. The appellant is granted time for a period of nine months from today to vacate the premises provided, he shall continue to pay the licence fee as per the document and also files an affidavit before the trial court unconditionally undertaking to surrender on or before the expiry of nine months from today and also undertaking to pay the licence fee on every month as is done before. The affidavit shall be filed within two weeks from today. **P.BHAVADASAN JUDGE** ds