Raveendran v. Muhammedali

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931** **RSA.NO. 1350 OF 2009()** **----------------------------------AS.8/2001 OF SUB COURT, OTTAPPALAM OS.155/1995 OF MUNI-MAGI.COURT,PATTAMBI** **....................** ## **APPELLANT – APPELLANT - DEFENDANT:** **-------------------------------------------------------** **RAVEENDRAN,AGED 55,S/O.OLIYIL GOPALAN, PARUTHUR AMSOM AND PALLIPPURAM DESOM, OTTAPPALAM TALUK.** **BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH)** ## **RESPONDENT – RESPONDENT PLAINTIFF:** **---------------------------------------------------------** **MUHAMMEDALI,AGED 55,S/O.THAZHATHETHIL HAMA HAJI,THRITHALA AMSOM,NHANGATTIRI DESOM, OTTAPPALAM TALUK.** **ADV. SRI.P.K.MOHANAN(PALAKKAD)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. No.1350 of 2009** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12[th] day of January, 2010 ## **J U D G M E N T** ---------------------- Defendant in O.S. No.155 of 1995 of learned MunsiffMagistrate, Pattambi is the appellant before me. He has suffered a decree for eviction from the schedule building with damages at the rate of Rs.1,500/- per month. 2. According to the respondent the schedule building belonged to him as per Ext.A1 and as per successive deeds of licence (Exts.A2 to A4) appellant was being permitted to occupy the building for his jewellery business subject to the terms and conditions stipulated in the said deeds. Exhibit A4 is the deed of licence dated 1.10.1994 as per which appellant was permitted to occupy the schedule building for a period of eleven months. On the expiry of that period, respondent demanded vacant possession of the building which the appellant refused and hence the suit for mandatory injunction and recovery of damages. Appellant contended that he is a lessee of the building and that at the time of the original entrustment he had paid Rs.65,000/- to the respondent by way of rent advance. Rent was enhanced periodically and the ## **R.S.A. No.1350 of 2009** ## -: 2 :- present rent is Rs.1,500/- per month. He claimed that since he is a lessee of the building he is not liable to be evicted by a mandatory injunction as prayed for by the respondent. Trial court found on evidence that the transaction between appellant and respondent is a licence and hence on expiry of the period of licence referred to in Ext.A4 respondent is entitled to seek eviction of appellant by a decree for mandatory injunction. Damages (for use and occupation) was allowed at the rate of Rs.1,500/- per month. First appellate court has confirmed that finding and decree. Hence the Second Appeal urging by way of substantial question of law whether finding of the courts below that Ext.A4 evidenced a licence arrangement is legally sustainable? Learned counsel for appellant asserted his contention that the transaction, notwithstanding the nomenclature of the documents (Ext.A2 to A4) really evidenced a lease arrangement. According to the learned counsel endorsements on the back of Ext.A2 to A4 obtained from the appellant that he will surrender the building on expiry of the period mentioned therein would indicate that he is a lessee of the premises with possession. Reliance is placed on the decision of the Supreme Court in **New** ## **Bus stand Shop Owners Assn. v. Corporation of** **Kozhikode** ([2009] 10 SCC 45). In response it is contended by ## **R.S.A. No.1350 of 2009** ## -: 3 :- learned counsel for respondent that there is nothing wrong in the parties agreeing to enter into licence arrangement and conducting themselves accordingly. Learned counsel would argue that going by the terms of Exts.A2 to A4 conclusion inescapable is that relationship between the parties is only of a licensor and licensee and the period of licence as per Ext.A4 having expired it was well within the power of the respondent to seek mandatory injunction with damages for use and occupation. 3. It is trite law that in interpreting a document emphasis need not be given to the nomenclature alone (See **Rajappan v.** **Veeraraghava Iyer** - 1969 KLT 811). But it is also the cardinal principles of interpretation of a deed that the question is not what the parties may have intended by executing the deed but what is the true meaning of the words used in the deed. Court has to understand the true intent of the deed by the words used in the deed (See **Narayani Amma v. Narayanan Namboodiri** – 1985 KLT 49) and **Hathika v. Padmanabhan** – 1994 [1] KLT 345). It has been held that when the terms and expressions used in the deed are clear, intention of the parties has to be gathered from the deed itself and looking into surrounding circumstances is ## **R.S.A. No.1350 of 2009** ## -: 4 :- possible only when there is ambiguity in the expressions used in the deed. The Supreme Court in **New Bus stand Shop Owners** ## **Assn. v. Corporation of Kozhikode** (supra) held that the true test to ascertain whether the document is a lease or licence is the nature and quality of the occupation. In a tenancy, interest in the land passes whereas in the licence it does not. Exclusive possession was held to be not a decisive test but its absence signifies that the agreement is for licence and not for lease. 4. It has been held by binding authorities that even exclusive possession is not an indica of a lease arrangement. (see ## **Narayani Amma v. Narayanan Namboodiri** and **New Bus stand Shop Owners Association case** (supra). For the purpose of convenient enjoyment of the licence it may be necessary to give possession of the premises to the licensee. Hence the mere fact of the grantee being in possession cannot be decisive of the question whether the arrangement is lease or licence. 5. Exhibits A2 to A4 are the deeds of licence executed between the parties in this case. Though in Ext.A9, reply appellant has a case that he was forcibly made to sign the documents, there ## **R.S.A. No.1350 of 2009** ## -: 5 :- is no acceptable evidence in that line and instead when examined as D.W.1 he has confessed that he has written in his own hand on the back of Exts.A2 to A4 that on the expiry of the period of licence he will surrender the premises to the respondent. Courts below also found that there is no reason to think that there was any foul-play in Exts.A2 to A4 got executed. 6. It is specifically stated in Exts.A2 to A4 that permission is given to the appellant to use the premises as a licensee for the purpose of jewellery business subject to the terms and conditions stated therein. In paragraph 7 of Ext.A4 it is stated that parties have meant and understood the transaction not to be a lease arrangement but only as conferring a personal privilege on the appellant to use the premises for the specific purpose of conducting business in jewellery. It is also stated in Ext.A4 in specific terms that possession of the building remained with the respondent and that its key was entrusted to the appellant to enable him use the building for the purpose he was granted permission to occupy the building. Appellant when examined as D.W.1 had admitted that in Ext.A5, counterfoil of receipt book for payment of (licence) fee he has written in his own hand that he has received receipts for payment of 'licence fee'. A further fact revealed from the evidence ## **R.S.A. No.1350 of 2009** ## -: 6 :- of appellant as D.W.1 is that he has taken another room for business purposes and in respect of that room he has executed a 'rent deed'. Hence it is not as if appellant was unaware of the distinction between lease and licence. Being aware of that distinction and with eyes wide open to the terms and conditions appellant has executed Exts.A2 to A4. Courts below found from Exts.A2 to A4 that it evidenced a licence arrangement. Law does not prohibit parties from entering into a licence arrangement and conducting themselves accordingly. I do not find anything to hold that notwithstanding the terms and conditions stated in Exts.A2 to A4 the real transaction was one of lease and that Exts.A2 to A4 were intended as a camouflage to cover up the real transaction. In that view I find nothing illegal in the courts below taking the view that Exts.A2 to A4 revealed licence arrangement. That is a finding of fact entered on the evidence and on proper construction of Exts.A2 to A4. As such no substantial question of law is involved. 7. It has been held that when the period of licence is terminated or it expired by efflux of time it is open to the licensor to sue for mandatory injunction within a reasonable time (see **Ayssa Umma v. Ami** - 1990 [1] KLT 98 and **Joseph Severance v. Benny Mathew** - 2005 [4] KLT 290 9SC). Respondent has filed ## **R.S.A. No.1350 of 2009** -: 7 :- the suit within reasonable time on the expiry of the period stated in Ext.A4. Decree for damages also does not require interference since the amount awarded is the licence fee payable as per Ext.A4. 8. Learned counsel for appellant requested 12 months' time to vacate the premises. It is submitted by learned counsel that appellant is engaged in jewellery business and if, all on a sudden he is evicted his business will be doomed. I have heard learned counsel for respondent in this regard. Having regard to the facts and circumstances of the case and considering the nature of business appellant is admittedly carrying on in the schedule building I am inclined to grant six months' time from this day to the appellant to vacate the premises as per the judgment and decree under challenge. Resultantly, Second Appeal fails and it is accordingly dismissed in limine. Appellant is granted six months' time from this day to vacate the schedule building subject to the following terms and conditions. (i) Appellant shall deposit in the trial court arrears of damages at the rate of Rs.1,500/- per month payable from July, 2009 to 31.01.2010 within one month from this day. ## **R.S.A. No.1350 of 2009** -: 8 :- (ii) Damages payable at the rate of Rs.1,500/- per month from 01.02.2010 till expiry of the six months referred to above shall be deposited in the same court before the expiry of 10[th] of the succeeding months. (iii) Appellant shall not induct third parties into possession of the schedule building during the said period of six months. (iv) Appellant shall vacate the premises on the expiry of the said period of six months without putting forth any claim or objection whatsoever. (v) Appellant shall file an affidavit in the trial court within a period of three weeks from this day undertaking to comply with the above terms and conditions. ## **THOMAS P.JOSEPH, JUDGE.** vsv