SCARIAKUTTY V.M. v. PREMA GOPINATHA PANICKER AND OMANA PRABHAKARAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933** **OP(C).NO. 461 OF 2010(O)** **-------------------------------------** **OS.357/2008 OF MUNSIFF COURT, CHANGANACHERRY** **....................** **PETITIONER:** **--------------------** **SCARIAKUTTY.V.M,VAYALAPPALLIL HOUSE, KANGAZHA(P.O),PATHANADU BHAGOM,KANGAZHA KARA, KANGAZHA VILLAGE.** **BY ADV. SRI.MVS.NAMBOOTHIRY** ## **RESPONDENT(S):** **---------------** **1. PREMA GOPINATHA PANICKER, W/O.GOPINATHA PANICKER,KARAKKATTU HOUSE, KANGAZHA KARA,KANGAZHA(P.O),686 541.** **2. MRS.OMANA PRABHAKARAN,D/O.K.K.RAMAN, KARAKKATTU KIDARAKUZHIYIL HOUSE,KANGAZHA KARA, KANGAZHA VILLAGE-686541.** **ADV. SRI.JACOB GEORGE (PATHAZHAKKUZHIKAL) FOR R2 SRI.JOSEPH A.VADAKKEL FOR R2 SRI.GEORGE KARITHANAM VARGHESE FOR R2 SRI.M.P.RAMNATH FOR R1** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P(C) NO.461 OF 2010** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.357 OF 2008 ON THE FILE OF THE MUNSIFF'S COURT, CHANGANACHERRY.** **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST RESPONDENT IN O.S. NO.357 OF 2008.** **EXHIBIT P3 TRUE COPY OF THE AGREEMENT EXECUTED ON 13.12.2007 BETWEEN THE PETITIONER AND MR. K. GOPINATHA PANCIKER.** **EXHIBIT P4 TRUE COPY OF THE AGREEMENT EXECUTED ON 4.5.2007 BETWEEN MR.GOPINATHA PANICKER AND ONE SHIBU PHILIP.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 20.10.2010 IN O.S. NO.357 OF 2008 OF THE MUNSIFF'S COURT, CHANGANACHERRY.** **EXHIBIT P6 TRUE COPY OF THE REVIEW PETITION FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 19.10.2010 IN I.A. NO.1719 OF 2010 IN O.S. NO.357 OF 2008 OF THE MUNSIFF'S COURT, CHANGANACHERRY.** **RESPONDENT(S)' EXHIBITS: NIL** ## **TRUE COPY** **P.S. TO JUDGE** **-** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.461 of 2010 ==================================== Dated this the 19[th] day of August, 2011** ## **J U D G M E N T** The question posed for a decision in this Original Petition is as to the nature and character of Ext.P3, agreement. Issue arose in O.S. No.357 of 2008 filed by petitioner against the respondents in the court of learned Munsiff, Changanassery. Petitioner sought a decree for preliminary injunction on the premise that he is in possession and enjoyment of the suit property as per Ext.P3, agreement. Respondents have their own contention regarding the validity of the agreement. In the course of evidence petitioner wanted to introduce the agreement and get it marked as an exhibit on his side. That was objected by the respondents on two grounds; that though it is styled as a rent deed in perpetuity it is not registered and at any rate proper stamp duty is not paid having regard to the rent fixed in the agreement. Learned Munsiff upheld the objection and by Ext.P5, order impounded the document under Section 33 of the Stamp Act. Petitioner was directed to pay stamp duty and penalty of Rs.52,976/-. Petitioner filed Ext.P6, review petition on the premise that the document is **O.P(C) No.461 of 2010** -: 2 :- only an agreement for lease. That application was dismissed as per Ext.P7, order. Exhibits P5 and P7, orders are under challenge in this Original Petition. 2. Learned counsel for petitioner has contended that Ext.P3, is only an agreement for lease, at any rate it can only be construed as a licence and hence Exts.P5 and P7, orders cannot be sustained. Learned counsel has placed reliance on the decision in **Antony v. Ouseph** (2008 [3] KLT 901). Learned counsel for respondents contended that the plea of licence is not available for petitioner for various reasons including that in the court below the plea taken after Ext.P5, order was that the document is only an agreement for lease. It is also contended that in view of the tenor of the document there could be no plea that it is a licence or agreement for lease and hence Exts.P5 and P7, orders require no interference. 3. To understand the rival contentions and resolve the issue, it is necessary to refer to Ext.P3, agreement. Petitioner claimed that by virtue of the said agreement he is in possession and enjoyment of the property and entitled to do whatever that is permitted in Ext.P3, agreement which respondents attempted to interfere. It is not disputed that the suit property belonged to ## **O.P(C) No.461 of 2010** ## -: 3 :- Gopinatha Panicker, husband of the first respondent (who, I am told, was not made a party to the suit and now is no more). Exhibit P3 purports to be executed between petitioner and the said Gopinatha Panicker on December 13, 2007. Though Ext.P3, is styled as an agreement, it states that by the said agreement the said Gopinatha Panicker has consented to petitioner being in possession and enjoyment of the property referred to therein and during the time the agreement remained in force and that petitioner or his nominee is allowed to possess and enjoy the said property for business or other purposes on payment of consideration of Rs.2,000/- per month to the said Gopinatha Panicker. It is also stated that on the expiry of every three years Gopinatha Panicker will have the right to revise the consideration at the rate of 10% of the existing rate. In case any of the parties acted in violation of the terms and conditions and the other suffered loss the party suffering such loss is permitted to realize the loss from the person violating the terms and conditions. No time limit is fixed in the agreement for possession and enjoyment of the property put in the possession of petitioner. When petitioner thinks that he no more requires the property, he is free to surrender the same to the said Gopinatha Panicker. **O.P(C) No.461 of 2010** ## -: 4 :- Further term in the agreement is that petitioner or his nominee will have the right to do business or do construction activities in the property. 4. Now the question is whether the said agreement could be understood as an agreement for lease? It is in that regard that learned counsel for petitioner relied on the decision referred supra. There, it was held that the document was an agreement to create a lease but not by itself a lease. But having gone through the terms and conditions of Ext.P3, agreement I find myself unable to accept the contention that the said document is only an agreement for lease. For, it is not as if parties agreed to enter into a lease arrangement as Ext.P3. Instead, rights and liabilities are crystalized by Ext.P3 and petitioner is (allegedly) allowed to be in possession and enjoyment of the property for consideration. Therefore the contention that Ext.P3 is only an agreement for lease cannot be accepted. 5. Though no such contention was taken in the court below as is evident from Ext.P6, petitioner has also contended in this proceeding that Ext.P3 is a licence. I am inclined to consider that contention as well. 6. 'Licence' is defined in Section 52 of the Easements Act **O.P(C) No.461 of 2010** ## -: 5 :- as a permission granted to do something in or upon the land of another which but for such permission would be unlawful. It is settled position of law that while a lease creates an interest in the property, licence does not. At one point of time it was thought that a licensee has no possession of the property but later decisions say that a licensee also could have possession of the property for the convenient enjoyment of the licence. It is also the indica of a licence that it is terminable at the option of either party. Exhibit P3 states not only that petitioner is allowed to be in possession and enjoyment of the property but also that he can effect constructions in the property. The agreement does not prescribe any period. Petitioner need surrender the property only when he thinks that he no more needed the property. Gopinatha Panicker has reserved a right to revise the consideration after every three years in the manner stated therein. It is pertinent to note that it is not only for petitioner that right is conferred as per the agreement but to his nominee as well. As aforesaid right for termination of the agreement is given only for petitioner. These circumstances persuade me to hold that the document cannot be interpreted as a licence as well. In the view I have taken I do not find reason to interfere with Exts.P5 ## **O.P(C) No.461 of 2010** -: 6 :- and P7, orders. Original Petition is dismissed. However I am inclined to grant petitioner forty five (45) days' time from this day to comply with Ext.P5, order. All interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv