V. Murukesan v. Panangattu Ammukkutty Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 --------------------AS.184/2003 of I ADDL.SUB COURT, KOZHIKODE OS.868/2000 of ADDL.M.C.,KOZHIKODE-II APPELLANT/APPELLANT/DEFENDANT V.MURUKESAN, AGED 36 YEARS, S/O.VEERAMUTHU, SREE ILLAM, MANIKOTH PARAMBA, NAYAR KULAM, BEYPORE, KOZHIKODE. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.P.RANI DIOTHIMA RESPONDENT/RESPONDENT/PLAINTIFF PANANGATTU AMMUKUTTY AMMA, AGED 60 YEARS, W/O.(LATE) BALAKRISHNAN NAIR, PALATTAKANDY VEETTIL, NADUVATTOM AMSOM, THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY PASSED THE V. RAMKUMAR, J. ===================== R.S.A. No. 856 of 2007 ================ Dated this the 5[th] day of November, 2008. ## **JUDGMENT** The defendants in O.S. No. 868 of 2000 on the file of the Munsiff's Court, Kozhikode-II is the appellant in this Second Appeal. The said suit instituted by the respondent herein was one for a decree of mandatory injunction directing the defendant to vacate the plaint schedule shop room where the defendant is conducting a barber shop. 2. The case of the plaintiff was that the defendant was permitted to carry on the business of a barber in the plaint schedule shop room as per Ext.A3 licence deed dated 12.12.1990 fixing a licence fee of Rs.400/- and receiving a security of Rs.9000/- and Ext.A3 licence was subsequently renewed as per Exts.A4 to A9 and A1 licence deeds. The licence fee was paid up to and inclusive of the month of December, 1999 but kept in arrears from January, 2000 onwards. Hence the suit. 3. The suit was resisted by the appellant/defendant contending inter alia as follows:- The suit is not maintainable. The defendant was put in R.S.A. No. 856/2007 : 2: possession of the shop room on 10.02.1999 as per a rental arrangement. The rent fixed was Rs.300/- and subsequently raised to Rs.400/-. There was no transaction of licence between the parties. He was made to sign some stamp papers which have subsequently been converted into licence deeds. He being a tenant and the arrangement being a rental arrangement, he could be evicted from the plaint schedule shop room only in accordance with the provision of the Kerala Buildings (Lease and Rent Control) Act, 1965. 3. Both the courts have held that Ext.A3 is a licence pure and simple, that Exts. B2 to B6 receipts purporting to be rent receipts, were produced at a belated stage and that the alleged signature of the landlord in those receipts was disputed by the plaintiff. These receipts were eschewed from consideration by the courts below. The courts below accordingly granted a decree as prayed for. Hence this Second Appeal. 4. The learned counsel appearing for the appellant/defendant made the following submissions before me in support of the appeal:- Even though Ext.A3 document is styled as a licence R.S.A. No. 856/2007 : 3: deed, the appellant has a case that his signatures were taken on stamp papers which were subsequently converted into licence deeds. If so, Exts.A1 and A3 to A9 cannot be looked into to find the real nature of the transaction. The appellant was put in exclusive possession of the shop room in question. He was making the monthly payments in the form of rents. There was a transfer of interest in immovable property and the said transfer was for the purpose of enjoyment. Hence, it was a clear case of lease falling under Section 105 of the Transfer of Property Act. If it was a case of licence, then there would not have been any transfer of exclusive possession nor any restraint on subletting. In the light of the decision in **B.V.D'Souza v/s. Antonio Fausto Fernandes** – 1989 (3) SCC 574 the interdict against sub-letting goes a long way to hold that the transaction is a lease. In the case of a licence, there will be no right of re-entry for the grantor. All these features discernible from the evidence on record will clearly indicate that the transaction was a pure rental arrangement and the appellant was a tenant in respect of the shop room. The suit ought to have been dismissed by the courts below. R.S.A. No. 856/2007 : 4: 5. I am afraid that I cannot agree with the above submissions. The specific case of the plaintiff is that the defendant sought permission for temporary use of the shop room in question for conducting a barber shop and accordingly Ext.A3 licence deed dated 12.12.1990 was executed fixing a licence fee of Rs.400/- after receiving a security amount of Rs.9000/-. The document clearly recites that the defendant is permitted to use the plaint schedule shop room for conducting a barber shop and that the possession of the shop room is with the grantor (plaintiff) and the grantee was to conduct a barber shop on such premises. The monthly payment was also described as licence fee. The restriction is not against the subletting, but against inducting strangers into the shop room. If the embargo was against sub-letting, then the words employed would have been “ But here what is stated is “ This is not sub-letting. Even if there is a restraint on sub-letting it is in no way inconsistent with the finding that the transaction is a licence. [See **Vayallakath Muhammodkutty v. Illikkal Moosakutty** (AIR 1996 SC 3288)].Every instance R.S.A. No. 856/2007 : 5: of exclusive possession does not spell out a case of lease. (vide **Kt. N. Rm. Thenappa Chettiar and others v. N.S.Kr. Karuppan Chettiar & others** (AIR 1968 SC 915). If the privilege of exclusive possession of the premises is granted on certain terms and conditions as a licensee, the transaction is a licence. [See **Delta International Ltd. v. Shyam Sunder Ganeriwalla and another** (1999 (4) SCC 545)]. A reading of the document shows that there was no transfer of interest in immovable property for the purpose of enjoyment. The transaction squarely falls under Section 52 of the Easements Act and it has been so held concurrently by the courts below after a careful evaluation of the oral and documentary evidence in the case. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. 6. The learned counsel appearing for the appellant sought some time to vacate the premises. The suit was filed in the year 2000 and he had 8 years' time to vacate, if he R.S.A. No. 856/2007 : 6: wanted. However, having regard to the facts and circumstances of the case, I am inclined to grant three months' time to the appellant/defendant to vacate from the premises, provided that he files an affidavit before the trial court within two weeks from today undertaking to vacate the plaint schedule shop room within three months from today and also undertaking that until he surrenders vacant possession of the premises, he shall not induct strangers or commit waste in the property and shall pay the licence fee without fail. Dated this the 5[th] day of November, 2008. ## V.Ramkumar, Judge rv R.S.A. No. 856/2007 : 7: R.S.A. No. 856/2007 : 8: