JUDGMENT
A. Lekshmikutty, J.
1. These two appeals arise from the common judgment in O.S. Nos. 33/76 and O.S. No. 57/77 before the Sub Court, Manjeri.
2. Both these appeals arise from the judgment and decree in O.S. No. 33/76. A.S. 439/1993 is filed by the third defendant and A.S. No. 525/1993 is filed by the plaintiff in O.S. No. 33/76. The late father of the appellant in A.S. No. 525/1993 filed O.S. No. 33/76 for a decree of declaration to the effect that he was in possession of the plaint schedule properties and also to set aside the attachment and orders made in execution proceedings in pursuance of the decree in O.S. No. 259 of 1973 on the file of the Sub Court, Palakkad. For the sake of convenience the parties can be referred as plaintiff and defendants as in O.S. 33/76. Plaintiff Sri Parameswaran Nair died during the pendency of the suit and his legal representatives were impleaded as additional plaintiffs. The plaint schedule property belonged to late Parameswaran Nair. The said property was given to the 2nd defendant in the suit as per Ext. A1 for the purpose of running a touring talkies for a period of one year. He was required to remove the sheds put up by him for the said purpose after the expiry of the period mentioned in Ext. A1. Thereafter, the said arrangement was continued as per Ext. A2 for a further period of three years. After the expiry of the said period of three years, the arrangement between Parameswaran Nair and the 2nd defendant continued on the basis of an oral agreement. The 2nd defendant was running the cinema theatre under the name and style “Perumal Talkies”. He continued to run the cinema till 21-6-1973 by which date his licence expired. The daily rent was in arrears and the shed was in a dilapidated condition. The 2nd defendant abandoned the cinema and left the place in September 1973. The third defendant, who is the appellant in the other appeal approached late Parameswaran Nair with a request to let out a portion of the plaint schedule properties to him for running cinema. Thus Sri Parameswaran Nair and the third defendant executed Ext. A3 agreement on 1-10-1973 and the plaint schedule property was given to the third defendant for conducting the cinema.
3. The first defendant obtained a decree in O.S. No. 259/1973 on the file of the Sub Court, Palakkad” against the 2nd defendant for realisation of Rs. 15,000/-. In execution of the said decree, the first defendant attached the plaint schedule property and brought to sale alleging that the 2nd defendant had a subsisting leasehold right over the properties. Late Parameswaran Nair and the 3rd defendant were not parties in the said suit and the execution proceedings. When Parameswaran Nair came to know about the execution proceedings, he filed a claim petition E.A. 469/76 before the executing Court contending that the 2nd defendant did not have any right over the plaint schedule property and the attachment should be set aside. It was also contended that the property cannot be sold in auction since the 2nd defendant does not have any saleable interest over the same. E.A. No. 469/1976 was dismissed by the Execution Court. O.S. No. 33/76 was filed to set aside the said order of the Execution Court and for other consequential reliefs.
4. The third defendant in O.S. No. 33/76 filed O.S. No. 57/1977 for a declaration that he is the owner in possession of the plaint schedule properties. The averments in the plaint are similar to the averments in O.S. No. 33/76. It is averred that Parameswaran Nair granted a licence to the 2nd defendant to construct a temporary cinema shed in the plaint schedule property. The licence was renewed by Ext. A2 dated 9-1-1958. Even after expiry of the term stipulated in Ext. A2, the 2nd defendant was permitted to occupy the premises and run the Cinema on the basis of an oral agreement. The licensee has to pay a daily rent of Rs. 1.50. The said agreement continued till 1-12-1970. Thereafter the daily rent was enhanced to Rs. 2.50 per day. On account of labour trouble, the 2nd defendant stopped the running, of cinema with effect from 21-6-1973. The licence period also was expired. The 2nd defendant then surrendered the premises to the plaintiff. On 1-10-1973, the plaintiff let out a portion of the plaint schedule properties to the third defendant for a daily rent of Rs. 3/-. Eversince the third defendant has become the licensee. A decree was obtained by the first defendant against the 2nd defendant for recovery of an amount of Rs. 15,000/- and the decree was put in execution before the Munsiff Court, Manjeri by filing E.P. No. 151/1976. The plaint schedule property was put to sale. The plaintiff and the third defendant objected and filed claim petition before the Execution Court. The claim petition filed by the plaintiff and the third defendant were rejected as per Ext. A35 order and Ext. B19 order respectively. Subsequently the plaintiff filed O.S. 33/76 and 3rd defendant filed O.S. No. 57/77 before the Sub Court, Manjeri. O.S. No. 33/76 was filed on 26-11-1976 and O.S. No. 57/77 was filed on 27-10-1977.
5. The first defendant filed a written statement contending that it is a collusive suit filed by the plaintiff and 3rd defendant at the instance of the 2nd defendant. The claim petitioners have no right or interest over the decree schedule property. The first defendant has obtained a decree in O.S. No. 259/1973 on the file of the Sub Court, Palakkad against the 2nd defendant for recovery of Rs. 15,000/-. In execution of the said decree, the first defendant attached and brought to sale the plaint schedule property. The 2nd defendant was having a leasehold right over the said property. Late Parameswaran Nair and the third defendant were not parties in the said suit and the execution proceedings. When he came to know about the execution proceedings, Parameswaran Nair filed E.A. No. 469/1976 before the Execution Court contending that the 2nd defendant did not have any right over the plaint schedule property and the attachment is to be set aside. It was also contended that the property cannot be sold in auction since the 2nd defendant does not have any saleable interest over the same. Both the claim petitions were dismissed by the Execution Court, against which the plaintiff and 3rd defendant filed the above suits. The suit filed by the third defendant in O.S. No. 57/77 was dismissed on the ground that the suit is not maintainable since the suit has been filed after the coming into force of the amended Code of Civil Procedure. As per the amended C.P.C. the order in the claim petition is to be treated as a decree and appeal is provided for. So far as O.S. No. 33/76 is concerned, the plaintiff has filed the suit before coming into force of the amended CPC. So the trial Court found that O.S. No. 57/77 is not maintainable and it was dismissed without going into the merit of the impugned order. O.S. No. 33/76 was dismissed on merit. Against the dismissal of O.S. No. 33/76, the abovesaid appeals are filed by the parties.
6. The only question to be considered is whether the 2nd defendant was having a saleable interest over the plaint schedule property. There is no dispute with regard to the fact that late Parameswaran Nair is the land owner of the property. It is also not disputed that he executed Ext. A1 document in favour of the 2nd defendant. Ext. A1 is dated 6-8-1958. It was executed by late Parameswaran Nair in favour of the 2nd defendant, Sankaran Kutty Nair. The nomenclature of the document is rent deed. The case of the plaintiff is that even though it is stated as a rent deed (vadaka chit), it is actually a licence. Ext. A1 shows that there was a prior agreement between the 2nd defendant and sister of Parameswaran Nair in respect of the plaint schedule property. It would show that the property was got released and put in possession of Lakshmi Amma, the sister of Parameswaran Nair. Subsequently Ext. A1 was executed by Parameswaran Nair in favour of the 2nd defendant. The property was given for a specific purpose to construct a shed for conducting a touring talkies. Permission was given to the first party, Sankarankutty Nair, by the second party late Parameswaran Nair to construct a shed in the property and put the engine for the purpose of conducting cinema. The license fee was fixed as Rs. 360/- per year. He was also permitted to remove the shed and machineries after the expiry of the period. Ext. A2 is executed on 9-1-1957. The first party is Sankaran Kutty Nair and the 2nd party is late Parameswaran Nair. Here also the document is styled as a rent deed. It was granted for the same purpose of conducting cinema and the rent was fixed as Rs. 420/- per year. The term fixed was three years. As per the plaintiff, even after the expiry of three years, Sankaran Kutty Nair was conducting cinema as per the oral permission given by the plaintiff.
7. The contention of the first defendant is that Exts. A1 and A2 are not a license, but it is a lease. Sankaran Kutty Nair was in possession and enjoyment of the property as a lessee. As per the Land Reforms Act, the lessee has become the absolute owner of the property and the first defendant is entitled to proceed against the right of Sankaran Kutty Nair, which was put in auction and the sale was confirmed. The plaintiff and the third defendant have no right over the property. Ext. A3 is a fabricated document. As per the plaintiff, while Sankaran Kutty Nair was conducting cinema, it was in a loss and hence he abandoned the property are not correct. The licence period was also expired and Parameswaran Nair was in possession and enjoyment of the property. Shed in the property was in a dilapidated condition. While Parameswaran Nair was enjoying the property, he executed Ext. A3 in favour of the third defendant for conducting cinema. So at the time of sale Sankaran Kutty Nair had no right and possession over the property. Ext. A35 is the order in the claim petition filed by the plaintiff and, Ext. P19 is the order in the other claim petition filed by the third defendant.
8. The 2nd defendant filed a written statement admitting the claim of the plaintiff and the third defendant. The contention of the first defendant is that it is a collusive suit filed by the plaintiff and the third defendant at the instigation of the 2nd defendant. At the time of attachment and sale, the 2nd defendant has raised several contentions which were repelled by the execution Court. As per the learned counsel, if the story put forward by the 2nd defendant is accepted, there is no necessity for him to contest the matter throughout. O.S. No. 259/73 is filed by the first defendant against the 2nd defendant for recovery of an amount of Rs. 15,000/-. The property was attached during trial stage and it was brought to sale in execution. The right of the 2nd defendant was put in auction and it was bid in auction by the first defendant. So the plaintiff is not entitled to get a decree setting aside the auction.
9. Admittedly the plaintiff and the third defendant were not parties to O.S. No. 259/ 1973 of the Sub Court, Manjeri. The said suit was filed for recovery of Rs. 15,000/-from the 2nd defendant and decree was passed in the said suit. The case of the first defendant is that it is not a license as alleged by the plaintiff, but it was a lease and possession was also given to the lessee. There is nothing in Exts. A1 and A2 to show that any reservation was made in respect of the property, on the other hand it can be seen that possession was given to the lessee and the lessee was enjoying the property.
10. In the case of lease, the interest in the property would be transferred to the lessee whereas in a license only permission would be granted to the licensee to do a particular thing in a particular manner. So even if the nomenclature of the document is vadaka chit, the intention of the parties is to be looked into which can be revealed from the document itself. The recital in Ext. A1 shows that :
(Vernacular matter omitted………….Ed.)
So the intention of the parties is clear from the document. The recital in Ext. A1 shows that the second party permitted the first party to construct a shed for the purpose of conducting “Touring Talkies” and directed to remove the same after the expiry of the period. So the intention of the parties were not to transfer the interest in the property for enjoyment, but permission was granted to construct a shed for conducting cinema and put engine alone were granted. As per the plaintiff, even after the expiry of the said licence period an oral permission was given and the 2nd defendant was allowed to conduct the cinema with a rent of Rs. 2.50 per day. Since the 2nd defendant was facing financial difficulties, he stopped the film show by 21-6-1973 and the licence also was expired. While the plaintiff was in possession and enjoyment of the plaint schedule property. Ext. A3 agreement was executed with the 3rd defendant on 1-10-1973 for the same purpose. The shed in the property was in a dilapidated condition. As per the second defendant, no interest on the property was handed over to him and the property was in the possession of the plaintiff. Property tax were being paid by the plaintiff evidenced by Exts. A4 to A11. Exts. X3 and X4 are the registers maintained by the Munieipality. The plaintiff has also produced documents to show that the third defendant was conducting cinema from 26-10-1973 onwards. At the time of attachment and sale of the plaint schedule property, the 2nd defendant had no saleable right over the property. Even though the first defendant has submitted that the documents produced by the plaintiff and third defendant are fabricated documents, the Court below has found that they are public documents and not fabricated documents. As per the lower Court, Exts. X3 and X4 registers are maintained for a quinquennial period and if there is change in possession, the name of the original assessee will be struck off and the new name will be inserted. So even if there is some correction in the property tax register of the Municipality, it cannot be a fabricated document.
11. The attachment of the property was on 15-12-1973 and the sale was on 27-10-1973. As per the first defendant, since Ext. A2 is a registered document, no surrender can be made without any registered document. If Ext. A2 is a license, the license shall be automatically terminated after the expiry of the license period. So it depends upon the nature of Exts. A1 and A2. As stated earlier, the intention of the parties is to be gathered from the documents. It is true that the exclusive possession of the property is not a factor but if intention to create interest on the property is there, it is a lease, and the licence creates no interest. If it is a licence, it shall terminate after the expiry of the licence period. The cardinal distinction between a lease and license is immovable property for enjoyment whereas in a licence there is no transfer of interest at all. An important feature of the lessee’s right is his right to possession and enjoyment of the property to the exclusion of the lessor. Under Section 52 of the Easements Act if a person is given the right to use the immovable property in a particular way under certain terms while retaining control and possession of the same the person so permitted is only a licensee. The question whether the relationship is that of landlord and tenant or of licensor and licensee depends on the intention of the parties and in accelerating the intention the Court should consider the circumstances in which the person claiming to be a tenant at will went into occupation and whether the conduct of the parties showing that the occupier was intended to have an interest in the land or merely a personal privilege without any such interest. If the circumstances and the conduct of the parties show that the occupier should be granted a personal privilege with no interest in the land, he will be held only as a licensee.
12. A scrutiny of Exts. Al and A2 would show that the land was given to the 2nd defendant for the purpose of conducting a shed for running touring talkies. There is provision to remove the shed after the expiry of the period. All these facts would lead to the conclusion that the intention of the parties were not to enjoy the property as such, but to put up a shed for the purpose of conducting film show. It is further clear that the licensee was permitted to remove the shed constructed by him after the expiry of the period. All these facts will lead only to be irresistible conclusion that the plaintiff has no intention to transfer interest over the property and the relationship between the land owner and the 2nd defendant was only that of a licensor and licensee. So even if Ext. A3 is not accepted, the contention of the first defendant that the 2nd defendant is a commercial tenant and not liable to be evicted cannot be accepted.
13. It is true that if it is a commercial lease, the lessee becomes a permanent tenant and cannot be evicted from the property. The report of the commissioner shows that there are coconut trees and other trees in the property and the usufructs from the property are being taken by the plaintiff. If the 2nd defendant was a tenant under Section 106 of the K.L.R. Act, no doubt his right is heritable and alienable. 1 have already found that Exts. Al and A2 are not a lease, but only a license. So there is no question of any permanent tenancy over the property.
14. The matter was referred to the Land Tribunal and the Land Tribunal found that the 2nd defendant is entitled to fixity of tenure and he was having the right under Section 106 of the KLR Act. Both these rights will not go together. A perusal of the order passed by the Land Tribunal would show that the Land Tribunal has failed to consider the right of the second defendant. No evidence was adduced by the contesting defendants to prove the question of tenancy. The question whether a person is entitled to get benefit under Section 106 of the Kerala Land Reforms Act need not be referred to the Land Tribunal. The finding of the Land Tribunal that the 2nd defendant is entitled to benefit under Section 106 and also Section 72-B of the KLR Act is unfounded.
15. In such circumstances I am constrained to set aside the judgment and decree passed in O.S. No. 33/76 and the Appeal is allowed and the suit is decreed. In the light of the above findings, the validity of Ext. A3 is left open and A.S. No. 439/1993 is disposed of accordingly.