IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 318 of 2010()
1. M/S.PATEL SAW MILL, A PARTNERSHIP
... Petitioner
2. PURUSHOTHAM KANJI PATEL, S/O.KANJI PATEL
3. KRISHNA DAS KANJI PATEL,
4. MANILAL KANJI PATEL,
Vs
1. JOHNSON KANADAN, ADVOCATE,
... Respondent
2. TOMY, RETIRED BANK OFFICER,
3. SEBASTIAN, COMPANY EMPLOYEE,
4. GRACY PAUL, HOUSE WIFE,
5. JOE PAUL, BUSINESS, S/O.LATE PAULSON,
6. ABY PAUL, PHARMACIST, S/O.LATE PAULSON,
7. JEEMON PAUL, BUSINESS,
8. LEGY PAUL, HOUSE WIFE,
9. REJANI LAL KANJI PETE,
10. GOVIND KANJI PATEL,
For Petitioner :SRI.S.SHYAM
For Respondent :SRI.C.T.JOSEPH
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :26/11/2010
O R D E R
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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RFA No.318 of 2010-B
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Dated 26th November 2010
Judgment
Thottathil.B.Radhakrishnan, J.
Defendants 1 to 3 and 5 in a suit for mandatory
injunction and in the alternative for recovery of possession, are
the appellants. Plaintiffs sued on the allegation that the first
defendant – a partnership firm was permitted to use the plaint
schedule property consisting of a building and 56 cents of land
for the purpose of conducting timber business and that the said
transaction is only a licence which was being renewed from
time to time.
2. On the premise that the building and 16.5 cents
on which it stands, was governed by the provisions of the
Building (Lease and Rent Control) Act, 1965, the plaintiffs filed
Ext.A7 rent control petition seeking eviction. Ext.A8 was the
objection filed by the first defendant firm. The Rent Control
Court dismissed that eviction petition by holding that the
transaction was not a building lease as contended in those
proceedings and the lease was for the entire extent of 56 cents
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with building standing thereon and therefore, it is not a building
lease for the purpose of Act 2 of 1965. This was affirmed by
the appellate authority. That led to a revision before this court at
the instance of the plaintiffs in the suit from which this appeal
arises. This court affirmed the decision of the appellate
authority and the rent control court that the transaction was not
a building lease. Nevertheless, this court further dilated on the
question whether the transaction between the parties was a
lease or licence and held as per Ext.A9 that the transaction was
a licence.
3. On the face of the aforesaid finding of this court,
the plaintiffs sued for mandatory injunction to direct the first
defendant and the partners of the firm to vacate the premises
which was covered by the licence. In the alternative, it was
contended that if for some reason, the court were to conclude
that the transaction is a lease, the plaintiffs may be granted a
decree for recovery of possession since any such subsisting
lease should also stand terminated.
4. In defence, the plea was that the transaction is
not a licence, but a lease of land and that the defendants are
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entitled to the benefit of Section 106 of the Kerala Land
Reforms Act, 1963. The court below, after hearing PW1 and
DW1 and also taking on record the documents produced, held
that the transaction between the parties is essentially a licence
and even if it were a lease, the defendants were not entitled to
the benefit of Section 106 of the Kerala Land Reforms Act. This
is under challenge.
5. The learned counsel for the appellants argued
that the court below erred in law in interpreting the provisions
contained in Exts.A1 and A6 which are the last among the
documents between the parties. According to him, those
documents essentially relate to renewal of leases even on
nomenclature, and there is no reason, intrinsic or extrinsic, to
hold that the transaction is a licence and not a lease. He
impeached the finding of the court below that clauses 3, 4 and
10 of Exts.A1 and A6 tend to show that the transaction is only a
licence. Contending that the transaction is essentially a lease, it
is argued that the lease was only of land for commercial
purpose and the mere existence of a building in the land at the
time of grant of lease does not, in any manner, deprive the
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defendants of the benefit of Section 106 of the Kerala Land
Reforms Act. He attempted to distinguish the decision referred
to by the court below in support of the proposition that the
benefit of Section 106 of the Land Reforms Act would enure
only to cases where the lease is of land only and such benefit
could not be claimed in relation to a lease of land and building
or a lease of land with building.
6. The learned counsel for the plaintiffs, contesting
the appeal, argued that the issue relating to Section 106 of the
Kerala Land Reforms Act is squarely covered against the
appellants by the decision of the Apex Court in Chandy
Varghese v. Abdul Khader (2003(3) KLT 553 (S.C.), which
stands to affirm the view taken by the Division Bench of this
Court in Abdul Rahiman v. Iype (1965 KLT 247). He also
relied on the decision in T.K.Jacob v. Gracykutty (AIR 1991
Kerala 281) to point out that when there is no absolute
entrustment of the land, there is no question of a lease and the
transaction could only be a licence. He also projected the
findings in Ext.A9 decision of this court rendered interparties
and contended that notwithstanding the fact that the said
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decision ultimately went in favour of the defendants, there was
an issue in that case which was pivotal to the decision and such
a decision could be treated as an issue estoppel interparties in
a subsequent litigation.
7. The court below adverted to clauses 3, 4 and 10
of Ext.A1 and held that clause 3 reserves the right of the owner
to enter into the property to take usufructs from the trees
standing thereon. Clause 4 provides permission for the
occupier/defendants to put up sheds in addition to the building
thereon, for running a saw-mill. That clause also obliged the
defendants to remove those sheds at their cost at the time of
surrender of premises and the defendant was also granted time
to remove the sheds and other materials at the time of eviction.
Clause 10 of Exts.A1 and A6 respectively, were referred to by
the court below to notice that the land was always to be
deemed to be in the possession of the lessee. These were the
clauses in Exts.A1 and A6 which, according to the court below,
were of abundant importance notwithstanding the
nomenclature of those documents as renewal of lease.
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8. We may note that this court had in Ext.A9 found
that the transaction is a licence.
9. However, the court below has independently
assessed the evidence and has come to the conclusion that the
transaction is a licence. It did not merely act on Ext.A9 as if it
constitutes res judicata. Either way, the conclusion arrived at by
the court below independent of Ext.A9 is only in tune with what
is stated in Ext.A9 and the decision of this court in Jacob
(supra) referred to by the learned counsel for the plaintiffs. We,
therefore, do not find any ground to upset the finding of the
court below in that regard.
10. The aforesaid decision notwithstanding, even if
we were to assume that the transaction is a lease, the court
below has held that in terms of the provisions of the Kerala
Land Reforms Act, three types of leases are contemplated, i.e.,
to say, leases of buildings, leases of building and land, as also
leases of land. With reference to Section 3(1)(iii) of the Kerala
Land Reforms Act, it was held in Abdul Rahiman (supra) that
these three kinds of leases are excluded from fixity of tenure
and after those categories of leases are excluded under that
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provision, one among them, namely, leases relating to lands
whereon the lessees have constructed building prior to the
relevant date, may give protection from eviction on the
conditions in Section 106 of the Kerala Land Reforms Act,
being satisfied. That precedent is rendered holding that the
other two types of leases, namely leases of building and leases
of building and land, are not entitled to fixity of tenure. The ratio
of the decision of the Division Bench of this court stands
affirmed by the law laid down by the Apex Court in Chandy
Varghese (supra).
11. The learned counsel for the plaintiffs may be
right in saying that the classification of the lease into three
categories have been made in the aforesaid decisions, with
reference to Chapter II of the Kerala Land Reforms Act, while
Section 106 falls within Chapter IV. That makes no difference
because the classification noticed from Section 3(1)(iii) of the
Land Reforms Act is utilised only for the purpose of interpreting
Section 106 to understand that Section 106 takes care of only
leases of lands followed by the lessee putting up buildings for
commercial or industrial purposes before 30.05.1967 provided
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the lease of land was for commercial or industrial purposes.
12. The legislature uses in Section 106 of the Land
Reforms Act, the clear terms – “………………………..where on any
land leased for commercial or industrial purpose, the lessee
has constructed buildings for such commercial or industrial
purpose………………..”. If lease of land with buildings was also
intended to be covered by Section 106, that would have been
specifically expressed. As already noted, the Kerala Land
Reforms Act contains necessary classification of leases into
leases of land only, leases of buildings and also leases of land
with building. In this view of the matter, we do not find any way
to cull out any distinction from out of the law laid down in Abdul
Rahiman and Chandy Varghese (supra). Therefore, the
impugned decree and judgment stand and this appeal fails.
In the result, this appeal is dismissed subject to the
directions contained in the preceding paragraph. No costs.
13. At this point of time, the learned counsel for the
appellants sought that the appellants be granted reasonable
time to enable the defendants to shift out of the premises and
deliver vacant possession. We grant a period of six months
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from now on condition that the appellants pay the occupational
charges for the said period fixed @ Rs.5,000/- per month from
December 2010 and also deposit the accrued arrears of
occupational charges, if any, and file appropriate affidavit
before the court below undertaking to so surrender. Let the
deposit be made and affidavit be filed before the court below
within a period of three weeks from now. It is clarified that the
entire occupational charges for six months in terms of this
direction have to be deposited in one go within a period of three
weeks from now. Enforcement of the impugned decree will
stand regulated accordingly.
THOTTATHIL.B.RADHAKRISHNAN,
JUDGE
P.BHAVADASAN, JUDGE
sta
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