IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1350 of 2009()
1. RAVEENDRAN,AGED 55,S/O.OLIYIL GOPALAN,
... Petitioner
Vs
1. MUHAMMEDALI,AGED 55,S/O.THAZHATHETHIL
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.P.K.MOHANAN(PALAKKAD)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/01/2010
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. No.1350 of 2009
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Dated this the 12th day of January, 2010
J U D G M E N T
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Defendant in O.S. No.155 of 1995 of learned Munsiff-
Magistrate, 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
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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
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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
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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
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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
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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
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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.
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(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 10th 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