M.U. Isaac, J.
1. This Second Appeal is by the plaintiff in O. S. 128 of 1960 on the file of the Munsiff's Court, Mavelikara. The suit was for a permanent injunction restraining the defendants from constructing a building in the plaint schedule property, to direct them to remove the building, if any, constructed therein, and for recovery of ground rent for the use of the said property at the rate of Rs. 10 per annum.
2. The plaint schedule property has an area of 3 cents; and it is part of Survey No. 70/18 in Vallikunnu Village, Mavelikara Taluk. This survey number has an area of 90 cents; and it belongs, admittedly, to the plaintiff's tarwad. The plaintiff and the first defendant are the children of one Kri-shnan Nair through different wives; and the second defendant is the son of the first defendant. Krishnan Nair has been conducting a market in the above property over an area of 40 cents. The plaint property is the south-western portion of the said 40 cents. Krishnan Nair constructed a shop building in the plaint property; and he sold the building to the first defendant as per sale deed Ext. D-l dated 3-1-1 1.23. The plaintiff alleged that Krishnan Nair was conducting the market for the benefit of the plaintiff and his mother; that the shop building was constructed with the permission of the plaintiff; that it was demolished and removed by the first defendant about five years ago, as required by the plaintiff and Krishnan Nair; and that the defendants were forcibly attempting to construct a new building in the plaint property. It was also alleged that, after the demolition of the shop building, the plaintiff had been in possession of the plaint property, and that he had been using it thereafter as part of the market area. The suit was contested by defendants 1 and 2 only. They contended that defendants 3 and 4 were unnecessary parties, that Krishnan Nair was conducting the market in his own right, thatthe plaintiff's tarwad had surrendered its rights in respect of the 40 cents of land in which the market was conducted in favour of Krishnan Nair, and that the plaintiff's tarwad lost its title to the said property by adverse possession. They denied the alleged demolition of the shop building, and stated that they were not constructing any new building; but they were only replacing the old walls, which became damaged due to old age. They also contended that the plaint property would not fetch a ground rent of more than one rupee per year, and that the plaintiff was not entitled to any of the reliefs sought for.
3. The trial Court held that the plaint schedule property belong to the plaintiff's tarwad; that Krishnan Nair had only a licence in respect of the 40 cents of land which he was using for the market; that he constructed the shop building in the plaint property with the plaintiff's permission; that the building was actually demolished by the first defendant as alleged in the plaint; that, as Krishnan Nair constructed the building only as a licensee, the licence became revoked when the building was demolished; and that thereafter the first defendant had no right to construct any building in the plaint property. It fixed the ground rent of the property at Rs. 2 per annum. Accordingly, the trial Court passed a decree directing the defendants to surrender the plaint property, after removing the building therein, and to pay the plaintiff ground rent at the rate of Rs. 2 per year. Defendants 1 and 2 appealed to the Sub Court of Mavelikara. The learned Subordinate Judge held that the licence in favour of Krishnan Nair was irrevocable, that the demolition of the building was only for reconstruction; and that, as the reconstruction had commenced before the institution of the suit, there was no revocation of the licence. Accordingly, the lower appellate Court allowed the appeal and set aside the decree for the removal of the building and surrender of the plaint property. The plaintiff has, therefore, filed this Second Appeal.
4. The learned counsel for the appellant raised two contentions before me. First, Krishnan Nair was only a licensee in respect of the plaint property; and the first defendant cannot get the rights of Krishnan Nair under the licence, as such a right is not transferable. Secondly, the licence was revoked, when once the building constructed by Krishnan Nair was demolished and ceased to exist. These contentions are based on the assumption that Krishnan Nair constructed the shop building in the plaint property, under a licence from the plaintiff's tarwad, and that he had only a licensee's right in respect thereof. I do not think that this assumption is justified. There is no discussion in the judgment of the trial Court regarding the relation between the plaintiff's tarwad and Krishnan Nair in respect of the plaint property. It does not follow from its finding that Krishnan Nair put up the building with the plaintiff's consent, that it created only a licence, and not a lease. There is clear distinction between the two concepts; but it becomes sometimes difficult to determine whether a transaction evidences a lease or a licence. The Supreme Court held in Associated Hotels of India v. K. N. Kapoor, AIR 1959 SC 1262, that the following propositions may be as well established:--
'(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form;
(2) the real test is the intention of the parties -- whether they intended to create a lease or a licence;
(3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and
(4) if under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease'. That was a case where a person took two rooms in a hotel on a yearly rent as per terms and conditions of a deed of licence, and carried on business therein as a hairdresser. The Court held that, in spite of the clever phraseology used in the deed, what was actually created by the deed was not a bare personal privilege for the respondent to make use of the rooms; but it put him in exclusive possession of the rooms, untrammelled by the control and free from the direction of the appellants. Reference may also be made to a decision of the Chief Court of Cochin in Vajravalan v. Abbu, 13 Cochin LR 58. In that case the question arose whether a person to whom a land was handed over for constructing a building was a licensee or a lessee. The Court said :--
'When the site has been handed over to Komala for putting up a building, I think Komala has, in law a holding in respect of the paramba on which the house stands, and there cannot be any doubt that she is, in the absence of the contract to the contrary, entitled to the value of the house on eviction'. The above passage was quoted with approval of the Travancore-Cochin High Court in Venkateswara v. Padmavathi Ammal, AIR 1953 Trav-Co. 582.
5. In the instant case, there is no document evidencing the transaction. All that has been alleged by the plaintiff and accepted by the trial Court is the building was constructed with the consent of the plaintiff. The extent of the property is only 3 cents. It is alleged in the plaint that after the demolition of the building about 5 years before the institution of the suit, the plain-tiff was in possession of the said property, and he was using it as part of the market. This case has not been accepted by any of the Courts below; and it is belied by the admitted facts and circumstances. The plaintiff has no case that after the building was constructed, the plaintiff had any sort of control or possession in respect of the plaint property. It formed the building site and its immediate precinct. Apparently, the whole property was in the possession and enjoyment of the person who was in possession of the building. So the relationship that was created between the parties, when the plaintiff's tarwad gave the plaint property to Krishnan Nair for construction of a shop building, is that of a lessor and lessee. The lower appellate Court has not considered this question; but it disposed of the case on the assumption that Krishnan Nair was a licensee. The plaintiff must fail on this short ground.
6. The appellants' learned counsel contended that the contesting defendants had no such case. It is true; but they denied the plaintiff's case that the building was constructed by Krishnan Nair with the plaintiff's consent, and they pleaded that Krishnan Nair got the property by surrender from the plaintiff's tarwad, and he put up the building in his own right. On the other hand, the plaintiff's case; was that, after the demolition of the building, the plaintiff was in possession of the plaint property, and that the defendants subsequently trespassed on it. The cases put forward by the plaintiff and the contesting defendants were both rejected by the trial Court. The plaintiff was given relief by the trial Court on the basis that the original arrangement was a licence, This was denied by the defendants; and therefore, the question arises for determination whether the said arrangement evidences a licence; and if it is not a licence, the plaintiff would not succeed. I shall, however, consider the learned counsel's contentions on the assumption that Krishnan Nair was only a licensee.
7. Regarding the first contention, the respondents' learned counsel raised an objection that the plaintiff had no case in the Courts below that the licence was not transferable, and that he should not be allowed to raise such a contention for the first time in Second Appeal. Section 56 of the Easements Act, 1882 (hereinafter referred to as the Act) provides that, unless a different intention is expressed or necessarily implied, a licence cannot be transferred by the licensee or exercised by his servants or agents. So the question whether a licence is transferable or not is not a pure question of law. What Krishnan Nair was permitted to build was a shop building. There is no case that it was for him to carry on any trade. It was constructed on the side of a market; and apparently it was for leasing out on rent. Krishnan Nair gave usufructuary mortgage of the shop building in 1120; and then he executed superior mortgage in 1122. Finally he sold it to the first defendant in 1123 as per Ext. D-l. The first defendant redeemed it; and she was in possession of it, till its alleged demolition sometime before the institution of the suit. The plaintiff hadno objections to these transactions, and the transferees thereunder being in possession of the shop building, and using it. These are indications of the fact that the licence was transferable. At any rate, in the absence of specific plea in the trial Court, which alone can give the defendants an opportunity to meet it and adduce evidence, the contention cannot be allowed to be (raised) in second appeal.
8. The next question is whether the licence was revoked by the alleged demolition of the building. Immediately after the institution of the suit, a commission was taken out to inspect the property and submit a report. Ext. P-ll is the report of the Commissioner. It shows that at the time of his inspection, there was a foundation of a building about 30 years old, on which basements and side walls were under construction, and that there were also an old roof over this foundation resting on temporary pillars. The learned Munsiff held that the foundation was only 3 years old, and that the roof found by the Commissioner was that of some other old building, which the first defendant had brought into this property. He had stated no reason for rejecting the Commissioner's opinion. It is impossible to transfer the old roof of a building as such to another place. If it were a question of demolishing it and reassembling it over another structure, it can be easily found out. It is also almost difficult to reassemble it on temporary pillars. The learned Munsiff's finding is contrary to the evidence, and is a pure conjecture, which cannot stand scrutiny. If the foundation and roof were old, they show that what was being done is only replacing of the walls of the old building, as alleged by the contesting defendants. If the foundation is only 3 years old as the learned Munsiff held, it is a new construction in the place of the old construction, which was commenced without any objection from the plaintiff. The plaintiff's case is that the defendants trespassed on the plaintiff's property and commenced the impugned construction two weeks before the institution of the suit. So, in any view of the matter, the first defendant did not surrender or abandon his rights as a licensee and commenced the construction long before the institution of the suit. The objection to the construction was raised by the plaintiff, only in the course of the construction and after it had reached a substantial stage. Section 60 of the Act provides that a licence may be revoked by the grantor, unless the licensee acting upon licence has executed a work of a permanent character and incurred expenses in the execution. Foundation of a building is a work of a permanent character involving expenses; and the grantor would not be entitled to revoke the licence after such a work has been executed. It is also obvious that the licensee has neither surrendered the licence, nor abandoned it. The plaintiff is, therefore, not entitled to recover the plaint property after demolishing thebuilding, which the first defendant has constructed therein.
9. The question whether the plaintiff isentitled to recover the plaint property eitheras a landlord or as a licenser, even thoughthe licence is irrevocable, on payment of thevalue of the improvements effected by thefirst defendant does not arise for decision inthis case, as the plaintiff has not claimedany relief on any such basis. In the resultthis appeal is dismissed. The appellant willpay the costs of the respondents in thisCourt.