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Sorab Vs. Viswanatha Menon and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1095 of 1971
Judge
Reported inAIR1975Ker99
ActsEasements Act, 1882 - Sections 52 and 60; Transfer of Property Act, 1882 - Sections 105
AppellantSorab
RespondentViswanatha Menon and anr.
Appellant Advocate M.S. Kurup,; V.S. Prabhakaran Nair and; Jose K. Kochupap
Respondent Advocate V. Sankara Menon and; M. Rajendran, Advs.
DispositionAppeal dismissed
Cases ReferredVelayudhan Kesava Panicker v. Ibrahim Ismail Sait
Excerpt:
.....on a ground rent and he was described as 'vadakakaran' (malayalam omitted), this court held that he was only a licensee and that the term 'vadakakaran' need not necessarily import a tenancy but may well signify a licence. apart from the question whether the transfer of property which is involved in the tenancy in respect of the guest house is still in force, this argument must fail for the reason that when ext. the invocation of section 60(b) must also fail because what was permitted by ext. and mehta left the place for good in 1954. further although the appellant now runs the business there is no evidence produced to show under what right he is doing so whether as a transferee or otherwise......306/xxx, stands in a 23 cent plot in trichur town. there is a building (called hereunder as the guest house) in this land and it had been rented by the sitaram mills for the residence of its engineer e. s. mehta. mehta was conducting a bobbin factory called mehta kavina and co. in a plot on the north belonging to another tavazhi of the plaintiff's tarwad. for the purpose of this factory mehta was permitted, by the plaintiffs father kuttan nair, to erect a shed in the suit property, on a monthly ground rent of rs. 2.50. later he was allowed to demolish a portion of the northern compound wall and a portion of the eastern compound wall, on the understanding that he would reconstruct the demolished portions, when he vacated the building. mehta left the services of the sitaram mills and.....
Judgment:

G. Balagangadharan Nair, J.

1. This appeal by the second defendant arises out of a suit for recovery of the site of a shed, with rent, past and future and certain other reliefs.

2. The shed which bears Municipal No. 306/XXX, stands in a 23 cent plot in Trichur town. There is a building (called hereunder as the Guest House) in this land and it had been rented by the Sitaram Mills for the residence of its Engineer E. S. Mehta. Mehta was conducting a bobbin factory called Mehta Kavina and Co. in a plot on the north belonging to another tavazhi of the plaintiff's tarwad. For the purpose of this factory Mehta was permitted, by the plaintiffs father Kuttan Nair, to erect a shed in the suit property, on a monthly ground rent of Rs. 2.50. Later he was allowed to demolish a portion of the northern compound wall and a portion of the eastern compound wall, on the understanding that he would reconstruct the demolished portions, when he vacated the building. Mehta left the services of the Sitaram Mills and returned to his native place Ahmedabad. The first defendant who is his brother-in-law agreed to remove the shed and restore the compound walls and he also took the Guest House on rent in 1954. The plaintiff has taken other proceedings for eviction in respect of the building. This suit was brought for removal of the shed, recovery of rent and restoration of the compond walls That in brief is the plaintiff's case. The second defendant was impleaded on the allegation that he was now known to be the proprietor of Mehta Kavina and Co

3. The second defendant alone contested the suit. He said that it was Mehta and not the Sitaram Mills that took the Guest House on rent, that he also took on lease an area of 70' x 30' at the northern portion of the suit property on a rent of Rs. 2.50 and that besides erecting the shed he also improved the property by planting trees. On resigning his job at the Sitaram Mills Mehta assigned his business and leaseholds to the appellant. The appellant is thus in possession of the building, bobbin factory and the compound. The first defendant, his father, has nothing to do with this arrangement. The appellant also denied the other reliefs claimed in the plaint contending that even if the arrangement was a licence it was one coupled with interest and was therefore irrevocable.

4. Ext. P1 is the letter dated 10-5-1944 (Ext. D13 is its copy) passed by Kuttan Nair, to Mehta and accepted by the latter and it contains the terms of the agreement between them in regard to the suit site. The trial court construed this to be a licence and not a lease and in that view rejected the appellant's claim to the benefits of Section 106 of Act I of 1964. It also rejected his plea that licence was one coupled with an interest. It however held that so long as the appellant was in occupation of the Guest House, he was not bound to vacate the shed or restorethe compond walls. On these findings the plaintiff was given only a decree for arrears of rent for 3 years and future rent till date of decree. The other reliefs were refused.

5. The second defendant appealed from this decree and the plaintiff filed a memorandum of cross-objectors. The appellate court confirmed the finding that Ext. P1 was only a licence and that the appellant was not entitled to the benefit of Section 60(b), Easements Act. About the termination of the licence, it reversed the finding of trial court, holding that the licence had long been terminated or relinquished by Mehta permanently leaving for Ahmedabad and that the occupation of the Guest House by the second defendant would not confer on him the benefit of retaining the licence granted to Mehta. It however found that the second defendant was not liable to restore the compound wall demolished by Mehta. The plaintiff was thus given a decree for recovery of the site after removal of the shed with future rent also.

6. The principal question in the appeal is whether Ext. P1 evidences only a licence as held by the courts below or whether it amounts to a lease as contended by the appellant. Ext. P1 is in the following terms :

'To

28-9-1119

Messrs. Mehta Kavina Co.,

Punkunnam, Trichur.

Dear Sirs,

I, C. Kuttan Nair on behalf of Pallath Kochammu Amma hereby undertake the following:--

The plot at the back side of the Engineer's Bungalow belonging to us has been rented to you for Rs. 2-8-0 per month for the construction of your shed for your workshop. The shed constructed by you completely belongs to you and you are free to make use of it as long as you stay in the Bungalow now rented by us to the company. But as soon as you leave the bungalow you are at liberty to dismantle it. Sd/- C. Kuttan Nair

10-5-1944.

Agreed to the above agreement

Sd/- Mehta

10-5-1944.'

7. Despite the statutory definition of 'license' in Section 52, Easements Act, and the definition of 'lease' in Section 105, Transfer of Property Act, the problem of telling one from the other particularly in marginal cases has not been easy and courts have therefore laid down tests to help in the determination of the problem. No wide discussion of the case law, either Indian or English, is called for as the matter has been the subject of certain decisions of the Supreme Court. In a very recent case Qudrat Ullah v. Baroilly Municipality, AIR 1974 SC 396, the Supreme Court stated:

'Whether a deed is a lease or a licence depends on the intention of the patties. Ifan interest in immovable property entitling the transferee to enjoyment is created it is a lease, if permission to use land without right to exclusive possession is alone granted it is a licence.' (Head note)

8. Applying that test, it is impossible to hold that Ext. P1 created an interest in the suit property in favour of Mehta. Mehta was then occupying the Guest House (called the Engineer's Bungalow in Ext. P1) as the (Engineer of the Sitaram Mills which had taken it on rent and he had a factory for the manufacture of bobbins for the Sitaram Mills. Ext. P1, fairly construed, only means that permission was granted to Mehta to construct a shed for his workshop; it created neither an Interest in him nor conferred upon him any [right of exclusive possession. Indeed Ext. P1 does not even transfer any possession to Mehta. It is also important to note that at the time of Ext. PI, Mehta was not even a tenant of the Guest House; the tenant was the Sitaram Mills and he was only occupying it as an employee of that Mills. The provision in Ext. P1 that he was free to make use of the shed during his stay in the Guest House and that as soon as he left the Guest House, he was to dismantle it, emphasises that no lease but only a licence was granted and that such occupation or even possession of the land as was given was qualified and in no way exclusive. Counsel for the appellant sought to support his contention that it was a lease from the use of the expression 'rented.' This expression cannot alter the essential character of Ext. P1, for in a general and wider sense the word rent can comprehend the payment by a licensee for the use and occupation of the land and there is nothing to indicate that the expression 'rented' was used in a narrow sense. I might refer to Velayudhan Kesava Panicker v. Ibrahim Ismail Sait, (1963) 1 Ker LR 453, where the appellant was given a small plot of land for the construction of a shed on a ground rent and he was described as 'Vadakakaran' (Malayalam omitted), this Court held that he was only a licensee and that the term 'Vadakakaran' need not necessarily import a tenancy but may well signify a licence. I reject the appellant's contention and hold in agreement with the courts below that Ext. P1 granted only a permission to erect a shed and it amounted to no more than a license.

9. Even so, it was contended that the licence was protected against revocation in view of the provisions of Section 60(a) and (b), Easements Act. As to Clause (a) counsel argued that the licence was coupled with Mehta's interest as a lessee of the Guest House and as that transfer is still in force, the license could not be revoked. Apart from the question whether the transfer of property which is involved in the tenancy in respect of the Guest House is still in force, this argument must fail for the reason that When Ext. P1 was given, the tenancy of the Guest Housewas with the Sitaram Mills, so that there was no transfer to Mehta with which Ext. P1 could be coupled. The invocation of Section 60(b) must also fail because what was permitted by Ext. P1 and what the licensee did was to construct a mere shed and not execute any work of a permanent character. Ext. P2 the Commission report further shows that the shed was dilapidated and almost in, ruins. I reject this contention.

10. It was next contended that in any event on the terms of Ext. P1, the plaintiff cannot terminate the license as the appellant who has stepped into the shoes of Mehta could retain the license as long as he occupied the Guest House, which he was doing even now. Counsel also said that the license was in favour of Mehta Kavina and Co. and not in favour of Mehta and as the appellant is now owner of the business styled Mehta Kavina and Co. he is clothed with the rights of the licensee. I find it impossible to accept this contention either. Ext. P1, although addressed to Mehta Kavina and Co. the trade name under which Mehta was doing business was really in favour of Mehta not only because it was accepted by him but also because he was the proprietor of the business and the trade name was but an abstraction. The provision enabling Mehta to make full use of the shed as long as he stayed in the bungalow was a privilege personal to him. And Mehta left the place for good in 1954. Further although the appellant now runs the business there is no evidence produced to show under what right he is doing so whether as a transferee or otherwise. That being so the fact that the appellant has paid rent can only mean that it was pursuant to a new engagement either express or implied. The appellant's claim that he can avail himself of the personal right or privilege granted to Mehta by Ext. P1 must be rejected.

11. Counsel next objected that the lower appellate court ought not to have passed a decree for recovery of the site as there was no prayer to that effect in the plaint. There is no merit in this contention as the expression (Malayalam omitted) in the prayer column of the plaint is comprehensive to include recovery and in any case it has been so understood by the parties and the courts below.

12. I dismiss the appeal, with costs. The appellant will however have 3 months from today to vacate the site.


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