P.C. Balakrishna Menon, J.
1. The defendant is the appellant. The suit is by the State of Kerala, for recovery of damages Rs. 7,100/- from the defendant, for the damage done to the Tagore Centenary Theatre, Trivandrum, belonging to the State and managed by a Committee of which the Revenue Divisional Officer, Trivandrum is the Secretary and Convenor. The defendant as the Secretary of an Art Association known as 'Roopanjali', was allotted the theatre for the performance of a dance and music concert on 19-1-1969. During the course of the performance there was an unexpected onrush of people resulting in damage to the fixtures and furniture in the theatre and the Government had to spend Rs. 7,200/- for repairs and replacement of the articles damaged. According to the plaintiff, damage to the theatre was caused during the performance on 19-1-1969 while the theatre was in the use of occupation of the defendant and he is bound to restore the same in the condition in which it was allotted for his use. The security deposit of Rs. 100/- was deducted and the balance of Rs. 7,100/- is claimed as damages from the defendant for the loss sustained by the Government. The defendant resisted the suit denying his liability for damages and also disputing the quantum of damages fixed by the plaintiff. Both the Courts below have held that the defendant is liable in damages for the loss sustained by the plaintiff on account of the damage done to the fixtures and furniture in the theatre during the course of the performance on 19-1-1969 arranged by the defendant as the Secretary of 'Roopanjali''
2. The lower appellate Court in para 9 of its judgment has held :
'9.. .. ... If any damage had been causedto the property belonging to the State, as licensee the appellant is liable to compensate. It is immaterial whether damage had been caused due to extraneous causes. It was the look out of the appellant to see that law and order was maintained in the theatre and proper security arrangement was made when the function was conducted. If the appellant failed in his duty or was not capable enough to manage the function and damage had been caused to the property on account of commotion during the function, the appellant ii not absolved of the liability to restore the property to the owner in the condition in which it was entrusted to him. I am therefore in agreement with the lower Court in holding that the appellant is liable for the damages claimed.'
The correctness of this decision is challenged by the defendant-appellant.
3. The lower appellate Court has rightly held that the defendant was only a licensee of the threatre, made available for his use for the performance conducted on 19-1-1969. The plaint also proceeds on the basis that the defendant was a licensee of the theatre for conducting the music and dance performance on 19-1-1969. In paragraph 7 of the plaint it is stated :
'Damage to the property of the theatre was caused during the performance conducted there on 19-1-1969 when the theatre was in the use of the defendant. Having taken the theatre for his use on 19-1-1969 the defendant is bound to restore it to the Secretary and Convener of the Managing Committee of Tagore Centenary Theatre in exactly the same condition in which he took it. The defendant is therefore liable to make good the loss sustained by the Government'.
There is no allegation in the plaint that damage was caused due to the negligence of the defendant. Ex. B-1 dated 27-12-1968 is a copy of the communication issued by the Sub-Collector and Secretary, Tagore Centenary Theatre, Trivandrum to the defendant stating that the theatre has been reserved for the use of the defendant for staging a dance performance and music concert on 19-1-1969. It is also stated that the theatre will be formally allotted on payment of Rs. 118.75 towards the rent and electric charges into the District Treasury, Trivandrum, and on production of the original challan receipt before the Sub-Collector. There is a further direction to make a cash deposit of Rs. 100/- in the Office of the Sub-Collector on 18-1-1969 as security to be refunded after the function is over after deducting the current charges, telephone charges, cost of damage etc. Ext. B-1 requires the defendant to arrange for pedesial fans as the ventilation system in the theatre was under repair. Exhibit B2 dated 17-1-1969 is a further communication by the Sub-Collector and Secretary, Tagore Centenary Theatre, to the defendant requiring him to deposit Rs. 100/-as security.
4. The plaint as well as Exts. B1 and B2 show that the defendant was allowed the use of the theaire for the dance and music performance on 19-1-1969 as a licensee. The plaintiff has no case that exclusive possession of the theatre was handed over to the defendant. In para 3 of the plaint, it is stated that subject to the control of Government, the Management of the Tagore Contenary Theatre vests in a Committee of Management consisting of not more than 15 members of whom the Revenue Divisional Officer, Trivandrum is the Secretary and Convenor. The defendant was only allowed the use of the theatre for the performance mentioned in Exts. Bl and B2. Possession of the theatre was apparently retained by the Committee of which the Sub-Collector is the Secretary and Convenor. There is no dispute that the defendant was only a licensee of the theatre for the limited purpose of conducting the performance,
5. Section 52 of the Indian Easements Act, 1882 defines 'Licence' as follows .
'Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the properly, the right is called a licence.' In the decision of the Supreme Court in Associated Hotels of India Ltd. v. R. N. Kapoor (AIR 1959 SC 1262), Subba Rao. J. (as he then was) after quoting Section 52 of the Indian Easements Act, stated thus :
'27. ......... Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property.' In Mrs. M.N. Clubwala v. Fida Hussain Saheb (AIR 1965 SC 610), it is stated at page 614, after referring to the decision in Associated Hotel's case (AIR 1959 SC 1262), as follows :
'12. ........ In the case before us, however, while, it is true that each stall-bolder is entitled to the exclusive use of his stall from day to day it is clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11.00 p.m. at his pleasure. He can use it only during a staled period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords is on the landlords would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall-holders. The right which the stall-holders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall-holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls. They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the premises were used for no purpose other than of vending combustibles. A further duty which lay upon the landlords was to guard the entrance to the market. These duties could not be effectively carried out by the landlord by parting with possession in favour of the stall-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-holders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also stood in danger of having their licences revoked. Could in such circumstances the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word 'rent' was used loosely for 'fee'.' The decision in AIR 1959 SC 1262 is followed in later decisions of the Supreme Court in Qudrat Ullah v. Municipal Board, Barcilly (AIR 1974 SC 396) and in Board of Revenue v. A. M. Ansari (AIR 1976 SC 1813).
6. The defendant was a licensee of the theatre for conducting the dance and music performance on 19-1-1969 admits of no doubt in this case. He was only allowed the use of the theatre for this limited purpose. Possession of the theatre was with the Managing Committee of which the Revenue Divisional Officer, Trivandrum is the Secretary and Convenor. As a licensee the defendant had only to take reasonable care of the theatre and its equipments permitted for his use. There is no case for the plaintiff that the defendant had failed to lake such reasonable care as is 'expected of a licensee. The plaintiff having retained pos-session of the theatre cannot saddle the defendant with liability for the damage done by unauthorised entry of the members of the public into the theatre in the possession of the plaintiff. The evidence in the case shows that damage was occasioned on ac-count of the onrush of the public into the theatre which could not be effectively prevented. As already found the plaintiff had possession of the theatre and it was for the plaintiff to have prevented any untoward incident in the theatre in then possession caused by the members of the public. There is nothing on record to show that exclusive possession of the theatre was handed over to the defendant. Nor is there anything to show that he had also undertaken to make good the damage if any, that may be caused to the plaintiff on account of unauthorised entry of the members of the public into the theatre during the course of the performance.
7. The decision of the Courts below can-not therefore be sustained in law. The judgment and decree of the Courts below are| set aside and the suit is dismissed.
The Second Appeal is allowed. There will be no order as to costs.
I express my appreciation of the assistance rendered to the Court by Sri P. K. Balasubramoniam, Advocate, who appeared at amicus curiae at my request