RAVEENDRAN Vs. MUHAMMEDALI

JUDGEMENT

(1.) Defendant in OS 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. Ext. A4 is the deed of licence dated 01/10/1994 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 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 KHC 5091 : 2009 (10) SCC 455 : 2009 (4) KLT 476. In response it is contended by 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 KHC 126 : 1969 KLT 811 : 1969 KLJ 232 : ILR 1969 (1) Ker. 1 : 1969 KLR 206). 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 KHC 364 : 1985 KLJ 49 : 1984 KLT SN 130) and Hathika v. Padmanabhan, 1994 KHC 86 : 1994 (1) KLT 345 : 1994 (1) KLJ 89 : ILR 1994 (2) Ker. 83 : AIR 1994 Ker. 141 : 1994 Civil CC 695 : 1994 (2) Cur. CC 240.). 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 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.