S.NATARAJAN Vs. S.GANESAN

JUDGEMENT

(1.) THE distinction between a 'lease' and 'licence' has many a times been the subject matter of decisions by various courts. It is held that in a lease an interest is created in favour of the lessee over the immovable property while a licence does not create any such interest; instead, it grants the grantee a privilege to do the act permitted by the licence in the property of the grantor which, but for such permission would be unlawful. Though at some point of time it has been held that a licensee does not have possession of the property, later decisions (see for instance, Rajappan v. Veeraraghava Iyer - 1969 KLT 811) have taken the view that a licensee can have some sort of possession of the property for the limited purpose of enjoyment of the licence and therefore, that the licensee is in possession of the premises is no indication that the transaction is a lease. It has also been held that by virtue of Section 53 of the Easements Act (for short, "the Act") a licensee is entitled only to get reasonable time to vacate the premises after the period of licence has expired or the licence is terminated and that the licensor can bring a suit for mandatory injunction to direct the licensee to vacate the premises within a reasonable time and before the licensee, as against the licence arrangement has started asserting independent possession of the property with the necessary animus against the licensor. The question in this case is whether the finding of the courts below that Exts.A2 and A3 create only a licence arrangement in favour of the appellants involve any substantial question of law.

(2.) THE respondents owned a multi storied commercial complex referred to in the plaint A schedule. They formed a partnership which is engaged in business in a portion of the building (plaint B schedule) in the name and style, "Laboratory Supplies Co.". While so, the respondents dissolved that partnership and the business was transferred to the appellants as per Ext.A2, Memorandum of Understanding (for short, "the MoU") dated 25.02.2002 followed by Ext.A3, agreement dated 24.07.2002. It is the case of the respondents that to patronize the customers of the respondents, appellants were permitted to carry on business in the plaint B schedule as per terms and conditions stipulated in Exts.A2 and A3 for eight months (ending on 31.03.2003) and on condition of payment of Rs.10,000.00 per month as consideration for such permission. While so, on 28.05.2009 the respondents by Ext.A4, notice demanded the appellants to vacate the plaint B schedule and remove their articles. Since they did not respond favourably, the respondents filed O.S. No.1525 of 2009 in the First Additional Munsiff's Court, Thiruvananthapuram for a mandatory injunction to direct the appellants give vacant possession of the plaint B schedule property within a time to be fixed by that court and to restrain them from occupying portion of the common area or corridors in the plaint A schedule.

(3.) THE trial court, referring to Exts.A2 and A3 found that what is granted to the appellants is only a privilege to conduct business in the plaint B schedule in accordance with the terms and conditions referred to therein and that created only a licence arrangement between them. Accordingly a decree was granted in favour of the respondents.