THANKAPPAN Vs. KUTTAPPAN

JUDGEMENT

(1.) THE only question that arises for consideration in this appeal is as to whether the defendant is a lessee of the suit property or only a licensee thereof.The answer to the above question would depend upon the construction to be placed on Exts.B1 and A1 and the circumstances revealed by the evidence in this case.The lower courts held that the defendant is only a licensee and therefore decreed the respondents,suit for recovery of possession of the same overruling the contention advanced by the defendant relying on S.106 of the Kerala Land Reforms Act,1963.Hence this second appeal by the defendant.

(2.) THE first plaintiff is the husband of the second plaintiff.The defendant and one Divakaran executed in favour of the plaintiffs Nos.1 and 2,Ext.B1 document dated 3rd July,1965.Thereafter Divakaran assigned his rights thereunder to the defendant.The defendant thereafter executed Ext.A1 document dated,8th November,1971 in favour of plaintiffs 1 and 2.Plaintiffs 1 and 2 have gifted their rights in the property covered by Exts.B1 and A1 to the third plaintiff.The plaintiffs seek recovery of possession of the suit property which is 10 cents in extent.

(3.) EXT .A1 was executed by the defendant with reference to and in continuation of Ext.B1.The nomenclature of that document is also .Ext.A1 speaks of Ext.B1 and the purpose for which Ext.B1 document was executed.Ext.A1 mentions that the property scheduled therein has been given to the defendant, and that he has been doing business in a building constructed thereon. Ext.A1 further says of the assignment of Divakaran's right to the defendant and that the defendant alone is,at the time Ext.A1 was executed,running the business.Stating that for that reason Divakaran has nothing to do with the property, the defendant says that he is executing Ext.A1.By Ext.A1 the ground rent was raised to Rs.45 from Rs.30.A term of 3 years has been fixed thereunder.During this term the defendant is to be in possession or occupation and do business thereon agreeing as the case may be,of the property on and do business thereon. agreeing to pay rent in the manner stated in Ext.B1 on due dates and assuring that on the expiry of the term he will demolish the building and give vacant possession of the property,Ext.A1 winds up with a clause making the defendant liable for damages,if any,caused on account of his default to give vacant possession of the property.