CHERIYAN JOSEPH Vs. MATHEN FRANCHU

JUDGEMENT

(1.) S. A. 1333 of 1961 arises from OS 313 of 1956 and the first defendant therein is the appellant. He is also the appellant in S. A. 1332 of 1961 arising from OS 326 of 1956, in which he is the plaintiff. Both these second appeals raise a common question as to whether Ext. P-1 dated the 16th Meenom, 1116, executed by the plaintiff in O. S. 313 of 1956, who is the respondent, evidences a lease or a licence. The two courts below have answered this question against the appellant, holding that it evidences a lease and not a licence and have granted appropriate reliefs.

(2.) Ext. P-1 is in respect of 45 cents of land excluding the frees thereon. Its nomenclature is pattom and has all the usual provisions and covenants of a lease deed. The respondent was to enter possession of the land forthwith and to enjoy for a period of six years, during which pattom was to be paid. There is a provision for forfeiture of the term and for reentry in default of payment of rent. The restriction in the mode of enjoyment was that only seasonal crops or, catch crops, as they are called, could be cultivated. The respondent was also allowed to build a cattle shed thereon. These provisions are to our minds, quite characteristic of a lease as distinguished from a licence.

(3.) Learned counsel for the appellant relied on three facts, first, the admission of the respondent in the plaint in O. S. 313, that he took the appellant's permission for putting up item 2 building on the property, second that the respondent had a right only to raise catch crops and third that 18 cents of land had been sold in the year 1118 by the appellant or his predecessor to a church also transferring possession. None of these militates against the apparent tenor of Ext. P-1. That he had to take permission for the construction of item 2, which comprises a kitchen, a bathroom, and a latrine, not provided, for in Ext. P-1, was only in keeping with its provisions. The restriction as to cultivation only implied, that permanent improvements were not to be made. That a property outstanding on lease was sold by the landlord is not of any significance whatever.