ULAHANNAN Vs. GEORGE

JUDGEMENT

(1.) This appeal raises a question of interpretation of a document, Ext.A1. The appellant would contend that Ext.A1 creates a lease. The respondent contends that it creates only a licence. The suit for recovery of property was resisted by the defendant contending that Ext.A1 creates a lease and even if it is assumed to be a commercial lease, since the defendant has made certain constructions in the premises, be it entitled to claim the benefit of S.106 of the Kerala Lard Reforms Act. The Trial Court, after considering the evidence adduced in the case and after analysing the various terms of Ext.A-1, found that the defendant's case of lease is unsustainable. The Trial Court found that Ext.A-1 evidences a licence and to, the plaintiff ia entitled to a decree. The defendant filed an appeal. The appellate court confirmed the judgment and decree of the Trial Court. New the defendant appeals.

(2.) Though affirmation by the first appellate court, of a crucial fact found by the Trial Court insulates the verdict with no inerrability, but since absolute objective certainty is impossible in the decision process in this imperfect world, there is plain and perfect justification en practical reasons to unopen the pylon when the first two Judges concur in the factual conclusion at separate levels, particularly in the wake of the guillotine rule of prohibition of overseeing by this court in second appeal, the conclusions on facts by the appellate court made more stringent by the amendment to S.100 of the Code of Civil Procedure. Court's prime concern is to avoid miscarriage and failure of justice. Miscarriage and failure of justice may lake different forms; a re-evaluation of the evidence or a re-appreciation of the evidence at the third tier of the litigation and a finding of fact different from that of the courts below in second appeal, may constitute a plain injustice in law to one of the parties.

(3.) The question whether a document evidences e lease or a licence is essentially a question of intention. The courts have to gather the intention firstly from the recitals in the document. Of course, the recitals in the document have to be understood in the setting and circumstances under which the document has been executed. When a question comes up before the court whether a document is a lease or a licence, naturally, the court is bound to keep in mind the cardinal distinction between a lease and a licence. The distinction is that in a lease, there is a transfer of an interest in the immovable property to enjoy it, whereas in a licence, there is no transfer of interest in the immovable property at all. The primary and important character of the lessee's right in his right to possession and enjoyment of the demised land to the exclusion of the lessor. It is always better to remember that the right of exclusive possession was at one time considered as the sigil and signet to rule out a licence. But, modern view as seen taken from the decisions show a different trend and say that exclusive possession is not conclusive though it may be an important circumstance to hold that the transaction is a lease. This is so, because, exclusive possession of the property is not be considered inconsistent with the occupier being a licensee and not a tenant. In Errington v. Errington ((1952) 1 All ER.149) Denning L. J. pointed out: