GEORGE CHANDI Vs. BEENA

JUDGEMENT

(1.) The legal heirs of the original plaintiff, who died during the pendency of the suit came up with this Second Appeal challenging the reversal of the decree passed by the Munsiff's Court, Manjeri, dated 22.09.2006, in O.S.No.166/2003, by the Appellate Court (Subordinate Judge's Court, Manjeri) in A.S.No.51/2006 dated 19.02.2009.

(2.) The original suit was filed for recovery of possession of the plaint schedule shop room. The suit was decreed by the Trial Court granting a decree of recovery of possession of the plaint schedule building. It was reversed in appeal by the First Appellate Court and the suit was dismissed. Aggrieved by the said decree and judgment of the First Appellate Court, the plaintiffs came up with this appeal.

(3.) The dispute centered around Exhibit A1 document entered into by the parties, which, according to the plaintiffs, is only a licence deed, but, according to the defendants is a lease arrangement. Various clauses enumerated in Exhibit A1 were brought to the notice of this Court in support of the argument that it is a licence. Per contra, the defendants, based on the same clauses, claimed that it is a lease arrangement and the relationship is that of a lessor and lessee. Admittedly, the place wherein the plaint schedule building is situated is within the area wherein the Kerala Buildings (Lease and Rent Control) Act, is made applicable. Exhibit A1 contract was entered into by the parties with a nomenclature that it is a 'Rent Licence Deed'. The material question to be looked into is what actually intended by the parties while entering into such a document and whether they have intended to effect transfer of any interest in favour of the licensee and if there is transfer of interest it would fall under the category of lease. If there is no transfer of interest, it would be a mere license. It is also now settled that the nomenclature is not decisive. Parting with exclusive possession is also not decisive. It is the duty of the Court to find out the real relationship between the parties based on the clauses enumerated/incorporated in the document with the attending circumstances. Clause I of Exhibit A1 deed permits the defendants to hold the petition schedule shop room for conducting bakery. There is nothing in Exhibit A1 document to show that the possession of the shop room was retained by the owner and only a permission to occupy the shop room was given to the defendants. Clause I in Exhibit A1, on the other hand, shows that there is transfer of exclusive possession of the shop room to the defendants for the purpose of carrying out their business of bakery. Transfer of exclusive possession of the premises under the alleged arrangement alone is not decisive to find out creation of lease, but it would be a strong positive factor constituting creation of lease arrangement and when there is other factors supporting the existence of a lease arrangement, it can be safely acted upon. At this juncture, it has to be borne in mind that the difference lies on the question of creation of interest over the property and when it was established that grantee were given a right to hold the property or possession thereof as against the granter it would be a lease arrangement. A mere permission given to hold the property or to possess the property without having a right of possession as a matter of right would constitute only a licence. The material question to be looked into is the intention of the parties and whether exclusive possession was parted with at the time of creation of the relationship as a matter of right and if the answer is affirmative, it would be a lease. Clause V is so relevant as it gives a benefit to both the parties to have a notice of termination in three months advance. It is agreed that if any of the parties wants to terminate the arrangement/relationship, the party who wants to terminate the arrangement should give the other party an advance notice of three months. This would be a strong indication of the intention of parties to have a right of possession to the grantee unless the said condition was satisfied by giving notice of termination of arrangement three months in advance. In other words, a right to hold the property exclusively by the grantee against the will of granter for a period of three months agreed upon by the parties to the arrangement by the said clause. This would indicate the exclusive control and possession of the property by the grantee during the subsistence of the arrangement which would bring the matter within the purview of a lease rather than a licence.