ABDULLA Vs. ABDULLA

JUDGEMENT

(1.) DEFENDANT who is encountered with a decree of mandatory injunction for eviction from the premises of A schedule property with his belongings is the appellant in this case. The only dispute involved is as to whether the transaction evidenced by Ext. A1 dated 23.12.1986 is a lease or licence. The substantial question of law raised in the second appeal is also centered around the said transaction which the appellant styles as a lease, whereas the respondents styles it as a licence. The said agreement was preceded by other agreements commencing from Ext. A11 dated 27.10.1982 for 11 months period. That is not in dispute. What the appellant submits is that in terms of the said agreement a right in immovable property made mention of in the agreement had been created in favour of the appellant. Therefore it is a lease. Moreover, the document imposed a liability on the defendant to pay monthly rent to the plaintiffs. The liability to pay rent naturally emanates from a transaction of lease and not a licence. It is further submitted that when a building where hotel and lodging house are being conducted is given away in a transaction as evidenced by Ext. A1 or its preceding agreements, that can be construed only as a lease. Merely because the document styles it as a licence or an agreement, it cannot be termed as a licence. Added to this is the payment made several months as rent to the plaintiffs. In such circumstances, it can only be termed as a lease. Therefore, the lower appellate Court erred in finding it as a licence.

(2.) IT is contended, relying on the decision in M/s. Premanand Gulabchand and Co. v. M/s. Mooligi Visanji, 1989(2) KLJ 425 that exclusive possession of the premises and the liability on the part of the person to whom the premised are entrusted to pay a premium called rent will necessarily give the transaction the colour of the lease and nothing else. The ruling of this Court in the said case squarely applies to the case on hand because as in that case, here also a premises is exclusively given to the control and occupation of the defendant with a liability to pay rent. Therefore, from the facts and surrounding circumstances and the intention to enter into the transaction evidenced by agreement Ext. A1 and its preceding document, it has to be taken as a lease and not a licence. There is entrustment as evidenced by the agreement between the parties. That denotes exclusive possession with transfer of interest in the property made mention of in the agreement with liability to pay rent and therefore it is a lease, the appellant contends. The appellant fortifies this contention again relying on the decision in Capt. B.V. D'Souza v. Antonio Fausto Fernandez, AIR 1989 SC 1816.

(3.) WHEN he had thus submitted to this Court that Ext. A11 is only an agreement to transfer the management of the hotel to obtain an order against the local authority to issue licence in his favour, he cannot later contend that what he did mean was not that. Thus at any rate the challenge against the impugned judgment shall be repelled, the respondents submit.