S BHOGIRAJU Vs. MANDALA PRAJA PARISHAD

JUDGEMENT

(1.) The defendant in the court of the District Munsif Kothapeta in O.S. 198/80 is the appellant in A.S. 13/91 in the court of Subordinate Judge, Amalapuram and the defendant in O.S. 199/80 is the appellant in A.S. 12/91 in the Court of the Subordinate Judge, Amalapuram. The appellate court confirmed the judgments of lower court and both the appeals were dismissed. S.A. 473/91 is filed by the defendant in O.S. 198/80and S.A. 474/91 is filed by the defendant in O.S. 199/80. The plaintiff which is common to both the suits filed the suits for declaration that thedefendantsarenotcultivating tenants and for possession of mesne profits. The case of the plaintiff is that the defendants were only given the right to cut the usufruct of the coconut trees located on the Kowsika bund fora period of three years from 1-1-77 to 31-12-1979 and so they are only lessees. The plaintiff, therefore, filed suit for declaration that they are not cultivating tenants and for possession of concerned properties. The courts below accepted the contention of the plaintiff that the defendants are only licensees. But, since the possession of the land is not given to the defendants they have granted injunction in favour of the plaintiffs restraining the defendants from entering into the land and taking the usufructs of the coconut trees and also directed that the past and future profits shall be determined by way of separate application.

(2.) In these two second appeals the main question to be decided is whether the defendants are licensees or a lessees. The facts which are not in dispute are that the defendants are given the right to cut coconuts from the coconut trees situated on the Kowsik bund for a period of three years from 1-1-77 to 31-12-1979. The learned counsel for the appellants has relied on a decision of a Division Bench of the Madras High Court reported in Venugopala vs. Thirunavukkarasu which was followed by the Madras High Court in the decision reported in AIR 1982 Madras 359. The decision in AIR 1949 Madras 148 (1 supra) was also a case of plucking coconuts in two gardens. The Division Bench haspointed out (1) that the right to pass through the land isonlya licence but not a lease, (2) the right to enjoy the yield from the trees would be in the nature of immoveable property and (3) the right conveyed by the documents which are marked as Exs. B-1 and B-2 in that case would be in the nature of lease hold right. As regards the first two propositions the learned counsel for the plaintiff has no objection. His contention is that though the Division Bench held that it is interest in the immoveable property the further conclusion that it is a lease is not justified. He has referred to the decision of the Supreme Court in Shantabaivs. State of Bombay - But that decision is not very helpful because in the end they left open the question whether the document is a lease or licence coupled with grant. In Ananda Behera vs. State of Orissa the question which arose was whether the right to take fish from a lake is a licence. From those facts in that case it wasstated that the petitioner had entered into a contract with the ex-proprietor of an estate prior to its vesting in the State of Orissa and obtained from the latter on payment of certain sum, licenses to catch and carry away fish from specific portions of lake lying in the estate in respect of a period subsequent to the vesting of the estate. The State of Orissa refused to recognise these licenses and were about to re-auction the rights when the petitioners filed the present petition seeking writs under Article 32. It was held that it amounts to a sale, the case reported in State of W.B. vs. SaradiyaThakurani is also a case relating to fishery rights. The Supreme Court has pointed out that "the materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had agreed to pay Rs. 60/ per year and in addition were under the obligation to cleanse the tank and keep it cleansed. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6 (2) but only constitutes a licence under which, for the consideration above stated, they became entitled to fish yielded by and caught by them from the tank ". Relying on these two decisions the learned counsel for the respondent has contended that the decision of the Division Bench of the Madras High Court in AIR 1949 Madras 148 (1 supra) that the right to pluck coconuts from coconut trees amounts to lease is no longer a good law. He has also relied upon another decision reported in Smt. Rajbir Kaur vs. M/s. S.Chokesiri and company in which it is stated at page 323 that" it is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While definition of 'Lease' in Section 105 of the Transfer of Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a 'Licence' under Section 52 of the Indian Easements Act, 1982 consistently with the above, excludes from its pale any transactions which otherwise, amounts to an 'easement' or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These rights viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only of the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily andalwaysbetrue...." A learned single Judge of this Court in S.A. 64/75dated 20-12-1976 has pointed out that one of the tests is the real intention of the parties whether they intended to lease or licence.

(3.) The courts below have referred to the documents executed by the defend ants/appellants whereby they are given the right to pluck the coconuts from the coconut trees. They have pointed out that possession of the property wasnot given to thedefendants and the right to enjoy the grass grazed was put to auction to third parties and therefore the defendants were not given absolute possession in the disputed property. Whatwas granted to them wasonlyright to take the coconuts from the coconut trees. Though the Division Bench decision of the Madras High Court in AIR 1949 Madras 148 (1 supra) says that the right to get the yield from the trees would be in the nature of leasehold rights. Inview of the subsequent decisions of the Supreme Court reported in AIR 1956, S.C 17 (3 supra) and AIR 1971 S.C 2097 (4 supra ), I am unable to accept the contention of the learned counsel for the apellant that-the right to take coconuts from the coconut trees is a lease. I agree with the findings of both the courts below that what was granted to the appellants is only licence,but not lease.