MINERVA TALKIES MACHILIPATNAM Vs. PINAPALA SUJAN BABU

JUDGEMENT

(1.) This civil revision petition is filed by the defendants in the suit in O.S. No.9 of 1999 on the file of the I Additional District Judge, at Machilipatnam, aggrieved by the order dated 22-9-2004.

(2.) The first respondent herein filed the above said suit, for recovery of money on account of damages, on the ground that he was evicted from the suit schedule premises, which is a theatre, before expiry of lease. In lieu of his evidence, while filing an affidavit under Order 18 Rule 4 of the Code of Civil Procedure, the document dated 10-2-1994 was sought to be marked on his behalf. The petitioners herein raised objection for making such document, on the ground, that it is a lease deed and in absence of proper stamp duty and registration, the same is not admissible in evidence. It was the case of the respondent-plaintiff that it is only a licence and not a lease, and no interest in the immovable property is transferred; as such, the same is admissible document without any stamp duty and registration. On the above said objection, the Court below has passed the impugned order on admissibility of the document, which is described as Document No.2, overruling the objections of the petitioners herein. The Court below has held that, the document dated 10-2-1994 is a licence, but not a lease, as much as no interest in the immovable property is transferred. In the impugned order, it if further held, that by document dated 10-2-1994, merely permission is granted to use the cinema theatre to exhibit the films without exclusive possession.

(3.) In this revision petition, a copy of the said document is also filed. I have perused the same. It is submitted by Sri P.R. Prasad, the learned Counsel appearing for the petitioners that the Court below erred in holding that the agreement dated 10-2-1994 is only a licence, but not a lease deed. It is the submission of the learned Counsel that as much as there is transfer of interest in the immovable property, which empowers the respondent herein to collect the income of the theatre on account of canteen, pan-shop, cycle stand etc.; as such, it is only a lease deed, but not a licence. It is further submitted that as described by the boundaries, the entire theatre is given to the respondent; in that view of the matter, the Court below is not correct in overruling the objections raised by the petitioners herein for marking the said document. The learned Counsel placed reliance on the judgment in the case of B.M. Lal v. Dunlop Rubber Company (India) Limited, AIR 1968 SC 175, wherein the Apex Court held that a lease is the transfer of right to enjoy the premises; whereas a licence is a privilege to do something on the premises, which otherwise would be unlawful. Further, reliance is placed on the judgment in the case of Qudrat Ullah v. Municipal Board, Barelly, AIR 1974 SC 396, wherein the Apex Court has held that whether a deed is a lease or a licence depends on the intention of the parties. It is further held that if an interest in the immovable property entitling the transfer to enjoyment is created, it is a lease, if permission to use land without right to exclusive possession is alone granted, it is a licence.