ADIKE KOTI MALLAYYA Vs. MADDIKARA RAGHAVA REDDI

JUDGEMENT

(1.) This is a petition to revise the order of the District Munsif Gurazala made on mall Cause side dismissing the suit of the plaintiff for refund of the advance Case amount paid to the defendant. The suit was based on an agreement Ex. A-1, which was in relation so the lease of the plot near the railway station and priority for the wagon supply enjoyed by the defendant, it would appear that during the war period when the railway authorities could not cope up with the heavy demand of wagon supply they introduced a system of priority for wagon supply and the defendant was one of those who enjoyed this privilege. He was also given a licence of a plot nearby for storing 'napa stones' to be transported by rail. The defendant under the suit agreement gave a lease of the same to the plaintiff for a period of four years and obtained the entire lease amount in advance at the time of the agreement. Hardly an year had expired, the railway authorities decided to put an end to the priority system with the result that the right under the agreement was rendered impossible of enjoyment by the plaintiff. The plaintiff therefore abandoned the contract and sued for the refund of the lease amount in proportion to the unexpired period. The defendant resisted the claim on several grounds. It was alleged inter alia that the suit was premature, that it was not maintainable on small cause side, that the suit agreement was inadmissible for want of registration and that it was hit at by the provisions of section 23 of the Indian Contract Act. The learned District Munsif found all these points in favour of the defendant and based his judgment on a further ground that when the contract was partly performed the principle of compensation for frustration of contract cannot come in aid and section 65 of the Contract Act cannot be invoked for the refund of the balance. In arriving at this conclusion the learned Munsif got support from Lakshmanan v. Kamarajendra A.I.R. 1955 Madras 606.

(2.) Learned counsel for the petitioner disputes the correctness of this principle and also the findings on all other issues. His main contentions are that the suit agreement being a licence and not a lease is not compulsorily registerable, that it is not opposed to public policy nor forbidden by law and that when there is frustration there is no reason why the parties should not be relegated in so far as it is possible to the same position as they would have been if the contract was only for the expired period. In my opinion there is substance in this contention, Ex. A-1 the suit contract has been found by the trial court to be a contract of lease compulsorily registerable. But be it noted that what was sub-leased was the right to stack napa stones for the purpose of sending the same by rail and also the priority right for wago supply. To be a lease within the meaning of section 105 of the Transfer of Property Act there should be a transfer of right to enjoy the immovable property. Unless there is a transfer of interest in the land it cannot come within the definition of lease. But the case of licence is different inasmuch as there is no transfer of interest in the land although the licensee may acquire a right to do something on the land. Licence is a right to do or continue to do in or upon the immovable property of the grantor something which would, in the absence of such right, be unlawful. It is merely a leave of permission to do a thing which enables the licensee to do lawfully what he could not otherwise do except unlawfully. It would appear that the plaintiff was given the same right as the railway had grated to the defendant and that right consisted in the stacking of the napa stone for purposes of transport by railway.

(3.) Evidently he had no interest in the land itself nor any right to make the best use of the land in the manner he chose. He could only use it for stacking the stones for a particular purpose, viz., for their transmission by railway. In these circumstances, the transaction is one of licence and not of a lease so that in order to take effect it may require registration. In Acting Secretary, Board of Revenue v. The Agent South Indian Railway Ltd., Trichinapoly A.I.R. 1925 Mad. 434 certain documents by which leave was given by the railway company to stock coal in station yards were held to constitute a licence and not a lease. The same should be said of the transaction in question. This being a licence and not lease non-registration of the document could not affect the merit of the case.