IMPORTANT POINT
For a consideration as to whether a document creates a licence or lease, the substance of the document must be preferred to the form.

JUDGMENT

G.N. Ray, J.-Leave granted. Heard learned counsel for the parties.

2. The defendant in two suits being O.S. No. 633 of 1984 and O.S. No. 47 of 1985 filed in the court of learned Munsif, Kozhikode, is the appellant in this appeal. The respondent instituted suit No. O.S. 47 of 1985 against the defendant appellant for a mandatory injunction restraining him from entering the suit premises by contending that the said defendant was given licence to run a hotel business in the suit premises for a prescribed period and such leave and licence having expired, defendant had been illegally carrying on the business of hotel in the suit premises belonging to the plaintiff. The other suit being O.S.No.47 of 1985 was instituted against the defendant appellant for recovery of an amount of Rs.4082/- being the balance licence fee and interest. The defendant appellant contested both the suits by contending that the defendant was not a licencee for running the plaintiff s hotel business but he was inducted as a tenant on payment of daily rent as stipulated. The defendant appellant also contended that he had regularly paid the rent which was revised from time to time and after adjusting the arrear rent against deposit lying with the plaintiff, the balance amount was tendered but plaintiff having refused the same, the plaintiff landlord was not entitled to claim any interest on the outstanding arrears.

3. Both the said suits were analogously heard by the learned Principal Munsif, Kozhikode. By the common judgment dated April 3, 1986, the learned Munsif dismissed O.S. 633 of 1984 on a finding that the defendant was a tenant in respect of the suit premises and hence case for eviction of a licencee must fail. The learned Munsif, however, decreed the other suit namely O.S. No.47 of 1985 in part and passed a decree for recovery of a sum of Rs.1472/- as arrears of rent with interest at 6% per annum from the date of decree till payment. The plaintiff unsuccessfully challenged the said decrees in the court of the learned Subordinate Judge, Kozhikode in A.S. No.150 and 151 of 1986. By a common judgment dated 28.11.1990 the appellate court dismissed both the said appeals.

4. The plaintiff respondent thereafter preferred S.A. No. 690 of 1991 F and 1014 of 1992 D before the Kerala High Court. By a common Judgment dated March 2, 1995, the High Court allowed both the appeals and decreed O.S. No. 833 of 1984 by holding that defendant s possession of the suit premises on the basis of agreement between the parties (Ext.A/1) was that of a licencee and the defendant was not a lessee or tenant. Accordingly, the plaintiff was entitled to recover possession of the suit premises. The High Court also decreed the other suit by holding that the plaintiff was entitled to realise arrear licence fee as claimed by him with future interest at 6%.

5. Mr. Sukumaran, learned Senior counsel appearing for the appellant, has contended that the concurrent findings of the trial court and appellate court that the defendant was a tenant and not a licencee as alleged by the plaintiff should not have been interfered with by the High Court in a second appeal. It has also been contended by Mr. Sukumaran that law is well settled that description of the occupier of a premises as a licencee by itself will not determine the real status of the person in possession. If there is any written agreement between the parties which governs the terms for occupation of the disputed premises, then such document together with other available evidences are required to be considered for the purpose of finding out the real intention of the parties. Mr. Sukumaran has submitted that exclusive possession is one of the important incidences of a lease. It has been contended by Mr. Sukumaran that although in the document of agreement between the parties, the defendant was stated to be a licencee empowered to run the hotel business of the plaintiff, but if the document is considered intrinsically, it will be q