The judgment establishes the interpretation of lease and licence under the Indian Easements Act, the scope of agrarian reform under the Land Reforms Act, and the limited effect of inclusion in the Ninth Schedule.

1. This is a revision petition by the plaintiff in a small cause suit, which was dismissed by the Munsiff, Kozhikode holding that he had no jurisdiction to try the suit. The revision petition came before a learned judge of this Court, who thought that the question involved was an important one to be considered by a Division Bench. Hence the revision petition has been referred to us.

2. The first question to be considered is whether the respondent is a tenant under the petitioner. The only evidence available regarding the nature of the transaction between the parties is Ex. Al, a compromise entered into by them in O.S. No. 802 of 1967. The compromise recites that there was an arrangement between the parties previously (of October 17,1949) allowing the respondent to put up sheds for the purpose of conducting a school on a plot of land belonging to the petitioner, the respondent agreeing to pay Rs. 30/- a month. Though the amount agreed to was Rs. 30/-per month, the respondent was paying only Rs. 25/- per month. In addition to that plot, another area was also added under Ex. Al; and on the aggregate the respondent had to pay Rs. 40/- per month. The total extent of the land under Ex. Al was 111 ft. by 111 ft. The respondent bad no right to construct anymore sheds on the plot excepting those allowed and had also no right to plant any trees thereon. It is also recited in Ex. Al that the petitioner continued in possession of the trees on the plot. And the plaint also proceeds on the basis that the arrangement between the parties was not a lease, but only something in the nature of a licence, under which the respondent had the right to put up sheds on the plot for conducting the school. It may also be mentioned that the only witness (Dw.1) examined on the side of the respondent was not the respondent himself; and the witness said that the respondent alone knew about the nature of the arrangement of 1949 that the witness did not know about it.

3. Ex.A1 was in January 1968; and the respondent paid Rs. 40/- per month until the end of 1969. From 1st January 1970, on which date Act 35 of 1969 came into force, the respondent refused to pay; and the suit was for the arrears for seven months. The claim of the respondent was that he was a tenant coming within Act 1 of 1964 as amended by Act 35 of 1969 and that the plot mentioned in Ex. Al vested in the State under S.72 of the Act, i.e., the petitioner was no more the owner of the land.

4. The provisions of Ex. Al do not indicate unequivocally that arrangement between the parties amounted to a lease. In this connection, S.74 of the Land Reforms Act might be noted. Sub-s. (1) of the section provides that, , after the commencement of the Act, no tenancy shall be created in respect of any land; and sub-s. (2) provides that any tenancy created in contravention of sub-s. (1) shall be invalid. This section was there at the time of Ex. Al; and it is not to be presumed that the parties entered into an arrangement directly in contravention of S.74. Nor are the provisions of Ex. Al, as we have already indicated clear to hold that the arrangement was a lease. The arrangement is not called lease: the payment is not called rent: the term used is cooly Iqen The provisions do not also clearly indicate that possession of the plot was transferred to the respondent. For all these reasons, we are of opinion that Ex. Al is not a lease: on the other hand, it is only a licence coming under S.52 of the Indian Easements Act, which provides that, where one person grants to another a right to do or continue to do in or upon the immovable property of the grantor something which would be unlawful and such right does not amount to an easement or an interest in the property, the right is called a licence.

5. There is yet another aspect to the question. Even if Ex. Al has created a lease, still, the land covered by the lease will not come within the ambit of scope of Act 1 of 1964.

6. The constitutionality of Act 1 of