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Kerala High Court
M.U.ISAAC
Gopalan Nair - Appellant
Versus
Thevi Amma Thankamma - Respondent
Decided On : 02/29/1968
Licence - Property Dispute - Easements Act, 1882 - Section 56, Section 60 - The court discussed the distinction between a lease and a licence, and the intention of the parties in creating a lease or a licence. It also considered the transferability of a licence and the revocation of a licence by the grantor. The court referred to the case law and legal provisions to determine the nature of the transaction and the rights of the parties involved.
Fact of the Case:
The plaintiff filed a suit for a permanent injunction restraining the defendants from constructing a building in the plaint schedule property, to direct them to remove the building, if any, constructed therein, and for recovery of ground rent for the use of the said property at the rate of Rs. 10 per annum. The trial Court held in favor of the plaintiff, but the lower appellate Court allowed the appeal and set aside the decree.
Finding of the Court:
The court found that the relationship between the parties was that of a lessor and lessee, and not merely a licensee. It held that the licence was not revoked by the alleged demolition of the building, and the plaintiff was not entitled to recover the property after demolishing the building constructed by the first defendant.
Issues: The issues involved the nature of the transaction between the parties, the transferability of the licence, and the revocation of the licence by the grantor.
Ratio Decidendi: The court determined the nature of the transaction based on the intention of the parties and the substance of the document. It also considered the transferability of the licence and the revocation of the licence by the grantor as per the provisions of the Easements Act, 1882.
Final Decision: The appeal was dismissed, and the appellant was ordered to pay the costs of the respondents in this Court.
Certainly. Based on the provided legal document, the key points are as follows:
The case involved a dispute over property rights, specifically relating to a licence versus a lease, and the nature of the transaction between the parties (!) (!) .
The plaintiff sought a permanent injunction to prevent the construction of a building on the disputed property, along with a direction to remove any existing construction and to recover ground rent (!) .
The property in question was part of a larger survey, owned by the plaintiff's tarwad, and the dispute centered around a shop building constructed by Krishnan Nair, who was alleged to have only a licence to use the property (!) .
The trial court initially held that the relationship was that of a lessor and lessee, and that the licence was revoked when the building was demolished, leading to an order for the defendants to surrender the property and pay ground rent (!) .
The appellate court, however, concluded that the licence was irrevocable and that the demolition was part of reconstruction, thus the defendants retained rights over the property, and the order for removal was set aside (!) .
The court emphasized the importance of the substance of the transaction and the intention of the parties in determining whether an agreement is a lease or a licence, with a focus on possession and control (!) (!) (!) .
It was noted that the absence of a formal document does not preclude the existence of a lease, especially when possession and control are consistent with such a relationship (!) (!) .
The issue of transferability of the licence was discussed, with the court indicating that, in the absence of specific restrictions, licences could be transferable, particularly when transactions involving the property were consistent with such transfer (!) .
The court found that the construction and demolition activities prior to the suit indicated that the relationship was that of a landlord and tenant, rather than a mere licence (!) (!) .
The court held that a licence could be revoked only if no work of a permanent character had been executed; since the construction involved permanent work, the licence was deemed to be irrevocable (!) (!) .
Ultimately, the appeal was dismissed, and the court ordered the appellant to pay the costs of the respondents (!) .
Please let me know if you need further analysis or specific legal advice related to this case.
This Second Appeal is by the plaintiff in O. S. 128 of 1960 on the file of the Munsiff's Court, Mavelikara. The suit was for a permanent injunction restraining the defendants from constructing a building in the plaint schedule property, to direct them to remove the building, if any, constructed therein, and for recovery of ground rent for the use of the said property at the rate of Rs. 10 per annum.
2. The plaint schedule property has an area of 3 cents; and it is part of Survey No. 70/18 in Vallikunnu Village, Mavelikara Taluk. This survey number has an area of 90 cents; and it belongs, admittedly, to the plaintiff's tarwad. The plaintiff and the first defendant are the children of one Krishnan Nair through different wives; and the second defendant is the son of the first defendant. Krishnan Nair has been conducting a market in the above property over an area of 40 cents. The plaint property is the south-western portion of the said 40 cents. Krishnan Nair constructed a shop building in the plaint property; and he sold the building to the first defendant as per sale deed Ext. D-1 dated 3-1-1123. The plaintiff alleged that Krishnan Nair was conducting the market for the benefit of the plaintiff and his mother; that the shop building was constructed with the permission of the plaintiff; that it was demolished and removed by the first defendant about five years ago, as required by the plaintiff and Krishnan Nair; and that the defendants were forcibly attempting to construct a new building in the plaint property. It was also alleged that, after the demolition of the shop building, the plaintiff had been in possession of the plaint property, and that he had been using it thereafter as part of the market area. The suit was contested by defendants 1 and 2 only. They contended that defendants 3 and 4 were unnecessary parties, that Krishnan Nair was conducting the market in his own right, that the plaintiff's tarwad had surrendered its rights in respect of the 40 cents of land in which the market was conducted in favour of Krishnan Nair, and that the plaintiff's tarwad lost its title to the said property by adverse possession. They denied the alleged demolition of the shop building, and stated that they were not constructing any new building; but they were only replacing the old walls, which became damaged due to old age. They also contended that the plaint property would not fetch a ground rent of more than one rupee per year, and that the plaintiff was not entitled to any of the reliefs sought for.
3. The trial Court held that the plaint schedule property belong to the plaintiff's tarwad; that Krishnan Nair had only a licence in respect of the 40 cents of land which he was using for the market; that he constructed the shop building in the plaint property with the plaintiff's permission; that the building was actually demolished by the first defendant as alleged in the plaint; that, as Krishnan Nair constructed the building only as a licensee, the licence became revoked when the building was demolished; and that thereafter the first defendant had no right to construct any building in the plaint property. It fixed the ground rent of the property at Rs. 2 per annum. Accordingly, the trial Court passed a decree directing the defendants to surrender the plaint property, after removing the building therein, and to pay the plaintiff ground rent at the rate of Rs. 2 per year. Defendants 1 and 2 appealed to the Sub Court of Mavelikara. The learned Subordinate Judge held that the licence in favour of Krishnan Nair was irrevokable, that the demolition of the building was only for reconstruction; and that, as the reconstruction had commenced before the institution of the suit, there was no revocation of the licence. Accordingly, the lower appellate Court allowed the appeal and set aside the decree for the removal of the building and surrender of the plaint property. The plaintiff has, therefore, filed this Second Appeal.
4. The learned
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