The determination of whether an agreement constitutes a lease or license depends on various factors including intention, exclusive possession, and specific terms within the agreement.

JUDGMENT :

Appellants are the defendants in O.S.No.310/2004 on the file of Munsiff's Court, Kayamkulam which was one filed for recovery of possession and damages for use and occupation. The suit was decreed and the first appeal, A.S.No.7/2012 filed against the judgment and decree is also dismissed by the Additional District Court-II, Mavelikkara confirming the judgment and decree passed by the trial court. Against which, the appellants/defendants came up in second appeal.

2. Plaint schedule property is 10 cents of property originally hereinafter be referred as per their status before the trial court). Plaintiff was allotted, item No.2 as per Ext.A1 Partition Deed. Life interest of parents with respect to that property was reserved in the partition deed. Father Raman Pillai and mother Kamalamma expired on 09.11.1992 and 01.03.2004 respectively. Now plaintiff is the absolute owner of the plaint schedule property. While the father of the plaintiff was holding the property, he executed Ext.A2 agreement in the year 1975 in favour of Mohan Kumar, the husband of first defendant. Earlier father had given 17 cents of property on lease in favour of Balagangadharan Channar, who was conducting, 'Indira Motors' on ground rent in that property. Later, Balagangadhara Channar transferred his right in favour of Mohan Kumar for running an educational institution in the name and style, 'Mohan's Technical Institute'. The plaint schedule property was given on rent when Mohan Kumar required more property for running the institution on its northern side and he extended portions of the shed into plaint schedule property.

3. Defendants are the legal heirs of Mohan Kumar. Since Raman Pillai had only life interest, the agreement executed by him for ground rent is not legally binding on the plaintiff. After the death of the parents, plaintiff demanded the defendants to surrender the property and a lawyer notice was issued on 01.04.2004. But the property was not surrendered. Hence, the suit.

4. 1st defendant filed written statement for and on behalf of defendants 3 and 4 who are minors, as their guardian contending that the plaintiff has no right over the plaint schedule property. The entire 27 cents of property is lying as a single plot. Raman Pillai rented out 17 cents of property on ground rent to Balagangadhara Channar for a rent of Rs.10/-per month on 23.07.1964. He constructed building in the 17 cents of property prior to 1967. The remaining 10 cents of property was given to Mohan Kumar on oral lease much before 1965. He constructed sheds in the property for running the institute. Purchase of right of Balagangadhara Channar by Mohan Kumar is admitted. Raman Pillai executed an agreement in favour of Mohan Kumar on 03.07.1975 for a period of 30 years. So defendants claimed benefit under Section 106 of Kerala Land Reforms Act, 1963 (in short 'the Act').

5. Written statement was subsequently amended claiming benefit under Section 60(b) of the Easements Act. It is contended that Raman Pillai permitted Mohan Kumar to construct a building in the plaint schedule property for continuing the institute. The period of agreement is 30 years. The suit has been filed before the expiry of 30 years.

6. PW1 examined. Exts.A1 to A14 marked from the side of the plaintiffs. Exts.B1 to B3 were marked from the side of the defendants.

7. The learned Munsiff on appreciating the facts, circumstances and evidence adduced found that the issue with regard to the claim of benefit under Section 106 of the Act, 1963, has already been considered and found against as per order in I.A. No.126/2009 on 17.01.2009 and hence issue was answered against the defendants. It is contended by the counsel for the defendants that order in I.A.No.126/2009 was challenged by the defendants by filing W.P.C.No.3299/2009 and this Court directed to consider that issue by the trial court. But, no finding as directed was entered into. Hence, finding so made by the trial court is wrong. However, at the time of he