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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
C.D.Varghese – Petitioner
Versus
Joseph Mani And Ors. – Respondents
RSA NO. 835 OF 2020
Decided On : 09-11-2023
Code of Civil Procedure, 1908 - Order XLII Rule 1, Section 100 - Transfer of Property Act, 1882 - Section 105 - Second Appeal - Licence deed - Reliefs of mandatory injunction - R.S.A. has been filed challenging decree and judgment – Trial court as well as appellate court rightly negatived contention and hence concurrent verdicts do not require interference - Para 28.
Finding of the Court :
Arrangement between parties is not a ‘lease’, as contended by learned counsel for C.D.Varghese and another and same is a ‘licence’, as rightly found by trial court and confirmed by appellate court - It has to be held that in this matter, there is no transfer of absolute possession creating an interest in rooms, so as to hold arrangement as ‘lease’ as envisaged under Section 105 of Transfer of Property Act and no heritable interest, in fact, is created in this matter to hold that arrangement in between parties in this lis is a ‘lease’ instead of ‘licence’- Trial court as well as appellate court rightly negatived said contention and hence concurrent verdicts do not require interference in Second Appeal.
Result: Second Appeal dismissed.
JUDGMENT :
R.S.A.No.895 of 2020 has been filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure, challenging the decree and judgment in A.S.No.153/2016 dated 10.11.2020 on the files of District Court, Kottayam arose out of the judgment and decree in O.S.No.520/2014 dated 10.06.2016 on the files of the Munsiff Court, Kottayam. The appellant herein is Sri C.D.Varghese, the 2nd plaintiff in O.S.No.520/2014.
2. The respondents are the sole defendant as well as the 1st plaintiff.
3. Sri C.D.Varghese, who is the 2nd defendant in O.S.No.565/2014, has filed R.S.A.No.835/2020 challenging the decree and judgment in A.S.No.154/2016 dated 10.11.2020 on the files of District Court, Kottayam arose out of the judgment and decree in O.S.No.565/2014 dated 10.06.2016 on the files of the Munsiff Court, Kottayam.
4. Heard the learned counsel for the appellant/C.D.Varghese as well as the learned counsel appearing for the 1st respondent/Joseph Mani.
5. I shall refer the parties in this appeal as ‘C.D.Varghese & another.’ and ‘Joseph Mani’ hereafter for convenience.
6. Perused the judgments under challenge, the documents and precedents placed by the learned counsel for C.D Varghese and another.
7. O.S.No.520/2014 is a suit filed by C.D.Varghese and another seeking declaration that they have been running “Olympus Tours and Travels” in the plaint schedule rooms as tenants for the last 18 years; mandatory injunction to unlock the rooms and removing the obstruction in doing the business and prohibitory injunction against forceful removal of them from the rooms, which, according to them, they have been occupying as tenants.
8. Resisting the suit, Joseph Mani filed written statement as well as O.S.No.565/2014 seeking the reliefs of mandatory injunction directing C.D.Varghese and another, who are the licensees, to vacate the rooms and also claiming Rs.7,000/-per month as damages for the use and occupation of the plaint schedule rooms from 23.07.2014. The learned Munsiff tried both the suits jointly treating O.S.No.520/2014 filed by C.D.Varghese and another as the main case.
9. During trial, PW1 and PW2 were examined and Exts.A1 to A15 were marked on the side of C.D.Varghese and another. DW1 was examined and Exts.B1 to B11(b) were marked on the side of Jospeh Mani. Exts.C1, C1(a) and C2 were marked as court exhibits.
10. The learned Munsiff having scrutinised the evidence and after appraising the rival contentions raised by the parties, granted decree as under:
(b) The prayer for declaration and mandatory injunction in O.S.520/2014 are disallowed.
(c) O.S.565/2014 is decreed partly. Decree of mandatory injunction is passed and the defendants are directed to vacate the plaint scheduled premises and to remove their belongings from there within 3 months from today. On their failure to obey the decree, the plaintiff shall be entitled to get them evicted through the process of the court.
(d) Plaintiff in O.S.565/2014 shall be entitled to realise Rs.7,000/-towards damages for the occupation of the plaint scheduled premises from 23.07.2014 till the institution of the suit. The plaintiff shall also be entitled to realise future damages @ Rs.266/-per day from 23.07.2014 till they vacate the premises.
(e) Defendant in O.S.520/2014 and plaintiff in O.S.565/2014 shall be entitled to the cost in both the suits.”
11. Challenging the said common verdict, 2 separate appeals were filed as A.S.Nos.153 and 154 of 2016 before the District Court, Kottayam. The learned Additional District Judge heard both the appeals together and finally confirmed the verdict of the trial court and thereby appeals were dismissed.
12. The specific case of C.D.Varghese and another is
‘Lease’ is a transfer of a right coupled with exclusive possession with transfer of interest to enjoy an immovable property for certain period expressly, impliedly or in perpetuity.
The court established that the distinction between lease and licence depends on the transfer of possession and interest in the property, confirming the arrangement as a licence.
The intention of the parties, as expressed in contractual language, determines the distinction between a landlord-tenant relationship and that of a licensor-licensee.
The distinction between a license and a lease is determined by the intention of the parties, as reflected in the deed, rather than merely the possession of the property.
The employer was at liberty to allot any other flat to the employee on his transfer to another station and assign the premises fallen vacant by virtue of transfer to any other employee.
The determination of the relationship as licensee or tenant hinges on the parties' intention as reflected in the agreement, not merely on exclusive possession.
The main legal point established in the judgment is the significance of exclusive possession, intention of the parties, and the language used in the agreement in determining the jural relationship be....
The distinction between lease and license must adhere to explicit terms of agreements, with possession alone insufficient to confer tenancy rights.
The substance of the agreement, the intention of the parties, and the nature of the rights granted are crucial in determining whether an agreement creates a lease or a license.
Determination of lease vs licence hinges on the parties' intent and statutory interpretations concerning commercial properties, affirming precedent.
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