IMPORTANT POINT
The distinction between lease and license was upheld, confirming that the defendant was a licensee without protection under the Kerala Land Reforms Act.

JUDGMENT :

This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred as ‘CPC’ for short], challenging the decree and judgment dated 31.07.2015 in O.S. No.211/1992 on the files of the Sub Court, Kottarakkara. The appellant herein is the defendant and the respondents herein are the plaintiffs in the above suit.

2. Heard the learned senior counsel for appellant and the learned counsel appearing for the respondents, in detail. Perused the verdict under challenge, the records of the trial court and the decisions placed by both sides.

3. Parties in this appeal shall be referred with reference to their status before the trial court, hereafter.

4. The plaintiffs instituted this suit for recovery of possession of plaint A schedule property with vacant possession of plaint B schedule temporary cinema theater and for realization of Rs.48,200/- towards compensation for use and occupation of plaint B schedule item till the date of the suit and Rs.1,500/- per mensum from the date of suit till recovery of possession. The plaintiffs also sought the relief of mandatory injunction directing the defendant to remove the machinery and furniture from plaint B schedule theater. The main contentions raised by the plaintiffs could be gathered from paragraph Nos.3 and 4 of the plaint. The same read as under:

3. By a tharavadaka agreement dated 23-5-1966 Geevarghese Abraham permitted one K.M.Cherian to construct a temporary theatre in the suit A schedule property for exhibition of films in that theatre. Accordingly K.M.Cherian put up a temporary theatre in the suit A schedule property in 1966 itself and he began exhibition of films in that theatre. That theatre was named by him as Jawahar theatre. The term of the tharavadaka agreement was fixed as ten years. K.M.Cherian was given an option to extend the term for a further period of 5 years if he was interested to do so. After the expiry of the period of 10 years K.M. Cherian exercised the option and the period of the agreement was further extended for 5 years. In the agreement executed by K.M.Cherian and Geevarghese Abraham dated 23-5-1966, Κ.Μ. Cherian covenanted to surrender the temporary theatre to Geevarghese Abraham on the termination of the tharavadaka agreement. By that tharavadaka agreement K.M.Cherian was a licensee of the suit schedule property. Permission granted to K.M.Cherian was restricted to the construction of temporary theatre and exhibition of films in that theatre. K.M.Cherian was not permitted to do any other act in the suit schedule property. K.M Cherian has not done any other thing in the suit schedule property. He paid theravadaka to Geevarghese Abraham as consideration for the licence.

4. At the fag-end of the term of the tharavadaka agreement K.M. Cherian had put the defendant in charge of the exhibition of films in the theatre. He conducted exhibition of films in the theatre as an employee of K.M Cherian.

5. The specific case of the plaintiffs before the trial court was that, a fresh tharavadaka agreement was executed between Mr.Geevarghese Abraham and the defendant on 18.02.1982, for a period of two years and thereafter the same was extended till 1989. According to the plaintiffs, the status of the defendant is that of a licensee and therefore the reliefs sought in the plaint are liable to be granted.

6. The defendant resisted the suit by filing written statement and additional written statement. The contentions raised by the defendant could be gathered from paragraph Nos.3, 5, 9 and 11 of the written statement. The same read as under:

3. Plaint A schedule property is 23 cents of dry land. That 23 cents consist of 19 cents in Sy.No.17/8 and 4 cents in Sy.No.17/9. Sy.No.17/9 is situated on the southern side of Sy.No.17/8. The total extent of Sy.No.17/9 is 16 cents. The four cents included in schedule A constitute the middle portion of that 16 cents. Kollam- shencottah road is situated on the southern s