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HIGH COURT OF KERALA
A. BADHARUDEEN, J
C.D.VARGHESE – Appellant
Versus
JOSEPH MANI – Respondent
RSA 835 2020
Property - Lease vs Licence - Transfer of Property Act - Sections 105, 52 - The court analyzed distinctions between 'lease' and 'licence'; determined that the arrangement lacked exclusive possession and heritable interest, confirming it as a licence under the law.
Fact of the Case:
The appellant sought a declaration of tenancy for rooms occupied for business, while the respondent claimed it was a licence arrangement, impeding eviction. Previous suits were filed with conflicting claims and the courts ruled against the appellant.
Issues: The key issue was whether the arrangement between the parties constituted a lease, as claimed by the appellant, or a licence as asserted by the respondent.
Ratio Decidendi: The court ruled that a lease entails exclusive possession and transfer of interest, which were absent in this case, thus categorizing the occupancy under a licence according to relevant provisions of law.
Final Decision: The Second Appeal stands dismissed.
The legal document pertains to a dispute regarding the nature of occupancy of certain premises, specifically whether the arrangement constitutes a lease or a licence. The court analyzed the distinctions based on legal principles, focusing on the transfer of possession, interest, and the intention of the parties involved.
Key points include:
The court clarified that a lease involves the transfer of exclusive possession and a heritable interest in the property for a specified period, whereas a licence grants only a right to occupy or use the property without transferring interest or exclusive possession (!) (!) (!) .
The determination hinges on the intention of the parties, as evidenced by the terms of the agreement, the language used, and the conduct surrounding the arrangement. The presence of explicit clauses describing the arrangement as a licence, along with the absence of transfer of interest, supports the conclusion that the arrangement is a licence rather than a lease (!) (!) .
The court emphasized that the nomenclature of the document is not decisive; rather, the actual substance—such as transfer of exclusive possession and interest—must be considered. In this case, the documentation labeled the arrangement as a licence, and the evidence indicated that only occupation rights were granted, not a transfer of interest (!) (!) (!) .
The court referred to the relevant legal parameters and principles, including the importance of the intention of the parties and the nature of possession, to ascertain whether the arrangement is a lease or licence. The evidence demonstrated that the parties intended only a licence, with no transfer of exclusive possession or heritable interest (!) (!) .
Consequently, the court held that the arrangement was a licence, not a lease, and affirmed the lower courts' decisions. The arrangement did not create a heritable interest or transfer exclusive possession, which are essential elements of a lease under the law (!) (!) .
The appeal was dismissed, and all interim orders were vacated, confirming the legal conclusion that the occupancy arrangement was a licence.
COMMON 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:
“(a) O.S.No.520/2014 is decreed partly. Decree of permanent prohibitory injunction is passed restraining the defendant from evicting the plaintiff from the plaint scheduled room by force, causing any kind of obstruction to the business therein and disconnecting any amenities to the plaint scheduled rooms.
(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 ano
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