IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM TUESDAY, THE

8TH DAY OF OCTOBER 2024 / 16TH ASWINA, 1946 RSA NO. 437 OF 2024 AGAINST THE JUDGMENT DATED 13.02.2024 IN AS NO.35 OF 2020 OF ADDITIONAL DISTRICT COURT III, KOZHIKODE ARISING OUT OF THE JUDGMENT DATED 29.11.2019 IN OS NO.188 OF 2016 OF ADDITIONAL MUNSIFF COURT II,KOZHIKODE APPELLANT/APPELLANT/DEFENDANT:

PALOTH MOHANDAS AGED 57 YEARS S/O. RAMAN, PALOTH HOUSE, VALAYANAD P.O., VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE, PIN - 673007 BY ADVS.

R.SUDHISH M.MANJU RESPONDENT/RESPONDENT/PLAINTIFF:

CHIRAKKAL PEETHAMBARAN AGED 71 YEARS S/O. KANDAN, NAGATHUMPADAM, OLAVANNA P.O., OLAVANNA AMSOM AND DESOM, KOZHIKODE, PIN - 673019 BY ADVS.

Salahuddeen AVM M.P.SEETHA(K/648/2008)

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

08.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

1. The defendant in the suit is the appellant. The suit was for mandatory injunction, permanent prohibitory injunction, recovery of arrears of license fee and damages for unlawful use and occupation of the plaint schedule property.

2. The plaint averments are that as per Ext.A1 Licence Agreement dated 01.01.2006 the defendant was allowed to occupy the plaint schedule room for a period of eleven months; that the license fee fixed was at Rs.550/- per month; that on the expiry of the license period, the period of license was orally extended on the request of the defendant; after the oral extension of the license agreement, the license fee was enhanced to Rs.650/-; that the defendant did not pay the license fee from June 2014 and he constructed a kiln annexed to the wall of the room in violation of Ext.A1 License Agreement and thus the plaintiff suffered damage; that the license was terminated as per Ext.A2 Lawyer Notice dated 10.09.2015 and that the defendant refused to vacate the premises removing his articles and sent Ext.A3 Reply contending that the arrangement is not a license but it is a lease and that he has paid license fee up to October

2015.

3. The defendant filed a Written Statement contending, inter alia, that the defendant is in possession of the plaint schedule room; that the possession started since the year 1992; that he has been conducting Pappad business in the plaint schedule room; that the room was taken on lease and not on license; that since the room was taken on lease, the suit for mandatory injunction is not maintainable and the provisions of the Kerala Buildings (Lease and Rent Control) Act are applicable.

4. The Trial Court decreed the suit granting mandatory injunction in favour of the plaintiff directing the defendant to remove all his belongings from the plaint schedule room, directing the defendant to pay an amount of Rs.9,966/- from June, 2014 to 10.09.2015 as arrears of license fee, directing the defendant to pay Rs.650/- per month from 11.09.2015 as damages for use and occupation of the plaint schedule room and further declaring that the plaintiff is entitled to recover possession of the plaint schedule room from the defendant.

5. The defendant filed an Appeal before the First Appellate Court as A.S.No.35/2020, and the same was dismissed, confirming the judgment and decree of the Trial Court.

6. The present appeal is filed challenging the judgment and decree of the First Appellate Court confirming the judgment and decree of the Trial Court.

7. I heard the learned counsel for the appellant, Sri. R. Sudhish, and the learned counsel for the respondent, Sri. A.V.M. Salahudeen.

8. The learned counsel for the appellant contended that the facts and circumstances and the evidence in the case would clearly reveal that the relationship between the plaintiff and the defendant is that of a lease and not that of a license. Admittedly, the defendant has been conducting business in the plaint schedule room since the year 1992 as a tenant, and there are Agreements prior to Ext.A1 with respect to those periods. The plaintiff did not produce