A licensee has a permissive right to occupy property and is not entitled to claim tenancy, thereby obligating them to pay agreed fees.

JUDGMENT

Defendant in O.S.No.256/2001 on the file of the Additional Munsiff's Court-II, Kozhikode is the appellant. This appeal is directed against the judgment and decree in A.S.No.34/2006 on the file of the IInd Additional Sub Court, Kozhikode. The suit was filed for mandatory injunction, arrears of license fee and damages for use and occupation. The trial court decreed the suit. The Appellate Court confirmed the judgment and decree of the trial court. Hence, this Second Appeal.

2. It is the plaintiffs' case that plaint A schedule property along with B schedule movables therein belonged to Korukutty, the father of the plaintiffs. After the death of Korukutty, the legal heirs instituted O.S.No.261/01 for partition of his assets including the plaint schedule properties. In the preliminary decree passed the court below allowed 1/7 share to the plaintiffs and 1/7 share to their mother. In the final decree stage, the plaintiffs and their mother were appointed as joint Receivers. The appellant was permitted to occupy the plaint schedule property and use B schedule movables under licence agreement in 1997. An amount of Rs.200/- per day was fixed as licence fee. The 3rd item of A schedule was permitted to be used for a monthly fee of Rs.260/-. According to the plaintiffs, the appellant society was only a licensee. The defendant took advantage of the dispute between the mother and the plaintiffs and stopped payment of licence fee. The licence fee was demanded by issuing notice. It is further averred that the licence fees are left in arrears since 19/9/2000. The plaintiffs also claimed the amounts by way of damages for use and occupation from 3-4-2001.

3. In the written statement the defendant admitted that he occupied the premises in 1993 as permitted by the mother of the plaintiffs under an agreement. According to him, the relationship was that of landlord and tenant, that no amount was due as arrears of licence fee or damages and therefore the plaintiffs are not entitled to the reliefs.

4. Before the trial court PW-1 and DW-1 were examined and Exts.A1 to A9, B1 and B2 were marked. The trial court held that the defendant is in occupation of the property under the licence agreement. The contention of the defendant that he is a tenant was found against and a decree of mandatory injunction was passed directing the appellant to vacate plaint A schedule property along with B schedule movables and to pay an amount of Rs.41,640/- as licence fee arrears with interest and to pay damages for use and occupation. Ext.A1 is the agreement dated 10/6/1997 executed by the mother of the plaintiffs and the defendant. The defendant was permitted to occupy the premises as a licensee by the mother of the plaintiffs in her capacity as a Receiver in the final decree proceedings in O.S.No.261/81. The courts below rightly held that the defendant had only permissive right to use the plaint schedule premises and that its right is only enjoyment as a licensee under the agreement. The court below noted that the duplicate keys of the building and rooms were retained by the Receiver-mother and she had the right to enter into the premises without notice to the defendant. The defendant also admitted the execution of Ext.A1 agreement. The terms in Ext.A1 make it clear that the arrangement was pending proceedings in the court and the appellant had only permissive right to use the premises and the articles mentioned in the agreement. The court below rightly observed that the licence arrangement could only be a temporary one pending final decree proceedings. Considering the facts and circumstances of the case and the recitals in Ext.A1 the courts below held that the defendant was a licensee and repelled the contention of the defendant that he is the tenant of the premises. In the light of the findings and conclusions arrived at, the courts below held that the defendant was liable to pay damages since the termination of licence and the quantum of damages had been compute