IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 RSA.No. 186 of 2008(E) ---------------------- AS.42/2007 of ADDL.DISTRICT COURT, THRISSUR OS.931/2005 of PRL.MUNSIFF COURT,THRISSUR .................... : APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------- 1. SARVODAYA SANTHI BHAVAN, REPRESENTED BY MANAGING TRUSTEE, BUILDING NO.439-A, WARD NO.VII, KAIPARAMBU PANCHAYATH, THRISSUR DISTRICT. 2. MATHEW ALBIN, MANAGING TRUSTEE, SARVODAYA SANTHI BHAVAN, BUILDING NO.439-A, WARD NO.VII, KAIPARAMBU PANCHAYATH, THRISSUR DISTRICT. BY ADV. SRI.C.DILIP RESPONDENTS: RESPONDENTS/PLAINTIFFS ------------------------------------------------- 1. THRESSIAMMA, W/O. NEDUMPARAMBIL VARGHESE, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. SANTHAKUMARI, W/O. RAMADAS, POURNAMI HOUSE, THRIKKANDIYOOR AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.MURALEEDHARAN PILLAI SRI.SHAIJAN C.GEORGE(CAVEATOR) SRI.P.V.LONACHAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.475/2007 IN R.S.A.NO.186/2008 4.4.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 186 OF 2008 =========================== Dated this the 4th day of April, 2008 JUDGMENT Defendants in O.S.931/2005 on the file of Munsiff Court, Thrissur are the appellants. Respondents are the plaintiffs. Suit was filed for mandatory injunction directing appellants to vacate plaint schedule property and for realisation of licence fee as provided under Ext.A2. Plaint schedule building belong to respondents. On 10.1.2004 first appellant executed Ext.A2 licence deed agreeing to pay monthly licence fee of Rs.4500/-. It was contended that appellants have been in possession of the property and they did not pay the licence fee from October, 2004 onwards and as per registered notice dated 9.12.2004 licence was terminated and appellants were directed to surrender vacant possession of the building and they did not do so and respondents are entitled to a decree for mandatory injunction directing R.S.A.186/08 2 appellants to surrender vacant possession with the arrears of licence fee and future damages. Appellants resisted the suit contending that they are not licensees and the building was obtained on lease and they can be evicted only as provided under Kerala Buildings (Lease and Rent Control) Act. It was contended that at the time of the lease Rs.13,500/- was received by appellants and after deducting two months licence fee, the balance is liable to be refunded and as the transaction is not a licence respondents are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, DW1 and Exts.A1 to A6 and B1 to B4 rejected the case of appellants that they are licensees and finding that they are in possession of the building under Ext.A2 licence deed and it is not a lease, suit was decreed. Appellants challenged the judgment before District Court, Thrissur in A.S.42/2007. Learned District Judge on reappreciation of evidence allowed the appeal in part. Learned R.S.A.186/08 3 District Judge set aside the cost awarded and also directed to adjust the advance amount of Rs.13,500/- paid under Ext.A2 from the arrears of licence fee payable. It is challenged in the appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that trial court did not frame any issue on the question whether Ext.A2 is a lease or licence and wrongly found that Ext.A2 transaction is a licence and not a lease. Learned counsel argued that though the document is styled as a licence deed all the ingredients of a lease are present and the question whether the ingredients constitute a lease or licence was not specifically considered by the courts below and for the sole reason that there is a recital in Ext.A2 that provisions of rent control legislation are excluded, will not enable respondents to get a decree for recovery of possession, if the contract is a lease and not a R.S.A.186/08 4 licence and when appellants are entitled to the benefit of Kerala Buildings (Lease and Rent Control) Act. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. Though appellants disputed Ext.A2 and contended that there was a separate lease courts below found that when examined as DW1 first appellant unambiguously admitted that appellants are in possession of the building under Ext.A2 and there is no other transaction. The question therefore is only whether Ext.A2 is a lease or a licence. Though no specific issue as such was framed by the trial court, question whether it is a lease or licence was considered by the trial court. Similarly first appellate court without specifically formulating a point, considered whether Ext.A2 creates a relationship of lessor and lessee or licensor or licensee. Interpreting Ext.A2 it was found that it creates only a licence and not R.S.A.186/08 5 a lease. Though learned counsel vehemently argued that Ext.A2 creates only a lease, on going through Ext.A2, I do not find any reason to interfere with the findings of the courts below. Ext.A2 does not show that a right to enjoy the property was transferred thereunder. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006