HON'BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No. 2749 of 2008 ORDER: The order under challenge in this revision petition is the order of the Senior Civil Judge, Vizianagaram, in O.S.No.171 of 2001 dated 02.02.2008, whereby the petitioners–plaintiffs were directed to pay stamp duty with penalty on the ground that the document in question was a lease and not a licence. The petitioners–plaintiffs entered into an agreement with the respondents for a period of five years commencing from 15.11.1997 till July, 2002. Under the said agreement, the petitioners were permitted to receive the usufruct of cashewnuts and mangoes on payment of Rs.10.00 lakhs; pluck mangoes and cashewnuts only; take care of the garden; dig trenches; remove bushes; pay salary of the gardener; give 1000 mangoes, at the end of each year, to the respondents; and handover possession to the respondents by the end of July, 2002. The Court below, while holding that the document in question was not a licence and was a lease, directed the petitioners to pay stamp duty with penalty. Sri K.Subrahmanyam, Learned Counsel for the petitioners, would rely on the judgments of the Supreme Court in State of West Bengal v. Saradiya Thakurani[1] and New Bus-Stand Shop Owners Association v. Corporation of Kozhikode[2] and a judgment of this Court in Sadanala Bhogiraju v. Mandala Praja Parishad[3] in support of his submission that, since the petitioners were merely permitted to take the usufruct from the mangoes and cashew trees on the land in question, it was merely a licence and not a lease and, as such, no stamp duty was required to be paid thereupon. Saradiya Thakurani1, was a dispute arising under the West Bengal Estates Acquisition Act, (1 of 1954). The Supreme Court, while noting that under the proviso to Section 6(2) thereof no agricultural land could be licenced, held that the tank in question fell within the explanation of Section 6(1); the tank was the absolute property of the deity; permitting a person to catch fish therefrom on payment of a fixed sum, and he being obligated to cleanse the tank, did not constitute a lease within the meaning of the proviso but only a licence. I n New Bus-Stand Shop Owners Association2, a case arising under the Kerala Municipalities Act, 1994, the Supreme Court noted that both the conditions of licence and Section 215 of the Kerala Municipalities Act, 1994, specifically provided that the Commissioner of the Municipality would be in legal possession of the licensed premises and the licensee could only use the premises as per the terms and conditions of the agreement, and not to claim possession thereof. The Supreme Court, relying on a judgment of the Court of Appeal in Errington v. Errington and Woods4, observed that a crucial test in distinguishing a lease from a licence was whether the occupier has exclusive possession of the property in question and, if a person was given exclusive possession, it could be held that a person was a tenant. While holding that exclusive possession was not by itself a decisive test, the Supreme Court held that absence of exclusive possession was certainly one of the indicators to show that the agreement was one of the licence and not of lease. On facts, the Supreme Court noted that possession remained with the Municipality, the appellants were merely given the right to use the shops in question and were not put in exclusive possession thereof. I n Sadanala Bhogiraju3, this Court was called upon to examine the document whereby the appellants therein were given the right to pluck coconuts from the coconut trees. This Court observed that possession of the property was not given to the appellants; the right to enjoy the grass grazed was put to auction to third parties on the ground that the appellants were not given exclusive possession of the property; and that it amounted to a licence and not a lease. In the present case, the contents of the agreement, as noted hereinabove, show that the petitioners–plaintiffs were given exclusive possession of the land in question; as the land was delivered to the petitioners, it was required to be redelivered to the respondents on expiry of the period of agreement; and the petitioners had to do all such acts such as making trenches, preserve cashew and mangoes trees, the Court below held that the petitioners were put in possession of the property, had interest therein and it was, therefore, a lease. The finding recorded by the Court below, that the document in question was a lease and was not a licence, does not suffer from perversity or patent illegality necessitating interference in proceedings under Article 227 of the Constitution of India. The Civil Revision Petition fails and is, accordingly, dismissed. RAMESH RANGANATHAN,J Dt:08-07-2010 usd [1] AIR 1971 SC 2097 [2] 2009(10) SCC 455 [3] 1992(1) ALT 59 4 1952(1) KING BENCH 290