IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 RSA.No. 126 of 2011() --------------------- AS.47/2005 of SUB COURT,THODUPUZHA OS.11/2002 of MUNSIFF COURT, DEVIKULAM .................... APPELLANT/RESPONDENT IN AS /PLAINTIFF IN OS ------------------------------------------------------------------------ TATA GLOBAL BEVERAGES LTD(FORMERLY TATA TEA LTD.)REGISTERED OFFICE AT 1,BISHOP LEFROY ROAD,CALCUTTA WITH SPECIAL PROJECT OFFICE AT GENERAL HOSPITAL COMPLEX, MUNNAR,KDH VILLAGE, REP.BY ITS SENIOR MANAGER-IR LEGAL & ADMN. MR.PRATAP RAMADAS. BY ADV. SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) RESPONDENT(S): APPELLANT IN AS /DEFENDANT IN OS ---------------------------------------------------------------------------------- P.I.ABRAHAM,S/O.LATE P.M.ITTY, AGED 64 YEARS,M.P.IX/1211,ONE UNIT IN TREBLE QUARTERS,GRAHAMSLAND ROAD,MUNNAR PO,KDH VILLAGE, IDUKKI. ADV. SRI.K.REGHU KOTTAPPURAM SMT.URSULA FRANCIS SRI.M.MUKESH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.126 OF 2011 =========================== Dated this the 21st day of July,2011 JUDGMENT Plaintiff in O.S.11/2002 on the file of Munsiff Court, Devikulam is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for a declaration and recovery of possession. Appellant contended that plaint A and B schedule buildings were granted under Ext.A1 licence agreement executed on 22.5.1998 agreeing to pay a license fee of Rs.100/- per month and the period of licence expired on 21.5.1999. Respondent in violation of the agreement constructed a bathroom/toilet at the rear side of the living quarters. He also made an attempt to encroach upon a portion of the property belonging to the appellant. O.S.200/1999 was filed restraining respondents R.S.A.126/2011 2 from committing trespass. The licence was cancelled. Appellant is therefore entitled to recover possession of the buildings and respondent is not entitled to continue in possession of the buildings. Respondents resisted the suit contending that he is not a licensee but a building tenant and the arrangement was not a license arrangement but a lease. It was contended that since July 1983 the building has been in the exclusive possession and enjoyment of the respondent as a tenant and the building was leased out to the Ministry of Communication, Union of India in 1978 and the lessee continued in possession as a statutory tenant. In July 1983 the said tenant vacated the building. Thereafter respondent was put in possession of the building as a tenant as per an oral lease on a monthly rent of Rs.30/-. Since then he has been in possession of the property. RCP 6/1985 was filed earlier by the appellant for eviction. During the pendency of that proceedings, the matter was settled. An agreement was entered R.S.A.126/2011 3 into permitting the respondent to continue in possession. The relationship is that of landlord/tenant and hence appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, DW1 and Exts.A1 to A3, B1 to B12 upheld the case of the appellant and held that appellant has title to the property and respondent is only a licensee and appellant is entitled to recover possession of the plaint schedule property with arrears of licence fee. Respondent challenged the judgment before Sub Court, Thodupuzha in A.S.No.47/2005. Learned Sub Judge on reappreciation of the evidence found that appellant has been in possession of the building as a tenant and though Ext.A1 was executed as a license agreement, it is lease and the relationship is that of the landlord/tenant and hence held that appellant is not entitled to the decree granted by the trial court. The appeal was allowed and the suit was dismissed. It is challenged in the second appeal. R.S.A.126/2011 4 3. Learned counsel appearing for the appellant was heard. 4. Learned counsel made available copy of Ext.A1 agreement and submitted that Ext.A1 shows that it was executed as a licence agreement and not as a lease and therefore first appellate court was not justified in holding that appellant is the landlord and the respondent the tenant. The argument of the learned counsel is that the first appellate court did not properly appreciate Ext.A1 and the evidence. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. While considering the question whether the relationship created under Ext.A1 is that of a licensor and licensee or a lessor and lessee nomenclature cannot be the guideline. As rightly found by the first appellate court, the real test is the intention of the parties whether they intended to create a lease or licence and whether R.S.A.126/2011 5 the document creates an interest in the property and whether under the document exclusive possession of the property was transferred to the respondent. As rightly found by the first appellate court it is absolutely clear that exclusive possession was given to the respondent under Ext.A1 as there is no whisper anywhere in Ext.A1 that the appellant retained in possession of the buildings. Ext.A1 itself establishes that Rent Control proceedings were initiated earlier in respect of the building namely shop called Munnar Medicals for eviction on the ground of arrears of rent. That itself establishes that respondent was holding possession of the building as a tenant. Ext.A1 establishes that he continued the possession as a tenant. There is no case in Ext.A1 that there was a surrender of the said tenancy right. Therefore even if Ext.A1 was executed as an agreement for license, in law, unless the tenancy which was in existence earlier was surrendered, or evicted, the valuable tenancy right will not be affected by R.S.A.126/2011 6 execution of Ext.A1. First appellate court rightly relied on the decision of the Apex Court in Associated Hotels of India Ltd v. R.N.Kapoor (AIR 1959 SC 1262). If the evidence is tested in the light of the decision of the Apex Court in Beena v. Ramachandra Rao (2004(2) KLT 336) the finding of the first appellate court could only be upheld. Appeal is dismissed but making it clear that the appellant is at liberty to approach the Rent Control Court for eviction on establishing any of the grounds for eviction as provided under section 11 of Kerala Buildings (Lease and Rent Control) Act 2/1965, if grounds are available. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006