IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 SA.No. 156 of 1998() -------------------- AS.120/1995 of PRL.SUB COURT, KOZHIKODE OS.305/1991 of PRL.M.C.KOZHIKODE-I .................... APPELLANT(S): -------------- PUTHANPURAYIL BABU, AGED 42 YEARS, S/O APPU, RESIDING AT 27/1207 PANNIANKARA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.ESM.KABEER RESPONDENT(S): --------------- K.V.SAJU RAJ, AGED 26 YEARS, S/O VENUGOPALAN, SREE NIVAS, KATCHERI AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.K.P.BALASUBRAMANYAN SRI.M.RAJAN SRI.AJITHKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.156 OF 1998 -------------------------------- Dated this the 8th day of September 2010 JUDGMENT The defendant is the appellant. Suit was one for mandatory injunction with arrears of licence fee. Respondent/plaintiff who claimed to be a tenant of a Devaswom alleged that the business concern namely 'General Motors' operated in 'A' schedule building under his lease arrangement was handed over to the defendant by the terms and conditions specified in Ext.A2 licence agreement. The period of licence was for one year and a sum of Rs.7,000/-(Rupees seven thousand only) was collected as security over and above fixing Rs.400/- (Rupees four hundred only) as the monthly licence fee. Ext.A2 deed was executed by the father of the plaintiff who was a minor at that point of time. Previously the work shop was operated by his father, and on execution of A2 licence deed the machinery therein was permitted to be used on the terms and conditions specified by the licence. The defendant was directed to quit after the expiry of the licence period, but, he failed to do so, was the cause set up for seeking the decree of mandatory injunction with the arrears of licence fee. Resisting the suit claim, the appellant/defendant contended that he is continuing occupation over 'A' schedule building under a lease arrangement and not as a S.A No.156 OF 1998 - 2 - license. He had also impeached the genuineness of Ext.A2 agreement stating that blank stamp papers signed by him had been obtained by the father of the plaintiff, in which, later, without his knowledge, the deed had been fraudulently created. He further contendedthat ever since the commencement of the lease what was paid was rent at the rate of Rs.400/- (Rupees four hundred only) for continuous occupation over the building. The rent, according to the defendant, was enhanced from time to time and the prevailing rent was Rs.500/- (Rupees five hundred only) per month. When there was refusal to accept the rent from February 1990, it was his case, the sum due thereof had been deposited in a bank. 2. On the pleadings of the parties as above, the trial court raised necessary issues in which among other questions whether the defendant is a lessee or license was also considered. Other than the oral evidence of the plaintiff examined as PW1 and the defendant as DW1, the documentary evidence tendered on their behalf consist of Exts.A1 and A2 and Exts.B1 to B7 for the parties respectively. The trial court, after meticulous consideration of the pleadings and also the materials produced, with reference to the legal principles applicable, concluded that the defendant is having occupation over 'A' schedule shop room as a lessee and the case S.A No.156 OF 1998 - 3 - set up by the plaintiff that he is only a license is unacceptable. The rent receipts produced by the defendant, and also Ext.B1 account book of rent, persuaded the trial court, with reference to the facts and circumstances established in the case to reach a conclusion as above. It was further found that the defendant was liable to pay arrears of rent for a period of 13 months at the rate of Rs.500/- (Rupees five hundred only) prior to the institution of the suit. A decree for arrears of rent for such period was granted in favour of the plaintiff, and the rest of the reliefs canvassed in the suit was negatived declining the reliefs of mandatory injunction and also the whole amount claimed, as due from the defendant towards licence fee. The plaintiff preferred an appeal A.S No.120/1995 of Sub Court, Kozhikode. After having reappreciation of the materials tendered differing from the view taken by the trial court, the first appellate court came to the conclusion that Ext.A2 agreement evidenced only a licence arrangement and so much so, the defendant is only a license and is liable to vacate and surrender vacant possession of the building to the plaintiff, licensor on expiry of the term of the licence. Taking such a view, a decree of mandatory injunction as applied by the plaintiff in his suit was granted directing the defendant to handover the 'B' schedule movables and vacate 'A' schedule S.A No.156 OF 1998 - 4 - building within a period of three months. The defendant, impeaching the correctness of the decree so granted by the first appellate court in favour of the plaintiff has preferred this appeal. 3. The disputed question posed for consideration in the case, as rightly and correctly noticed by the two courts below, is whether the appellant/defendant is a lessee or a license. Though the defendant has disputed the genuineness of Ext.A2 agreement contending that the document had been forged after obtaining his signatures on blank signed stamp papers, he could not succeed in establishing that defence. Both the courts below, it is seen, have accepted Ext.A2 as a genuine document repelling the contention of the defendant that is a concocted one. Learned counsel for the appellant rightly and correctly refrained from impeaching the concurrent finding entered by the two courts below over the genuineness of Ext.A2 agreement. But, still on the terms of Ext.A2 agreement with reference to the other materials produced, it is contended by the counsel that the intention of the parties is crystal clear that the contract that was entered into between them ie, the agreement between the father of the plaintiff and the defendant, was a tenancy arrangement and not a mere licence arrangement. No doubt, the real intention of the parties, whether it is a lease or licence, has to be gathered from the terms stated S.A No.156 OF 1998 - 5 - in the document. Nomenclature of the document in whatever way it is styled needless to point out is not decisive and material in analysing the intention of the parties to determine the true scope of that arrangement. Similarly, in examining the intention of the parties with reference to the terms of the document the surrounding circumstances can also be looked into by the court to enter a finding whether there was a lease arrangement or licence arrangement between the parties. The background of the execution of A2 document reveal that it was executed at a point of time by the father of the plaintiff as he desired to go abroad in search of employment. It has also come out by the plaintiff even at that point of time, on his own admission, is only a tenant of the building. The rate of fee claimed was Rs.400/- (Rupees four hundred only) per mensem, with a security of Rs.7,000/- (Rupees seven thousand only). Reading the whole document would indicate that it was a lease arrangement but, styled as a licence arrangement. In effect, what is evident is a sub lease made by a tenant over the tenancy holding in favour of another - the defendant. The first appellate court after adverting to the principles to be followed in examining whether the agreement is a licence or lease evaded from considering that question holding that in view of the contention raised by the defendant that Ext.A2 S.A No.156 OF 1998 - 6 - was a fraudulent document, at the most, it is only, voidable at his instance. Since he has contended that it is a fraudulent document, he has to get it set aside and, if it is not done, the contrary view has to be taken repelling his contention was the view taken by the court below. The approach made by the first appellate court was erroneous and unsustainable as it was expected to analyse the terms of the document to gather the intention of the parties to consider whether it was a lease or licence. It has also come out from the evidence that the devaswom had filed a rent control petition against the tenant/plaintiff and also the occupant presently holding over 'A' schedule ie, the defendant. Though both sides have not produced materials relating to that rent control petition, evidently that circumstance would indicate that the landlord has proceeded against the parties, plaintiff and defendant, as if a sub lease was created over the tenancy premises. Though Ext.A2 provided only a period of one year, the enhancement of the rent from time to time is also another circumstance with reference to the continuous occupation over the building by the defendant indicating that he is enjoying the same as a lessee. The documents produced by him which had been correctly taken note of by the learned Munsiff indicate that what was collected from S.A No.156 OF 1998 - 7 - the defendant was rent and not licence fee. The trial court has also taken note that Ext.B1 itself is styled as rent received as per lease agreement dated 01/06/1984 from Mr.P.Babu who is none other than the defendant. When such materials clearly establish that the occupation of the defendant over 'A' schedule building was as a lessee, as found by the trial judge, interference with such finding by the first appellate court for the reason that the defendant had failed to prove his defence that Ext.A2 was a concocted document could not be sustained. The defendant has challenged Ext.A2 as a concocted document and that is found against would not relieve the court from examining the materials tendered in the case, with reference to the pleadings and also evidence in accordance with the legal principles to be followed. The conclusion drawn by the lower appellate court that the appellant is only a license having been found unsustainable the decree granted by that court in favour of the plaintiff is set aside. The decree passed by the trial court in the suit alone will stand. The appeal is allowed, directing the parties to suffer their costs. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv