Case: Tarkeshwar Sio Thakur Jiu Vs. Bar Dass Dey and Company and Others

The appellant had the interest of a Darpatnidar in the land in suit, measuring 9 acres (27 bighas). The plaintiff by a lease-deed (Ex.A) dated July 10, 1941, granted to the defendant-respondents a lease of this land for the purpose of raising and taking sand out of the land for a period of 9 years ending on July 13, 1949. In this lease deed, the property was described to be Patni Mahal. Under the terms of this lease, the lessee had an option of renewal for another 9 years. Subsequently on April 27, 1950, appellant made a similar grant (Ex.I) for another 9 years expiring on April 13, 1959 but this grant was called a "licence"The respondents did not pay the licence fee for the period from 1362 (14-4-1955) to 1365 B.S. The plaintiffs thereupon issued notice, dated March 31, 1966, terminating the licence and then filed Suit No. 37 of 1960 for ejectment of the respondent in the Court of the Munsif, Second Court, ChandernagoreThe suit was resisted by the defendant-respondents, inter alia, on the ground that the land had vested in the State underthe West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Acquisition Act); that they were tenants, and not licensees, under the plaintiff and after the date of vesting with effect from April 14, 1955, became direct tenants under the State in respect of suit land and were paying rent to the StateThe Trial Court dismissed the suit holding:(i) that the defendants were not licensees, but were tenants; and (ii) that the plaintiff was not in khas possession on the date of the vesting (April 14, 1955); so he could not retain the land under Section 6(1) (i) of the Act In the result, the suit was dismissed.The first appellate Court reversed the decision of the trial court and decreed the suit with the finding that the grant being a licence, the plaintiff-intermediary was entitled to retain the holding under Section 6 (1) (i) of the ActAllowing the Second Appeal by the defendants, the High Court held:(a) that if the lease (Ex.A), being a lease for 9 years, was void under Section 107 of the Transfer of Property Act, it would still operate as a lease from month to month;(b) it was not a licence; and(c) section 28 of the Act applied and, as the plaintiff was not directly working the mine in the land, he could not retain itAggrieved, the plaintiff has come in appeal by special leave to this Court.

Reasoning: The argument is ingenious but untenable. The idol held the suit land comprised in the mine as an intermediary, only in the juristic sense, but, in fact he was exercising his rights in the suit land, through his human representative, the Shebait, Mohanta Srimat Dandi Swami. The Shebait could in that representative capacity, directly work the mine himself. But, instead of doing so, he, o n April 27, 1950 granted the right of carrying on mining operations in the land and taking away the mineral, on payment of an annual sum for a period of 9 years to the respondents. Thus, irrespective of whether this transaction or grant, dated April 27, 1950, was a lease or a license, the fact remains that immediately before the date of vesting, the mine in the suit land, was not being "directly worked " by the intermediary within the contemplation of Section 28It is well-settled that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is dressedThe definition of immovable property given in Section 3, Para I of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3. According to the definition given in Section 3(26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out Or land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression immovable property comprehends all that would be real property according to English Law and possibly more. (See 1 I.A. 34). Thus, every interest in immovable property or a benefit arising out of land, will be immovable property for the purpose of Section 105, Transfer of Property Act.A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a right to enjoy immovable property within the meaning of Section 105; more so, when-as in the instant case-it is coupled with a right to be in its exclusive khas possession for a specified period. The right to enjoy immovable property spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, Transfer of Property Act, which regulates the rights and liabilities of lessors and lessees of immovable propertyThe ratio of the Patna case applies with greater force to the facts of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriate(i, and, what is more important, (b) the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years. The transaction (Ex . I), though labelled as a licence, has all essential elements of a lease ever. under Section 105 of the Transfer for Property Act. In short, stripped of the form in which it is draped, the Agreement (Ex. I), in substance and in fact, is a lea se in the accepted legal sense of the term and not a licence as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we think it is so it is doubtful whether Section 6(1) (i) could cover the appellants case and give him a right to retain the land in dispute eve if Section 28 was out of his way.In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28In the view we take, we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy v. Bengal Coal Company([1930] L. R. 58 I. A. 29.)It isd that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is. The Agreement (Ex. I), which is named as a licence, is to be construed in the light of this cardinal canon.