Decided on July 18,1974



- (1.) In this second appeal by the defendant against the concurrent decrees of the courts below in favour of the plaintiff for recovery of possession of the plaint schedule property, roughly 15 cents in extent, all that matters seems to be an interpretation of the relevant provisions in Ext. P2 rent deed hmSI]{Xw in order to ascertain whether the executant therein satisfies the requirement of 'lessee' referred to in S.106 of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969.
(2.) Facts are not much in dispute. The plaint schedule property is part of a larger item, 25 cents in extent, belonging to the plaintiff. Under three engagements one of the year 1121, one of the year 1124 (Ext. P1) and another of the year 1961 (Ext. P2), the defendant had been making use of the plaint schedule property for the purpose of stacking timber and carrying on his trade. The recital in Ext. P2 refers to Ext. P1 as well as the earlier engagement of the year 1121. Ext. P2 is an unregistered document written on stamp paper styled as 'vadaka pathram' (rent deed) executed by the defendant in favour of the plaintiff for the purpose of allowing the defendant to have the timber unloaded in the plaint schedule property, and to carry on his trade on the terms and conditions stipulated in the document for a period of one year on a rent of Rs. 22 per mensem. Clause.2 in Ext. P2 provides that only temporary sheds for trade could be constructed by the defendant, and that on the expiry of the stipulated period of one year without any demur the defendant would remove the structure and vacate, the place. Clause.3 provides that granite stones, bricks or laterite stones would not be used for the construction and that the building would be confined to a shed with a roof on pillars. Clause.4 is to the effect that if the bund on the southern side happens to be demolished by the defendant for the purpose of his trade, he would at his expense repair it at the time of his vacating the premises; otherwise the defendant would be liable to pay a sum of Rs. 30 by way of damages, to the plaintiff. Clause.5 stipulates that in case there are coconut trees within the place where the shed is constructed, no obstruction in the matter of enjoyment of the coconut trees would be caused by the defendant. Clause.6 provides that no damage would be caused either to the compound or to the trees therein. Clause.7 is to the effect that the defendant would not do anything which would be injurious to the trees in the plaint schedule property; he would not plant any trees in the property. Clause.8 states that the defendant will not sub rent the compound to any other person; in case, contrary to this undertaking, any subletting is made, it will be invalid and for that reason alone the defendant Could be evicted from the property. Clause.9 provides that if there is any default in payment of monthly rent, defendant would be liable to demolish his shed in the property and vacate the premises. Clause.10 shows that the temporary shed constructed on the foundation laid by the plaintiff will be removed by the defendant at his expense at the time of his vacating the property. Clause.11 is to the effect that in case of arrears of rent the shed and other belongings of the defendant will be security for such amounts. Clause.12 provider that in case any loss arises to the plaintiff on account of this transaction, the defendant was liable to make good the loss. If the defendant acts in contravention of this agreement, he will be liable to vacate the premises even before the expiry of the stipulated period of one year. The plaintiff would also be at liberty to collect rent at enhanced rate as stipulated by him which could be realised from the defendant's properties. It also says that the rent deed executed in favour of P. E. Narayana Pillai, the father of the plaintiff, on 1st Thulam 1121 and to the plaintiff on 14th Makaram 1124 became 'cancelled', and that has necessitated this fresh agreement. It is not considered necessary to advert to Ext. P1 as the conditions are more or less the same, though the terms in Ext. P2 appear to be more stringent than those of Ext. P1. However we may advert to Ext. P4 which is the report submitted by the commissioner which, inter alia, shows that on this 15 cents of land there were, at the time of his inspection, 30 coconut trees and a jack tree. This is necessary to have an idea about the nature of the plaint schedule property and the restricted manner in which the land could have been used by the defendant in terms of Ext. P2 rent deed.
(3.) Sri Vyasan Poti, learned counsel for the appellant, submits that both the courts below have not properly construed Ext. P2 in the background of the provisions contained in S.106 of the Kerala Land Reforms Act. It is also submitted that the literal interpretation without bearing in mind the purpose of S.106 would virtually defeat the object sought to be achieved by the legislation. My attention has been drawn to the decision of the Supreme Court in Lakshmi Ram Ram Das v. Vidyat Cable and Rubber Industry 1969 (II) S.C.W.R. 652 wherein it has been held that "It is common knowledge that several landlords do attempt to bypass the provisions of the statutes affording protection to the tenants against evictions by entering into contract which have a superficial appearance of licences. Therefore it is the duty of courts to go behind the facade and find out the real nature of the contract. The clause 'the licensees shall be responsible for effecting necessary repairs to the shed or the premises at his own cost is more consistent with a lease than with a licence ......" In order to stress the same point the decisions of the Supreme Court in Associated Hotels of India v. R. N. Kapoor AIR 1959 SC 1262 and Sohan Lal Naraindas v. Laxmidas 1971 (1) SCC 276 have been cited. Reliance has also been placed by the learned counsel on the decision of Krishna Iyer, J. in Qudrat Ullah v. Municipal Board 1974 (1) SCC 202 Where in Para.7 the observation is as follows: "There is no simple litmus test to distinguish a lease as defined in S.105, Transfer of Property Act from a licence as defined in S.52 Easements Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property, entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result." Dealing with the nature of the grant of exclusive possessions the following passage is extracted from Halsbury's Laws of England, Vol, 23, at page 209 of the citation: "The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance. In deciding whether a grantee is entitled to exclusive possession regard must be had to the substance of tee agreement. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession. The grant of an exclusive right to a benefit can, however, be inferred only from language which is clear and explicit. If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease." Precisely these are the passages relied on by Sri Sivasankara Panicker who appears on behalf of the respondent. According to Sri Panicker, in order to satisfy the requirement of lease the imperative needs are: (1) there should be a transfer of an interest in immovable property; and (2) it should be for the purpose of enjoyment. It is argued by the counsel that a consideration of the clauses in Ext. P2 would lead to the irresistible conclusion that neither exclusive possession nor transfer of interest for enjoyment has been contemplated by the parties. It is further pointed out that to be a lease it should be a bilateral act. In this case, it is only the defendant who had executed the document. There are 30 coconut trees and one jack tree in existence in the property, the extent of which is 15 cents only, and the plaintiff is the person who in terms of the document is entitled to take usufructs from this. It is doubtful whether exclusive possession of this property could have been given to the defendant. All that might have been in the contemplation at the time of the defendant executing Ext. P2 as well as Ext. P1 and the earlier document of 1121 was to have a permissive right to make use of the premises for stacking the timber, preserving them by constructing a temporary shed, and carrying on his business. The stringent stipulations that the shed constructed shall be of a temporary nature, no valuable material like granite stones, laterite stones, bricks etc., should be used; at the expiry of the period of the engagement they would be demolished; no obstruction would be caused to the enjoyment of the trees falling within the place where the shed is erected; and there would not be any subletting, are all indications that exclusive possession never passed to the defendant. No doubt, for the purpose of carrying on the trade and for the effective performance of the terms of the contract contained in Ext. P3. it might have been certainly necessary for him to enter the plaint schedule property and also to remain there as long as his business remained there. Such possession, as rightly pointed out by the counsel for the respondent, is in the nature of custody, which has to be distinguished from legal possession as understood in law. At any rate, it has not been possible to find out from Ext. P2 that any interest in immovable property was passed from the plaintiff to the defendant. Material portion of S.106 of Act of 1964 as amended by Act 35 of 1969 reads as follows: "106. Special provisions relating to leases for commercial or industrial purposes. (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years. Explanation.-- For the purposes of this section (a) 'lessee' includes a legal representative or an assignee of the lessee; and (h) 'building' means a permanent or a temporary building and includes a shed. (1A) The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in sub-s. (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit. (2) If, between the 18th December, 1957 and the date of commencement of this Act, any decree or order of court has been executed and any person dispossessed by delivery, such person shall, on application before the Land Tribunal, be entitled to restoration of possession: Provided that, before restoration, such person shall be liable to pay (i) the compensation paid by the landlord for any improvements in the land and subsisting at the time of restoration; (ii) the compensation for any improvements effected subsequent to the delivery: Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bona fide transferee for value." No doubt, S.106 is intended to give protection against eviction to persons who have been granted leases for commercial or industrial purposes. To avail of that privilege one, however, should be a lessee. The underlined expressions used in S.106 "where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for :such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land" are of much significance., This presupposes that the persons claiming the benefit of S.106 should be a lessee, not merely a licensee. It would be too much on our part to consider that the legislature did not distinguish lease from licence when these words were deliberately used in S.106. There is nothing to show that the legislature did not mean what it said in S.106. It may be that in this particular case from as early as 1121 the defendant had been continuously making use of the land for his business purpose and if he is evicted that may cause great hardship and heart-burning to him. That, nevertheless, is a matter which comes within the province of the legislature, and as long as it appears that the legislature intended only a lessee for commercial or industrial purpose to benefit under S.106, there is no scope for taking a different view giving an interpretation inconsistent with the plain meaning of the words used in the section. Counsel for the appellant has taken me through the averments ia Para.2 and 4 of the plaint in order to stress that the words recovery, eviction, etc., used by the plaintiff would imply that there has been a lease. For the very same purpose the counsel has read out to me the recitals in Ext. D5 notice issued by the plaintiff prior to the suit. What matters is the substance of the document, not the words that have been used. T find that the words used like right to eviction, charge, etc., in Ext. P2 are not used . understanding the precise import of those words in the legal sense. The intention of the parties must be gathered reading the document as a whole and understanding the real nature of the transaction entered into between the parties. Considering all these facts and circumstances, I am satisfied that the deed Ext. P2 contemplates nothing beyond a sort of licence, or easement right contemplated under S.52 of the Easements Act, not a lease which could bring itself within the mischief of S.106 of Act 1 of 1964 as amended by Act 35 of 4969. In this view the decision of the courts below is correct; the second appeal fails and is dismissed, but in the circumstances of the case I direct the parties to bear their respective costs.;

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