MUNGALIAMMAN TEMPLE, BY ITS TRUSTEES ELLA PILLAI AND ORS Vs. LOGANATHA NAICKER AND ORS

JUDGEMENT

(1.) This Second Appeal by the plaintiffs turns upon a question of limitation. They sued for recovery of possession of the suit lands which originally formed part of samudayam lands belonging to the Mirasi Pangudars of Acharapakkam village. Both the Courts below have held that the suit lands by dedication in about 1861, belonged to Sri Mungaliamman temple of which the plaintiffs are the trustees appointed by the then Hindu Religious Endowments Boards. This finding is no longer in dispute. The suit was framed as one by a landlord to recover possession from his tenants and was found by the trial Court to be in time. The lower appellate Court disagreed with that view and approached the question from the standpoint of whether the plaintiffs had failed to prove possession within 12 years of the suit or whether the defendants had acquired title by adverse possession. In its opinion, there was no relationship of landlord and tenant between the parties, and the ancestor of the defendants having been let into possession of the suit lands as a licensee after his death it became, in the hands of his descendants, adverse to the temple. On that view the lower appellate Court reversed the decree of the trial Court and dismissed the suit as barred by time.

(2.) In order to appreciate the question of limitation it is necessary to notice the relevant facts. On August 5, 1861, the then samudayamdars of Acharapakkam let 10 persons of whom Vengu Dasari was one, into possession of certain samudayam lands. The suit lands formed part of them. An agreement of that date, which was in writing, contained the terms under which they were put in possession. Evidently they were waste lands to be reclaimed and the executants undertook to cultivate them on payment of theervai due on them to the Government together with thundu theervai and sudhanthiram at a certain rate to the samudayamdars. The tenants were to appropriate for themselves the net yield or usufruct from the lands. It was provided that if the samudayamdars required the lands, they would be at liberty to enter upon them in the month of Ani of the year. There followed another agreement dated 22nd January, 1862, which was executed by Thiruvengada Dasari, son of Vengu Dasari. The preamble and the recitals referred to the terms and conditions of the earlier agreement and acknowledged the title of the samudayamdars to the suit lands. The purpose of the second agreement was grant of permission for Thiruvengada Dasari to sink a well on the lands. It was stipulated that he should not claim from the samudayamdars the cost of sinking the well except at the time of surrendering possession of the lands to the samudayamdars. There was a further stipulation that on contravention by him of any of the terms of the tenancy, the samudayamdars should be at liberty to enter upon and take possession of the lands including the well without paying any compensation therefor. It is common ground that the defendants who are the descendants of Vengu Dasari and Thiruvengada Dasari, had been in possession of the suit lands continuously since 1861. It is in evidence that between 1915 and 1944 they had been dealing with the lands by executing sales or usufructuary mortgage as between themselves. The patta for the suit lands stood in the name of the temple till 1943. The settlement register of the year 1878 showed that Patta No. 9 which included the suit lands, even then stood registered in the name of the temple. The oral evidence was to the effect that the defendants stopped payment of rent to the temple after 1925. The trial Court had no difficulty in holding that the agreement dated 5th August, 1861, was a lease. On that basis it found that mere non-payment of rent did not change the relationship between the landlord and tenant and convert the tenant's possession into one adverse to the landlord and that the suit was therefore in time. But the lower appellate Court equally had no difficulty in thinking

(3.) Sri M. Natesan, the learned Counsel for the appellants, contested the view of the lower appellate Court that the said agreements amounted to a licence and not a lease. The learned Counsel also urged that the lower appellate Court erred in approaching the question of limitation from the angle of adverse possession on the part of the defendants or whether the plaintiffs were in possession within 12 years of the suit. Now the distinction between lease and a licence is well defined and settled. Transfer of the right to enjoy immovable property is the main characteristic of a lease. In the case of a licence there is no such transfer. It is in the nature of a privilege personal to the grantee to do something in or upon the immovable property in the possession of the grantor. The lessee's possession to the exclusion of the lessor, therefore, prima facie points to a lease and not to a licence. There may, however, be circumstances present which may outweigh that view and indicate a licence, for whether it is the one or the other is essentially a matter of intention. If authority is required, it is enough to refer to Associated Hotels Of India V. R.N. Kapoor, 1960 SCJ 453, in which the Supreme Court set out the following propositions as well established for finding out whether a given transaction is a lease or a licence: