Kerala High Court
Krishnan Nair vs R S Ramadas on 27 March, 2009
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 648 of 1992(A)
1. KRISHNAN NAIR
... Petitioner
Vs
1. R S RAMADAS
... Respondent
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent :SRI.S.EASWARAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/03/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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A.S.NO.648 1992
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Dated this the 27th day of March,2009
JUDGMENT
Plaintiff in O.S.175/1973 on the file of Sub Court, Thiruvananthapuram is the appellant. On his death, additional appellants 2 to 5 were impleaded as his legal heirs. Defendants are the respondents. On the death of the first respondent, respondents 5 to 8 were impleaded as his legal heirs. Suit was filed for recovery of possession of the plaint schedule property with arrears of licence fee contending that the plaint schedule property was granted on licence under Ext.B22. The case of the plaintiff was that under Ext.B22 dated 19.11.1947 plaint schedule property having an extent of 54 cents was entrusted to Chokkalingam Pillai, by his grandmother and mother while he was a minor and the mother A.S.648/1992 2 acting as his guardian, for construction of a Cinema theatre. Subsequently rights of Chokkalingam Pillai came to vest with first respondent by assignment. Though entrustment under Ext.B22 was for a period of eleven years, it was being extended from time to time and under the terms of the licence, at the time of surrender the licensee is entitled to one third value of the structures put up by him and the usufructs from the property is to be taken by the appellant. As dispute arose regarding the value of the structures put up and payable to the first respondent O.P. 7/1970 was instituted and an arbitrator was appointed by the court fix the amount payable to the first respondent and the arbitrator fixed the amount as Rs.51,309/- and under the decree dated 16.7.1972 in O.P.14/1972, plaintiff was allowed to recover possession of the property on payment of that amount and first respondent is bound to surrender possession on acceptance of that amount A.S.648/1992 3 and is also bound to pay the arrears of licence fee at the rate of 610/- per month with effect from 1.10.1962 and thus Rs.21,890/- is due and though first respondent was asked to surrender, he did not surrender and instead he claimed protection under section 106 of Kerala Land Reforms Act and therefore the suit was instituted. The second defendant was impleaded as the properties were mortgaged by the first defendant in favour of the second defendant. The first respondent resisted the suit contending that second respondent being a creditor is an unnecessary party to the suit. It was contended that Ext.B22 is not a licence but a lease and the predecessor in interest of the appellant put Chokkalingam Pillai in possession of the land for putting up a cinema house and accordingly as provided under ExtB22 a cinema house by name Central Theatre, was constructed in 1949 and as per sale deed dated 9.4.1952 the property was assigned in favour of the first respondent and A.S.648/1992 4 in the family partition of the first appellant dated 19.10.1962, plaint schedule property was allotted to the first respondent and the partition deed also shows that the property was outstanding on lease and hence first respondent is not entitled to contend that it is not a lease but a licence. It was also contended that the period of lease was extended from time to time and the lease was subsisting till 1.8.1971 and though the lease deed provides for surrender, Section 106 of Kerala Land Reforms Act superseded that provision and therefore appellant is not entitled to claim surrender of possession. Contending that appellant has fixity of tenure and is not liable to pay any rent the claim for arrears of rent is also resisted.
2. The suit was originally decreed holding that first defendant is in possession of the property as a licensee and not a lessee and he is not entitled to claim the benefit of Section 106 of Kerala Land A.S.648/1992 5 Reforms Act. It was also found that first defendant is not a land holder as provided under Sree Pandaravaka Land (Vesting and Enfranchisement) Act, 1971 and so he cannot divest the rights of the appellant. Appellant was allowed to recover possession with arrears of licence fee.
3. It was challenged before this court in A.S.5/1978. This court as per the judgment (reported in 1984 KLT 371) set aside the judgment of the trial court and remanded the suit for fresh disposal after referring the question regarding the right claimed under section 106 of Kerala Land Reforms Act to the Land Tribunal. The Division Bench found that the claim for benefit under section 106 of Kerala Land Reforms Act arises in the suit and that question could be decided only after a reference as mandated under section 125(3) of Kerala Land Reforms Act.
4. Trial court after the remand referred the claim for the benefit under section 106 of Kerala A.S.648/1992 6 Land Reforms Act raised by defendants 3 to 5, who were impleaded as legal heirs of deceased first defendant to the Land Tribunal, Thiruvananthapuram. The Land Tribunal in R.C.34/1989 ( the reference proceedings) found that defendants 3 to 6 it is a commercial lease and they are entitled to the benefit of the provisions of Section 106 of Kerala Land Reforms Act. Learned Sub Judge on receipt of the findings, as he is bound, accepted the same and held that defendants 3 to 6 are entitled to the protection of 106 of Kerala Land Reforms Act. The suit was therefore dismissed. The appeal is filed challenging the judgment.
5. After remand defendants have produced Ext.B26 proceedings of the Special Tahsildar whereunder patta was conferred on defendants 3 to 5 on 22.5.1978, under Sree Pandaravaka Land (Vesting and Enfranchisement) Act, 1971. O.P.1417/1998 is filed by the original plaintiff challenging Ext.B26 proceedings of the Tahsildar as confirmed in A.S.648/1992 7 statutory appeal and revision. As the question whether Ext.B26 is valid is also a relevant fact to be considered in the appeal, the O.P was also heard along with the appeal and is disposed.
6. Learned senior counsel appearing for the appellant submitted that though in A.S.5/1978 the Division Bench set aside the judgment of the trial court and remanded the suit back to the Sub Court for referring the claim for protection under section 106 raised by respondents to the Land Tribunal under section 125(3) of Kerala Land Reforms Act, a Full Bench of this Court overruled the said decision in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) and held that the claim for benefit under section 106 is not to be referred to the Land Tribunal and the Civil Court has jurisdiction to decide the question without a reference under section 125(3) of Kerala Land Reforms Act. It was argued that as the decision of the Division Bench in the earlier appeal is a A.S.648/1992 8 question on jurisdiction, in view of the subsequent decision of the Full Bench that the decision is not binding and the finding of the Land Tribunal is to be ignored as without jurisdiction. Relying on the decision of the Apex Court in Mathevan Padmanabhan v. Parmeshwaran Thampi (1995 Suppl.(1) SCC 479) it was argued that the question whether civil court has the jurisdiction to decide the claim or it is to be referred to the Land Tribunal is a question on the jurisdiction of the court. Relying on the decision of the Apex Court in Mathura Prasad v. Dossibai (AIR 1971 SC 2355) learned counsel argued that a question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court and if by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not operate as res judicata and that principle has been followed by the Division Bench of this Court in A.S.648/1992 9 Muhammed Sahib v. Mohammed Ibrahim (2007(2) KLT
56). It is therefore argued that inspite of the decision of the Division Bench in the earlier appeal filed in the very same suit that the Civil Court has no jurisdiction and the claim for the benefit under section 106 of Kerala Land Reforms Act is to be referred to the Land Tribunal under section 125(3), in view of the Division Bench decision in Govinda Panicker's case the earlier decision is not binding on the parties or the court and as the civil court has jurisdiction the reference to the Land Tribunal and the findings of the Land Tribunal pursuant to the direction of this court is to be treated as a nullity and the case has to be decided on the evidence on record. Learned senior counsel also argued that as held by the Division Bench in Govinda Panicker's case, even if there was a wrong reference to the Land Tribunal and a consequent finding, when an appeal is filed, the first appellate court has to consider the A.S.648/1992 10 question on the evidence and no remand to the trial court is necessary for the reason that there is no independent finding by the trial court. The argument of the learned senior counsel is that the question whether respondents are entitled to the protection under section 106 of Kerala Land Reforms Act is to be decided on the materials available on record. Relying on the decision of a learned single Judge of this Court in Kunhiraman v Chemmarathi (1966 KLJ 452) the learned senior counsel submitted that the benefit conferred under section 106 of Kerala Land Reforms Act is only to the lessee who has constructed a building or an assignee of a lessee who constructed the building and not to the assignee who purchased the property after construction of the building and respondents being the assignees are not entitled to claim the benefit of section 106 of Kerala Land Reforms Act and the finding of the trial court is not sustainable. Reliance was also placed on the A.S.648/1992 11 decision of the Apex Court in Chandy Varghese v. Abdul Khader (2003(3) KLT 553.) Learned senior counsel also argued that to claim the benefit of section 106 of Kerala Land Reforms Act there should be a lease and when the right created under Ext.B22 is only a licence, the licensee is not entitled to claim protection of Section 106 of Kerala Land Reforms Act and on that ground also, the claim for benefit under section 106 of Kerala Land Reforms Act is to be rejected. Relying on the decision of the Apex Court in Delta International Ltd v. Shyam Sundar Ganeriwalla and others (1999) 4 SCC 545) the learned senior counsel argued that while considering the question whether the right created under Ext.B22 is a licence or lease the nomenclature of the document is not relevant but the real intention of the parties is to be found out. Learned senior counsel argued that under Ext.B22 no interest in the property was transferred, and what was provided under Ext.B22 is A.S.648/1992 12 only a license to construct a theatre in the property, providing that after the expiry of the period the building belongs to the licensor and he need only pay 1/3rd of the value of the building at the time of termination of the license and Ext.B22 also provides that the licensor is entitled to take usufructs from the trees in the property and is also having a right for ingress and egress to take the usufructs and therefore the relationship created is only that of a licence and not a lease and appellants are entitled to the decree sought for. Learned senior counsel further argued that the orders passed by the authorities under Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 are illegal and the Act provides for enfranchisement of Sree Pandaravaka Lands held by land owners and the property covered under Ext.B22 is not a Sree Pandaravaka Land or Sree Pandaravaka Thanathu land and therefore the property is outside the purview A.S.648/1992 13 of the Act and appellants are the owners of the property and therefore Ext.B26 order or the subsequent orders confirming that order are not valid and binding on the property or the appellants. It was argued that the evidence establish that the plaint schedule property, the subject matter of Ext.B22, is Sree Pandaravaka Kudumbaporuthy land owned by the family of the appellants while Sree Pandaravaka land and Sree Pandaravaka Thanathu land were lands belonging to Sree Padmanabhaswamy temple and the Act is applicable only to such land and not to Sree Pandaravaka Kudumbaporuthy land and therefore patta should not have been issued in favour of the respondents. Learned senior counsel also argued that in any case respondents are not the land holders to whom the benefit could be granted and for that reason also the orders are void and therefore the order passed by the Special Tahsildar is void.
A.S.648/1992 14
7. Learned senior counsel appearing for the respondents relying on the decision of the Apex Court in Associated Hotels of India Ltd v. R.N. Kapoor (AIR 1959 SC 1262), C.M. Beena v. P.N. Ramachandra Rao (2004) 3 SCC 595) pointed out that though the question whether Ext.B22 is a lease or licence is to be decided based on the intention of the parties and not on the nomenclature of the document and Ext.B22 unambiguously establish that the intention of the parties was to create a lease and not license. It was pointed out that Ext.B22 shows that for the second party therein second executant Gowri Amma was representing her minor children including the appellant herein and he was then aged 3 years and husband of Gowri Amma was the first attesting witness to the document and was an Advocate and therefore it is clear that Ext.B22 was drafted and executed revealing the true intention of the parties. It was pointed out that ExtB22 establish that a lease was granted in A.S.648/1992 15 favour of Chokkalingam Pillai and the of land was for construction of a theatre and the lessee was granted even a right to transfer his right under Ext.B22 and therefore a right in the property was created and hence Ext.B22 could only be a lease and not license. It is also argued that when the suit is based only on the edifice that Ext.B22 is a license and not a lease and as the license was trminated first appellant is entitled to recover possession of the property on termination of the license, when the right flowed under Ext.B22 is a lease and not a license, the suit can only be dismissed and further questions do not arise for consideration. Learned senior counsel further argued that when Ext.B22 enables the lessee to construct a building for commercial purpose in the leasehold land respondents being the subsequent assignees, are entitled to the protection under section 106 of Kerala Land Reforms Act. It is pointed out that Explanation to Section 106 makes A.S.648/1992 16 it clear that a lessee, provided under section 106 includes a legal heir as well as the assignee of the lessee, and so the protection provided under section 106 of Kerala Land Reforms Act cannot be denied to the respondents for the reason that they are assignees of the original lessee. Learned senior counsel further argued that Section 106 of the Kerala Land Reforms Act does not make any difference between a lessee and an assignee of a lessee and therefore respondents are entitled to get the benefit of Section 106 of Kerala Land Reforms Act. It was also argued that the property covered under Ext.B22 is a property coming within the ambit of Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 and in view of Ext.B26 order appellants have no further right in the property.
8. In the light of the contentions raised the following points arise for consideration.
1. In view of the decision A.S.648/1992 17 in A.S.3/1978 dated 21.2.1984, whether the reference made to the Land Tribunal under section 125(3) of Kerala Land Reforms Act is valid and whether the Land Tribunal has jurisdiction to decide the claim for the protection of Section 106 of Kerala Land Reforms Act and if not whether the finding of the Land Tribunal is a nullity and is to be eshewed.
2. Whether an assignee of a lessee is entitled to the benefit of Section 106 of Kerala Land Reforms Act and if not, whether respondents are entitled to the benefit?
3. Whether Ext.B22 creates a lease or a licence and if so A.S.648/1992 18 whether appellants are entitled to a decree for recovery of possession?
Point No.1:- The trial court originally granted a decree in favour of first appellant without a reference to the Land Tribunal, finding on the evidence on record that Ext.B22 is a license and respondents are not entitled to the protection of 106 of Kerala Land Reforms Act. When respondents challenged that judgment before this court in A.S.5/1978, the Division Bench as per the reported decision in Ramadas v. Krishnan Nair (1984 K.L.T.
371) found that the trial court is bound to refer the claim for benefit under section 106 of Kerala Land Reforms Act to the Land Tribunal and Civil Court has no jurisdiction to decide that question of its own. The suit was therefore remanded to the trial court. Pursuant to the said direction, trial court referred the suit under section 125 A.S.648/1992 19 (3) of Kerala Land Reforms Act to decide the benefit claimed by respondents under section 106 of Kerala Land Reforms Act to the Land Tribunal. As per the order in R.C.34/1989 Land Tribunal rendered a finding that respondents are entitled to the benefit under section 106 of Kerala Land Reforms Act which was accepted by the trial court, as it is bound to, which is challenged in this appeal. As rightly pointed out by the learned senior counsel the question whether the Civil Court of its own could decide the claim raised by the defendants under section 106 of Kerala Land Reforms Act or it is to be referred to the Land Tribunal and whether the Tribunal has jurisdiction to decide that question, is definitely a question of jurisdiction.
9. Apex Court in Mathevan Padmanabhan v. Parmeshwaran Thampi (1995 Suppl.(1) SCC 479) analysing the bar of jurisdiction of civil court under section 125 held:-
A.S.648/1992 20
"8.A reading thereof clearly indicates that if in any suit or other proceeding, any question regarding right of a tenant etc. arises, the civil court should stay the suit or other proceeding and refer such dispute to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situated together with the relevant records for the decision of that dispute in question Sub-section (1) in that behalf creates a total bar on the jurisdiction of the civil court enjoining that the civil court "shall have no jurisdiction" to settle, decide or deal with any question or to A.S.648/1992 21 determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal. On receipt of the decision of the Land Tribunal referred to by the civil court for the purpose of appeal, it must be deemed that the decision of the Land Tribunal be part of the finding of the civil court. Thereby, the civil court, is enjoined to accept the finding recorded by the Tribunal and dispose of the suit in the light of the finding recorded. In case the Tribunal records the finding positively in favour of the tenant of kudikidappukaran, A.S.648/1992 22 then the suit is required to be dismissed. But the findings recorded by the Tribunal from part of the record of the trial court. As a consequence the appellate court gets power to go into that question, the High Court itself can decide that question of or remit it for fresh decision. In that view of the scheme of the Act the High Court is clearly in grave error in divesting the jurisdiction of the Land Tribunal to determine the dispute of tenancy etc. as engrafted in sub-section (1) of Section 125 of the Act and confer jurisdiction on the civil court which it inherently A.S.648/1992 23 lacks and any decision by the civil court by itself is a nullity. The interpretation given by the High Court is in the teeth of the peremptory language used by Section 125(1) of the Act and so is clearly unsustainable. The High Court, therefore, was clearly in grave error in divesting the jurisdiction of the Tribunal and conferring the same on the civil court to settle, decide or deal with any question or determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal."
Division Bench decision of this court in the A.S.648/1992 24 earlier appeal A.S.5/1978 directing the trial court to refer the case to the Land Tribunal is therefore definitely a question of jurisdiction.
10. The effect of a decision on the question of jurisdiction and whether it operates as resjudicata is now settled by the Apex Court in Mathura Prasad's case (supra). Approving the decision of the Calcutta High Court in Tarini Charan Bhattacharjee v. Kedar Nath Haldar (AIR 1928 Cal.777)that a question of jurisdiction of the court is a pure question of law and is not res judicata in the subsequent suit and that the object of doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided A.S.648/1992 25 their Lordships held:-
"A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is A.S.648/1992 26 the same or otherwise."
11. A Division Bench of this court in Muhammed Sahib v. Mohammed Ibrahim (2007(2) KLT 56) followed this dictum and held that even when in an inter party judgment the jurisdictional question was decided which was subsequently overruled, the defendants can take jurisdictional aspect again and they are not precluded from contending that the court has jurisdiction.
12. In the light of the legal position, though in the very same proceedings this court had earlier found in the first appeals, civil court had no jurisdiction to decide the claim raised by the respondents for protection under section 106 of Kerala Land Reforms Act without reference to the Land Tribunal, that decision will not preclude the appellant from contending in this appeal that the civil court has jurisdiction and the Land Tribunal has no jurisdiction to decide the claim under section 106 of Kerala Land Reforms Act as the A.S.648/1992 27 earlier position was overturned by the Full Bench.
13. Section 106 of Kerala Land Reforms Act as amended by Kerala Act 35 of 1969, was originally struck down by this Court in Krishna Pillai Govinda Pillai v. Sankara Pillai Govinda Pillai (1971 KLT
87). It is thereafter amending Act 35 of 1969 was included in the 9th schedule of Constitution of India. A learned single Judge in Chidambaram v. Arunachalam (1978 KLT 571) holding that question whether a person is entitled to the benefit under section 106 of Kerala Land Reforms Act comes within the definition of a tenant under sub section 57 of Section 2 and it is to be settled only by the Land Tribunal directed that the question is to be referred to the Land Tribunal under section 125(3). It was the same view expressed by the Division Bench in the earlier first appeal.
14. The Full Bench in Govinda Panicker's case settled the question finally and held that there A.S.648/1992 28 is no exclusion of the jurisdiction of the civil court, either expressly or by implication in considering and deciding the question arising out of a claim by a person that he is a lessee entitled to the protection of Section 106 of Kerala Land Reforms Act. It was held that the expression tenant or kudikidappukaran employed under section 125(3) of Kerala Land Reforms Act has to be understood in the context of Section 13 of the Act and only a claim for tenancy coming within the purview of Section 13 of the Act need be referred to the Land Tribunal in terms of Section 125(3) of the Act. The Full Bench overruled the decisions in Chidambaram v. Arunachalam (1978 KLT 571) and Aleykutty Joseph v. Thomman Varkey (1999(2) KLT
290).
15. In view of the Full Bench decision it can only be found that a claim for protection raised by a defendant under section 106 of Kerala Land Reforms Act is to be decided by the civil court A.S.648/1992 29 itself and not by the Land Tribunal and no reference under section 125(3) is warranted. Eventhough the reference in this case was made pursuant to the decision in the first appeal of this court, as it is a question on the jurisdiction of the court, in view of the Full Bench decision, the reference to the Land Tribunal can only be treated as void. When the Land Tribunal has no jurisdiction the findings of the Land Tribunal on that question can be ignored.
16. The question then is what is the procedure to be adopted?. Is it for this court to consider or the appeal is to be remanded. That question is also settled by the Full Bench in Govinda Panicker's case (supra) as follows:-
"in cases where answers have been obtained by the trial court, even if the answers are obtained from the Land Tribunal and made part of its A.S.648/1992 30 decision, the Appellate Court is bound to decide the question on merits. The part of its decision, the Appellate Court is bound to decide the question on merits. The fact that a finding was obtained from the Land Tribunal by the Civil Court which had jurisdiction over the subject matter, it would only seen that there was no valid finding rendered by that Court on that question since its jurisdiction in that behalf did not stand ousted. The appellate court which has all the powers of the trial court in view of S.107 of the Code, can decide that question on A.S.648/1992 31 the evidence made available either before the trial court or before the Land Tribunal which forms part of the records returned from the Land Tribunal and decide for itself the question whether the claim under S.106 of the Act has been made out. The appellate courts will not be justified in remanding the suits to the trial court only on the ground that a finding had been obtained from the Land Tribunal on a claim based on S.106 of the Act and it was unnecessary in view of the present decision rendered by us. In Kunjan v. Janaki (1980 KLT 796) the Division Bench A.S.648/1992 32 pointed out that on the aspect of the jurisdiction of the Appellate Court, there was no difference between the civil case and a criminal case and followed the decision in Janardhan Reddy v. State of Hyderabad (AIR 1951 SC 217). It was held that the principle that applied was that there was a finality to the judgment which applied to civil as well as criminal cases and it is implicit in every system wherein the provisions are found for correcting errors in appeal or in revision. We therefore direct that the first appellate courts which are called upon to decide A.S.648/1992 33 appeals raising claims for protection under S.106 of the Kerala Land Reforms Act should decide the appeals finally on the pleadings and the evidence available in the case, even if the finding at the first instance had not been rendered by the civil court itself but had got rendered by a reference made under S.125(3) of the Kerala Land Reforms Act. We direct that no remand should be made solely on the ground that a finding was obtained by the trial court on a reference made under S.125 (3) of the Act."
Therefore eventhough a finding was obtained from the Land Tribunal, after a reference under section A.S.648/1992 34 125(3) of Kerala Land Reforms Act and accepting the finding, the trial court had answered that question and there was no independent finding by the trial court for the second time, the question has to be decided in the appeal itself on the pleadings and the evidence available on the records. Point No.3:- It is under Ext.B14 partition deed dated 20.1.1114 M.E. corresponding to 5.9.1938 the family of Valli Amma Gowri Amma, the grandmother of the appellant, obtained the right in the property. Thereafter Ext.B22, termed as a lease deed was executed on 19.11.1947. Ext.B22 shows that the said indenture of lease was made on 19th day of November 1947 between Valli Amma Gowri Amma, on her behalf and on behalf of her minor children the appellant and his sister Leelavathi Amma and Rajeswari Amma as party No.1 and M. Chokkalingam Pillai as party No.2. Ext.B22 shows that the parties termed the right created thereunder as a lease and the first party as the A.S.648/1992 35 lessor and the second party as the lessee. It also recites that the term "lessee" shall where the context so admits or implies include his legal representatives, administrators and assigns". It further recites that "in consideration of the rent thereinafter reserved and of the covenants on the part of the lessee thereinafter contained, the lessors thereby demise unto the lessee for the purpose of constructing a theatre all that piece and parcel of land described in the schedule thereunder and marked A B C D E F G H I in the plan annexed, together with all easements and appurtenances whatever belong or in any way appurtenant thereto, to hold the premises to the lessee from the First day of Vrischigom 1123 for a term of eleven years subject to the terms and conditions and covenants thereinafter contained. Under sub clause (a) of clause I the lessee has to pay to the lessor as advance a sum equal to six months rental namely Rs.1950/- inclusive of Rs. A.S.648/1992 36 400/- already paid by the lessee which was admitted and acknowledged by the lessor. Under clause (b) during the currency of the lease the lessee has to pay a monthly rental of Rs.162/- and eight annas for first four months and thereafter Rs.325/- per month and the rent is to be paid to Gowri Amma Ammukutty Amma who shall issue receipts for the same. Clause (c) provides that in case the Corporation or the Public Works Department consider that the lease hold does not contain enough space for the construction of the theatre, and the lessors shall make available to the lessee additional space required from the adjoining area belonging to them. It also provides that if such land contains any building, the lessee has to pay a compensation of Rs.5000/- for the demolition and removal of the building. It also provides that the said money shall be treated as capital cost of the construction of the theatre for the purpose of clause 1 (e). Clause (d) provides that the lessee A.S.648/1992 37 has to pay all rates and taxes that may become payable in respect of the demised premises or the theatre to be erected, to the Government and to the City Corporation except the land tax. Clause (e) provides that at the expiry of the lease the lessee shall surrender to the lessors the demised premises with the theatre, outhouses, boundary walls etc. on payment by the lessors to the lessee of a compensation equal to thirty three and one-third per cent of the then value of the theatre, boundary walls etc as may be adjudged with the mutual consent of the parties or in case of differences as settled by arbitration together with the advance of Rs.1950/- without interest received from the lessee, to the lessors. It also provides that till such compensation is settled and paid together with the advance of Rs.1950/-, the lessee shall be entitled to continue in possession of the leasehold land on payment of the rental namely Rs.325/- per month. Clause (f) recites that if and when the A.S.648/1992 38 lessee transfers his rights in the leasehold or any portion thereof, he will give due notice thereof in writing to the second named among the lessors namely Gowri Amma Ammukutti Amma. Clause (g) provides for insure the theatre and outhouses constructed on the leasehold, against loss by fire or otherwise and keep the policy alive. Under the said clause in case of accident to the building during the course of lease "33 and 1/3rd per cent or 1/3rd of the amount realised from the insurer shall be reserved in full to the lessee and the remaining 2/3rd shall be apportioned, at the rates shown therein. As per that apportionment after the first year of lease, while the lessees share will be 10/11,the lessors share will be 1/11. It will increase in the case of the lessors by 1/11 per year while that of the lessees would be decreased at the rate of 1/11 per year. On the 10th year the share due to the lessors is 10/11, while that of the lessee is 1/11. Clause II provides the A.S.648/1992 39 covenant on the lessor. Under clause (a) the lessee paying the rent and performing all the covenants of the lease may "hold and enjoy the demised premises without any interference from the lessors or their agents." Under clause (b) in case the Corporation or the Public Works Department consider that leasehold right is not sufficient enough for construction of a theatre with the outhouse, compound wall etc. lessor shall provide additional space to the lessee from the land immediately to the north of the demised premises belonging to them to the extent necessary without claiming any enhanced rent. Under clause (c) the lessee shall have the right to provide an emergency exit from the theatre to be constructed on the demised premises, to the new road to be constructed on the eastern side of the leasehold as marked in the plan having a width of 10 feet. That road shall be used by the lessee for the purpose of theatre. Under clause (d), the lessors shall, at A.S.648/1992 40 the request of the lessee, after the expiry of eleven years renew the lease for a further period of four years on the same terms and conditions but subject to an enhanced rent of Rs.330/- per month and execute a fresh lease deed for the extended period of four years. Clause (e) provides that in case the lessee fails to construct the theatre on the demised premises due to want of sanction from the Corporation or for other causes beyond his control and not traceable to any neglect on his part, it shall be open to the lessee to terminate the lease after giving due notice to the lessors and on such termination the lessors need pay to the lessee only Rs.1550/- out of the advance of Rs.1950/- deducting the arrears of rent if any due. Sub clause (f) provides that at the request of the lessee, lessors to cut and remove such trees from the demised premises with the construction of the theatre and other structures provided that such trees are not removed by the lessors within a week A.S.648/1992 41 of the request, it shall be competent for the lessee to cut and remove the trees in which case the lessors to remove the felled trees after paying the expenses incurred by the lessee. Under sub clause (g), the lessor shall contribute towards the insurance premium proportionate to the benefit they derive in accordance with clause (f) of clause I of the lessee's covenants, without regard to the 1/3rd share of the benefit reserved to the lessee. Under clause (h) the lessors shall have the right of enjoyment of usufructs of the remaining trees in the demised premises as also ingress and egress into the premises for collecting the usufructs of the above said trees. It also provides that if after the period of renewal, as provided under sub clause (d) of clause II, the lessors fail to pay the lessee the compensation due under sub clause
(e) of clause I and the advance received, the lessee shall be entitled to one year's written notice for surrendering possession of the leasehold A.S.648/1992 42 property provided however that during such period of holding over, the lessor shall be entitled to enhanced rent of Rs.1500/- per mensem. Clause (3) provides that in case any part of the rent falls in arrears, it shall be competent for the lessors to terminate the lease notwithstanding the period of eleven years and on such termination the structures if any , erected by the lessee on the leasehold shall be taken over by the lessors on paying to the lessee 33 and 1/3rd per cent of the value of the structures as adjudged by mutual agreement or in case of difference decided by arbitration under Travancore Arbitration Act. Clause (4) provides that all amounts due to the lessee from the lessors shall be first charge on the leasehold and the structures if any erected. Schedule shows that the leasehold property is 54 cents out of a total area 1 acre and 60 cents in survey No.2746 of Chengazhassery within the boundaries shown therein.
A.S.648/1992 43
17. Subsequently appellant filed O.P.7/1970 before Sub court, Thiruvananthapuram under section 8 of Arbitration Act for appointing an arbitrator to resolve the difference under Ext.B22, contending that it provides for appointment of a arbitrator for fixing the value of the structures. Though respondents resisted the petition contending that the arbitration clause in Ext.B22 has become nugatory by the commencement of Kerala Land Reforms amending Act 35 of 1969, incorporating Section 106, under Ext.B11 order the Sub Judge appointed an arbitrator. It was challenged before this court in C.R.P.1226/1970. Under Ext.B12 order the C.R.P was dismissed rejecting the case that the case of the respondent that Section 106 of Kerala Land Reforms Act as amended by Act 35 of 1969 has made the arbitration clause in Ext.B22 nugatory. But the learned Chief Justice disagreed with the finding in Ext.B11 order that Ext.B22 is only a licence. It was held:-
A.S.648/1992 44
"But I am not expressing any final opinion and it is unnecessary to do so. For, it is plain that under the guise of prosecuting a fairly innocuous application under section 8 of the Arbitration Act, the parties are manouring to get to positions of vantage the petitioner herein by trying to get the nature of the transaction declared as a lease, and the respondent to have it pronounced as a licence. Whether it be the one or the other, it seems to me an application under section 8 of the Arbitration Act does lie."
18. Though the order was challenged before the A.S.648/1992 45 Apex Court in Special Leave to Appeal (Civil) No.2464/1971, under ExtB13 the SLP was dismissed. Therefore though Ext.B11 order shows that Ext.B22 was interpreted as a license, as clarified in Ext.B9 order, the question whether it is a lease or license did not arise for consideration in that Arb.O.P. Therefore that finding is not relevant. Similarly the fact that subsequently an award was filed fixing the value of the structures and under Ext.A6 and A7 decree and judgment in O.P.14/1970, the award was made a rule of the court it does not make any difference on the question whether Ext.B22 is a lease or license. It is to be settled in the suit. The question therefore is whether Ext.B22 is a lease or license.? According to appellant, it is a license. According to respondent, it is a lease.
19. Whether Ext.B22 creates a license or lease is to be settled on the substance of the document. The real test is the intention of the parties, A.S.648/1992 46 whether they intend to create a lease or license. If the document creates an interest in the property it is a lease. If it only permits the second party thereto to make use of the property and the legal possession with the first party, it could only be a license. Though at one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of the premises, it would conclusively establish that he was a lessee, there was a change in that view as reflected in Errington v. Errington 1952-1 All ER 149 where Lord Denning reviewing the case law summarised the position as follows:-
"The result of all these cases is that, although a person who is let into exclusive possession is 'prima facie' to be considered to be tenant, nevertheless he will not be A.S.648/1992 47 held to be so if the circumstances negative any intention to create a tenancy."
The Court of Appeal in Cobb v. Lane 1952-1 All ER 1199 considering the legal position declared that intention of the parties is the real test for ascertaining the character of a document and the question in all the cases is one of intention. Did the circumstances and the conduct of the parties show that all that was intended was that, the occupier should have a personal privilege with no interest in the land. The intention of the parties is the paramount aspect to decide whether what is created under the document is a lease or a license. The question cannot be settled based on the phraseology used in the document that it is a lease or license or that they are lessors and lessees or licensor or licensee.
20. After analysing the case law the following A.S.648/1992 48 propositions were laid down by the Apex Court in Associated Hotels of India v. R.N. Kapoor (AIR 1959 SC 1262) to find out the distinction between a lease and license. It was held:-
"(1) To ascertain whether a document creates a license or lease, the substance of the document must be preferred to the form;
(2) the real test is the intention of the parties--
whether they intended to create a lease or a licence;
(3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property of which the legal possession continues with the owner, it A.S.648/1992 49 is a licence, and (4) if under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be a tenant, but circumstances may be established which negative the intention to create a lease."
21. A lease is defined in Section 105 of the Transfer of Property Act and a license under section 52 of Indian Easement Act 1882. A lease confers an estate in land and it is more than a mere personal or contractual agreement for the occupation of a free holders land. The distinct relationship under a lease and licence is stated in Law of Evans & Smith 4th Edn as follows:-
"A lease, because it confers an estate in land, A.S.648/1992 50 is much more than a mere personal or contractual agreement for the occupation of a freeholder's land by a tenant. A lease, whether fixed-term or periodic,confers a right in property, enabling the tenant to exclude all third parties, including the landlord, from possession, for the duration of the lease, in return for which a rent or periodical payment is reserved out of the land. A contractual licence confers no more than a permission on the occupier to do some act on A.S.648/1992 51 the owner's land which would otherwise constitute a trespass. If exclusive possession is not conferred by an agreement, it is a licence. The fundamental difference between a tenant and a licensee is that a tenant, who has exclusive possession, has an estate in land, as opposed to a personal permission to occupy. If, however, the owner of land proves that he never intended to accept the occupier as tenant, then the fact that the occupier pays regular sums for his occupation does not make the occupier a A.S.648/1992 52 tenant".
Although possession the important factor, is not a conclusive test to find whether in fact it is a licence or a lease. As held in Rajbir Kaur v. S.Chokesiri and Co.(1989) 1 SCC 19 even where exclusive possession is granted when the grantor has no power to grant a lease, what is created could only be a license and not lease, Their Lordships held:-
"22. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of 'lease'in Section 105 of the Transfer of Property Act, 1882, envisages the transfer of a A.S.648/1992 53 right to enjoy the property, on the other hand the definition of a 'license' under Section 52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise, amounts to an 'easement'or involves a transfer of an interest in the property which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz. easements and lease in their very nature, are appurtenant to the property. On the other A.S.648/1992 54 hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive possession, the idea of a licence is not necessarily ruled out.
English law contemplates what are called "possessory Licences' which confer a right of exclusive possession, marking them off from the more usual type of licences which A.S.648/1992 55 serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease.
In the last analysis the question whether transaction is a lease or a licence 'turns on the operative intention of the parties' and that there is no single, simple litmus A.S.648/1992 56 test to distinguish one from the other. The solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties."
The Apex Court in Delta International Ltd v. Shyam Sundar Ganeriwalla and another (1999) 4 SCC 545) analysing the earlier decisions summarised the settled position as follows:-
"(1) To find out whether the document creates a lease or a licence the real test is to find out "the intention of the parties"
keeping in mind that in cases where exclusive possession is given, the line between a lease and a A.S.648/1992 57 licence is very thin, (2) The intention of the parties is to be gathered from the document itself.
Mainly, the intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that the document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the A.S.648/1992 58 parties.
(3) In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would be the most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease.
(4) If the dispute arises between the very parties to the written instrument, the A.S.648/1992 59 intention is to be gathered from the document read as a whole. But in cases where the landlord alleges that the tenant has sub-let the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed entered into, inter se, between himself and the alleged licensee, the land lord who is not party to the deed is not bound by what emanates from the construction of the deed; the tenant and sub-tenant may jointly setup the plea of a licence against the landlord which A.S.648/1992 60 is camouflage; in such cases, the mask is to be removed or the veil is to be lifted and the true intention behind a facade of a self-serving conveniently drafted instrument is to be gathered from all the relevant circumstances.
Same would be the position where the owner of the premises and the person in need of the premises executes a deed labelling it as a licence deed to avoid the operation of rent legislation.
(5) Prima facie, in the absence of a sufficient A.S.648/1992 61 title or interest to carve out or to create a similar tenancy by the sitting tenant in favour of a third person, the person in possession to whom the possession is handed over cannot claim that the sub-
tenancy was created in his favour, because a person having no right cannot confer any title of tenancy or sub-tenancy. A tenant protected under statutory provisions with regard to occupation of the premises having no right to sub-let or transfer the premises cannot confer any better title. But, this question A.S.648/1992 62 is not required to be finally determined in this matter.
(6) Further lease or licence is a matter of contract between the parties. Section 107 of the Transfer of Property Act, 1882 inter alia provides that leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession if it is a registered instrument, it shall be executed by both the lessee and the lessor. This contract between the A.S.648/1992 63 parties is to be interpreted or construed on the well-laid principles of construction of contractual terms viz, for the purpose of construction of contracts, the intention of the parties is the meaning of the words they have used and there can be no intention independent of that meaning when the terms of the contract are vague of having double intendment, one which is lawful should be preferred, and the construction may be on the instrument perfectly consistent with his doing only what he had a right to A.S.648/1992 64 do so."
Their Lordships relied on the following paragraphs from interpretation of contracts by Kim Lewison Q.C. "1.03 For the purpose of the construction of contracts, the intention of the parties is the meaning of the words they have used. There is no intention independent of that meaning.
6.09 Where the words of a contract are capable of two meanings, one of which is lawful and the other unlawful, the former construction should be preferred."
and held that the question of construction should A.S.648/1992 65 not be approached with a leaning in one direction or the other and the intention of the parties is required to be gathered from the express words of various terms provided by them in the deed. Their Lordships held that it can be presumed that the words are mentioned in the document after full understanding and to avoid any wrong inference of the intention. As it was specifically mentioned that only a licence was created and not a lease, it was held that intention of the parties is the meaning of the words they have used and there could be no intention independent of that meaning.
22.Apex Court in C.M. Beena's case (supra) (2004) 3 SCC 595) held :-
"8. The crucial issue for determination is as to whether there is a lease or licence existing between the parties. Though a deed of licence may have been A.S.648/1992 66 executed, it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it was outwardly styled as a deed of licence to act as a camouflage on the rent control legislation.
"Lease" is defined in Section 105 of the Transfer of Property Act, 1882 while "licence" is defined in Section 52 of the Indian Easements Act,1882.
Generally speaking, the difference between a "lease" A.S.648/1992 67
and "licence" is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and surrounding circumstances.
Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises result in a licence being created for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a A.S.648/1992 68 particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful (see Associated Hotels of India Ltd v. R.N Kapoor). The decided cases on the point are legion. For our purpose it would suffice to refer to a recent decision of this Court in Corpn. Of Calicut v. K.Sreenivasan.
9. A few principles are well settled. User of the terms like "lease" or "licence" "lessor" or "licensor" "rent" or "licence fee" is not by itself decisive of the A.S.648/1992 69 nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property or what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intention."
Therefore the question is to be settled on the aforesaid principles. As rightly pointed out by the learned senior counsel appearing for the A.S.648/1992 70 respondents the intrinsic evidence in Ext.B22 shows that husband of Gowri Amma Ammukutty Amma, the second executant of that document, is the wife of an Advocate. That Advocate was an attestor to Ext.B22. Therefore it can only be presumed that the words used in Ext.B22 were used fully understanding the meaning and ambit of those words. Though the question cannot be decided based on the phraseology alone, or the nomenclature the fact that the document specifically provide that what is created thereunder is a lease and the first party is lessors and the second party the lessee, cannot be ignored while considering the intention of the parties. Though knowledge of the contents of a document cannot be imputed to an attestor, when the attesting witness to a document is an advocate and he is none other than the husband of one of the executants of the documents who has right over the property transferred thereunder, the knowledge of the contents of the documents is A.S.648/1992 71 necessarily to be imputed on the attesting witness. If so, it can only be found that Ext.B22 document was created with the knowledge and consent of the husband of the second executant. When Ext.B22 the document prepared with the consent and knowledge of the Advocate who is well versed with the difference between a lease and licence and the rights created thereunder termed the right as leasehold right, it cannot be ignored. Ext.B22 establishes that out of 1 acre 60 cents of land in survey No.2746, 54 cents which is specifically delineated in the plan as plot A B C D E F G H I was demised thereunder on the second party Chokkalingam Pillai, the lesseee shown therein, providing that the said land together with all easements and appurtenants was demised on Chokkalingam to hold it as a lessee for 11 years subject to the conditions and covenants provided thereunder. Covenants establish that possession of the land was given to the lessee and he has to A.S.648/1992 72 construct a theatre and other structures and he is entitled to get the period of lease extended by four more years after the expiry of 11 year period subject to enhancement of rent. Sub clause (f) of clause I shows that the lessee had a right to transfer the leasehold property.
23. The relevant clause reads:-
"if and when the lessee transfers his rights in the leasehold or any portion thereof he will give due notice thereof in writing to the second named among the lessors viz. Gowri Amma Ammukutti Amma."
The said clause shows that even consent of the lessors was not necessary for transferring the leasehold or a portion of the leasehold property, and the lessee need only give notice in writing regarding the transfer. The provision in Ext.B22 A.S.648/1992 73 that the term lessee shall admit or imply and include assigns of the lessee further establish that the right created under Ext.B22 is transferable.
24. The argument of the learned senior counsel appearing for the appellant is that under Ext.B22 the trees standing in the property were not transferred and the right to take its usufructs is reserved on the lessors and therefore it is clear that only a right to construct a theatre is granted and no interest on the land was created and therefore Ext.B22 creates only a licence. Learned senior counsel also argued that Ext.B22 shows that at the time of termination of the arrangement, Chokkalingam Pillai was only entitled to get 1/3rd of the value of the structures erected and therefore it is clear that the building to be constructed is not the exclusive structure of the Chokkalingam Pillai and instead has only 1/3rd right in the same. Learned senior counsel argued A.S.648/1992 74 that the direction for the payment of the insurance amount and the direction to insure the structures establish that the beneficiary is the first party and therefore the right created under Ext.B22 can only be a personal right to use the property for the purpose of construction of the theatre and that right cannot be a leasehold right.
25. On a proper appreciation of the terms and conditions of Ext.B22 including the covenants on the lessors and the lessees, it is clear that what is created thereunder is not a licence but a lease as provided under section 105 of Transfer of Property Act. Ext.B22 shows that the intention of the parties is to create a lease and not a licence. As distinguishable from the facts considered by the Apex Court in C.M. Beena's case (supra) as well as Delta International Ltd (supra) intention of the parties in executing Ext.B22 is not to create a licence or a personal right to use the land in the possession of the appellant but to create an A.S.648/1992 75 interest in the property under a lease. It cannot be said that what is created under Ext.B22 is only a personal right. When Ext.B22 provides for transferring the right obtained thereunder by Chokkalingam Pillai and Ext.B22 provides that the lessee provided thereunder means the assignee of the lessee subsequent to the transfer of the leasehold property and the document shows that the land with all easement right appurtenant thereto was demised on Chokkalingam Pillai and he has to hold the premises thereafter on the terms and conditions provided thereunder for 11 years and it further provides that he has got a right to renew the lease thereafter it cannot be said that no interest on the land is created.
26. In Associated Hotels of India (supra) Their Lordships construing the covenant held:-
"Certainly it does not confer only a bare personal privilege on the respondent to make use A.S.648/1992 76 of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellants. The convenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. (underline supplied).
On construing Ext.B22 in its entirety, I have no hesitation to hold that the intention of the parties was to create a lease and not a license and what was created thereunder is a lease and not a licence. When what is created under Ext.B22 is a A.S.648/1992 77 lease and not licence, appellants are not entitled to seek recovery of possession of the property without terminating the lease. As the suit is filed only on the contention that respondents are the assignees, who obtained the right under Ext.B22 and what is created thereunder is only a licence and as the licence is terminated, appellants are entitled to a decree for recovery of possession. When it is found that Ext.B22 is not a licence but a lease, appellant is not entitled to the relief sought for in the suit.
Point No.2:- When the suit is for recovery of possession on the contention that what was created under ExtB22 is a licence and not a lease and it is found that what was created under Ext.B22 is a lease and not a licence, consequently when the suit is for recovery of possession it is not sustainable. In that case the question whether respondents are entitled to the protection under section 106 of Kerala Land Reforms Act is not very A.S.648/1992 78 relevant. But as this question was argued at length, I find it proper to decide the said question also.
27. It is under Ext.B23 assignment deed dated 16.5.1952, Chokkalingam Pillai assigned the leasehold right under Ext.B22 in favour of first respondent. Ext.B22 enables Chokkalingam Pillai to transfer the leasehold right obtained thereunder. Under Ext.B24 letter sent by the first respondent to the plaintiff on 12.12.1962, being the assignee of the leasehold right , he had agreed to pay enhanced rent which was accepted by the appellant as per the endorsement made therein. Under Ext.B25 letter sent by the appellant to the first respondent, the rent was enhanced from Rs.325/- to Rs.610/- and the receipt of the enhanced rent for December, 1962 was acknowledged. It is the respondent who claimed the benefit under section 106 of Kerala Land Reforms Act. Ext.B22 shows that there was a lease of land for commercial A.S.648/1992 79 purpose. It is also not disputed that the lessee has constructed the theatre pursuant to the said lease. The question therefore is whether the assignee from a lessee under ExtB22 is entitled to claim the protection.?
28. Sub section (1) of Section 106 of Kerala Land Reforms Act reads:-
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 far commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be A.S.648/1992 80 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
(b) "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-section (1), and thereupon such authority may, after taking into A.S.648/1992 81 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.
In view of explanation under clause (a) that the lessee includes an assignee of the lessee, it cannot be disputed that the assignee of the lessee is also entitled to the protection of 106 of Kerala Land Reforms Act. The argument of the learned senior counsel appearing for the appellant is that though an assignee is entitled to the said protection, he will be entitled to the protection only if he has constructed the building. The argument is that if the lessee is to be read as an assignee of the lessee, he shall not be liable to be evicted provided thereafter is also to be read as an assignee of the lessee shall not be liable A.S.648/1992 82 to be evicted. The argument is that if the lessee has constructed the building, then the said lessee shall not be liable to be evicted and that provision cannot be taken advantage by an assignee of the lessee who constructed the building. The argument is that only the lessee who constructed the building is entitled to the benefit or the assignee of the lessee, who constructed the building is entitled to the benefit. Reliance was placed on the decision of a learned single Judge of this Court in Kunhiraman v. Chemmarathi (1966 KLJ
452).Interpreting Section 106 the learned single Judge held:-
"The object of Section 106, as the wording clearly indicates, is not to put a person who has established his business in a building put up by him on land taken on lease from a landlord at the latter's mercy for the A.S.648/1992 83 continuance of his source of income. The wording is "where...the lessee that constructed buildings for such commercial or industrial purpose...he shall not be liable to be evicted from such land...." It is difficult to find that the benefit of the Section would enure to a person who has taken an assignment of that lessee's rights. The pronoun 'he' in the Section can relate only to the lessee who has constructed the building, and not to commercial adventurers who came in as his assignees. The Section does not 'terms inhibit the landlord's resumption of the A.S.648/1992 84 property, but protect him who put up the building for his business. It is pertinent to note that the provisions of the Act conferring fixity of tenure to cultivating tenants and entitling them to purchase the landlord's rights are not extended to tenants within the purview of Section 106. The immunity under section 106 is confined to the person who actually put up the building and does not enure to his assignee, as there is no indication in the Act that it should enure to the assignee as well. Being an expropritary provision it has to be confined within the limits of its A.S.648/1992 85 expression, leaving matters outside its expression to the general law of landlord and tenant. It must then follow that the 1st defendant is not entitled to protection under section 106."
A Division Bench of this court followed this decision in Lakshminarayana Shetty v. Andunhi Beary (1971 KLT 822). The Division Bench held:-
"With respect, we think, the view taken by the learned Judge is correct and can be applied to the facts here.
Besides, defendants 1 and 2 being transferees or assignees of A. Beary, the lessee, they are liable to the landlord for rent only by virtue of privity of A.S.648/1992 86 estate and not by privity of contract. The sub-section when it says that "he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy" clearly indicates that the legislature intended only to protect a lessee who is liable under the contract of tenancy to pay the rent. As already stated, defendants 1 and 2 were not liable to pay the rent under the contract of tenancy but only by virtue of privity of estate. In mammoo v. Asya 1965 KLT 126 a Division Bench of this Court held that it is only a A.S.648/1992 87 person who is liable for payment of rent under the contract of tenancy, who can claim the protection of the sub-section, that the provision in S.106(1) that the "lessee" shall be liable to pay rent under the contract of tenancy" clearly indicates that he must be a person who is in direct relationship with the landlord under the contract of tenancy, who can claim the protection of the sub- section, and that a sub-
lessee not being in direct relationship with the landlord under the contract of tenancy is not entitled A.S.648/1992 88 to the benefit of the sub- section. We, therefore, hold that the defendants are not entitled to claim the benefit of S.106(1) of Act 1 of 1964."
In view of the Division Bench decision which is binding on this court, it can only be found that though the respondent is an assignee of the lessee under Ext.B22, is not entitled to get the protection under Section 106 of Kerala Land Reforms Act.
As per separate judgment in O.P.1417/1998 it is found that Sree Pandaravaka Lands (Vesting and Enfranchisement ) Act, 1971 is not applicable to the plaint schedule property. Therefore based on the order passed by the Special Tahsildar, and confirmed by the District Collector or the Board of Revenue, respondents are not entitled to claim absolute right over the property. But in view of A.S.648/1992 89 the finding that Ext.B22 create a leasehold right in favour of Chokkalingam Pillai and the original defendant is the assignee of that leasehold right, suit for possession on the ground that it is licence and the licence was terminated, is not maintainable. In such circumstance, findings of the Sub Judge that plaintiff is not entitled to a decree for recovery of possession is correct. Appellants are therefore not entitled to the decree sought for in the suit. Dismissal of O.S.175/1973 is confirmed and appeal is dismissed.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
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