ORDER
S. Marimuthu, J.
1. The additional defendants 3 and 6 are the appellants. The legal representatives of the original plaintiff, additional defendants 4 to 6 and 7 to 11 are the respondents.
2. The deceased plaintiff Aliyamma Thomas filed a suit O.S. No. 54 of 1971 for recovery of item Nos. 1 and 2 after the removal of the shed and the lean -- to in item Nos. 1 and 2 and also for injunction restraining the defendants from putting up any construction. The plaint was amended thereafter for future mesne profits at the rate of Rs. 35/- per month. Plaint item No. 1 is a piece of land measuring 47 ft. x 42 ft. with a workshop. Plaint item No. 2 is 30 ft. x 25 ft. with a lean--to the shed located in item No. 1. Item No. 3 is a vacant site measuring 30 ft. x 30 ft. lying infront of item Nos. 1 and 2 for the use of ingress and egress. No relief is sought for item No. 3. The plaintiff with the above averments further added in the plaint as follows :
On 1-1-1963 in the plaint item No. 1 the defendants were allowed to put up a motor workshop therein on payment of a monthly rent of Rs. 30/-. Ext. P-1 is the agreement. As per Ext. P-1 agreement, the defendants put up a shed and conducting the motor workshop. In 1965 the defendants were allowed to put up a Chayipu (vernacular matter omitted) in item No. 2 to be used free of rent. Immediately, on the filing of the suit in the year 1971, the defendants demolished the temporary chayipu in item No. 2 and put up a brick and cement construction. Ext. P-1 in fact, is a licence. It is not a lease. A notice was issued by the plaintiff to the defendants to vacate the premises. The defendants did not agree for it. Therefore the suit was filed.
3. The above averments of the plaintiff were opposed by the defendants in their written statement that Ext. P-1 is a lease for commercial purposes and therefore they cannot be evicted under Section 106 of the Kerala Land Reforms Act.
4. After examining the evidence let in by both sides, the District Munsiff, Kottayam decreed the suit in O.S. No. 54/71. As against the judgment of the District Munsiff, an appeal was filed in A.S, No. 460 of 1975 in which the decree of the lower Court was confirmed. Thereafter, the defendants filed S.A. No. 766/76 before this Court. This Court in S.A. No. 766/76 set aside the decrees and remanded the matter to the trial Court with the direction to refer the question of tenancy to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The trial Court, as per the direction of this Court referred the matter to the land tribunal which found that the defendants are tenants entitled to the shelter under Section 106 of the Kerala Land Reforms Act in respect of item No. 1 alone. On receipt of the finding of the land tribunal, the trial Court dismissed the suit. Therefore, the plaintiffs filed an appeal in A.S. No. 235 of 1983 before the District Court, Kottayam which confirmed the decree of the trial Court in respect of plaint item No. 1 alone and in respect of item Nos. 2 and 3, the appellate Court set aside the decree and remanded the matter to the trial Court to render a finding in respect of item Nos. 2 and 3. As pointed out above, Ext. P-1 agreement is only in respect of item No. 1. Questioning the remand order of the lower appellate Court delivered in A.S. No. 235/83, the plaintiff filed CM. A. No. 177/85 before this Court. This Court set aside the remand order of the lower appellate Court and directed the lower appellate Court to dispose of the matter without any remand to the trial Court. The lower appellate Court thereafter decreed the suit and reversed the judgment of the trial Court in respect of item Nos. 1 and 2.
5. Now questioning the above judgment of the first appellate Court delivered in A.S. No. 235/83 dated 26th July, 1989, the present appeal has been filed. The only question that was urged before me is whether Ext. P-1 dated 1-1-1963 is a lease or licence. As pointed out above, it is the specific case of the plaintiffs-respondents that Ext. P-1 is a licence and therefore, the defendants-appellants are not entitled to take shelter under Section 106 of the Kerala Land Reforms Act, which 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.'
On the other hand, it is the contention of the appellants-defendants that Ext. P-1 is only a lease and therefore, respondents cannot ask for a decree for eviction as a legal right is clothed on them by. Section 106 of the K. L. R. Act. A licence is defined under Section 52 of the Indian Easements Act (No. 5 of 1882) as follows :
'52. Licence defined :-- Where one person grants to another, or to a definite number of other persons a right to do, or continue to do, in or upon he immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.'
Lease is defined under Section 105 of the Transfer of Property Act as follows:
'105. 'Lease' defined :--A lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms.'
The distinction between a lease and licence has been made clear by the Supreme Court in a number of decisions. That is to say, what are the tests to be considered by the Courts to distinguish a lease from licence and vice versa. Some of the decisions of the Supreme Court as well as those of this Court in this regard, I think, can be referred to below. In Qudrat Ullah v. Bareilly Municipality, AIR 1974 SC 396, the Supreme Court has held that when a stipulation in a document contains a particular way and a particular term in using the land the legal possession is with the owner, in other words, the de facto possession is with the licensee and juridical possession is with the land owner. When the documents contain the above stipulations, then it is a licence. In a case reported in 1985 Ker LT 855 : (AIR 1986 Ker 173); Shanmugham Pillai v. Rajaraman this Court relying on the principle laid down by the Supreme Court in the earlier case, AIR 1974 SC 396, held at page 398:
'In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser or licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a license merely by stating that the document is to be deemed a license or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement? Considering the document as a whole in the light of the principles laid down by the Supreme Court it has to be held that it really amounts to a lease and not a mere license. An interest in the property has been created in favour of the defendant. Exclusive possession vests with him. The restrictions imposed on the enjoyment are of a nature and a degree that could be provided in a document of lease with restrictive covenants about the manner of enjoyment of the property.'
In Puran Singh Shani v. Sundari Bhagvandas Kripalani, reported in 1991 (2) SCC 180 the Supreme Court has held that intention of the parties, interest created in the property, the mode and manner of enjoyment are the real tests to find out the distinction between the licence and lease as defined under Section 105 of the Transfer of Property Act and under Section 52 of the Easements Act and further it held that possession alone is not decisive to conclude that it is a licence.
This Court in Devadas v. Calicut Corporation, 1996 (2) Ker LT 77: (AIR 1996 Ker 274) has held that the creation of the relationship between the parties as licensee or lessee depends upon the intention of the parties. As per the principles laid down in the above citations of the Supreme Court as well as the principle laid down by this Court, the tests to be considered for determining whether a document is a lease or licence are: (1) substance of the document; (2) intention of the parties; (3) the interest created in the property; and (4) legal possession. In this context, we have to bear in mind that the exclusive possession of the land will not create a licence as cited supra. Therefore, on the footing of the above texts laid down by the Supreme Court as well as by this Court, let me examine Ext. P-1 document. A reading of Ext. P-1 document would go to show that land alone in item No. 1 is the subject-matter therein, which is given to the first defendant for the purpose of putting up a temporary shed for running a motor workshop for a period of one year on a monthly, payment of Rs. 30/-. Ext. P-1 further shows that such right given under Ext. P-1 should not be transferred. There is no mention in Ext. P-1 that the first defendant can sub let the property. In a case of lease, no doubt, a lessee can sub let the property. But in Ext. P-1 a clear restriction is there that the property should not be transferred on any account and that has been given to the first defendant for a specific purpose of running a motor workshop by putting up only a temporary shed for a specific period on a fixed payment. Thus the manner and mode as to how the land has to be enjoyed by the first defendant have been clearly stipulated in Ext. P-1 itself. The right given in Ext. P-1, in fact, is only a personal privilege given to the first defendant alone and to none else. In short permission is given to the first defendant to enjoy the land in a particular manner and it does not mean that the legal possession has passed to the first defendant. The stipulations or the terms in Ext. P-1 which I have seen above would squarely satisfy the requirements or the words employed in Section 52 of the Indian Easements Act. In other words, when I examine the contents of Ext. P-1 on the footing of the principles laid down by the Supreme Court as well as by this Court along with Section 52 of the Easements Act (definition for licence) and Section 105 of the Transfer of Property Act (definition for lease), I am fully satisfied to hold that Ext. P-1 is only a licence in respect of item No. 1 and it is not at all a lease.
In the result, the appeal is dismissed confirming the judgment and decree of the lower appellate Court in A.S. No. 235/83 delivered on 26th July, 1989. No costs.