LexCHANDY VARGHESE AND ORS. versus K. ABDUL KHADER AND ORS.
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A CHANDY VARGHESE AND ORS. v. K. ABDUL KHADER AND ORS. AUGUST 8, 2003 . , B [SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.) Land Reforms: Kera/a Land Reforms Act, 1963-Section 106-Protection of lessee C against eviction-Applicability of-Held: When land is leased for commercial · or industrial purposes and lessee constructs building for such purposes before the appointed date, Section 106 is applicable-On facts, Courts below holding that the original owner never intended to transfer any interest in land to transferee but he acquired right to shed and machinery of saw mill as licensee- D Document ineffectual to create leasehold right on land in favour of transferee, thus protection against eviction under Section 106 not available as rightly held by Courts below. Interpretation of statutes: E Document/transaction-Lease or licence-Held: The nature of document is gathered from the intention of the parties inferred from the terms of document. Words and Phrases: 'Lease' -Meaning of in the context of Section 105 of the Transfer of p PropertyAct, 1882. 'licence '-Meaning of-In the context of Section 52 of the Easement Act, 1882. Original plaintiff owned a suit land. Appellant's predecessors-in- G interest took the land and constructed a shed for running a saw mill. Thereafter, the original plaintifrs wife and children purchased the mill and machineries of saw mill from the appellant's predecessors-in-interest who later sold it to K. Original owner's wife and children filed a suit for injunction and recovery of possession. Defendant contended that they were entitled to protection against eviction under Section 106 of the Kerala Land H 322 ,I CHANDY VARGHESE v. K. ABDUL KHADER 323 Reforms Act, 1963 since they had obtained the lease of the land and had A constructed a shed for running saw mill on the same prior to the appointed date. Courts below relying upon various documents and transactions entered between the parties held that the document is ineffectual to create leasehold rights on the land in favour of the contesting defendant and passed decree of eviction and recovery of possession in favour of the original owner's wife and children. High Court upheld the order. Hence B the present appeal. Appellant contended that there was a transfer of leasehold rights of the original lessee of the land in favour of contesting defendant and the courts were wrong in not extending benefit of protection under Section C 106 of the Act; and that the appellants trace title in favour of their predecessor as lessee of the land from transferor, who had himself obtained title to the suit property from legal representatives of the original owner under sale deed. Respondents contended that there is no ground for this Court to D interfere, under Article 136 of the Constitution with the concurrent findings of courts b.-!low. Dismissing the appeal, the Court HELD: 1. In cases where the dispute is about the nature of the E document to be a lease or licence, the question that has to be addressed by the Court to itself is what is the intention disclosed by the parties from the terms of the document or the transaction. Where the conclusion is that circumstance or conduct of the parties shows that all that was intended was that the occupier should have a personal privilege with no interest in the land, the transaction would be licence and not a lease. [334-A-BI F 2.1. The courts below on proper interpretation of the documents made in the light of oral evidence on record concluded that the transferee of the shed and the machineries had only a licence to maintain them in the land and no right in land was intended to be created by the parties. G The original owner never intended to transfer any interest in land to the transferee. The transferee was found to be merely licensee for running Saw-Mill in the shed erected on the land. The said transferee being himself a licensee could not and was not found to have transferred any right in the land to original owner's wife and her children. (333-F, GI H 324 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R. A 2.2. K acquired only right to shed and Saw-Mill from original owner's wife and her children as a licensee. He had a licence to enter upon the land for use of shed and the machineries and he could not have, therefore, conferred any leasehold rights in the land to contesting defendant. (334-A, BJ B 2.3. From any of the documents on recor
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