Leela5.P.Vijayalakshmi6.P.Gowri7.P.Chandra8.P.Janaki v. M.Rajendran

JUDGMENT The above second appeal arises against the judgment anddecree in A.S.No. 21 of 2000 on the file of IV Additional City CivilJudge, Chennai confirming the Judgment and Decree in O.S.No.7915of 1997 on the file of XVIII Assistant City Civil Judge, Chennai. 2. The defendants in the suit are the appellants in theabove second appeal. The respondent herein is the plaintiff in thesuit. 3. The plaintiff filed the suit in O.S.No.7915 of 1997on the file of on the file of XVIII Assistant Judge, City CivilCourt, Chennai for the following relief:- (a) For a mandatory injunction directing the defendants toremove their cattle and all other things from the 'B' scheduleproperty and hand over possession of the 'B' schedule mentionedproperty to the plaintiff within a time to be fixed by this court;(b) for a permanent injunction restraining the defendants,their agents, servants and men and every one claiming under them andacting on their behalf from, in any way, committing any nuisance inthe 'A' and 'B' schedule properties, either by dumping cow-dungeither in the 'B' schedule property or outside the 'B' scheduleproperty on letting in drainage and waste water from the cattle shedfrom the 'B' schedule property;(c) directing the defendants to pay the plaintiff damagesfor use and occupation at the rate of Rs.10,000/- per month or at anyother sum as this court may fix, from the date of plaint till theyremove their things and deliver possession of the 'B' scheduleproperty to the plaintiff; andd) directing the defendants to pay the cost of the suit. 4. The brief case of the plaintiff is as follows:- (i) According to the plaintiff, he is in possession andmanagement of the entire property bearing Door No.5 and 6, AdyarBridge Road, Raja Annamalai Puram, Chennai, which is now named asSathyabama M.G.R. Maligai, which is the suit 'A' schedule property asexecutor of the will of late Dr.M.G.Ramachandran and as ManagingDirector of Sathya Studios (P) Limited. The entire property iswithin a compound measuring about 5 acres, having two main gates andthe entry inside the compound wall was only via main gates and can beonly with the permission of the plaintiff. If those gates areclosed, no one can enter the compound. Apart from that, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff is also in possession of leasehold land in Survey No.4275/5measuring about 40 grounds leased by the Government which isabutting the property belonging to Sathya Studios (P) Limited, whichis in the possession and administration of the plaintiff in hiscapacity as executor of the will of late Dr.M.G.Ramachandran and asManaging Director of Sathya Studios (P) Limited.(ii) The first defendant is the wife of one P.Padmanabhanand the second defendant is the daughter of the said P.Padmanabhan.The said P.Padmanabhan was given permission by way of leave andlicence to have some cattle by late Dr.M.G.Ramachandran and to occupyone room in a portion of the 'A' schedule property. It was onlyleave and licence. The area which was under the permissiveoccupation of P.Padmanabhan by way of leave and licence given by lateDr.M.G.Ramachandran is the suit 'B' schedule property. Since thesaid P.Padmanabhan died, suit has been filed as against his legalheirs. Late P.Padmanabhan was the Manager of Sathya Studios (P)Limited. Late Dr.M.G.Ramachandran was having some cows for milk sothat milk could be used for the purpose of studio. Late P.Padmanabhanwas put in management of those cows. Then some more cows werebrought and they were also housed in a thatched sheds. The hay andother items were stored in one asbestos cement sheet shed which wasthe carpentry for the Sathya Studios (P) Limited. Therefore, thesuit 'B' schedule property was permitted to be used by lateP.Padmanabhan by way of leave and licence. It was only lateDr.M.G.Ramachandran, who, out of generosity, gave leave and licenceto late P.Padmanabhan. There is absolutely no official dealingsbetween Sathya Studios (P) Limited and late P.Padmanabhan in thisregard. The leave and licence was granted because late P.Padmanabhanwas moving closely with late Dr.M.G.Ramachandran and his family.Late P.Padmanabhan during his life time, never claimed any interestin the property and never claimed any leasehold right, because, heknew that it was only permissive occupation by way of leave andlicense and nothing else. Even after the demise ofDr.M.G.Ramachandran, late P.Padmanabhan admitted the possession ofpermissive occupation by way of leave and licence and he never madeany other false claim. On the demise of Dr.M.G.Ramachandran on24.12.1987, the leave and licence automatically came to an end.Since late P.Padmanabhan was closely moving with the family of lateDr.M.G.Ramachandran and the defendants, being ladies, wanted sometime to remove the cattle and their belongings, the plaintiff gavethem sufficient time, but, taking advantage of the goodness andcourtesy shown to them, the defendants started claiming that they arerunning a diary farm under the name and style of 'P.M. Enterprises'.The defendants started misusing the permission given to them. Theentry inside the compound wall was only via main gates and can beonly with the permission of the plaintiff. If the main gates areclosed, the defendants cannot enter the property at all. https://hcservices.ecourts.gov.in/hcservices/ (iii) After August 1997, the defendants started misusingthe leave and licence. They started dumping cow-dung evenoutside the area covered by leave and licence, making the entirearea nasty. They started dumping the cow-dung and waste water. Thedumping of cow-dung also resulted in the breeding of mosquitoesresulting in health hazard. (iv) In view of the attitude adopted by the defendants, theplaintiff revoked the licence by his letter dated 18.9.1997. Thedefendants were called upon to remove their things by 30.10.1997 andit was made clear that after 30.10.1997, the defendants will have noright to enter the compound and that they will not be allowed toenter the compound. The defendants sent a reply dated 24.10.1997through their counsel. In their reply notice, the defendants statedthat late P.Padmanabhan was the lessee of the land and that lateDr.M.G.Ramachandran, leased out the land to late P.Padmanabhan, whichis absolutely false. The defendants in their reply notice have alsostated that late P.Padmanabhan put up structures in the vacant landat his own costs, which is also false. The plaintiff sent arejoinder dated 4.11.1997 through his lawyer. (v) Late P.Padmanabhan, during his life time, neverwhispered that he was a tenant and never claimed tenancy. Even inthe will of late Dr.M.G.Ramachandran, there is no reference to anytenancy in favour of late P.Padmanabhan. Even in the telegram dated15.8.1997 sent by the defendants, the defendants never came forwardwith a story of lease or tenancy. The defendants filed a suit inO.S.No.7772 of 1997 on the file of XVIII Assistant Judge, City CivilCourt, Madras for injunction. Since the defendants failed to vacateand deliver the possession to the plaintiff, the plaintiff filed thesuit.5. The brief case of the defendants are as follows:(i) According to the defendants, they are in possessionand enjoyment of about 90 cents of land as lessees for the past about30 years. The land in R.S. No.4275/5 is a Government porombokeland. The defendants are in possession and enjoyment of about 50cents of land in R.S.No.4275/5, which is a Government Poromboke land.(ii) According to the defendants, late Dr.M.G.Ramachandran,leased out about 90 cents of land to late P.Padmanabhan in the year1967 and allowed him to put up a block of buildings consisting ofthree rooms used as office rooms and one residential portion. LateDr.M.G.Ramachandran also allowed late P.Padmanabhan to construct onego-down, seven cattle sheds and one shed for storing cattle feed.These constructions were put up by late P.Padmanabhan at his owncosts. Late P.Padmanabhan purchased the cows with his money andwas running a Dairy Farm in the name and style of "Makkal Thilagam https://hcservices.ecourts.gov.in/hcservices/ Dairy Farm" from 1967 onwards. The averment that lateDr.M.G.Ramachandran gave leave and licence to late P.Padmanabhan isnot correct. During the life time of P.Padmanabhan, nobodyquestioned his leasehold rights. (iii) It is well known fact that late P.Padmanabhan wasrunning a Dairy Farm in the suit premises from 1967 and after hisdemise, the defendants are continuing the dairy farm and there aremore than 150 cows. The vacant land of 90 cents was leased out bylate Dr.M.G.Ramachandran on behalf of Sathya Studio to lateP.Padmanabhan for running a dairy farm. The defendants denied thatthe entire compound has two gates and both the gates are under theexclusive control of the plaintiff and if the main gates are closed,the defendants can not enter the property at all. The Plaintiffleased out some portions in the suit property to different tenants.The plaintiff cannot file a suit to evict the defendants from theoccupation of Government Poromboke land. The defendants are inoccupation of 50 cents of Government Poromboke land in R.S.No.4275/5and storing cow-dung in a portion of the said 50 cents ofGovernment land. The defendants are periodically removing the cow-dung and they are not polluting the ground water by dumping cow-dungand waste water. Late Dr.M.G.Ramachandran did not want to get backthe land from late P.Padmanabhan. Late P.Padmanabhan and thedefendants have been in possession of the suit property as lawfultenants for more than 30 years. (iv) The plaintiff cannot maintain the suit for mandatoryinjunction and permanent injunction against the defendants, who arelawful tenants. It is orally agreed between Dr.M.G.Ramachandran andlate P.Padmanabhan that instead of paying rent by cash, he shouldsupply sufficient quantity of milk for the purpose of Sathya Studioas and when required. Late P.Padmanabhan was supplying milk toSathya Studio during his life time and that practice is beingcontinued by the defendants even now. Therefore, there is no arrearsof rent till date. Therefore, the defendants prayed for dismissal ofthe suit.6. The case of the plaintiff in his reply statement is asfollows: (i) Sathya Studio is in possession of land in R.S.No.4275/5measuring about 40 grounds as lessee from the Government. Thedefendants are not in possession of 50 cents of land in R.S.No.4275/5of Government Poramboke land. Even the Revenue Authorities afterphysical inspection and survey, found that the defendants are notin possession of Government Poramboke land. Both the main gates areunder the control of the plaintiff and no one can enter the compound,if two gates are closed. The defendants are trying to improve theircase from time to time because there is no truth in their claim. https://hcservices.ecourts.gov.in/hcservices/ (ii) The allegation that Dr.M.G.Ramachandran leased out 90cents of land to late P.Padmanabhan in the year 1967 and allowedhim to put up a block of buildings consisting of three rooms used asoffice rooms and one residential portion and also allowed lateP.Padmanabhan to construct one go-down, seven cattle sheds and oneshed for storing catle feed are all false; that there was some oralagreement between late Dr.M.G.Ramachandran and late P.Padmanabhanthat instead of payment of cash rent, he should supply sufficientquantity of milk for the purpose of Sathya Studio as and whenrequired is false. There was no such oral agreement. There was notenancy and there was no rent. Even the letter dated 8.9.1977 fromIndian Overseas Bank filed by the defendants in O.S.No.1772 of 1997speaks of sale of entire milk to hotels, which will disprove thecase of the defendants. 7. Before the trial court, the plaintiff was examined asP.W.1 and 20 documents Exs. A1 to A20 were marked. On the side ofthe defendants, 3 witnesses were examined and 16 documents Exs. B1to B16 were marked. The court documents were marked as Exs.C1to C3.8. The trial court, after taking into consideration theoral and documentary evidences of both the parties decreed the suitas prayed for. 9. Aggrieved over the judgment and decree of the trialcourt, the defendants filed appeal in A.S.No.21 of 2000 on thefile of IV Additional Judge, City Civil Court, Chennai and the lowerappellate court after taking into consideration the materialsavailable on record, confirmed the judgment and decree of the trialcourt and dismissed the appeal. 10. Aggrieved over the judgments and decrees of thecourts below, the defendants have filed the above second appeal. 11(a). C.M.P.No.4737 of 2002 in S.A.No.1062 of 2000 has beenfiled by the respondent to receive Form No.32 filed with theRegistrar of Companies, Madras and the resolution passed by SathyaStudios (P) Limited as additional documents in the above secondappeal. (b) According to the respondent, Form No.32 is the publicdocument available with the Registrar of Companies. Though theappellants did not question the authority of the plaintiff before thecourts below, the respondent is producing the same in the secondappeal to avoid technical objections. The respondent has also filedthe resolution dated 1.11.1997 authorising the plaintiff to file thesuit. (c). According to the appellant, the documents which is now https://hcservices.ecourts.gov.in/hcservices/ sought to be produced is only a copy of Form No.32 dated 5.7.1991 andthe copy of the resolution; that the alleged resolution authorisingthe plaintiff to file a suit is a creation of the respondent for thepurpose of this proceedings and the non-filing of the same either atthe time of institution of the suit or at the time of trial has notbeen properly explained. The resolution now sought to be produced iscreated for the purpose of this case and the resolution sought to beproduced will not cure the defects. Therefore,the respondent cannotbe allowed to bring these documents at the belated stage in thesecond appeal. Therefore, appellants prayed for dismissal of theabove miscellaneous petition. 12.(a) C.M.P.No.12791 of 2002 in S.A.No.1062 of 2000 hasbeen filed by the respondent to receive the following documents:(i)Certified copy of Form No.23 filed with the Registrar ofCompanies;(ii)certified copy of Annual Return made upto 30.9.1997 filed withRegistrar of Companies;(iii)certified copy of Annual Return made upto 30.9.1999 filedwith Registrar of Companies;(iv)Memorandum and Articles of Association of Sathya Studio(P) Limited as additional documents in the above second appeal. (b). According to the respondent, he is filing these additionaldocuments to show that he is continuing as Managing Director ofSathya Studios (P) Limited. Though there was no issue in thisregard and the appellants are raising this point before thiscourt, the respondent is filing these documents as additionalevidence in order to avoid technical objections. (c). According to the appellants, mere production of the copyof the Memorandum and Articles of Association will not add credenceto his case in any way. These documents will have no relevance andin no way improve the case of the respondent, when the suit itselfhas been filed in his individual capacity and the mere description ofstatus as executor of the Will of late Dr.M.G.Ramachandran and as theManaging Director of M/s. Sathya Studios (P) Limited will not curethe defects. Therefore, appellants prayed for dismissal of the abovemiscellaneous petition. 13(a) C.M.P.No.17748 of 2004 in S.A.No.1062 of 2000 has beenfiled by the respondent to receive the resolution dated 20.11.2002passed by the Sathya Studios (P) Limited as additional document inthe above second appeal. (b). According to the respondent, a technical objection wasraised by saying that the plaintiff should be "Sathya Studios (P)Limited" and not "M.Rajendran, Managing Director of Sathya Studios https://hcservices.ecourts.gov.in/hcservices/ (P) Limited". It is a curable one in view of Order I Rule 10 (1) ofC.P.C. To avoid any technical objection, the Board has also passedresolution dated 20.11.2002 ratifying all the actions taken byM.Rajendran, Managing Director. The respondent is filing the saidresolution as additional document. (c). The appellants did not file any counter in the abovecivil miscellaneous petition. 14(a). C.M.P.No.6055 of 2002 in S.A.No.1062 of 2000 hasbeen filed by the respondent to amend the short cause title andlong cause title in the plaint in O.S.No.7915 of 1997. (b). According to the respondent, a technical objection issought to be raised now that the cause title should be "SathyaStudio represented by its Managing Director". To avoid any technicalobjection, the above civil miscellaneous petition is filed to amendthe long and short cause title of the plaint in O.S.NO.7915 of 1997. (c). According to the appellants, the petition to amendthe cause title lacks bonafide and not maintainable. The respondentis trying to introduce a new cause of action under the guise ofamending the cause title. If the amendment now proposed is allowed,it would cause great injury and prejudice to the appellants.Therefore, appellants prayed for dismissal of the above civilmiscellaneous petition. 15(a). C.M.P.No.16979 of 2002 in S.A.No.1062 of 2000 hasbeen filed by the respondent to amend the plaint in O.S.No.7915 of1997 by adding one more paragraph in the plaint and correct theregistered addresses of the parties in the plaint. (b) According to the respondent, the proposed amendment isfully consequential to the prayer sought for in C.M.P.No. 6055 of2002. The amendment is necessary to meet the technical objectionsraised by the appellants. (c). The appellants did not file any counter in theabove civil miscellaneous petition. 16. Heard Mr.T.R.Rajagopalan, learned senior counselappearing for the appellants and Mr.T.V.Ramanujam learned seniorcounsel appearing for the respondent. 17. At the time of admission of the above Second Appeal,the following substantial questions of law arose for consideration:- " (i) Is not the judgment of the lower courtvitiated for non-framing of the points fordetermination in the appeal as held by this Hon'ble https://hcservices.ecourts.gov.in/hcservices/ Court in 1996(1) CTC 26 and page 559?(ii) Is the suit at the instance of ThiruM.Rajendran for mandatory injunction and recovery ofpossession maintainable when admittedly the propertyis owned by a private limited company M/s. Sathyastudios (P) Limited a company incorporated under theIndian Companies Act 1956?(iii) Are not decisions of the courts belowvitiated for non-consideration of the material evidencewhich establish all the ingredients of a lease infavour of late Mr.Padmanabhan and are the courts belowright in deciding the said issue merely based upon thenon-mentioning of the lessees name in the Will of lateDr.M.G.Ramachandran? "Apart from the above three substantial question of law, learnedsenior counsel appearing for the appellant also raised the followingadditional substantial question of law :-"Are the courts below right in decreeing thesuit when there is absolutely no evidence of anylicence or permission having been given by M/s.Sathyastudios (P) Limited to late Padmanabhan and is not thejudgment vitiated on that account?18. Mr.T.R.Rajagopalan Learned senior counselappearing for the appellants contended that the judgment ofthe lower appellate court is vitiated for non-framing of thepoints for determination in the appeal; that at the instanceof the plaintiff, the suit for mandatory injunction andrecovery of possession is not maintainable when the propertiesis owned by a private limited company namely, M/s. SathyaStudios (P) Limited; that there is absolutely no evidence withregard to leave and licence as alleged by therespondent/plaintiff; that the appellants are in possession ofthe suit property only as a lessees. 19. Learned senior counsel further contended thatlate Dr.M.G.Ramachandran was holding only shares of M/s.SathyaStudios (P) Limited; that late Dr.M.G.Ramachandran was notthe owner of the suit property and that M/s. Sathya Studio(P) Limited is the actual owner of the suit property. Sincethe respondent had filed the suit in his individualcapacity, the suit is not maintainable. https://hcservices.ecourts.gov.in/hcservices/

20. Countering the submissions made by the learnedsenior counsel appearing for the appellants,Mr.T.V.Ramanujam, learned counsel appearing for the respondentsubmitted that since the lower appellate court hasindependently considered all the issues, omission to framepoints for determination will not render decree of the lowerappellate court invalid; that since the appellant/defendantwas put in possession of the suit property by lateDr.M.G.Ramachandran as a lessee, the suit for mandatoryinjunction against the lessee is maintainable and that SathyaStudio (P) Limited has not put the appellants/defendants intopossession of the suit property; that there is sufficientevidence to prove that the possession of theappellants/defendants is only as leave and licence; thatthere is no evidence on the side of the appellants to provethat the suit property was leased out to late P.Padmanabhan bylate Dr.M.G.Ramachandran. 21. On a careful consideration of the materialsavailable on record and the submissions made by the learnedsenior counsel appearing for the appellants and the learnedsenior counsel appearing for the respondent, it could be seenthat the appellants were put in possession of the suitproperty in the year 1967 by late Dr.M.G.Ramachandran to havesome cattle. Though the case of the respondent is thatpossession of late P.Padmanabhan was by way of leave andlicence, the appellants case is that their occupation of thesuit property is as a lessee. The contention of theappellants that late Dr.M.G.Ramachandran was not the owner ofthe suit property and that it is only M/s.Sathya Studio (P)Limited is the owner of the suit property, therefore, the suitfiled by the respondent as executor of the will ofDr.M.G.Ramachandran and as Managing Director, Sathya Studios(P) Limited, is not maintainable. 22. Late Dr.M.G.Ramachandran died on 24.12.1987. Bya registered will dated 18.01.1987, late Dr.M.G.Ramachandranappointed the respondent as executor of the will and there isalso a recital in the said will bequeathing the sharesheld by alte Dr.M.G.Ramachandran to All India Dravida MunnetraKazhagam founded by him and that the party shall takepossession of the Sathya Studio and all the articlestherein and manage the same and utilise the income therefromfor the party work. In the event of split in the party ordissolution of the party, the executor shall take over the https://hcservices.ecourts.gov.in/hcservices/ shares and management of the Sathya Studio company andutilise the income for meeting the expenses of the trust namedas "M.G.Ramachandran Home for Deaf and Dumb".23. Admittedly, there was a split in the party andthe executor namely, the respondent took charge of themanagement and Sathya Studios (P) Limited. Though theappellants have contended that the respondent has no right tofile the suit and it is only Sathya Studio (P) Limitedwhich has got right to file the suit, there is absolutelynothing on record to show that the appellants were put intopossession of the suit property by Sathya Studios (P)Limited. 24. Even in Ex.A11 reply notice dated 24.10.1997 sent bythe appellants to the respondent, they did not dispute the right ofthe respondent to issue the notice. Further, they have alsoadmitted that late Dr.M.G.Ramachandran being most generous personallowed late P.Padmanabhan to occupy the portion of Sathya Studio.25. In the written statement, the appellants hadrepeatedly said that late Dr.M.G.Ramachandran allowed lateP.Padmanabhan to occupy the suit property and no where in thewritten statement the appellants had stated that lateP.Padmanabhan was put into possession of the suit property bySathya Studios (P) Limited. There is also no averment in thewritten statement that the suit is not maintainable for thereason that the suit has not been filed by M/s.Sathya Studios (P) Limited. Since there is no pleadings, thesaid contention cannot be looked into. In fact, the saidground has been raised for the first time before this court.Admittedly, late Dr.M.G.Ramachandran allowed lateP.Padmanabhan to occupy the suit property..26. Since late P.Padmanabhan came into possession ofthe suit property only through late Dr.M.G.Ramachandran, hecannot now question the right of the respondent, who is theexecutor of the will of late Dr.M.G.Ramachandran. If at all,the right of the late Dr.M.G.Ramahcandran can be questioned,the same can be done only by M/s.Sathya Studio (P) Limited.It is between the respondent and M/s.Sathya Studio (P)Limited to decide, whether the respondent has got right tofile the suit or not. The appellants cannot question the rightof the respondent. The appellants came into possession ofthe suit property only through late Dr.M.G.Ramachandran and https://hcservices.ecourts.gov.in/hcservices/ not through M/s.Sathya Studio (P) Limited. Therefore, thesuit filed by the respondent is maintainable. 27. The next question that has to be decided is whether thepossession of the appellants are as, licensee or lessee. Accordingto the respondent, the possession of the appellants is only by wayof leave and licence. According to the appellants, they are inpossession of the suit property as lessee. Admittedly, lateP.Padmanabhan was working as the Manager of Sathya Studio (P)Limited. It is also admitted fact that the said late P.Padmanabhanwas moving closely with late Dr.M.G.Ramachandran and his family.According to the appellants, instead of paying the rent by cash, theysupplied milk for the purpose of Sathya Studio as and whenrequired. The appellants though pleaded that the rent was paid bysupply of milk, they have not produced any acceptable documentaryevidence to prove the said contention. Even D.W.2, who was alsoclosely moving with late Dr.M.G.Ramachandran deposed that lateP.Padmanabhan used to supply milk at the time of party general bodymeeting. He did not say that the appellants supplied milk insteadof paying the rent. D.W.3, who is also closely associated with lateDr.M.G.Ramachandran, though deposed that late Dr.M.G.Ramachandranallowed late P.Padmanabhan to occupy the suit property and thatinstead of paying the rent by cash asked him to supply milk, he wentto the extent of saying late Dr.M.G.Ramachandran had asked lateP.Padmanabhan to keep the property for him. There is nothing onrecord to corroborate the evidence of D.W.2 and D.W.3. Further,there is no documentary evidence to prove the same. Even during thelifetime of late P.Padmanabhan, he did not claim any leasehold rightover the suit property. 28. Since the appellants failed to prove that they supplied milkinstead of paying the rent, the contention that they are lessees ofthe suit properties, cannot be accepted. The entry inside thecompound can only be through the main gates and only with thepermission of the respondent. If the main gates are closed, theappellants cannot enter the property at all.29. Mr.T.R.Rajagopalan, learned senior counsel appearingfor the appellants, in support of his contention relied on thefollowing judgments:(i) 2004(3) SCC 595 (C.M.Beena and another v. P.N.RamachandraRao)"Generally speaking, the difference between a "lease" and"licence" is to be determined by finding out the realintention of the parties as decipherable from a completereading of the document, if any, executed between the partiesand the surrounding circumstances. Only a right to use theproperty in a particular way or under certain terms given to https://hcservices.ecourts.gov.in/hcservices/ the occupant while the owner retains the control orpossession over the premises results in a licence beingcreated; for the owner retains legal possession while allthat the licensee gets is a permission to use the premisesfor a particular purpose or in a particular manner and butfor the permission so given the occupation would have beenunlawful." (ii) 1988(1) SCC 155 (Khalil Ahmed Bashir Ahmed v. TufelhsseinSamasbhai)"In order to determine whether a document createdlicence or a lease the real test is to ascertain theintention of the parties i.e. Whether they intended tocreate a licence or a lease. If the document creates aninterest in the property entitling the transferee toenjoyment, then it is a lease; but if it only permitsanother to make se of the property without exclusivepossession, then it is a licence. Substance of the documentmust be preferred to form." 30. Mr.T.V.Ramunujam, learned senior counsel appearing forthe respondent in support of his contention relied on the followingjudgments:(i) AIR 1965 SC 610 (M.N.Clubwala and another v. Fida HussainSaheb and others)"Although a licence is revocable at the will of thegrantor the provision in the license that the licensee woldbe entitled to a notice before being required to vacate isnot consistent with a license. The mere necessity of givinga notice to a licensee requiring him to vacate the licensedpremises would not indicate that the transaction was alease."(ii) AIR 1974 SC 396 ( Qudrat Ullah v. Municipal Board, Bareilly)"Whether a deed is a lease or a licence depends on theintention of the parties. If an interest in immovableproperty entitling the transferor to enjoyment is created itis a lease, if permission to use land without right toexclusive possession is alone granted it is a license."(iii) 1999 (III) CTC 454 (ICICI v. State of Maharashtra andothers.)"7. Our attention has been drawn to a decision of thiscourt in Associated Hotels of India v. R.N. Kapoor, 1960 (1)SCR 368 at page 383 where this court has made a distinctionbetween a lease and a license. Referring to section 105 ofthe Transfer of property Act, this court has observed that it https://hcservices.ecourts.gov.in/hcservices/ defines a lease of immovable property as a transfer of aright to enjoy such property made for a certain time inconsideration for a price paid or promised. A lease is,therefore, a transfer of an interest in land and the interesttransferred is called the leasehold interest. I follows thatthe lessee gets the right to the exclusion of the lessor.Whereas Section 52of the Indian Easement Act, defies licensethus:"52.Where one person grants to another, or toa definite number of other persons, a right to do,or continue to do, in or upon the immovableproperty of the grantor, something which would, inthe absence of such right, be unlawful and suchright does not amount to an easement or an interestin the property, the right is called a license."8. Therefore, is a document gives only a right to usethe property in a particular way or under certain terms,while it remains in possession and control of the ownerthereof, it will be a license. In the in possession only forthe purpose of constructing a building or buildings. Underthis document, no interest in the land is conveyed in favourof the appellants. The agreement does not create a lease,nor does it demise any interest in land in favour of theappellants. In this connection a reference may also be madeto subsequent decision of this court in State ofMaharashtra v. Attr India (P) Ltd, JT 1994(10 SC 640 wherethis court has made a distinction between a a lease and anagreement for lease.31. Therefore, applying the principles laid down in theabove referred judgments, the test to determine whether theoccupation is lease or licence, the real intention of the partiesand the surrounding circumstances have to be taken intoconsideration.32. Though the appellants contended that he supplied milkinstead of paying the rent for the suit properties, as already found,there is nothing on record or evidence to prove the same. Theappellants/defendants also contended that they put up structures inthe suit properties. The appellants also filed a petition undersection 9 of the City Tenancy Protection Act before the trial courtand the trial court after taking into consideration the merits inthe said application dismissed the same holding that there was noevidence to show that the appellants/defendants are lessees inrespect of the suit properties. 33. The courts below taking into consideration the orderspassed in the said application held that the appellants are only a https://hcservices.ecourts.gov.in/hcservices/ licensee and not a lessee. The order passed in the applicationfiled under section 9 of the City Tenancy Protection Act becamefinal and the findings rendered in the said application is binding onthe appellants. By Ex.A10 notice dated 18.9.1997, therespondent/plaintiff revoked the leave and licence granted to theappellants and called upon them to remove the cattle and other thingson or before 30.10.1997. By Ex.A11 reply dated 24.10.1997, theappellants for the first time contended that they are not licenseesand that they are tenants in respect of the suit properties. Thecourts below have rightly came to the conclusion that the possessionof the appellants is only by way of leave and licence. Since it isfound that the possession of the appellants/defendants is only by wayof leave and licence, the respondent/plaintiff can maintain the suitfor mandatory injunction. In support of the said contention,Mr.T.V.Ramanujam, learned senior counsel appearing for the respondentrelied on the following judgment"-(i) AIR 1985 SC 857 (San Lal Jain v. Avtar Singh)"7.In the present case it has not been shown to us thatthe appellant had come to the court with the suit formandatory injunction after any considerable delay which willdisentitle him to the discretionary relief. Even if therewas some delay, we think that in a case of this kind attemptshould be made to avoid multiplicity of sits and thelicensor should not be driven to file another round of sitwith all the attendant delay, trouble and expense. The sitis in effect one for possession though couched in the formof a sit for mandatory injunction as what would be givento the plaintiff in case he succeeds is possession of theproperty to which he may be found to be entitled.Therefore, we are of the opinion that the appellant shouldnot be denied relief merely because he had couched theplaint in the form of a suit for mandatory injunction.8.The respondent was a licensee, and he must bedeemed to be always a licensee, it is not open to him,during the subsistence of the license or in the suit forrecovery of possession of the properly instituted after therevocation of the licence to set up title to the propertyin himself or anyone else. It is his plain duty tosurrender possession of the properly as a licensee and seekhis remedy separately in case he has acquired title to theproperty subsequently through some other person. He neednot do so if he has, acquired title to the property fromthe licensor or from some one else lawfully claiming underhim, in which case there wold be clear merger. Therespondent has not surrendered possession of the propertytot the appellant even after the termination of the licenceand the institution of the suit. The appellant is,therefore, entitled to recover possession of the property. https://hcservices.ecourts.gov.in/hcservices/ We accordingly allow the appeal with costs throughout anddirect the respondent to deliver possession of the propertyto the appellant forthwith failing which it will be open tothe appellant to execute the decree and obtain possession.(ii) AIR 1984 KERALA 224 (E.P.George v. Thomas John)"Where under an agreement the defendant was using aroom of the plaintiff the possession and ownership of thatroom expressly asserted to be with the plaintiff and afterterminating that agreement duly by a notice the plaintiffpromptly seeks inter alia mandatory and prohibitoryinjunctions against the defendant, in view of theplaintiff's promptitude as also the defence that theagreement was a lease, it is clear the injunction can beproperly issued and it is not necessary to drive theplaintiff to file a suit for possession."34. Therefore, it is clear that the licensee has nointerest in the property and his possession for enjoyment of hisright is no judicial possession but only an occupation. Therefore,the suit for revocation of licence is maintainable.35. Mr.T.R.Rajagopalan, Learned senior counsel appearingfor the appellants contended that the lower appellate court failed toframe the points for consideration in the appeal and therefore, thejudgment and decree of the lower appellate court has to be setaside. In support of his contention learned senior counsel relied onthe following judgments:(i) 1997(1) CTC 559 (M.Kadar Hussain v. R.Selvaraj)"In the above judgment, Division Bench of this courtheld that the provisions of Order 41 Rule 31 C.P.C. ismandatory - to follow the mandatory provisions would renderjudgment defective."(ii) 1997(1) LW 704 (Palanisami Pillai v. The Commissioner,Hindu Religious & Charitable Endowments)"Duty of appellate court hearing an appeal to raise andset out the points for determination, and to state thereasons for the decision and focus attention of the court andthe parties on the specific and rival contentions arising fordetermination - Failure to do so – Powers of the Bench inLetters Patent Appeal to consider the whole case on evidenceand render decision." (iii) 2003(3) MLJ 501 (Chinnammal v. M.Ramasamy Naicker andanother)"This court may hasten to state that the judgment underchallenge is defective in that, the learned Subordinate Judge https://hcservices.ecourts.gov.in/hcservices/ has no followed the above provision under O.41, Rule 31C.P.C. The first appellate court has not raised the pointsfor determination as required under the aforestated mandatoryprovisions and not focussed its attention on the specific andrival contentions which arose for decision. That due to non-compliance of the mandatory provision, the judgment anddecree of the First appellate Court has got to be set asideand remitted back to the First Appellate Court with adirection to follow strictly the provisions under O.41, Rule31, C.P.C."36. Countering the submission made by the learned seniorcounsel appearing for the appellants, learned senior counselappearing for the respondent submitted that even though no pointshave been framed by the lower appellate court, there is substantialcompliance with the requirement of Order 41 Rule 31 C.P.C by lowerappellant court. In support of his contention, learned seniorcounsel relied on the following judgments:(i) 2004(IV) CTC 30 (S.M.Ponnaiah Nadar & Sons v. R.C.Diocese)"Framing of points for determination in first appeal –Second appeal against concurrent judgment in suit forrecovery of possession and claim for arrears of rent –Trial court decreed suit in favour of plaintiff and lowerappellate court independently considered evidence andrendered different findings on issues framed by trial court –Lower appellate court did not frame points for determination– Substantial compliance of provisions of Order 41, Rule 31is sufficient and when lower appellate court hasindependently considered all issues, omission to framepoints for determination will not render decree oflower appellate court invalid."(ii) 2006(3) SCC 224 (G.Amalorpavam and others v. R.C. Dioceseof Madurai and others)"9.The question whether in a particular case there hasbeen substantial compliance with the provisions of Order 41Rule 31 CPC has to be determined on the nature of thejudgment delivered in each case. Non-compliance with theprovisions may not vitiate the judgment and make it whollyvoid, and may be ignored if there has been substantialcompliance with it and the second appellate court is in aposition to ascertain the findings of the lower appellatecourt. It is no doubt desirable that the appellate courtshould comply with all the requirements of Order 41 Rule 31CPC. But if it is possible to make out from the judgmentthat there is substantial compliance with the saidrequirements and that justice has not thereby suffered, thatwould be sufficient. Where the appellate court has https://hcservices.ecourts.gov.in/hcservices/ considered the entire evidence on record and discussed thesame in detail, come to any conclusion and its findings aresupported ;by reasons even though the points has not beenframed by the appellate court there is substantialcompliance with the provisions of Order 41 Rule 31 CPC andthe judgment is not in any manner vitiated by the absence ofa point of determination. Where there is an honestendeavour on the part of the lower appellate court toconsider the controversy between the parties and there isproper appraisement of the respective cases and weighing andbalancing of the evidence, facts and the otherconsiderations appearing on both sides is clearly manifestby the perusal of the judgment of the lower appellatecourt, it would be a valid judgment even though it does notcontain the points for determination. The object of therule in making it incumbent upon the appellate court toframe points for determination and to cite reasons for thedecision is to focus attention of the court on the rivalcontentions which arise for determination and also toprovide litigant parties opportunity in understanding theground upon which the decision is found with a view toenable them to know the basis of the decision and if soconsidered appropriate and so advised to avail the remedy ofsecond appeal conferred by section 100 CPC."37. Therefore, applying the principles laid down in theabove judgments, in the case on hand, the lower appellate courtthough did not frame points for consideration, the appellate courthas considered the entire evidence on record and discussed the samein details and its findings are supported by reasons and there issubstantial compliance with the provisions of Order 41 Rule 31 CPCand the judgment is not in any manner vitiated by the absence ofpoints for determination. Where there is an honest endeavour onthe part of the lower appellate court to consider the disputebetween the parties and there is proper appraisement of therespective cases and weighing and balancing of the evidence, factsand the other considerations appearing on both sides is clearlymanifest by the perusal of the judgment of the lower appellatecourt. Therefore, the judgment of the lower appellate court is avalid judgment even though it does not contain points fordetermination. 38. Since it is held that the suit filed by therespondent/plaintiff is maintainable and the respondent as theexecutor of the will of late Dr.M.G.Ramachandran has got authority tofile the suit, the civil miscellaneous petitions filed by therespondents/plaintiffs are not necessary for deciding the issuesbetween the parties. Therefore, C.M.P.Nos. 4737, 12791, 6055, 16979of 2002 and 17748 of 2004 are dismissed. https://hcservices.ecourts.gov.in/hcservices/

39. Therefore, I find no ground much less substantialquestion of law to interfere with the concurrent findings ofthe courts below. The second appeal is liable to be dismissed.Accordingly, the Second Appeal is dismissed. However, there willbe no order as to costs. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar rjTo1.The IV Additional Judge, City Civil Court, Chennai.2.XVIII Assistant Judge, City Civil Court, Chennai.3. The Record Keeper, VR Section, High Court, Madras.+ One cc to Mr.T.V.Krishnamachari, Advocate, SR 41149 Order in S.A. No.1062 of 2000 MBS (CO)VC (7.9.09)