(b) for a permanent injunction restraining the defendants, their agents, servants and men and every one claiming under them and acting on their behalf from, in any way, committing any nuisance in the 'A' and 'B' schedule properties, either by dumping cow-dung either in the 'B' schedule property or outside the 'B' schedule property on letting in drainage and waste water from the cattle shed from the 'B' schedule property;
(c) directing the defendants to pay the plaintiff damages for use and occupation at the rate of Rs.10,000/- per month or at any other sum as this court may fix, from the date of plaint till they remove their things and deliver possession of the 'B' schedule property to the plaintiff; and
d) 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 and management of the entire property bearing Door No.5 and 6, Adyar Bridge Road, Raja Annamalai Puram, Chennai, which is now named as Sathyabama M.G.R. Maligai, which is the suit 'A' schedule property as executor of the will of late Dr.M.G.Ramachandran and as Managing Director of Sathya Studios (P) Limited. The entire property is within a compound measuring about 5 acres, having two main gates and the entry inside the compound wall was only via main gates and can be only with the permission of the plaintiff. If those gates are closed, no one can enter the compound. Apart from that, the plaintiff is also in possession of leasehold land in Survey No.4275/5 measuring about 40 grounds leased by the Government which is abutting the property belonging to Sathya Studios (P) Limited, which is in the possession and administration of the plaintiff in his capacity as executor of the will of late Dr.M.G.Ramachandran and as Managing Director of Sathya Studios (P) Limited.
(ii) The first defendant is the wife of one P.Padmanabhan and the second defendant is the daughter of the said P.Padmanabhan. The said P.Padmanabhan was given permission by way of leave and licence to have some cattle by late Dr.M.G.Ramachandran and to occupy one room in a portion of the 'A' schedule property. It was only leave and licence. The area which was under the permissive occupation of P.Padmanabhan by way of leave and licence given by late Dr.M.G.Ramachandran is the suit 'B' schedule property. Since the said P.Padmanabhan died, suit has been filed as against his legal heirs. Late P.Padmanabhan was the Manager of Sathya Studios (P) Limited. Late Dr.M.G.Ramachandran was having some cows for milk so that milk could be used for the purpose of studio. Late P.Padmanabhan was put in management of those cows. Then some more cows were brought and they were also housed in a thatched sheds. The hay and other items were stored in one asbestos cement sheet shed which was the carpentry for the Sathya Studios (P) Limited. Therefore, the suit 'B' schedule property was permitted to be used by late P.Padmanabhan by way of leave and licence. It was only late Dr.M.G.Ramachandran, who, out of generosity, gave leave and licence to late P.Padmanabhan. There is absolutely no official dealings between Sathya Studios (P) Limited and late P.Padmanabhan in this regard. The leave and licence was granted because late P.Padmanabhan was moving closely with late Dr.M.G.Ramachandran and his family. Late P.Padmanabhan during his life time, never claimed any interest in the property and never claimed any leasehold right, because, he knew that it was only permissive occupation by way of leave and license and nothing else. Even after the demise of Dr.M.G.Ramachandran, late P.Padmanabhan admitted the possession of permissive occupation by way of leave and licence and he never made any other false claim. On the demise of Dr.M.G.Ramachandran on 24.12.1987, the leave and licence automatically came to an end. Since late P.Padmanabhan was closely moving with the family of late Dr.M.G.Ramachandran and the defendants, being ladies, wanted some time to remove the cattle and their belongings, the plaintiff gave them sufficient time, but, taking advantage of the goodness and courtesy shown to them, the defendants started claiming that they are running a diary farm under the name and style of 'P.M. Enterprises'. The defendants started misusing the permission given to them. The entry inside the compound wall was only via main gates and can be only with the permission of the plaintiff. If the main gates are closed, the defendants cannot enter the property at all.
(iii) After August 1997, the defendants started misusing the leave and licence. They started dumping cow-dung even outside the area covered by leave and licence, making the entire area nasty. They started dumping the cow-dung and waste water. The dumping of cow-dung also resulted in the breeding of mosquitoes resulting in health hazard.
(iv) In view of the attitude adopted by the defendants, the plaintiff revoked the licence by his letter dated 18.9.1997. The defendants were called upon to remove their things by 30.10.1997 and it was made clear that after 30.10.1997, the defendants will have no right to enter the compound and that they will not be allowed to enter the compound. The defendants sent a reply dated 24.10.1997 through their counsel. In their reply notice, the defendants stated that late P.Padmanabhan was the lessee of the land and that late Dr.M.G.Ramachandran, leased out the land to late P.Padmanabhan, which is absolutely false. The defendants in their reply notice have also stated that late P.Padmanabhan put up structures in the vacant land at his own costs, which is also false. The plaintiff sent a rejoinder dated 4.11.1997 through his lawyer.
(v) Late P.Padmanabhan, during his life time, never whispered that he was a tenant and never claimed tenancy. Even in the will of late Dr.M.G.Ramachandran, there is no reference to any tenancy in favour of late P.Padmanabhan. Even in the telegram dated 15.8.1997 sent by the defendants, the defendants never came forward with a story of lease or tenancy. The defendants filed a suit in O.S.No.7772 of 1997 on the file of XVIII Assistant Judge, City Civil Court, Madras for injunction. Since the defendants failed to vacate and deliver the possession to the plaintiff, the plaintiff filed the suit.
5. The brief case of the defendants are as follows:
(i) According to the defendants, they are in possession and enjoyment of about 90 cents of land as lessees for the past about 30 years. The land in R.S. No.4275/5 is a Government poromboke land. The defendants are in possession and enjoyment of about 50 cents 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 year 1967 and allowed him to put up a block of buildings consisting of three rooms used as office rooms and one residential portion. Late Dr.M.G.Ramachandran also allowed late P.Padmanabhan to construct one go-down, seven cattle sheds and one shed for storing cattle feed. These constructions were put up by late P.Padmanabhan at his own costs. Late P.Padmanabhan purchased the cows with his money and was running a Dairy Farm in the name and style of "Makkal Thilagam Dairy Farm" from 1967 onwards. The averment that late Dr.M.G.Ramachandran gave leave and licence to late P.Padmanabhan is not correct. During the life time of P.Padmanabhan, nobody questioned his leasehold rights.
(iii) It is well known fact that late P.Padmanabhan was running a Dairy Farm in the suit premises from 1967 and after his demise, the defendants are continuing the dairy farm and there are more than 150 cows. The vacant land of 90 cents was leased out by late Dr.M.G.Ramachandran on behalf of Sathya Studio to late P.Padmanabhan for running a dairy farm. The defendants denied that the entire compound has two gates and both the gates are under the exclusive control of the plaintiff and if the main gates are closed, the defendants can not enter the property at all. The Plaintiff leased out some portions in the suit property to different tenants. The plaintiff cannot file a suit to evict the defendants from the occupation of Government Poromboke land. The defendants are in occupation of 50 cents of Government Poromboke land in R.S.No.4275/5 and storing cow-dung in a portion of the said 50 cents of Government land. The defendants are periodically removing the cow-dung and they are not polluting the ground water by dumping cow-dung and waste water. Late Dr.M.G.Ramachandran did not want to get back the land from late P.Padmanabhan. Late P.Padmanabhan and the defendants have been in possession of the suit property as lawful tenants for more than 30 years.
(iv) The plaintiff cannot maintain the suit for mandatory injunction and permanent injunction against the defendants, who are lawful tenants. It is orally agreed between Dr.M.G.Ramachandran and late P.Padmanabhan that instead of paying rent by cash, he should supply sufficient quantity of milk for the purpose of Sathya Studio as and when required. Late P.Padmanabhan was supplying milk to Sathya Studio during his life time and that practice is being continued by the defendants even now. Therefore, there is no arrears of rent till date. Therefore, the defendants prayed for dismissal of the suit.
6. The case of the plaintiff in his reply statement is as follows:
(i) Sathya Studio is in possession of land in R.S.No.4275/5 measuring about 40 grounds as lessee from the Government. The defendants are not in possession of 50 cents of land in R.S.No.4275/5 of Government Poramboke land. Even the Revenue Authorities after physical inspection and survey, found that the defendants are not in possession of Government Poramboke land. Both the main gates are under the control of the plaintiff and no one can enter the compound, if two gates are closed. The defendants are trying to improve their case from time to time because there is no truth in their claim.
(ii) The allegation that Dr.M.G.Ramachandran leased out 90 cents of land to late P.Padmanabhan in the year 1967 and allowed him to put up a block of buildings consisting of three rooms used as office rooms and one residential portion and also allowed late P.Padmanabhan to construct one go-down, seven cattle sheds and one shed for storing catle feed are all false; that there was some oral agreement between late Dr.M.G.Ramachandran and late P.Padmanabhan that instead of payment of cash rent, he should supply sufficient quantity of milk for the purpose of Sathya Studio as and when required is false. There was no such oral agreement. There was no tenancy and there was no rent. Even the letter dated 8.9.1977 from Indian Overseas Bank filed by the defendants in O.S.No.1772 of 1997 speaks of sale of entire milk to hotels, which will disprove the case of the defendants.
7. Before the trial court, the plaintiff was examined as P.W.1 and 20 documents Exs. A1 to A20 were marked. On the side of the defendants, 3 witnesses were examined and 16 documents Exs. B1 to B16 were marked. The court documents were marked as Exs.C1 to C3.
8. The trial court, after taking into consideration the oral and documentary evidences of both the parties decreed the suit as prayed for.
9. Aggrieved over the judgment and decree of the trial court, the defendants filed appeal in A.S.No.21 of 2000 on the file of IV Additional Judge, City Civil Court, Chennai and the lower appellate court after taking into consideration the materials available on record, confirmed the judgment and decree of the trial court and dismissed the appeal.
10. Aggrieved over the judgments and decrees of the courts 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 been filed by the respondent to receive Form No.32 filed with the Registrar of Companies, Madras and the resolution passed by Sathya Studios (P) Limited as additional documents in the above second appeal.
(b) According to the respondent, Form No.32 is the public document available with the Registrar of Companies. Though the appellants did not question the authority of the plaintiff before the courts below, the respondent is producing the same in the second appeal to avoid technical objections. The respondent has also filed the resolution dated 1.11.1997 authorising the plaintiff to file the suit.
(c). According to the appellant, the documents which is now sought to be produced is only a copy of Form No.32 dated 5.7.1991 and the copy of the resolution; that the alleged resolution authorising the plaintiff to file a suit is a creation of the respondent for the purpose of this proceedings and the non-filing of the same either at the time of institution of the suit or at the time of trial has not been properly explained. The resolution now sought to be produced is created for the purpose of this case and the resolution sought to be produced will not cure the defects. Therefore,the respondent cannot be allowed to bring these documents at the belated stage in the second appeal. Therefore, appellants prayed for dismissal of the above miscellaneous petition.
12.(a) C.M.P.No.12791 of 2002 in S.A.No.1062 of 2000 has been filed by the respondent to receive the following documents:
(i)Certified copy of Form No.23 filed with the Registrar of Companies;
(ii)certified copy of Annual Return made upto 30.9.1997 filed with Registrar of Companies;
(iii)certified copy of Annual Return made upto 30.9.1999 filed with 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 additional documents to show that he is continuing as Managing Director of Sathya Studios (P) Limited. Though there was no issue in this regard and the appellants are raising this point before this court, the respondent is filing these documents as additional evidence in order to avoid technical objections.
(c). According to the appellants, mere production of the copy of the Memorandum and Articles of Association will not add credence to his case in any way. These documents will have no relevance and in no way improve the case of the respondent, when the suit itself has been filed in his individual capacity and the mere description of status as executor of the Will of late Dr.M.G.Ramachandran and as the Managing Director of M/s. Sathya Studios (P) Limited will not cure the defects. Therefore, appellants prayed for dismissal of the above miscellaneous petition.
13(a) C.M.P.No.17748 of 2004 in S.A.No.1062 of 2000 has been filed by the respondent to receive the resolution dated 20.11.2002 passed by the Sathya Studios (P) Limited as additional document in the above second appeal.
(b). According to the respondent, a technical objection was raised by saying that the plaintiff should be "Sathya Studios (P) Limited" and not "M.Rajendran, Managing Director of Sathya Studios (P) Limited". It is a curable one in view of Order I Rule 10 (1) of C.P.C. To avoid any technical objection, the Board has also passed resolution dated 20.11.2002 ratifying all the actions taken by M.Rajendran, Managing Director. The respondent is filing the said resolution as additional document.
(c). The appellants did not file any counter in the above civil miscellaneous petition.
14(a). C.M.P.No.6055 of 2002 in S.A.No.1062 of 2000 has been filed by the respondent to amend the short cause title and long cause title in the plaint in O.S.No.7915 of 1997.
(b). According to the respondent, a technical objection is sought to be raised now that the cause title should be "Sathya Studio represented by its Managing Director". To avoid any technical objection, the above civil miscellaneous petition is filed to amend the long and short cause title of the plaint in O.S.NO.7915 of 1997.
(c). According to the appellants, the petition to amend the cause title lacks bonafide and not maintainable. The respondent is trying to introduce a new cause of action under the guise of amending 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 civil miscellaneous petition.
15(a). C.M.P.No.16979 of 2002 in S.A.No.1062 of 2000 has been filed by the respondent to amend the plaint in O.S.No.7915 of 1997 by adding one more paragraph in the plaint and correct the registered addresses of the parties in the plaint.
(b) According to the respondent, the proposed amendment is fully consequential to the prayer sought for in C.M.P.No. 6055 of 2002. The amendment is necessary to meet the technical objections raised by the appellants.
(c). The appellants did not file any counter in the above civil miscellaneous petition.
16. Heard Mr.T.R.Rajagopalan, learned senior counsel appearing for the appellants and Mr.T.V.Ramanujam learned senior counsel 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 court vitiated for non-framing of the points for determination in the appeal as held by this Hon'ble Court in 1996(1) CTC 26 and page 559?
(ii) Is the suit at the instance of Thiru M.Rajendran for mandatory injunction and recovery of possession maintainable when admittedly the property is owned by a private limited company M/s. Sathya studios (P) Limited a company incorporated under the Indian Companies Act 1956?
(iii) Are not decisions of the courts below vitiated for non-consideration of the material evidence which establish all the ingredients of a lease in favour of late Mr.Padmanabhan and are the courts below right in deciding the said issue merely based upon the non-mentioning of the lessees name in the Will of late Dr.M.G.Ramachandran? "
Apart from the above three substantial question of law, learned senior counsel appearing for the appellant also raised the following additional substantial question of law :-
"Are the courts below right in decreeing the suit when there is absolutely no evidence of any licence or permission having been given by M/s.Sathya studios (P) Limited to late Padmanabhan and is not the judgment vitiated on that account?
18. Mr.T.R.Rajagopalan Learned senior counsel appearing for the appellants contended that the judgment of the lower appellate court is vitiated for non-framing of the points for determination in the appeal; that at the instance of the plaintiff, the suit for mandatory injunction and recovery of possession is not maintainable when the properties is owned by a private limited company namely, M/s. Sathya Studios (P) Limited; that there is absolutely no evidence with regard to leave and licence as alleged by the respondent/plaintiff; that the appellants are in possession of the suit property only as a lessees.
19. Learned senior counsel further contended that late Dr.M.G.Ramachandran was holding only shares of M/s.Sathya Studios (P) Limited; that late Dr.M.G.Ramachandran was not the owner of the suit property and that M/s. Sathya Studio (P) Limited is the actual owner of the suit property. Since the respondent had filed the suit in his individual capacity, the suit is not maintainable.
20. Countering the submissions made by the learned senior counsel appearing for the appellants, Mr.T.V.Ramanujam, learned counsel appearing for the respondent submitted that since the lower appellate court has independently considered all the issues, omission to frame points for determination will not render decree of the lower appellate court invalid; that since the appellant/defendant was put in possession of the suit property by late Dr.M.G.Ramachandran as a lessee, the suit for mandatory injunction against the lessee is maintainable and that Sathya Studio (P) Limited has not put the appellants/defendants into possession of the suit property; that there is sufficient evidence to prove that the possession of the appellants/defendants is only as leave and licence; that there is no evidence on the side of the appellants to prove that the suit property was leased out to late P.Padmanabhan by late Dr.M.G.Ramachandran.
21. On a careful consideration of the materials available on record and the submissions made by the learned senior counsel appearing for the appellants and the learned senior counsel appearing for the respondent, it could be seen that the appellants were put in possession of the suit property in the year 1967 by late Dr.M.G.Ramachandran to have some cattle. Though the case of the respondent is that possession of late P.Padmanabhan was by way of leave and licence, the appellants case is that their occupation of the suit property is as a lessee. The contention of the appellants that late Dr.M.G.Ramachandran was not the owner of the suit property and that it is only M/s.Sathya Studio (P) Limited is the owner of the suit property, therefore, the suit filed by the respondent as executor of the will of Dr.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. By a registered will dated 18.01.1987, late Dr.M.G.Ramachandran appointed the respondent as executor of the will and there is also a recital in the said will bequeathing the shares held by alte Dr.M.G.Ramachandran to All India Dravida Munnetra Kazhagam founded by him and that the party shall take possession of the Sathya Studio and all the articles therein and manage the same and utilise the income therefrom for the party work. In the event of split in the party or dissolution of the party, the executor shall take over the shares and management of the Sathya Studio company and utilise the income for meeting the expenses of the trust named as "M.G.Ramachandran Home for Deaf and Dumb".
23. Admittedly, there was a split in the party and the executor namely, the respondent took charge of the management and Sathya Studios (P) Limited. Though the appellants have contended that the respondent has no right to file the suit and it is only Sathya Studio (P) Limited which has got right to file the suit, there is absolutely nothing on record to show that the appellants were put into possession of the suit property by Sathya Studios (P) Limited.
24. Even in Ex.A11 reply notice dated 24.10.1997 sent by the appellants to the respondent, they did not dispute the right of the respondent to issue the notice. Further, they have also admitted that late Dr.M.G.Ramachandran being most generous person allowed late P.Padmanabhan to occupy the portion of Sathya Studio.
25. In the written statement, the appellants had repeatedly said that late Dr.M.G.Ramachandran allowed late P.Padmanabhan to occupy the suit property and no where in the written statement the appellants had stated that late P.Padmanabhan was put into possession of the suit property by Sathya Studios (P) Limited. There is also no averment in the written statement that the suit is not maintainable for the reason that the suit has not been filed by M/s. Sathya Studios (P) Limited. Since there is no pleadings, the said contention cannot be looked into. In fact, the said ground has been raised for the first time before this court. Admittedly, late Dr.M.G.Ramachandran allowed late P.Padmanabhan to occupy the suit property..
26. Since late P.Padmanabhan came into possession of the suit property only through late Dr.M.G.Ramachandran, he cannot now question the right of the respondent, who is the executor 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 to file the suit or not. The appellants cannot question the right of the respondent. The appellants came into possession of the suit property only through late Dr.M.G.Ramachandran and not through M/s.Sathya Studio (P) Limited. Therefore, the suit filed by the respondent is maintainable.
27. The next question that has to be decided is whether the possession of the appellants are as, licensee or lessee. According to the respondent, the possession of the appellants is only by way of leave and licence. According to the appellants, they are in possession of the suit property as lessee. Admittedly, late P.Padmanabhan was working as the Manager of Sathya Studio (P) Limited. It is also admitted fact that the said late P.Padmanabhan was moving closely with late Dr.M.G.Ramachandran and his family. According to the appellants, instead of paying the rent by cash, they supplied milk for the purpose of Sathya Studio as and when required. The appellants though pleaded that the rent was paid by supply of milk, they have not produced any acceptable documentary evidence to prove the said contention. Even D.W.2, who was also closely moving with late Dr.M.G.Ramachandran deposed that late P.Padmanabhan used to supply milk at the time of party general body meeting. He did not say that the appellants supplied milk instead of paying the rent. D.W.3, who is also closely associated with late Dr.M.G.Ramachandran, though deposed that late Dr.M.G.Ramachandran allowed late P.Padmanabhan to occupy the suit property and that instead of paying the rent by cash asked him to supply milk, he went to the extent of saying late Dr.M.G.Ramachandran had asked late P.Padmanabhan to keep the property for him. There is nothing on record to corroborate the evidence of D.W.2 and D.W.3. Further, there is no documentary evidence to prove the same. Even during the lifetime of late P.Padmanabhan, he did not claim any leasehold right over the suit property.
28. Since the appellants failed to prove that they supplied milk instead of paying the rent, the contention that they are lessees of the suit properties, cannot be accepted. The entry inside the compound can only be through the main gates and only with the permission of the respondent. If the main gates are closed, the appellants cannot enter the property at all.
29. Mr.T.R.Rajagopalan, learned senior counsel appearing for the appellants, in support of his contention relied on the following judgments:
(i) 2004(3) SCC 595 (C.M.Beena and another v. P.N.Ramachandra Rao) "Generally speaking, the difference between a "lease" 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 the 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 results 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 particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful."
(ii) 1988(1) SCC 155 (Khalil Ahmed Bashir Ahmed v. Tufelhssein Samasbhai) "In order to determine whether a document created licence or a lease the real test is to ascertain the intention of the parties i.e. Whether they intended to create a licence or a lease. If the document creates an interest in the property entitling the transferee to enjoyment, then it is a lease; but if it only permits another to make se of the property without exclusive possession, then it is a licence. Substance of the document must be preferred to form."
30. Mr.T.V.Ramunujam, learned senior counsel appearing for the respondent in support of his contention relied on the following judgments:
(i) AIR 1965 SC 610 (M.N.Clubwala and another v. Fida Hussain Saheb and others) "Although a licence is revocable at the will of the grantor the provision in the license that the licensee wold be entitled to a notice before being required to vacate is not consistent with a license. The mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease."
(ii) AIR 1974 SC 396 ( Qudrat Ullah v. Municipal Board, Bareilly) "Whether a deed is a lease or a licence depends on the intention of the parties. If an interest in immovable property entitling the transferor to enjoyment is created it is a lease, if permission to use land without right to exclusive possession is alone granted it is a license."
(iii) 1999 (III) CTC 454 (ICICI v. State of Maharashtra and others.) "7. Our attention has been drawn to a decision of this court in Associated Hotels of India v. R.N. Kapoor, 1960 (1) SCR 368 at page 383 where this court has made a distinction between a lease and a license. Referring to
section 105 of the Transfer of property Act, this court has observed that it defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. A lease is, therefore, a transfer of an interest in land and the interest transferred is called the leasehold interest. I follows that the lessee gets the right to the exclusion of the lessor. Whereas Section 52of the Indian Easement Act, defies license thus:
"52.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 the 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."
8. Therefore, is a document gives only a right to use the property in a particular way or under certain terms, while it remains in possession and control of the owner thereof, it will be a license. In the in possession only for the purpose of constructing a building or buildings. Under this document, no interest in the land is conveyed in favour of the appellants. The agreement does not create a lease, nor does it demise any interest in land in favour of the appellants. In this connection a reference may also be made to subsequent decision of this court in State of Maharashtra v. Attr India (P) Ltd, JT 1994(10 SC 640 where this court has made a distinction between a a lease and an agreement for lease.
31. Therefore, applying the principles laid down in the above referred judgments, the test to determine whether the occupation is lease or licence, the real intention of the parties and the surrounding circumstances have to be taken into consideration.
32. Though the appellants contended that he supplied milk instead of paying the rent for the suit properties, as already found, there is nothing on record or evidence to prove the same. The appellants/defendants also contended that they put up structures in the suit properties. The appellants also filed a petition under section 9 of the City Tenancy Protection Act before the trial court and the trial court after taking into consideration the merits in the said application dismissed the same holding that there was no evidence to show that the appellants/defendants are lessees in respect of the suit properties.
33. The courts below taking into consideration the orders passed in the said application held that the appellants are only a licensee and not a lessee. The order passed in the application filed under section 9 of the City Tenancy Protection Act became final and the findings rendered in the said application is binding on the appellants. By Ex.A10 notice dated 18.9.1997, the respondent/plaintiff revoked the leave and licence granted to the appellants and called upon them to remove the cattle and other things on or before 30.10.1997. By Ex.A11 reply dated 24.10.1997, the appellants for the first time contended that they are not licensees and that they are tenants in respect of the suit properties. The courts below have rightly came to the conclusion that the possession of the appellants is only by way of leave and licence. Since it is found that the possession of the appellants/defendants is only by way of leave and licence, the respondent/plaintiff can maintain the suit for mandatory injunction. In support of the said contention, Mr.T.V.Ramanujam, learned senior counsel appearing for the respondent relied 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 that the appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of sits and the licensor should not be driven to file another round of sit with all the attendant delay, trouble and expense. The sit is in effect one for possession though couched in the form of a sit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
8.The respondent was a licensee, and he must be deemed to be always a licensee, it is not open to him, during the subsistence of the license or in the suit for recovery of possession of the properly instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the properly as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has, acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case there wold be clear merger. The respondent has not surrendered possession of the property tot the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the 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 a room of the plaintiff the possession and ownership of that room expressly asserted to be with the plaintiff and after terminating that agreement duly by a notice the plaintiff promptly seeks inter alia mandatory and prohibitory injunctions against the defendant, in view of the plaintiff's promptitude as also the defence that the agreement was a lease, it is clear the injunction can be properly issued and it is not necessary to drive the plaintiff to file a suit for possession."
34. Therefore, it is clear that the licensee has no interest in the property and his possession for enjoyment of his right 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 appearing for the appellants contended that the lower appellate court failed to frame the points for consideration in the appeal and therefore, the judgment and decree of the lower appellate court has to be set aside. In support of his contention learned senior counsel relied on the following judgments:
(i) 1997(1) CTC 559 (M.Kadar Hussain v. R.Selvaraj) "In the above judgment, Division Bench of this court held that the provisions of Order 41 Rule 31 C.P.C. is mandatory - to follow the mandatory provisions would render judgment defective."
(ii) 1997(1) LW 704 (Palanisami Pillai v. The Commissioner, Hindu Religious & Charitable Endowments) "Duty of appellate court hearing an appeal to raise and set out the points for determination, and to state the reasons for the decision and focus attention of the court and the parties on the specific and rival contentions arising for determination - Failure to do so Powers of the Bench in Letters Patent Appeal to consider the whole case on evidence and render decision."
(iii) 2003(3) MLJ 501 (Chinnammal v. M.Ramasamy Naicker and another) "This court may hasten to state that the judgment under challenge is defective in that, the learned Subordinate Judge has no followed the above provision under O.41, Rule 31 C.P.C. The first appellate court has not raised the points for determination as required under the aforestated mandatory provisions and not focussed its attention on the specific and rival contentions which arose for decision. That due to non-compliance of the mandatory provision, the judgment and decree of the First appellate Court has got to be set aside and remitted back to the First Appellate Court with a direction to follow strictly the provisions under O.41, Rule 31, C.P.C."
36. Countering the submission made by the learned senior counsel appearing for the appellants, learned senior counsel appearing for the respondent submitted that even though no points have been framed by the lower appellate court, there is substantial compliance with the requirement of Order 41 Rule 31 C.P.C by lower appellant court. In support of his contention, learned senior counsel 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 for recovery of possession and claim for arrears of rent Trial court decreed suit in favour of plaintiff and lower appellate court independently considered evidence and rendered 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 31 is sufficient and when lower appellate court has independently considered all issues, omission to frame points for determination will not render decree of lower appellate court invalid."
(ii) 2006(3) SCC 224 (G.Amalorpavam and others v. R.C. Diocese of Madurai and others) "9.The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported ;by reasons even though the points has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is found with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by section 100 CPC."
37. Therefore, applying the principles laid down in the above judgments, in the case on hand, the lower appellate court though did not frame points for consideration, the appellate court has considered the entire evidence on record and discussed the same in details and its findings are supported by reasons and there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of points for determination. Where there is an honest endeavour on the part of the lower appellate court to consider the dispute between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court. Therefore, the judgment of the lower appellate court is a valid judgment even though it does not contain points for determination.
38. Since it is held that the suit filed by the respondent/plaintiff is maintainable and the respondent as the executor of the will of late Dr.M.G.Ramachandran has got authority to file the suit, the civil miscellaneous petitions filed by the respondents/plaintiffs are not necessary for deciding the issues between the parties. Therefore, C.M.P.Nos. 4737, 12791, 6055, 16979 of 2002 and 17748 of 2004 are dismissed.
39. Therefore, I find no ground much less substantial question of law to interfere with the concurrent findings of the courts below. The second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. However, there will be no order as to costs. 24.08.2009 Index : Yes / No Internet : Yes / No rj To 1.The IV Additional City Civil Judge, Chennai. 2.XVIII Assistant City Civil Judge, Chennai. M.DURAISWAMY, J. rj Order in S.A. No.1062 of 2000 24.08.2009