Minerva Talkies and Others vs Pinapala Sujan Babu and Others

R. Subhash Reddy, J.—This civil revision petition is filed by the defendants in the suit in O.S. No. 9 of 1999 on the file of the I Additional District Judge, at Machilipatnam, aggrieved by the order dated 22-9-2004.

The first respondent herein filed the above said suit, for recovery of money on account of damages, on the ground that he was evicted from the suit schedule premises, which is a theatre, before expiry of lease. In lieu of his evidence, while filing an affidavit under Order 18 Rule 4 of the Code of Civil Procedure, the document dated 10-2-1994 was sought to be marked on his behalf. The petitioners herein raised objection for making such document, on the ground, that it is a lease deed and in absence of proper stamp duty and registration, the same is not admissible in evidence. It was the case of the respondent-plaintiff that it is only a licence and not a lease, and no interest in the immovable property is transferred; as such, the same is admissible document without any stamp duty and registration. On the above said objection, the Court below has passed the impugned order on admissibility of the document, which is described as Document No. 2, overruling the objections of the petitioners herein. The Court below has held that, the document dated 10-2-1994 is a licence, but not a lease, as much as no interest in the immovable property is transferred. In the impugned order, it if further held, that by document dated 10-2-1994, merely permission is granted to use the cinema theatre to exhibit the films without exclusive possession.

In this revision petition, a copy of the said document is also filed. I have perused the same. It is submitted by Sri P.R. Prasad, the learned Counsel appearing for the petitioners that the Court below erred in holding that the agreement dated 10-2-1994 is only a licence, but not a lease deed. It is the submission of the learned Counsel that as much as there is transfer of interest in the immovable property, which empowers the respondent herein to collect the income of the theatre on account of canteen, pan-shop, cycle stand etc.; as such, it is only a lease deed, but not a licence. It is further submitted that as described by the boundaries, the entire theatre is given to the respondent; in that view of the matter, the Court below is not correct in overruling the objections raised by the petitioners herein for marking the said document. The learned Counsel placed reliance on the judgment in the case of B.M. Lal v. Dunlop Rubber Company (India) Limited, AIR 1968 SC 175, wherein the Apex Court held that a lease is the transfer of right to enjoy the premises; whereas a licence is a privilege to do something on the premises, which otherwise would be unlawful. Further, reliance is placed on the judgment in the case of Qudrat Ullah Vs. Municipal Board, Bareilly, , wherein the Apex Court has held that whether a deed is a lease or a licence depends on the intention of the parties. It is further held that if an interest in the immovable property entitling the transfer to enjoyment is created, it is a lease, if permission to use land without right to exclusive possession is alone granted, it is a licence.

On the other hand, it is submitted by Sri S. Ramachandra Prasad, the learned Counsel appearing for the respondent that by virtue of agreement dated 10-2-1994, the respondent-plaintiff is only permitted to exhibit films and no interest is created in the property; as such it is rightly held by the Court below that the document dated 10-2-1994 is a licence, but not a lease. Reliance is placed by the learned Counsel on the judgment of the Madras High Court in the case of M. Elangovan Vs. Commissioner, Kodaikanal Municipality, Kodaikanal, Dindigul Anna District and Another, , wherein, the Division Bench of Madras High Court while interpreting the provisions of Transfer of Property Act in a case where right to exhibit cinema programmes as per Tamil Nadu Cinemas Regulation Act is considered, held that no right or interest is created in transferee merely because he uses cinema theatre for exhibiting films. Further reliance is placed on the judgment in the case of Khalil Ahmed Bashir Ahmed Vs. Tufelhussein Samasbhai Sarangpurwala, , wherein the Apex Court while interpreting Section 105 of the Transfer of Property Act, has held that if an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use land* without exclusive possession was alone granted, a licence was the legal result.

From the above said submissions, it is uniformly held, if the exclusive possession, to which a person was entitled to under agreement with a landlord was coupled with an interest in the property, the agreement would be construed as a lease, but not as a licence. If no exclusive possession is given and if there is no transfer of interest, the same shall be construed as a licence. There is no simple litmus test to distinguish a lease as defined in Section 105 of the Transfer of Property Act from licence as defined in Section 52 of the Easements Act, but the character of the transaction turns on the operative intent of the parties. In that view of the matter, it all depends on the recitals in the document, irrespective of title of the document. In the instant case, the document dated 10-2-1994, though it is termed as lease deed, a composite reading of the document reveals intention of the parties that there is no transfer of exclusive possession and interest in the property. The party described as ''first party'' is not even the owner of the property. There is clear recital to the effect that the owner of the land is one Puranam Subrahmanyasitam, from whom, the ''first party'' has taken the property on lease and constructed cinema theatre, and, as per agreement dated 10-2-1994, the ''second party'' is permitted to run cinema theatre on payment of certain amount as fixed in the said document. Though there is recital to the effect that the ''second party'' is empowered to collect the amounts from the canteen, pan-shop, cycle stand etc., but, by itself, it cannot be construed independently to decide the operative intent of the parties. To collect operative intent of the parties, the document as a whole shall be taken into consideration to arrive at conclusion whether any interest in the immovable property is transferred in favour of the ''second party''. A composite reading of the document makes it very clear that no exclusive possession is transferred in favour of the ''second party'' and there is also no transfer of interest in the property so as to determine the said document as a lease, but not a licence. The effect of the document allows the ''second party'' to run the theatre and there is no transfer of exclusive possession and interest in the property in favour of the ''second party'' so as to construe the said document as lease. In that view of the matter, the Court below has correctly recorded its finding, overruling the objections of the petitioners herein, for making the said document by the impugned order dated 22-9-2004. For the foregoing reasons, I do not find any merit in this revision, which warrants interference with the order dated 22-9-2004.

The civil revision petition is devoid of merits and the same is accordingly dismissed. No order as to costs.