Judgment :- 1. This appeal raises a question of interpretation of a document, Ext.A1. The appellant would contend that Ext.A-1 creates a lease. The respondent contends that it creates only a licence. The suit for recovery of property was resisted by the defendant contending that Ext.Al creates a lease and even if it is assumed to be a commercial lease, since the defendant has made certain constructions in the premises, be it entitled to claim the benefit of S.106 of the Kerala Lard Reforms Act. The trial court, after considering the evidence adduced in the case and after analysing the various terms of Ext.A-1, found that the defendant's case of lease is unsustainable. The trial court found that Ext.A-1 evidences a licence and to, the plaintiff is entitled to a decree. The defendant filed an appeal. The appellate court confirmed the judgment and decree of the trial court. New the defendant appeals. 2. Though affirmation by the first appellate court, of a crucial fact found by the trial court insulates the verdict with no inerrability, but since absolute objective certainty is impossible in the decision process in this imperfect world, there is plain and perfect justification en practical reasons to unopen the pylon when the first two judges concur in the factual conclusion at separate levels, particularly in the wake of the guillotine rule of prohibition of overseeing by this court in second appeal, the conclusions on facts by the appellate court made more stringent by the amendment to S.100 of the Code of Civil Procedure. Court's prime concern is to avoid miscarriage and failure of justice. Miscarriage and failure of justice may lake different forms; a re-evaluation of the evidence or a re-appreciation of the evidence at the third tier of the litigation and a finding of fact different from that of the courts below in second appeal, may constitute a plain injustice in law to one of the parties. 3. The question whether a document evidences a lease or a licence is essentially a question of intention. The courts have to gather the intention firstly from the recitals in the document. Of course, the recitals in the document have to be understood in the setting and circumstances under which the document has been executed. 3. The question whether a document evidences a lease or a licence is essentially a question of intention. The courts have to gather the intention firstly from the recitals in the document. Of course, the recitals in the document have to be understood in the setting and circumstances under which the document has been executed. When a question comes up before the court whether a document is a lease or a licence, naturally, the court is bound to keep in mind the cardinal distinction between a lease and a licence. The distinction is that in a lease, there is a transfer of an interest in the immovable property to enjoy it, whereas in a licence, there is no transfer of interest in the immovable property at all. The primary and important character of the lessee's right in his right to possession and enjoyment of the demised land to the exclusion of the lessor. It is always better to remember that the right of exclusive possession was at one time considered as the sigil and signet to rule out a licence. But, modern view as seen taken from the decisions show a different trend and say that exclusive possession is not conclusive though it may be an important circumstance to hold that the transaction is a lease. This is so, because, exclusive possession of the property is not be considered inconsistent with the occupier being a licensee and not a tenant. In Errington v. Errington ((1952) 1 All ER.149) Denning L. J. pointed out: "The difference between a tenancy and a licence is, therefore, that in a tenancy an interest passes in the land, whereas in a licence it does not. In distinguishing between them, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession or not. If he was let into exclusive possession, he was said to be a tenant, albeit only a tenant at will: see Doed Tomes v. Chamberlaine (1839) 5 M & W 14. Lynes v. Snaith (1899) I Q.B. 486; where if be bad not exclusive possession be was only a licensee The result of all these cases is that, although a person who is let into exclusive possession is prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, be will be held only to be a licensee." So, in a case where circumstances negative an intention to create tenancy, but the occupier has got exclusive possession of the property, nevertheless, the transaction can be considered not as a lease, but only at a licecce. Now, I may refer to the classic definition of licence by Vaughan C.J in Thomas v. Sorrell (124 E.R. 1098 at 1109): "A dispensation or licence properly passeth no interest, nor alters or transfers properly In anything, but only makes an action lawful, which without it had been unlawful." The Supreme Court in Qudrat Ullah v. Bareilly Municipality (AIR 1974 SC 396) observed that: "There Is no simple litmus test to distinguish a lease as defined in S.105, Transfer of Property Act from a license as defined in S.52 Easements Act, but the character of the transaction turns on the operative Intent of the parties. To put is pithily, if an interest in immovable property, entitling the transferors (sic) to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a license is the legal result." Of course, there will be unclear recitals in the document and the court would be put to the difficulty of investigating the true operative intent of the parties. Krishna Iyer J. has quoted Halsbury's Laws of England, Volume 23, with the remark that it gives "the distinctive flavour, the deceptive labels and the crucial considerations in a lease versus license situation." He has quoted pages 427, 428 and 429 of the Halsbury's Laws of England, Vol. 23. Krishna Iyer J. has quoted Halsbury's Laws of England, Volume 23, with the remark that it gives "the distinctive flavour, the deceptive labels and the crucial considerations in a lease versus license situation." He has quoted pages 427, 428 and 429 of the Halsbury's Laws of England, Vol. 23. I shall quote Para.1023 and 1024: "The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but It is a consideration of the first importance." "A grant which confers the right to exclusive possession may operate as a licence In the following circumstances which negative the intention to create a lease." Decisions are legion on the subject and both the appellant's and the respondent's counsel cited several decisions before me. 4. In considering a question of lease v. licence, I have said in Narayana Moopan v. Sureshan (1985 KLT SN 22) thus; "Precedent is the life-blood of legal system, so it is said, and we lake this to convey the commonsense idea that similar cases are decided similarly. The final, type of reason offered in favour of a rigid doctrine of stare decisis is that it offers to litigants some measure of certainty about the likely outcome of a case and that certainly in the law is what is most fair and just. I should also remember that aphorism that in the decision process the courts are dominantly coerced not by the essays of their predecessors but by a surer thing by an intuition of fitness of solution to problem. General propositions do not decide concrete cases and 'the life of the law has not been logic; It has been experience'. Certainly I am bound to follow the precedents of the Supreme Court and the decisions of this Court on the subject. I should not speculate upon improvements is those precedents. A just solution for the particular case is the crucial factor in the decision process. I try to remember that equitable rule of decision that considerations of justice are directly relevant to the justification of any decision." 5. When the question of lease was raised, the matter was referred to the concerned Land Tribunal. The Tribunal held that the relationship between the parties is that of a licensee and licensor and that Ext. Al evidences only a licence and not a tenancy. When the question of lease was raised, the matter was referred to the concerned Land Tribunal. The Tribunal held that the relationship between the parties is that of a licensee and licensor and that Ext. Al evidences only a licence and not a tenancy. The appellate court has considered the question in the light of the evidence and the significant recitals in the document, Ext A-1. The appellate court recorded a clear finding that ext.Al evidences a licence and not a lease. What the appellate court was investigating for the purpose of resolving the controversy was to find an answer to the question whether or not the parties to the document intend to create as between themselves the relationship of landlord and tenant under which an estate is created in the tenant, and certain mutual obligations arise by implication of law. The defendant relied on certain crucial recitals in the document particularly the recital that the defendant was not entitled to transfer the plot mentioned in Ext Al to anyone else. It was said that this recital implies that the defendant had acquired some sort of interest in the property in question. 6. The appellant has also relied on a decision reported in Kuchunni v. Kuriakose (1981 K.L.T. 338) which has taken note of such a recital and said that such a recital is mere consistent with the creation of a lease rather than a licence. But, here, it is not a case where the appellate court has missed to consider this recital and that too is the light of the observations made by this Court in 1981 K.L.T.338. But, the appellate court thought that the document has to be considered as a whole, and other significant recitals and other circumstances also have to be considered to see whether other recitals will offset the influence of the said recital. 7. In this context, I may again refer to the observations of Lord Denning in Cubb v. Lane ((1952) 1 All E. R.1199,1202): "the question in all these cases is one of intention: Did the circumstances and conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land." The appellate court found that the defendant had no exclusive possession over the suit property. This the appellate court did on considering the evidence in the case, particularly in regard to the fact that the plaintiff was taking the yield of one coconut tree in the suit property and also the fact that the plaintiff bad occasion, after the execution of Ext. Al, to cut and remove another coconut tree. The appellate court said: "However on going through the deposition of D. W.1 I am not inclined to believe that it was he or his agent who used to take usufructs from that coconut tree. The other coconut tree that stood in the plaint schedule property was cut and removed by the plaintiff himself. This fact would lend support to the plaintiff's case that be has been in possession and enjoyment of the trees standing in the plaint schedule property." This would further indicate that exclusive possession was not banded over to the defendant under Ext. A1. I do not want to re-appreciate the circumstances and other evidence is the case since my power is only to examine whether the courts below have gone wrong on a substantial question of law. I have to say that if the courts below have not gone wrong in interpreting the document, Ext. Al, as a licence, I have no power to interfere with the findings recorded by the courts below, in second appeal. I have to remember the oft-quoted caution of the Supreme Court in disposing of the second appeals under S.100, C.P.C. In Sinha Ramanuja v. Ranga Ramanuja (AIR 1961 SC 1720), the Supreme Court has said: "It has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross the error may seem to be. The judgment of the learned judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge." 8. The counsel for the appellant submitted that since the appellant has made some structures of a permanent character, even if Ext. A1 is considered to be a licence, it is an irrevocable licence. I have to examine this question also. This question has to be considered on the basis that Ext. The counsel for the appellant submitted that since the appellant has made some structures of a permanent character, even if Ext. A1 is considered to be a licence, it is an irrevocable licence. I have to examine this question also. This question has to be considered on the basis that Ext. Al is a document evidencing a licence and if the document says that it should be a revocable licence, in the sense that even if the licence is permitted to execute a work of a permanent character he has to vacate the premises after demolishing the same, can the licensee claim irrevocability under S.60 of the Easements Act. The counsel for the appellant submits that S.60 of the Easements Act has not hedged in a clause like 'notwithstanding a contract' and the respondent cannot rely on the clause in Ext. A1 which would indicate a plain and clear revocability of the licence. The counsel for the appellant submits that as and when the requirements of S.60(b) are satisfied, the section comes into operation even if there is a contract which says that the licence is revocable under circumstances which would satisfy the requirements under S.60(b) of the Easements Act. 9. In Ganga Sahai v. Badrul Islam (A.I.R. 1942 All. 330), considering S.60 of the Easements Act, the court observed: "A condition in the licence that the landlord would have the right to got the site vacated whenever be so chose by the licensee deprives the licensee of the benefit of S.60". Farther, it is said: "A contract to the contrary disentitles the licensee from deriving advantage conferred by S.60. There is nothing to preclude a party from binding himself to surrender land, although there may be a construction of a permanent character standing thereon." In CHotey Lal v. Durga Bai (AIR 1950 All. 661) the court observed: "Where a licensee executes a work of a permanent character under a clear understanding that be or his heirs may be called upon after certain time to leave the land, it is not open to him to plead such work as a bar against his eviction on a suit brought by the plaintiff in pursuance of the solemn undertaking given by him," 10. In Est. In Est. Al, there is a clear provision that at the time of surrender of possession, the defendant should dismantle the structures put up by him is the land in question and even in the written statement, the defendant's case appears to be that in case of termination of tenancy at the instance of either party, he would only be entitled to value of improvements in respect of the permanent structures put up by him. There is a clear contract which would disentitle the appellant from claiming the benefit under S.60 of the Easements Act. I see no merit in this point. In the result, the appeal is only to be dismissed and I do so. There will be no order as to costs.