Judgment :- The Judgment was delivered by : The plaintiff who had succeeded before the trial Court and lost before the first appellate Court is the appellant in this second appeal. 2. The issue that arises for consideration is whether the second defendant is a lessee of the suit coconut thope or a mere licensee? The trial court held that the second defendant is only a licensee and not a lessee, while the first appellate court had taken the view that the second defendant is a lessee and not a mere licensee to collect the usufructs. 3. At the time of admission, the following two questions of law were framed for consideration by this Court :- (i) Whether the lower appellate Court is right in law in holding that the respondent is a lessee of the coconut thope and not a licensee to collect the usufructs therefrom and while doing so, whether the lower appellate Court has omitted to take note of the principles laid down by this Court? (ii) Whether there has been misconstruction of and omission to construe the material evidence on record when the lower appellate Court chose to reverse the judgment and decree of the first Court? 4. Heard Mr. T. R. Mani, learned senior counsel appearing for the appellant and Mr. D. Rajagopal, learned counsel appearing for the contesting respondent. 5. The suit land with respect to which the present suit for recovery of possession has been filed is comprised in R. S. No. 59/1A admeasuring 53 cents and 15 cents in R. S. No. 59/1C, in all admeasuring 68 cents. Concedingly in an extent of 68 cents there are 100 standing coconut trees. By all standards even in an acre of land it is not possible to plant 60 coconut trees. But in the present case there are 100 coconut trees in an extent of 68 cents. There is no dispute about the number of standing coconut trees standing in the suit property. When there are 100 standing coconut trees in an extent of 68 cents which means there is no inter-space at all for raising any other crop on the land, adverse inference has been drawn against the plaintiff for non production of a lease deed on the assumption that there was a written lease deed. 6. When there are 100 standing coconut trees in an extent of 68 cents which means there is no inter-space at all for raising any other crop on the land, adverse inference has been drawn against the plaintiff for non production of a lease deed on the assumption that there was a written lease deed. 6. It is not the case of the contesting defendant that there was a written lease deed, nor a written lease deed was concluded between the parties in respect of the suit land, in respect of other lands there were lease chits between the plaintiff's brothers and the defendants and in respect of the present coconut thope it is not even the case of D. Ws. 1 and 2 that there was a written lease deed. The adverse inference drawn for non production of a non existing lease chit by the first appellate court is too wide and such a view cannot be sustained. The trial Court had considered this aspect of the matter and rightly held that it is only a licence and not a lease. The licence is to pluck coconuts from the trees and remove the same. 7. It is true that for a number of years the plaintiff had granted the privilege or licence on the second defendant. But on that score it cannot be said that the licence had enlarged itself to that of a lease. When the defendant pleads that the defendant is a lessee of the land or a cultivating tenant as defined in Sec. 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act, it is for the defendant to prove that the suit property was leased out to him. The plaintiff on a wrong assumption had approached the authority constituted under the Tamil Nadu Cultivating Tenants Protection Act, but realising the misconception had withdrawn the application. Mere filing of such an application will not alter the character of the second defendant as a lessee of the coconut thope. The entire property wherein 100 coconut trees standing being a coconut thope and there being no space for cultivation of any other crop in the inter-space, it is too much on the part of the first appellate Court to assume that what had been leased out is a lease of the land. 8. The entire property wherein 100 coconut trees standing being a coconut thope and there being no space for cultivation of any other crop in the inter-space, it is too much on the part of the first appellate Court to assume that what had been leased out is a lease of the land. 8. It is to be pointed out that it is not the contention of the second defendant that he had planted the coconut trees, watered the same or reared the same or he had been plucking the usufructs. It is the definite admission on the part of the second defendant that 100 coconut trees have been leased out. It is a misnomer to call that as lease of coconut trees or to call the said transaction as a lease of the said coconut thope. But it is only a licence to collect the usufructs. But merely because for number of years the second defendant had been collecting the usufructs from the coconut trees, the character of transaction will not change from that of a licence to the lease. 9. A Division Bench of this Court in an identical case had considered the entire case law and held that right to collect usufructs from the coconut thope is not a lease, but it is only a licence and the person who had been conferred with such a right or privilege is only a licensee and not a cultivating tenant. There is no quarrel with respect to the proposition of law laid down and both the counsel agree with the said proposition of law. 10. This Court on a consideration of the entire pleadings and the oral evidence as found by the trial Court is of the considered view that the second defendant has only a right to collect the usufructs from coconut thope and he is neither a cultivating tenant nor he is a lessee of the land nor any right had been conferred on the soil, nor any interest has been conferred on the land. The transaction is only a licence to collect the usufructs. The first appellate Court had misconstrued and misread the entire transaction and proceeded as if it is a lease and not a licence. This is a legal misconception and this misdirection on the part of the first appellate Court had resulted in interference by the first appellate Court, which interference cannot be sustained. The first appellate Court had misconstrued and misread the entire transaction and proceeded as if it is a lease and not a licence. This is a legal misconception and this misdirection on the part of the first appellate Court had resulted in interference by the first appellate Court, which interference cannot be sustained. 11. If the defendant had been raising any other crop, during any earlier years, he would have produced the adangal extract to show that he had been raising other crops on the inter-space. The defendant had not produced any document to show that he has been raising any other crop on the suit land. It is also not possible to raise any crop, it is true that as seen from the Advocate Commissioner's report there are plantain trees or saplings. But they have all been raised after disputes arose between the parties and pending the suit. At any rate the same will not change the character of the second defendant from that of a licensee and the second defendant cannot claim that he is a lessee of the suit land. 12. As regards the first question of law, the first appellate Court has misdirected itself in assuming that the second defendant is a lessee of the coconut thope and not a licensee. This conclusion of the first appellate Court is based on mere assumption and it cannot be sustained. The consistent view of this Court is that the right conferred to collect usufructs from a coconut thope is only a licence and not a lease. As already pointed out no interest has been created in the land in favour of the contesting defendant and therefore he cannot claim that he is a lessee of the suit land. 13. It is also not the case of the defendants that the second defendant had planted the coconut trees, reared the same and he had been collecting the usufructs. It is admitted that the plaintiff and his predecessors are the owners of the land as well as the standing coconut trees and that the second defendant had been allowed to collect the usufructs from the coconut trees. Merely because the second defendant had been collecting the usufructs for a number of years the second defendant cannot equate himself to that of a tenant or a lessee of the land, nor he could claim any interest in the suit land. Merely because the second defendant had been collecting the usufructs for a number of years the second defendant cannot equate himself to that of a tenant or a lessee of the land, nor he could claim any interest in the suit land. The contrary view taken by the first appellate court cannot be sustained. 14. In the circumstances, the first question of law has to be answered in favour of the appellant and the view taken by the first appellate Court cannot be sustained. This Court is of the considered view that the second defendant is only a licensee who had been collecting usufructs and he is not a cultivating tenant as defined under Section 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act and he cannot resist the suit for recovery of possession as the second defendant has got the privilege only as a licensee to collect the usufructus, which has been validly terminated. 15. As regards the second question of law also this Court has to answer the same in favour of the appellant. The first appellate Court had failed to advert the material portion of the evidence and has also misconstrued the transaction by assuming that the second defendant is a lessee. This has resulted in miscarriage of justice. Hence the second question of law is also answered in favour of the appellant. 16. In the result, the second appeal is allowed. The judgment and decree of the first appellate Court are set aside and that of the trial Court are restored. The parties shall bear their respective costs. Appeal allowed.