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2007 DIGILAW 746 (KER)

Johnson Kanadan v. Patel Saw Mill

2007-11-02

K.BALAKRISHNAN NAIR, T.R.RAMACHANDRAN NAIR

body2007
ORDER T.R. Ramachandran Nair, J. 1. This revision petition is filed at the instance of the landlord. The proceedings arose under the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short the Act). Eviction is sought under Sections 11(2), 11(3) and 11(4)(iii) of the Act of a building along with the appurtenant land having an extent of 16 ½ cents. 2. Both the courts found that the lease is not in respect of the building and actually it is in respect of the land with the building therein. In the light of the same, it was held that the eviction petition is not maintainable. As regards the grounds set up by the landlord for seeking eviction, the Rent Control Court found that the landlord did not press the ground under Section 11(2)b) and that the ground under Section 11(3) of the Act has not been established, but he has been successful in establishing the ground under Section 11(4)(iii) of the Act (that the tenant has obtained other buildings in the locality). 3. The appellate court found that the landlord is entitled to evict the tenant on the grounds envisaged under Sections 11(3) and 11(4)(iii) of the Act. In view of the finding that the petitioner is not maintainable, the dismissal of the eviction petition was upheld by the appellate authority also. It may also be noticed that initially the rent control court dismissed the petition as not maintainable, as the tenancy was found not in respect of the building. This was set aside by the appellate authority and the matter was remanded for fresh consideration. The present orders have been passed after remand. 4. The short facts leading to the eviction petition are the following: The building and the land in question belonged to the petitioners deceased father. According to the petitioner, the building was let out to M/s. Patel Saw Mills, a partnership firm to provide residential accommodation to those partner who were in charge of conducting Patel Saw Mill. The total extent of the land is 56 cents. The father had executed a settlement deed in favour of the petitioner reserving life interest to collect rent for himself till his death and thereafter to his wife who is the mother of the petitioner, till her death. This settlement deed was executed subject to the above right of the partners. The total extent of the land is 56 cents. The father had executed a settlement deed in favour of the petitioner reserving life interest to collect rent for himself till his death and thereafter to his wife who is the mother of the petitioner, till her death. This settlement deed was executed subject to the above right of the partners. The father died in December 1985 and the mother died in September 1998. It is also averred in the eviction petition that the father had informed the managing partner that he had settled the petition schedule building in favour of the petitioner, that he had allotted different portions of the compound in which the saw mill was functioning, in favour of other sons. It is specifically pleaded in the eviction petition that the rental arrangement in respect of the petition schedule building is confined to the building alone and the land appurtenant to the building has nothing to do with the conduct of the saw mill. As regards the arrears of rent, the plea was that the rent was in arrears at the rate of Rs.500/- per month from 29.5.1999. It was also averred that the tenants had acquired properties for the purpose of conduct of the saw mill. 5. The above contentions of the landlord were opposed by the tenants. They mainly contended that the tenancy arrangement is not in respect of the building, that the lease was in respect of 56 cents of land with a residential building therein. The original lease deed was executed on 25.2.1956 between the petitioners father and the first respondent, which was being renewed from time to time. They contended that after the death of the petitioners father, the petitioners elder brother Shri Tom Joseph was managing the properties. No rental arrangement was made or agreement was executed with respect to the petition schedule building and there was no apportionment of the rent also. It is their case that the entire property even now lies as one block and the rent that is being paid and received is with respect to the whole property. The 16½ cents of land mentioned as appurtenant land in the petition schedule is also part and parcel of the entire property used by the tenants for their business. They also denied acquisition of property or buildings for their business. The 16½ cents of land mentioned as appurtenant land in the petition schedule is also part and parcel of the entire property used by the tenants for their business. They also denied acquisition of property or buildings for their business. Exts.A1 to A12 were originally marked and P.Ws.1 to 3 were examined on the side of the petitioner. After remand, Exts.A13 to A22 were marked on the side of the petitioner and P.W.4 was examined. On the side of the respondents, DW.1 was examined and ExtsB1 to B3 were originally marked in evidence and after remand, Exts.B4 to B6 were marked. 6. A reading of the orders passed by the authorities below shows that a definite finding has been entered that the lease deeds Exts.A13 and A14 clearly show that the transaction will never spell out lease of a building with appurtenant land as envisaged under Section 2(1) of the Act. 7. Learned counsel for the petitioner contended that the lease arrangement in question which was being renewed from time to time culminating in Exts.A13 and A14, is only in respect of building with the appurtenant land. The predominant intention is to create a lease in respect of the building and licence in respect of the whole land. Going by the petitioner schedule, it is a lease of the building and the 16½ cents forms the appurtenant land. Learned counsel relied upon various decision of the Apex Court and of this court, reported in Associated Hotels of India Ltd. V. R.N. Kapoor ( AIR 1959 SC 1262 ), Qudrat Ullah v. Municipal Board, Bareilly ( AIR 1974 SC 396 ), K. Bhagirath G. Shenoy and others v. K.P. Ballakuraya and another ( (1999) 4 SCC 135 ), Paranchu Ouseph v. Pakku Kanjathu ( 1951 KLT 44 ), Sorab Alias S.P. Kavina v. Viswanatha Menon ( 1974 KLT 606 ) and Mar Appraem Kuri Co. Ltd .v. Dix ( 2004 (1) KLT 678 ), in support of his contentions. Learned counsel also invited out attention to the other oral and documentary evidence to contend that actually the arrangement was only a licence in respect of the entire 56 cents of land and the building was specifically let out for residential purpose. Ltd .v. Dix ( 2004 (1) KLT 678 ), in support of his contentions. Learned counsel also invited out attention to the other oral and documentary evidence to contend that actually the arrangement was only a licence in respect of the entire 56 cents of land and the building was specifically let out for residential purpose. It is therefore contended that the view taken by the authorities below that the document evidences a transaction by way of lease of the land with the building, is not correct. Learned counsel appearing for the tenants supported the findings rendered by the authorities below. 8. A reference to the document Ext.A13 renewed by Ext.14 and the conditions contained therein, is necessary. They are dated 1.2.1977 and 19.4.1989 respectively. The document is styled as agreement of lease. It is clear that the lease deed was being renewed from time to time with the same terms and conditions, at the interval of five years. In the schedule to Ext.A13, the description given is paramba (land) with residential building having No. XXVI/66 (old Nos.32/18328 and 32/18328 A) and comprised in Survey Nos.972/6 and 972/2, 3, 4, 5, 6 altogether about 56 cents in extent belonging to the lessor within Elamkulam Village, Changanad Desom, Kanyannur Taluk. Clause 3 states that lessor shall be entitled to enter the compound to take usufructs from the trees in the compound and the lessee has no right on the trees or the income thereof. Under clause 5, it was agreed that the lessee shall remove only such trees as may be necessary, at the expense of the lessor from the paramba for the construction of additional sheds. Claude 6 evidences that the lessee has advanced a sum of Rs.15,000/- to the lessor at 6% interest per annum. It also provides that the lessor shall keep in his exclusive possession about 2 cents of open space in the south-east corner on the road side for the construction of rooms for his own use and occupation. Clause 10 is important and it provides that; the leases are granted for the purpose of running a saw mill. Subject to the rights of the lessee mentioned above, the land shall always be deemed to be in the possession of the lessor. The lessee shall not claim any compensation for the sheds which might be put up by them. Clause 10 is important and it provides that; the leases are granted for the purpose of running a saw mill. Subject to the rights of the lessee mentioned above, the land shall always be deemed to be in the possession of the lessor. The lessee shall not claim any compensation for the sheds which might be put up by them. The only clause that relates to the building, is clause 9 which provides that the electric light connection and the Alwaye water connection to the residential house shall be maintained by the lessor and the same shall be utilized and enjoyed by the lessee. As regards the rate of rent, the relevant clause is clause 2 in Ext.A13. It provides that the rent of Rs.400/- is increased to Rs.475/- per month and the lessee agrees to pay the said rent on or before fifth of every succeeding English month. Ext.A14 shows that the rent has been increased to Rs.1,100/-. It is evident that these two rent deeds are in renewal of the original lease agreement. The clauses governing the transaction are the same, except the difference in the rate of rent and the amount of advance, etc. 9. Learned counsel for the petitioner contended the clause 3 by which the lessor retains the right to take usufructs from the trees in the compounds, shows that the transaction is not a lease, as exclusive possession has not been transferred to the tenants. It is also contended that as per clause 4, the sheds put up are removable at the cost of the tenants and they have no right to claim any compensation, going by clause 10. It was also pointed out that clause 10 declares that the land shall always be deemed to be in the possession of the lessor, and the tenants cannot claim exclusive possession of the property at all and what is allowed by the document is only a permission to use the same for the conduct of the saw mill. It is only a licence. 10. The principles governing the distinction between lease and licence, are well settled. In the decision of the Apex Court in Associated Hotels of India Ltd. V. R.N. Kapoor ( AIR 1959 SC 1262 ) (supra), the distinction between lease and licence was examined in the light of Section 52 of the Easements Act. It is only a licence. 10. The principles governing the distinction between lease and licence, are well settled. In the decision of the Apex Court in Associated Hotels of India Ltd. V. R.N. Kapoor ( AIR 1959 SC 1262 ) (supra), the distinction between lease and licence was examined in the light of Section 52 of the Easements Act. It was held in paragraph 27 thus: There is a marked distinction between a lease and a licence. S.105 of the Transfer of Property Act 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. Under S.108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with has right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas S.52 of the Indian Easements Act defines a licence thus: 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 licence. Under the aforesaid section, if 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 licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. But for the permission his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Erington v. Errington, 1952-I All ER 149, wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p.155: 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 tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.� The Court of Appeal again in Cobb v. Lane, 1952-I All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p.1201, Somervell L.J., stated: the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties. Denning I., J. said much to the same effect at p.1202: The question in all these cases is one of intention: Did the circumstances and the 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? Denning I., J. said much to the same effect at p.1202: The question in all these cases is one of intention: Did the circumstances and the 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 following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document, a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. In the decision of the Apex Court in Qudrat Ullah v. Municipal Board, Bareilly ( AIR 1974 SC 396 ) (supra), the position was reiterated and it was held in paragraph 7 thus: There is no simple litmus test to distinguish a lease as defined in S.105, Transfer of Property Act from a licence as defined in S.52 Easements Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property, entitling the transferors to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result Marginal variations to this broad statement are possible and Exs. 1 and 4 fall in the grey area of unclear recitals. The law on the point has been stated by this court in the Associated Hotels case (1960) 1 SCR 368 = ( AIR 1959 SC 1262 ). In Halsburys Laws of England, Volume 23, the distinctive flavour, the deceptive labels and the crucial consideration in a lease versus licence situation have been stated and excerpts therefrom may serve as guidelines (see pages 427, 428 and 429): 1022. PRINCIPLES FOR DETERMINING WHETHER GREEEMENT CREATES LEASE OR LICENCE. In Halsburys Laws of England, Volume 23, the distinctive flavour, the deceptive labels and the crucial consideration in a lease versus licence situation have been stated and excerpts therefrom may serve as guidelines (see pages 427, 428 and 429): 1022. PRINCIPLES FOR DETERMINING WHETHER GREEEMENT CREATES LEASE OR LICENCE. In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licenser and licenser and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a license merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties. 1023. NATURE OF GRANT OF EXLCUSIVE POSSESION. 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. In deciding whether a grantee is entitled to exclusive possession regard must be had to the substance of the agreement. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession. The grant of an exclusive right to be a benefit can, however, be inferred only from language which is clear and explicit. If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease. 1024. WHEN GRANT CONFERRING EXCLUSIVE POSSESSION OPERATES MERELY AS LICENCE. 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. 1025. INSTANCES OF AGREEMENTS CREATING LICENCES. 1024. WHEN GRANT CONFERRING EXCLUSIVE POSSESSION OPERATES MERELY AS LICENCE. 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. 1025. INSTANCES OF AGREEMENTS CREATING LICENCES. A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease. 11. Similar documents have been examined by this court in various decisions, viz. Kallyani Amma v. Kunhambu Nair ( 1985 KLT 304 ), Ulahannan v. George ( 1988 (1) KLT 335 ) and T.K. Jacob v. Gracykutty and others (AIR 1991 Kerala 281). In the decision reported in Kallyani Amma v. Kunhambu Nair ( 1985 KLT 304 ), one of the important clauses contained in the document was that possession of the property has not been handed over. This court after examining the distinction between lease and licence, held that as far as a licensee is concerned, he gets no interest in immovable property and the right obtained by him is only personal. He is entitled to possession of licensed premises as is required for the exercise of his right as a licensee and that possession will not be normally exclusive. The possession that is given to the licensee is only such, as is necessary to effectively use the premises, for the purpose for which the licence was given. Even in cases where the transfer of possession is exclusive, it need not necessarily be an indicia of the creation of a lease; for, even in a licence there should be some transfer of possession. Possession is necessary even for a licensee to do such acts on the land as he is permitted to do. The nature of the possession given has necessarily to be tested with reference to the various recitals and stipulations in the document. The document should be read as a while, fairly and reasonably. Possession is necessary even for a licensee to do such acts on the land as he is permitted to do. The nature of the possession given has necessarily to be tested with reference to the various recitals and stipulations in the document. The document should be read as a while, fairly and reasonably. The nomenclature of the document, the fact that the person was only permitted to use the property, that there was prohibition either expressly or impliedly from putting up structures, the restrictions in the normal enjoyment of the property and the context, circumstances and the time, at which the document was executed are very relevant. After referring to the different clauses in the document, it was held that Ext.A1 expressly stated that possession of the property was not handed over which is a vital factor. Therefore, it was held that the document creates only a licence. Similarly, herein, clause 10 specifically states that the land shall always be deemed to be in the possession of the lessor subject to the rights of the lessee mentioned above. In the decision reported in Ulahannan v. George ( 1988 (1) KLT 335 ) (supra), it was observed 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 to be considered inconsistent with the occupier being a licensee and not a tenant. 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 as a licence. In the later decision, viz. T.K. Jacob v. Gracykutty and others (AIR 1991 Kerala 281) (supra), the document therein contained a clause allowing the owner to take the yield of the trees and no right whatsoever was granted to the defendant. After referring to the various decision, it was held in paragraph 18 as follows: Coming to the question of exclusive possession, counsel for appellant in his able arguments, submitted that exclusive possession is a concept which has to be considered in the backdrop of the purpose for which the grant is made. This is a debatable point. At any rate, in this case, it is difficult to hold that the defendant get exclusive possession over the land. This is a debatable point. At any rate, in this case, it is difficult to hold that the defendant get exclusive possession over the land. I say so, because the owner has been given the right to take the yield of the trees and in regard to the trees, no right, whatsoever, is granted to the defendant. There is no clear evidence in this case as to how many trees are there in the land in question. Nevertheless, when the trees are there, they have to be properly cared for, manuring has to be done and the yield has to be taken. Perhaps, troughing and furrowing of the entire land may be required for the proper up-keep of the trees. For that purposes, defendants permission is not required as per the document. If there is a lease, certainly the permission from the lessee is required for the lessor to take the yield. I may postulate an eventuality of holding that the document in question is a lease. If I hold so, by the operation of the provisions of the Act, perhaps, the defendant may get a right on the trees also. Certainly, if it is not a commercial lease, even if there is a reservation to take the yield of certain trees, the tenant will get absolute right and that has been held so by this court in several decisions. It is difficult to contemplate such an operative intent for the parties. 12. The principles stated in the above decisions can be profitably be applied to the case on hand also. We are of the view that clause (3) which allows the lessor to enter the compound to take usufructs from the trees in the compound and the lessee has no right on the trees or income thereof shows that exclusive possession is not at all transferred to the respondents, and the lessee does not get a right for enjoyment of the property which, per se, indicate that the transaction is only a licence. Going by clause (4), the sheds put up by the respondents shall be removable at their cost, at the time of surrendering the lease. This also indicates that the transaction is only a licence. It is clear from clause 10 that the lessee shall not claim any compensation for the sheds, which may be put up by them. Going by clause (4), the sheds put up by the respondents shall be removable at their cost, at the time of surrendering the lease. This also indicates that the transaction is only a licence. It is clear from clause 10 that the lessee shall not claim any compensation for the sheds, which may be put up by them. It is expressly stated in clause 10 that the leases are granted for the purpose of running a saw mill and subject to the rights of the lessee mentioned in the earlier clauses, the land shall always be deemed to be in the possession of the lessor. Going by the principles stated in Kallyani Amma v. Kunhambu Nair ( 1985 KLT 304 ) (supra), such a clause indicates only that the transaction is a licence and not a lease at all. 13. We now come to the two decisions mentioned by learned counsel for the petitioner, ie. Paranchu Ouseph v. Pakku Kunjathu ( 1951 KLT 44 ), Sorab Alias S.P. Kavina v. Viswantha Menon ( 1974 KLT 606 ) (supra), to contend that the transaction in respect of the land, is only a licence. Those decisions lay down the principles already discussed above, as to the distinction between lease and licence. In 1951 KLT 44 , after examining the meaning of the term enjoy, it was held that under a lease the usufructs of the property belongs to the lessee and the transfer of a bare right of possession without the right of usufruct is not a lease. Thus, the word enjoy seems to be used in the sense of the beneficial occupation of the property. In the other decision, viz. Sorab Alias S.P. Kavina v. Viswanatha Menon ( 1974 KLt 606 ), it was held that the document in that case fairly construed, only means that permission was granted to construct a shed for workshop and it created neither an interest in the property nor right of exclusive possession. It was also held that the expression rented in the document can comprehend payment of rent by the licensee also. The above principles also show that the transaction herein is only a licence. 14. The Rent Control Court and the Appellate Authority held that the transaction is a lease in respect of the property. It was also held that the expression rented in the document can comprehend payment of rent by the licensee also. The above principles also show that the transaction herein is only a licence. 14. The Rent Control Court and the Appellate Authority held that the transaction is a lease in respect of the property. Of course, the very same clauses were referred to, to hold that it is a lease of the land and it is not a licence. In view of the principles stated above and the importance of various clauses in Ext.A13 followed by Ext.a14, we are of the view that the transaction evidence only a licence. Clause 6 which provides that two cents of land shall be in the possession of the landlord will not improve the case of the tenant. It only shows that in relation to the said two cents, there was not even any licence arrangement. Therefore, the view taken by the authorities below that it is a lease, is totally erroneous and is perverse and therefore the same is set aside. 15. But this will not entitle the landlord to maintain the eviction petition, since the entire transaction is a licence as far as the property is concerned and not a lease of building for the purpose of the Rent Control Act. We notice that in Exts.A13 and A14, rent provided is for the entire 56 cents of property with the building. It does not evidence the fact that the rate of rent provided is for the residential building described in the schedule of these documents. If it is not rent for the building in question, then it can only be licence fee for the use and occupation of the building along with the entire land. Under the Act, Section 2(b) defines tenant, which means any person by whom or on whose account rent is payable for a building. In fact, learned counsel for the respondent pointed out that even going by the evidence of the brother of the petitioner, viz., P.W.2, and Exts.B4 to B6 rental receipts it is clear that he is receiving rent for the entire property which goes against the contention of the landlord that after the execution of the settlement deed Ext.A1. In fact, learned counsel for the respondent pointed out that even going by the evidence of the brother of the petitioner, viz., P.W.2, and Exts.B4 to B6 rental receipts it is clear that he is receiving rent for the entire property which goes against the contention of the landlord that after the execution of the settlement deed Ext.A1. Separate rent was fixed for the petition schedule building at Rs.500/- and separate rent was fixed for the different portions, which were allotted to other sharers, as per Exts.A18 to A20. In paragraph 12 of the judgment, the appellate authority also noticed that there is no evidence to show that the petitioner has ever received rent for the petition schedule building as contended by him. Referring to the oral evidence, it was observed that P.W.1 admitted that there has never been a separate rental arrangement relating to the petition schedule building and even after remand, the landlord could not substantiate such a case. A reading of the evidence of P.W.1 shows that he had admitted that the rent as far as the building and the land are not separately fixed. It is also admitted by him that he has not seen any document by way of rent deed exclusively for the schedule building. All these militate against the contention of the petitioner that the whole transaction is in respect of the building with the appurtenant land. We find that the transaction evidenced by the document is only a licence in respect of the land with the building and no separate rent is provided for the building in question. Building is defined in Section 2(1) as:- building means any building or hut or part of a building or hut let or to be let separately for residential or non-residential purposes. We are of the view that as no separate rent has been fixed for the building in question and as the transaction remains inseparable, it is only one governing the land with the building and not with the building and the appurtenant land as claimed by the petitioner. Even though an attempt was made by the petitioners counsel to explain that the 16½ cents of property forms the appurtenant land, in view of the facts and circumstances discussed above, we are not impressed by the said argument. Even though an attempt was made by the petitioners counsel to explain that the 16½ cents of property forms the appurtenant land, in view of the facts and circumstances discussed above, we are not impressed by the said argument. In fact, learned counsel relied upon a decision of the Apex Court in K. Bhagirath G. Shenoy and others v. K.P. Ballakuraya and another ( (1999) 4 SCC 135 ) (supra) to contend for the above position that it is a lease of the building with the appurtenant land. The facts of the said case show that it was lease of a building with attached compound of a residential building and it was rented out to the tenant who was a public servant who wanted to have a house to live in that place at the relevant time. Their Lordships found force in the argument of the learned counsel for the landlord therein that it was the building which was of prime consideration for the lease and the attached compound could not have been left out, for practical reasons, uncared by anyone and hence it became necessary to include the compound are also as part of the lease. The circumstances herein totally different and hence the principles laid down therein cannot apply to the facts of this case. 16. It is true that the appellate authority found that the bonafide need pleaded under section 11(3) and the ground pleaded under Section 11(4)(iii) of the Act have been fully established by the landlord. The findings on those aspects are not at all perverse and do not call for any interference, but that will not result in allowing the eviction petition. 17. In the light of the fact that the transaction in question is only a licence as regards the land with the building, there is no evidence to show that the building with the appurtenant land was let out. As there is no lease of the building for the purpose of the Act, the eviction petition is not maintainable. So, we confirm the findings of the authorities below that the eviction petition is not maintainable. The revision petition is therefore dismissed.