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TMI Blog1967 (12) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 220/60 of Gopinath Naik, respondent before us, hereinafter referred to as the Judgment Debtor. 2. The facts in this case are not in dispute. One Konchada Ramamurti Subudhi, deceased, now represented by his legal representatives and appellants before us-hereinafter referred to as the decree-holder- and Bhagirathi Naiko, now represented by Gopinath Naik, Judgment debtor, filed a compromising petition under Order 23 Rule 3 of the Code of Civil Procedure in the Court of subordinate Judge, Berhampur, in T. A. No. 13 of 1955. In terms of this compromise petition a decree was passed. The decreeholder filed an application for execution of the decree and the judgment-debtor filed the application (M. J. C. No. 220/60) under Section 47, Civil Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rate of ₹ 50 a month by the end of each month until delivery, and a sum of ₹ 300 is paid to plaintiff to be kept as deposit for six months rent to be adjusted towards rent for the period of last six months ending with 1st, July, 1960. (d) In case the defendant fails to pay the rent for any three consecutive months the plaintiff will be at liberty to adjust the advance towards arrears and also to evict the defendant from the suit house without waiting till 1st July, 1960 by executing the decree and also realise the amount accrues due by then, from the defendant by executing this decree (e) That the house fell to the share of a minor son of plaintiff-appellant, namely; Konchada Koteswarao for whom the appellant plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the agreement. This Court further observed that exclusive possession is not conclusive evidence of a lease. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. (See Associated Hotels of India Ltd. v. R. N. Kapur, 1960-1 SCR 368 at p. 384. 8. In 1960-1 SCR 368 at p. 384 Subba Rao, J., as he then was, summarised the propositions as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relationship where the circumstances and the conduct of the parties negative any intention of the kind. 10. Keeping in mind the above observations, what was the intention of the parties ?. It seems to us that the fact that the decree holder had brought a suit for ejectment of the judgment debtor and that a compromise was entered into in that suit is important. It is difficult to impute to him an intention to create a fresh tenancy while the fact that he brought the suit shows that his intention was to eject the judgment debtor after having purported to terminate the tenancy. 11. Coming to the terms of the compromise, it is true, as stressed by the learned counsel for the respondent that the word rent has been used, but the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not entitle the judgment-creditor to take possession of the land on default of payment of rent. 13. The High Court stressed the fact that a long period of five years was granted to the judgment debtor for continuation of the possession. In our view, the length of the period, in the circumstances, does not militate against the construction that the compromise only created a licence for the decree holder apparently had lost in the trial court and it was only in the court of appeal that this compromise was arrived at. 14. For the aforesaid reasons we hold that the compromise deed did not create a lease. Therefore the judgment-debtor is not a tenant within Section 2(5) of the Act which defines tenant to mean any person by whom or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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