Kumara Pillai, J.:— The question which arises for decision in this second appeal is whether a leasehold interest has been created by Ext. I or whether the person who has taken that document is only a licensee holding the property as varamdar. The plaint property is admittedly kuthakapattam land which the defendant has taken on registry from the State. On 26-3-1951, one Avira executed Ext. I in favour of the defendant undertaking to cultivate the property with paddy and lemongrass and give one half of the paddy crop to the defendant as varam and three bottles of lemon oil per acre for the land cultivated with lemon-grass. The total extent of the property is 7 acres and 20 cents. Out of this, about five acres of land is cultivated with lemongrass and the rest with paddy. On 29-8-1951, Avira executed an assignment, Ext. B, in favour of the plaintiff conveying to him his interest in the property. According to the plaintiff, the interest that he has obtained in the property under Ext. I and Ext. B is a leasehold right and the suit was brought by him for a declaration that he has got a leasehold right in the property. The defendant contended that the interest created by Ext. I was not a leasehold interest and that Avira and the plaintiff were only licensees who have got permission under Ext. I to cultivate the land with paddy and lemongrass on certain conditions.
2. The trial court upheld the defendant's contention and finding that the plaintiff was only a varam tenant dismissed the suit with costs.
3. On appeal by the plaintiff, the learned Subordinate Judge of Muvattupuzha after quoting extensively discussions from text books and reported cases about the nature of leases and licenses and the difference between them, most of which he has misapplied to the concrete facts of the case, found that a leasehold interest was created by Ext. I and reversing the decree of the trial court, gave the plaintiff a declaration as sought for. The defendant has, therefore, filed this second appeal.
4. So far as the question raised in this case is concerned, there is no necessity to make an extensive research into text books and reported cases for as far as this court is concerned, the matter is concluded by two reported decisions, the first Kunhali Koya v. Adoor Industries Ltd. (1955 K.L.T 731), and the second Moideen Rowther v. Korah (1956 K.L.T 507).
5. Ext. I itself is styled varachit. But, of course, no significance can be given to this nomenclature if the terms of the document clearly show that it is not a varam but a lease. So it is necessary to consider the other terms in Ext. 1. In clause (1) it is specifically stated that Avira was taking the land for pathivarm cultivation, the cultivation being lemongrass cultivation in five acres of land and paddy cultivation in the rest of the property. He undertook to pay one half of the paddy crop as varam for the paddy cultivation and three bottles of lemon oil per acre for the lemongrass cultivation. There were admittedly bearing fruit trees in the property at the time of Ext. I. Nothing was said in the document as to whether Avira was to take the usufructs of these trees and so there is also no provision in it as regards payment of any rent by him for these trees. In the circumstances, the natural presumption would be that the landlord continued to be in possession of the fruit trees and that only the land necessary for the paddy cultivation and the lemongrass cultivation was handed over to Avira.
6. There is another clause in Ext. I wherein Avira specifically stated that he would have no right at all to the property except the right to cultivate paddy and lemongrass in it. This clause also indicates that possession of the whole property was not given over to him and that only the arable land, the land required for the paddy cultivation and the lemongrass cultivation, was given to him and that only for the specific purpose of these two cultivations. Yet another clause which leads to the conclusion that no leasehold interst was intended to be created is the one in which Avira undertook not to make any improvements in the property. The clause most relied upon by the lower appellate court and on which some emphasis was laid in this court also by the respondent's learned counsel is the one wherein it is stated that at the end of the term Avira would give back the land to the defendant clause according to the lower appellate court, as well as the respondent's learned counsel, would show that exclusive possession of the property was given to Avira by Ext. I. In my opinion, it does not show that. As licensee Avira was permitted to occupy some land for the purposes of this cultivation and what he undertook to give back was only the land thus given to him and not the whole property. It is significant in this connection that the words used are and not in Kunhali Koya v. Adoor Industries Ltd. (1955 K.L.T 731) Mr. Justice Vithayathil has quoted with approval the following passage from Duppa v. Mayo (Wms. Saunders, 1871 Edition, page 394):
“The principle of these decisions appears to be this, that wherever at the time of the contract it is contemplated that the purchaser should derive the benefit from the further growth of thing sold, from further vegetation, and from the nutriment to be afforded by the land, the contract is to be considered as for an interest in land; but where the process of vegetation is over or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold and the contract is for goods”.
7. As has been shown above in this case, except the land necessary for the cultivation of paddy and lemongrass nothing was given by Ext. I to avira. Bearing fruit trees standing in the property appear, from the ommission to refer to them in Ext. I and also from the provisions for payment of rent, left with the landlord. From the other clauses in Ext. I it would appear that all other rights, except those granted to Avira, for cultivation of paddy and lemongrass were retained by the landlord.
8. Over and above all these things, there is the fact that in the assignment, Ext. B, given by Avira himself to the plaintiff he has transferred only his right in respect of the crops and that he has chosen to style that document only as a dehannavila. Having regard to all these circumstances, I hold that the trial court was right in considering that a leasehold interest was not created by Ext. I. I agree with the learned District Munsiff in finding that the plaintiff is only a varamdar.
9. The second appeal is, therefore, allowed. The decree of the lower appellate court is reversed and that of the trial court dismissing the plaintiff's suit is restored. The plaintiff will pay the costs of the defendant appellant in all the three courts.