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PETITIONER: SRIDHAR SUAR & ANR.

       Vs.

RESPONDENT: SHRI JAGAN NATH TEMPLE &  OTHERS

DATE OF JUDGMENT21/04/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1976 AIR 1860            1976 SCR  101  1976 SCC  (3) 485

ACT:      Transfer of Property Act, 1882-Sec. 105-Indian Easement Act, 1882  Sec. 52-Distinction between lease and licence Lis Pendens-Puri Shri  Jagannath Temple     (Administration) Act 1952-Sec. 2(d)-Meaning of.      Hindu Law  whether of  a Hindu temple can grant a valid permanent   lease.

HEADNOTE:      The appellant’s  great grandfather  was granted a Sanad in respect  of 2  rooms  in  the  Jagannath  temple  by  the Superintendent of  temple at the annual rent of Rs. 7/-. The Sanad provided  that the  grantee would be entitled to enjoy the said 2 rooms from generation to generation and in case a permanent structure  was constructed  thereon the rent would be enhanced  to Rs. 14/- per year. After the death of great- grand-father  of   the  appellant   the  grand   father  and thereafter the father of the appellant continued storing and selling dry  ’Mahaprasad’ in the said property and continued to pay  Rs. 14/-  per year.  The respondents  who  have  the management of  Jagannath temple  at present  under the  Puri Jagannath Temple (Administration) Act, 1952, called upon the appellants’ father  to close and to hand over the possession of the  two rooms  to the  management on the ground that the storage and  sale of  Mahaprasad in  the Bihar  Bedha of the temple affected  adversely the discipline and dignity of the temple.  The   appellant’s  father   was   threatened   with imposition of a penalty of Rs.  100/- per day in case he did not vacate the premises in question. The appellant’s father, therefore, tiled the suit in the civil court which after his death has  been  continued  by  the  present  appellant  for permanent  injunction   restraining  the   respondents  from interfering with  his  right  of  storing  and  selling  dry Mahaprasad in  the suit premises. According to the plaintiff the  permanent   lease  was  granted  to  him  by  the  Raja Dibyasingha and that since he was continuing to pay the rent regularly he  was entitled  to continue in the suit premises from generation to generation. The respondents contested the suit on the ground that it was beyond the competence of Raja of Puri  as Manager of the temple to grant a permanent lease and that,  therefore, the Sanad was ineffectual, invalid and

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inoperative, and  conferred no  rights on  the appellant and his ancestors  which would  bind  the  present  respondents. Secondly, since the act of storing and selling Mahaprasad at the  suit   premises  constitute   a  breach  of  order  and discipline, the  respondents under  the  above  statute  had right to  ask the  appellant to  vacate.  Thirdly  what  was granted by the Sanad was licence and not a lease.      The trial  court dismissed the suit. However, an appeal was allowed.  The High  Court accepted the second appeal and dismissed the suit.      In an  appeal by  special leave it was contended by the appellants :-           (1)  The suit  property did  not form  part of the                temple.           (2)  The Sanad  granted a  permanent lease  of the                suit property  and not  merely a  licence and                therefore the  appellant had  an indefeasible                right of storing and selling Mahaprasad.      Dismissing the appeal, ^      HELD: (1) Section 2(d) of the Puri Sri Jagannath Temple (Administration-Act, 1952,  defines temple  as including the temple of  Lord Jagannath  of Puri. Other temples within its premises and  all other appurtenant and subordinate shrines, other sacred places and tanks and any additions which may be 102 made there  after commencement  of the Act. Records of right prepared under  said Act  also  include  the  suit  premises within the meaning of temple. [104 H]      (2) It  is now well settled by a catena of decisions of the Supreme  Court that it is the creation of an interest in immovable  property   that  distinguishes  a  lease  from  a licence. The  intention of  the parties is the real test for ascertaining the character of a document. 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. However, the result of the subsequent cases is that although a person who is let into exclusive possession in 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. To ascertain whether a document creates a licence or  lease the  substance of  the  document  must  be preferred to  the form  (entire English  and Indian case Law reviewed). [105 D-H, 106 A, D]      (3) A  careful perusal  of the  recital in  the  Sanad, which does  not  revival  the  identity  of  the  plot  with precision would  show that  the Sanad  did  not  create  any interest in  the rooms in question in favour of the grantee. l he  Sanad also  did not  confer  the  right  of  exclusive possession of  the premises.  It is  also evident  from  the right of  "Dakhale Khas"  of the  respondents  in  the  suit property as also from the proved facts that the Sarghara was not kept  open by the temple authorities from mid-night to 6 a.m. during  which interval  the plaintiff  could in no case occupy it  nor could  he have access to it. It   proved that the employees  of the  Raja of Puri used to clean the refuse etc., which got accumulated in the suit premises. The Sanad, therefore, created a licence and not a lease. [107 E-H]      (4) Even  if it  is assumed  that the  Sanad created  a lease it  could not  be valid  lease  since  the  Mohant  or manager of  a Hindu  temple is  prohibited  from  grantee  a permanent lease except far legal necessity or benefit of the estate. Tn  the present  case no  such  legal  necessity  or benefit of estate has been proved. [108 B-E]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 491 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated the  24th June 1974 of the Orissa High Court in Second Appeal No. 8 of 471      Gobind Das and B. Parthasarthi, for the Appellant.      Santosh  Chatterjee   and  G.S.   Chatterjee,  for  the Respondent.      The Judgment of the Court was delivered by      JASWANT SINGH, J.-This appeal by special leave which is directed against  the judgment  and decree  dated  June  24, 1974, of  the High  Court of Orissa at Cuttack reversing the judgment and  decree dated  September 23, 1970, of the first appellate court  which in  turn reversed  the judgement  and decree dated  April 10,  1970, of the Trial Court relates to the controversy  regarding the appellants right to store and sell dry ’Mahaprasad’ in the suit premises consisting of two pucca rooms standing on plot No. 167 in ’Bihar Bedha’ (outer compound) of  the Hoary Holy public temple of Lord Jagannath Ji in  Puri (here  in after  referred to  as ’the  Temple’), which  to   use  the   language  of   the  illuminating  and instructive preamble  of Shri  Jagannath  Temple  Act,  1954 (Orissa Act No. 11 of 1955) (hereinafter referred to as ’the Act’, has  ever since  its inception  been an institution of unique national  importance,  in  which  millions  of  Hindu devotees from regions far and 103 wide have  reposed their  faith and belief and have regarded it as the epitome of their tradition and culture.      The facts  giving rise to this appeal are: on August 7, 1969, one Gopal Suar, since deceased, who was the father and predecessor in interest of the present appellants describing himself as  sevak of the temple  brought a Suit in the Court of the  Munsiff, Puri,  being suit  No.  160  of  1969,  for permanent injunction  restraining,  the  respondents  herein from interfering  with his  right of storing and selling dry ’Mahaprasad’ in the suit premises.      The case of the original plaintiff was that by means of ’Sanand’ (Exhibit  I) Raja  Sri Dibyasingha  Deb,  the  then Superintendent  of   the  Temple,   granted  to   his  great grandfather, Gangadhar  Suar, a  permanent lease of the site on which  the two  suit rooms stood on an annual rent of Rs. 7/- that  it was provided in the ’Sanad’ that the grantee or lessee would  be entitled  to enjoy the site from generation to  generation   and  in  case  a  permanent  structure  was constructed thereon,  the rent would be enhanced to Rs. 14/- per year;  that as  a result  of  the  death  of  his  great grandfather, Gangadhar  Suar, of  his grandfather Bela Suar, and of his father, Chakhi Suar, he had become the sole owner of the  property; that  a few days after the commencement of the lease, two permanent pucca rooms for storing and selling ’Mahaprasad’ where  constructed by  his  great  grandfather, Gangadhar Suar,  who according  to the stipulation contained in the  aforesaid Sanad’ became liable to pay an annual rent of Rs.  14%- that  since the  commencement of the lease, his ancestors had  from generation  to generation been using the suit property  as a store room and as a shop for selling dry ’Mahaprasad’ in  their capacity  as tenants  of the  Raja of Puri who  was the  Superintendent of the Temple and the said right of  his had been acknowledged and duly recorded in the record of  rights. that  ever since  the taking  over of the

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management of  the Temple  by tile  Government, he  had been paying annual  rent  as  per  terms  of  the  lease  to  the respondent   who had  accepted him  as a tenant; that he had been occupying  and enjoying  the suit  property  as  before without any  let or  hinderence either by the respondents or by their  predecessor-in-interest; that  on August  1, 1969, his son intimated to him that respondent No. 2 had, by means of notice  dated July 31, 1969, called upon him to close the shop on  pain of  daily fine of Rs. 100/-, as in the opinion of the respondent, he had been using the land in inner bedha of‘ the  Temple for  storage and  sale of ’Mahaprasad’ which adversely affected the discipline and dignity of the Temple; that  on   being  so   informed,  he  personally  approached respondent No.  2 and  represented to  him that  he was  the permanent lessee  of the  suit  property  and  had  acquired indefeasible  right  of  storing  and  selling  ’Mahaprasad’ thereon and  the respondents  could not  interfere with that right but  his representation fell flat and respondent No. 2 threatened to  close his shop forcibly, to impose penalty on him,  and  to  dismiss  him  from  the  ’seva’;  that  after sometime, respondent  No. 2 served him within another notice imposing on  accumulated penalty  of Rs. 4,600/- at the rate of Rs.  100/- per  diem and that there being no provision in the Act  empowering the  respondents    to  do  any  of  the aforesaid things,  there action  was arbitrary,  illegal and without jurisdiction. 104      The suit  was vigorously  contested by  the respondent. While denying  The grant of the open site to the plaintiff’s ancestor.  Gangadhar   Suar.,  as   alleged,  as   also  the construction of  two pucca  rooms  by  the  latter  and  the storage and  sale thereon of ’Mahaprasad’ by the plaintiffs’ ancestors, the  respondents averred inter alia that the Raja of Puri  being merely  a Superintendent  or a Manager of the Temple it was beyond his competence to transfer a portion of the Temple permanently   in favour of any individual and the ’Sanand’ set  up by  the plaintiff  was as such ineffectual, invalid and  inoperative and  did not  confer any  right   , title or  interest on  him or  his  ancestors  and  was  not binding  on   the  Respondents;   that  according   to   the established custom  and usage  of. the  Temple. ’Mahaprasad’ could not  be stored  and sold in a ’saraghara  ’ but was to be sold  in Anand Bazar-the place specifically set apart for the  purpose,   and  that   since  the  plaintiff  had  been committing a  breach of  discipline and violating the orders of the  respondents be  storing and  selling ’Mahaprasad’ in the ’Saraghara’  standing on  plot No.  167 (which  had been recorded in  the record  of rights as ’khas dakhali’ land of the respondents  and was never intended for storage and sale of ’Mahaprasad’)  and was thus acting in a manner derogatory to the  dignity of  the Temple,  the respondents in whom the governance  and   administration  of   the  Temple  and  its endowments vested  under section 5 of the Act were competent to take action under sections 21 (A) and 30(A) of the Act.      After framing  the necessary  issues and  recording the evidence adduced  by the  parties, the Trial Court dismissed the suit  holding that  as sections  15 and 30(A) of the Act cast statutory  obligation  on  the  respondents  to  ensure maintenance of  order and  discipline  and  proper  hygienic conditions in  the Temple and proper standard of cleanliness and purity  of the offerings made therein, they could not be restrained by  a  permanent  injunction  from  stopping  the plaintiff to sell ’Mahaprasad’ at a place other than the one specified for the purpose. On appeal, however, the Sub-Judge (Additional District  Magistrate) Puri,  decreed  the  suit.

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Aggrieved by  this decision,  the respondents  preferred  an appeal to  the  High  Court  which  accepted  the  same  and dismissed the suit      Counsel for the appellants has urged before us suit the suit property   did  not form  part of  the Temple; that the transaction, evidenced by ’Sanands’ (Exhibits I & II) issued by the  Raja of  Puri as  Superintendent    of the Temple in exercise of  his right  of superintendent  and management of the Temple  amounted  to  a  permanent  lease  of  the  suit property  and   not  merely  to  a  licence,  and  that  the appellants had  an indefeasible right of storing and selling Mahaprasad in  the suit  Saraonara. We shall deal with these contention seriatim      Regarding the  first contention raised on behalf of the appellants we  may observe that according to section 2(d) of Act No.  XIV of  1952 called  the Puri Shri Jagannath Temple (Administration) Act,  1952, ’Temple’  means "the  Temple of Lord Jagannath  of Puri,  other temples within its premises, all their  appurtenant and  subordinate shrines other sacred places and tanks and any additions which may be made thereto after the commencement of the Act". It may also he 105 mentioned that  pursuant to  section 3 of that Act a Special officer with  prescribed qualifications was appointed by the State Government  for preparation of the consolidated record of rights  and duties  of different  sevaks and pujaries and other persons connected with the seva, puja or management of the Temple  as also  for  preparation  of  a  list  of  List immovable properties  endowed to  L ord Jagannath Temple and the extent  of the  premises  of  the  Temple  and  what  it comprises. In  the report prepared by the said officer which was published  in the  Orissa Gazette (Extraordinary) and is final and entries whereof cannot be questioned except in the manner provided  in section  5 of  that Act,  it is recorded that the  Temple of  Lord Jagannath  occupies an  area of 10 acres  and   its  premises   include  all  appurtenance  and subordinate shrines  and the  outer and  inner compounds and that the  suit plot  No. 167 lies in the Baisi Pahacha’ area in between  the inner  and outer compounds of the Temple and that  access   to  it   is  though   the  main  gate  li  e. ’Singhadawara’  (lion’s   gate)  of   the  Temple.   It  is, therefore, clear  beyond any  manner of  doubt that the Suit premises form  part of  the Temple.  The first contention of counsel for the appellants is, therefore, repelled.      For a  proper appreciation of the second contention, it is necessary  to  bear  in  mind  the  essential  difference between a lease and a licence.  It is now well settled  by a catena of  decisions of   this Court that it is the creation of an  interest in  immovable property  that distinguishes a lease from  a licence.  Reference in  this connection may be made with  advantage  to  the  decision  of  this  Court  in Associated Hotels  of India  Ltd v.  R. N.  Kapoor(1)  where Subba  Rao,  J.  (with  whom  Das,  J.  agreed  observed  as follows:-           "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 in permitted to make use of      the premises  for a  particular purpose.  But  for  the      permission, his  occupation would  he unlawful. It does      not create  in his favour any estate or interest in the      property.  There   is,  therefore,   clear  distinction      between the  two con  concepts. The  dividing  line  is

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    clear though  sometimes it  be    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 Errington  v. Errington  1952-1 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      (1) A.I.R.1959.S.C.1262 106      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,  has one would expect, that it must depend on      the intention of the parties".           Denning L.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  personal privilege  with  no      interest in the land ?"           The  following  propositions  may,  therefore,  be      taken as  will established:  (1) To ascertain whether a      document creates  a licence  or lease, the substance of      the document  must be  preferred to  the forms; (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 all  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, ’perima facie’ he is considered to be      a tenant.  but circumstances   may be established which      negative the intention to create a lease".      Again in Quadrat  Ullah v. Municipal Board, Bareiliy(1) this Court observed:-           "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   is   immovable   property;   entitling   the      transferees 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."      Then again  in Board  of revenue  v. A. M.Ansari(2)this very Bench  while approving  the observations  made by  Lord Shaw while  delivering the judgement of the Board in Kauri T Timber Company  Limited v. The Commissioner of Taxes(3) held that in order that a      (1) [1974] 2 S. C. R. 530.

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    (2) [1976] 3 S. C. R. 661      (3) [1913] A. C. 771 (776). 107 agreement can  be said to partake of the character of lease, it is necessary     that the grantee should have obtained an interest  m   and  possession   of   land.   The   following observations made therein are apposite:-           "A licence  does not  create an  interest ill  the      property to  which it relates while a lease does. There      is in  other words  transfer of  a right  to enjoy  the      property in case of a lease. As to whether d particular      transaction creates  a lease  or a  licence is always a      question of  intention of  the parties  which is  to be      inferred   from the circumstances of each case. For the      purpose of  deciding whether a particular grant amounts      to   a lease  or a licence, it is essential, therefore,      to look   to the substance and essence of the agreement      and not lo its from."      Bearing in  mind the  above observations,  let  us  now scrutinize the  terms  of  Sanand  (Exhibit-I)  which  reads thus:-           "Order hereby  is issued  to the Parichhas Karjees      (Officers) of the temple as follows:-           one Gangadhara Suar of Kundhaibenta Sahi has filed      an application  before the  Raja for  opening  a  ’Sera      Ghara’ (store  Room of  Mahaprasad) at  the top step of      twenty two  steps adjoining  the inner  compound of the      temple and  the Eastern  Gate Way  having space  of  10      cubits of length to wards south and width of 10 cubits.         It  is ordered that he is permitted to open the said      store room  with hereditary  right on  payment of‘  one      gold Mohara  as Salami and rupees seven as annual rent.      If he  at any  time constructs  a pucca house, he shall      pay rupees  fourteen as annual rent."      A careful’.  persual of  the  recitals  in  the  Sanand (which does  not  reveal  the  identity  of  the  plot  with precision) would  show that  the Sanand  did not  create any interest  in    the  size  in  question  in  favour  of  the plaintiff’s great  grandfather. It  merely permitted  him to open a Saraghara which meant a room for storing articles for the sole  purpose of  preparing Bhog for the three presiding deities. The  Sanand  did  not  also  confer  the  right  of exclusive possession  of the  suit property  on the grantee. This is  evident from  the right  of ’dakhale  khas’ of  the respondents in  the suit  property as  also from  the proved fact that  ’Saraghara’ was  not  kept  open  by  the  Temple authorities  from   midnight  to   6.00  A.M.  during  which interval, the plaintiff could in no case occupy it nor could he have  access to  it. lt  has also been found to have been established from  the plaintiff’s  evidence itself  that the employees of  the Raja of Puri used to clean the refuse etc. which got accumulated before the suit ’Saraghara’. Thus none of the  elements of  lease can  be said to be present in the instant case.  In M N Chubwala v. Eide Hussain Sahib(1) this Court rejected  the claim  of holders of certain stalls in a market that they were lessees and not      (1) A. I. R. 1965 S. C. 610. 108 licences there   of  the ground that they had no right to us them after  the closure  of the  market  at  night  and  the responsibility of  cleaning and  disinfecting the stalls and closing the  market at  night lay on the landlord and not on the stall holders.      No help can be derived by the appellants from  Exhibit- II which relates to a quarrel in ’Kotha Bhog  Nities’ and is

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not relevant  for the purpose with which we are concerned at the present stage.      Now assuming  without holding  that the Sanand amounted to a  lease, it  cannot even  then be  held to  be valid  as permanent alienation  of the  temple  debutter  property  is prohibited. The  position is  stated thus  at  page  489  of Mulla’s  Treatise   on  Principles   of  Hindu    law  (11th Edition):-           "The power  of a  shebait or  a mohunt to alienate      debenture property  is analogous  to that  of a manager      for an infant heir as defined by the Judicial Committee      in Hunooman  Pershad v.  Mussamat Babooee 6 M.I.A. 393.      As held  in that  case, he  has no  power  to  alienate      debutter property  expect in  a case of need or for the      benefit of  the estate.  He is not entitled to sell the      property for  the purpose  of investing  , the price of      it so as to bring in an income larger than that derived      from the  property itself. Nor can he, except for legal      necessity grant  a permanent lease of debutter property      , though  he may  create proper  derivative tenures and      estates conformable to usage."      In the  present case,  the position of the Raja of Puri who granted  the Sanand  (exhibit)  was  merely  that  of  a shebait. He  could not have granted a permanent lease of the property  in  question  to  the  great  grandfather  of  the plaintiff without necessity or without benefit to the  estat e which have not at all been made out hl this case      Again the  lease being a permanent one for a fixed rent could not  have been  granted at  all by  the Raja  of Puri. Reference in this   connection may  usefully be made to page 931 of  Mayne‘s Treatise  on Hindu Law (11th Edition), where the position is stated as follows:-           "It is  beyond the  powers of a manager to grant a      permanent    lease  at a  fixed rent  in the absence of      unavoidable necessity   ;  for, to fix the rent, though      adequate at the time in perpetuity.   in lieu of giving      the endowment  the benefit  of an  augmentation    of a      variable rent  from time  to lime  would be a breach of      duty on  the part  of the manager. In Palaniappa Chetty      v. Streemath  Deivasikamony (1917  ) 44  I.A. 147. Lord      Atkinson observed:  "Three authorities  have been cited      which establish that it is a breach of duty on the part      or a shebait, unless constrained thereto by unavoidable      necessity, to  grant a  lease in perpetuity of debutter      lands at  a fixed  rent. however adequate that rent may      be at the time of granting, reason of the fact that, by      this means, the debutter estate      (1) 44 I. A 147 109      Is deprived  of the  chance it  would have, if the rent      were variable  of deriving benefit from the enhancement      in value in the future of the lands leased."      In Palaniappa Chetty & Anr. v. Deivasikamony Pandara(1) alluded to in the above quoted passage, it was also held:-           "A permanent  lease of  temple lands  at  a  fixed      rent,   or rent  free for  a premium, whether the lands      are agricultural  lands or  a building  site, is  valid      only if  made for a necessity of the institution. It is      not  justified  by  a local custom, or by a practice of      the institution, to grant lands in that manner.           The phrase "benefit of the estate", as used in the      decisions   with regard to the circumstances justifying      an alienation   by the manager for an infant heir or by      the  trustee   of  a   religious  endowment  cannot  be      precisely defined     but includes  the preservation of

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    the estate from extinction, its defence against hostile      litigation, its protection from inundation, and similar      circumstances."      The present  case is,  in our opinion, fully covered by the  decision   in  Shibessouree   Debia   v.   Mothooranath Acharjo(2) where  it was  laid down     a general  rule that apart from  unavoidable necessity  to create a new and fixed rent for  all time,  though adequate at the time, in lieu of giving the  endowment the  benefit of  an augmentation  of a variable rent from time to time would be a breach duty    in the mohunt.      Thus viewed  from any  angle the  ’Sanand’ could not be held to  be any more than a licence and could not clothe the ancestors of the plaintiff or the plaintiff with the  status of a lessee.      This takes  us to  the last contention raised before us by counsel  for the  appellants  which  is  also  devoid  of substance. A  bare perusal  of Exhibit-I  is enough  to show that it does not confer any right of selling ’Mahaprasad’ on the plaintiff  or on  his legal representatives. Exhibit- II cannot  also   be  usefully  pressed  into  service  by  the appellants as  it relates  to the sale of ’Rahani Bhog’, and not of ’dry Mahaprasad’.      Thus all  the contentions  raised by  counsel  for  the appellants fail.  For the  foregoing reasons,  we affirm the judgment of  the High  Court and  dismiss  the  appeal  with costs. The  appellants are,  however, as  mutually agreed to between the  parties, given  one month’s  time to vacate the premises. The cumulative penalty of Rs. 4,600/- to which the appellants have  been  subjected  also  being  excessive  is reduced to Rs. 500%‘ P P.                                       Appeal dismissed.      (1) 441. A. 147 (2) 13 M. 1. A. 270. 110