JUDGMENT
Adarsh Kumar Goel, J.
1. The appellant filed suit for mandatory injunction to direct the defendant to vacate Shop No. 6, in Jagatjit Cinema, Kapurthala.
2. Case of the appellant is that it is running Jagatjit Cinema and the defendant was a licensee under terms and conditions of agreement of licence dated 22.12.1979 which was to commence on 1.1.1980 and expire on 30.11.1980. The license expired but the defendant did not vacate the shop in spite of notice dated 7.1.1981 served on him.
3. The defendant contested the suit, claiming that he was .a tenant and tenancy was protected under the provisions of the Rent Act. It was further stated that the defendant was already a tenant at a monthly rent and rent was being increased every year. The plaintiff maneuvered to get signatures of the defendant on the alleged licence deed only to put constant pressure for enhancement of rent in future. Terms and conditions of rent note were never agreed upon by the defendant.
4. The trial Court dismissed the suit. Referring to Ex.P. 6, licence deed, it was observed that the defendant was in exclusive possession and plaintiff did not retain possession or control. Business run by the defendant was not subject to any supervision of the plaintiff. Reference was made to the evidence of PW-1 Ujjal Singh, Resident Director of the plaintiff-firm to the effect that the shop has one door which was locked by the defendant exclusively. The said witness further admitted that the defendant was in possession for the last 6/7 years. In the year 1976, rent was Rs. 185/- per month, in the year 1977, it was increased to Rs. 200/- per month; it was then increased to Rs. 215/- and Rs. 230/- per month. On the back of Ex.P. 6, the stamp vendor had mentioned that the paper had been purchased for execution of rent note. It was further observed that mere description of deed as deed of licence, was not conclusive.
5. On appeal, the lower appellate Court affirmed the findings of the trial Court. Hence this second appeal.
6. Learned counsel for the appellant submitted that the Courts below are in error in holding the licence deed to be a lease. He submitted that the building was a cinema and a shop for selling eatables did not amount to exclusive transfer of possession, the control being with the cinema. Reliance is placed on judgments in V.N. Puri and Ors. v. Bishan Lal Aggarwal, 1972 All India Rent Control Journal 703 (All.), Lalshankar Mulji Joshi v. Kantilal Mohanlal Parikh, 1972 All India Rent Control Journal 709 (Bom.), Puran Singh Sahni v. Smt. Sundari Bhagwandas Kripalani and Ors., 1991(1) R.C.R. 575, Roop Kumar v. Mohan Thedani, 2001(1) R.C.R. 652, S.R. Mitroo and Anr. v. Youngmen’s Christian Association, New Delhi, (1956)53 P.L.R. 478, and Peter Alex D’Souza v. Prithi Paul Singh, 2002(3) Civil Court Cases 686 (Bom.).
7. Since the respondent was not represented on the last date in spite of service being complete, a notice was again issued and as per report of service, the respondent refused to accept the same. The respondent is, thus, deemed to have been served and is proceeded against ex parte.
8. I have considered the submissions made on behalf of the appellant and perused the decisions relied upon.
9. The question as to whether a transaction is lease or licence has been considered in several decisions including Associated Hotels of India Limited v. R.N. Kapoor, , Puran Singh Sahni (supra) and Delta International Limited v. Shyam Sunder Ganeriwalla, . Summarising the legal position in a recent judgment in CM Beena and Anr. v. P.N. Ramachandra Rao, , in para 8, the Apex Court observed:-
“…Generally speaking the difference between a ‘lease’ and ‘licence’ is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful.”
10. The above observations were made after referring to Associated Hotels (supra). ‘ In para 8, it was further observed “the decided cases on the point are legion”. In the said judgment, reference was also made to text books; “the Evans and Smith on The Law of Landlord and Tenant (Fourth Edition)” and “Hill and Redman’s Law of Landlord and Tenant (Seventeenth Edition, Volume I”.”
11. A reference to the above decisions and decisions relied upon by the learned counsel for the appellant shows that the central issue is whether there is a mere personal or contractual agreement or right in property is conferred. Exclusive possession, though crucial, is not conclusive. Decision on the question whether on a particular set of facts, transaction is lease or licence has to be taken by applying various tests as no single test can apply rigidly.
12. Both the courts below, after referring to Ex.P.6, licence deed, evidence of PW-1 Ujjal Singh, President Director of the plaintiff-Firms, held that exclusive possession had been transferred and no control whatsoever was retained by the plaintiff. A site plan on record also shows that the shop is outside the cinema and its entrance is independent. The defendant had already been in possession even prior to the licence deed being executed. Even though, the nature of the building may suggest that letting out of a shop or any other part may be licence if the same is let out for a particular purpose, retaining control in some manner but in the present case, there is no evidence whatsoever that the premises were let out, retaining legal possession and permitting use of the premises for a particular purpose or in a particular manner.
13. In view of the above, the concurrent finding recorded by the Courts below that the transaction was a lease, cannot be held to be perverse.
No substantial question of law arises.
The appeal is dismissed.