IMPORTANT POINT
Difference between a "lease" and "licence" is to be determined by finding out real intention of parties as decipherable from document if any executed between parties and surrounding circumstances.

JUDGMENT

R.C. Lahoti, J.-The suit property is a shop situated on the ground floor of a building known as Woodlands Building on the M.G. Road, Ernakulam. The respondent filed a civil suit seeking issuance of mandatory injunction directing the appellants to hand over vacant possession over the shop to the respondent on the ground that the licence to occupy the suit premises was terminated. The trial Court directed the suit to be dismissed by recording a finding that one of the two appellants (who are father and son) was a tenant and not a mere licensee. The son was held to be a tenant and hereinafter he is being referred to as the appellant. The decree was maintained in first appeal. In the second appeal preferred by the landlord the High Court has set aside the judgments and decrees of the two Courts below and directed a decree as prayed for being passed. The defendant has preferred this appeal by special leave.

2. The building is a double-storey building. On the upper floor the respondent is conducting hotel business. On the ground floor there are several shops. A photo of the building, produced for the perusal of the Court at the time of hearing, shows a number of shops in continuity located on the ground floor.

3. According to the respondent the premises in occupation of the appellant is a car parking place. As between the parties there exists a document dated April 1, 1981 executed by the appellant in favour of the respondent which is styled as a deed of licence. The document begins with a recital - "Whereas licencee is desirous of having the use of the premises for conducting a stationery shop in room ..... in Woodlands building intended as car parking space for lodgers at the time of construction". The next para states - "And whereas the licensor is willing to grant licence to the licencee in respect of the aforesaid room for the purpose of carrying on business in stationery goods as licencee of the premises".

4. A brief resume of the relevant out of the nine clauses of terms and conditions agreed upon between the parties and as contained in the deed would suffice. Vide clause (1), the licence fee is appointed at Rs. 500/- per mensem. The licensee is authorized "to use the room as licensee for a period of one year from 1.4.1981". Clause (2) enjoins the licensee not to make any structural alterations in the room. Clause (3) permits the licensee and his servants to use the bathroom and toilet facility in the building and also the telephone facilities subject to payment of the telephone charges. If the licensee requires any decorative electrification it may be provided by the licensor at the cost of the licensee. Clause (4) obligates the licensee to pay the current charges of electricity consumed. Vide clause (5), the licensee must, at the end of one year, hand over possession to the licensor by removing all his goods and other immovable from the premises unless by mutual agreement a fresh contract is entered into between the parties. Clause (6) entails automatic termination of licence on non-payment of licence fee. Clauses (7) and (8) were much relied on by the learned counsel for the lincensor-respondent and hence are reproduced verbatim as under:-

"7. It is also understood and agreed that if the Licensor desires to have the premises used as a car park or used for any purpose of his Hotel & Lodging Business it is open to the Licensor to terminate this Licence at any time after giving one month s Notice.

8. It is definitely understood that the Licence creates no estate or interest in the Licencee over the premises and the Licencee shall have only a permission to use the premises for his business."

5. It is the respondent s own case, as pleaded in the plaint, that the appellant is running a stationery shop and allied business activities in the premises. Though the period of licence expired w.e.f. 13.3.1982, the appellant has continued to remain in occupation of the premises. The suit was filed on 22.9.1989. The written statement