Exclusive possession is a crucial factor in determining whether a transaction is a lease or a leave and license.

JUDGMENT - Sharad Manohar J., : - Though this Writ Petition is directed against a finding which appears to be concurrent finding regarding the nature of right had by the petitioner in the suit premises, I have found it necessary to examine the same in details and upon the examination I have no other option but to come to the conclusion that the ultimate finding cannot be sustained.

2. Prima facie the question appears to be very simple. By an agreement

purported to be one of leave and licence dated 31-5-1969, the respondent

allowed the petitioner to continue the use of the suit premises, which consists of a portion of open land for a period of 320 days. That licence was terminated by a notice dated 21-3-1970. I am told that thereafter the respordent has even filed a suit for recovery of possession of the said land. I am told that it is Spl. Civil Suit No. 69 of 1977; but long before that on 8-9-1971 the petitioner filed an application under section 11(4) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter the Rent Acf) for fixation of standard rent of the suit premises contending that the rent of Rs. 3,680 charged for the contractual period which in turn amounted to Rs. 368 for 32 days was excessive rent.

3. Both the Courts below have recorded a concurrent finding that relationship evidenced by the said written agreement dated 31-5-1969(Ex. 71) was not the relationship of a landlord and a tenant and that the right that was given to the petitioner pursuant to the said agreement was only in the nature of leave and licence. The application for fixation of the standard rent has been, therefore, dismissed by both the Courts below, since at the relevant time no licensee had any right for getting a standard rent fixed at the bands of the Court under the provisions of the Rent Act.

4. Mr. Rane, the learned Advocate appearing for the petitioner, has invited my attention to the various facts and circumstances and has also

taken me through the entire agreement as also through the judgment of the Court below and has very strenuously contended that the view taken by the learned Judge that the petitioner was not given exclusive possession of the land in question is a finding erroneous on the face of the record. In the circumstances to which I will presently advert, I find that Mr. Ranes

contention must be upheld.

5. The suit premises consist of an open piece of land, being part of S. No. 243/2A admeasuring 2111 sq. yards. The land S. No. 243/2A itself admeasures 24 Gunthas. The said land belongs to the respondent.

6. Initially one Narayandas was a tenant of the respondent in respect

of the said land and he was paying rent of Rs. 40 per month in that behalf.

It is common ground that the respondent filed a suit against the said Narayandas for a recovery of possession of the said open plot of land admeasuring 24 Gunthas. The proceedings in question reached right till to this Court and a decree for possession was passed in favour of the respondent. The petitioner carries on business of transport and has to maintain trucks for that purpose. At the relevant time his trucks used to be parked on the road and on that account he had to face a Municipal prosecution. The contention of the respondent is that in those circumstances the petitioner requested him to allow him to keep the trucks on the mit premises. It is common ground that from 1-10-1968 the petitioner started using the suit premises for the purpose of parking the trucks and vehicles belonging to the petitioner on the same. It is also common ground that an oral agreement in that behalf was entered into with effect from 1-10-1968. As per the said agreement, the petitioner was allowed the use of the suit premises for a period of 32 days only and for which use and occupation he was to pay Rs. 368 to the respondent. It is not disputed that in spite of the fixed period having been provided for by the said oral agreement, the petitioner continued to be in use and occupation of

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