JUDGMENT - V.C. DAGA, J.:---The lucid and comprehensive judgment running into 44 pages delivered by the Division Bench of the Court of Small Causes at Bombay on 1st August 1987 in Appeal No. 21/E of 1975 reversing the judgment and order dated 13th December 1974 passed by the Judge, Small Causes Court in Ejectment Application No. 138/619/E of 1971 gives full account of the facts giving rise to this litigation.

2. I give only brief summary needed to understand the issue extracted hereinbelow :

The Issue

The only issue involved in this petition is : Whether the document (Exhibit A) executed by the parties at the time when the respondent was inducted in the suit premises, is in the agreement of leave and licence or a deed of lease ? In other words, the main question involved in this petition is whether the respondent is licensee or tenant in the suit premises.

Facts-in-brief

3. The petitioner is a owner of the suit building. Ejectment proceedings were initiated by the petitioner under section 41 of the Presidency Small Causes Court Act ("Act" for short) and prayed for ejectment of the respondent and claimed possession of the suit premises comprising of three rooms, kitchen and bath room located on 1st floor of Pruthi Building situated at 196, Prabhat Colony, Santacruz (East), Bombay - 400 055.

4. On being noticed, the respondent appeared. He filed his defence inter alia raising the plea of tenancy. The trial Judge, on the basis of rival pleadings, framed preliminary issue as required under section 42-A of the Act reading as under :

"Does respondent prove that he is the tenant of the applicant in respect of the suit premises protected under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act?"

5. On the basis of the above issue the parties were put to trial. The evidence was recorded by the trial Court. The trial Judge vide his judgment and order dated 13th December, 1974 answered the above preliminary issue in negative and in favour of the petitioner herein, holding that the respondent was not a tenant of the suit premises but was a mere licensee.

6. The respondent herein preferred an appeal against the aforesaid judgment to the Small Causes Court, Bombay. The said appeal was disposed of by the Appellate Bench of the Small Causes Court vide its judgment and order dated 1st August, 1987 and allowed the appeal for the reasons stated therein inter alia holding that the respondent herein was the tenant of the suit premises.

7. Aggrieved by the aforesaid judgment of the Appellate Bench of the Small Causes Court, the petitioner has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India.

8. The controversy raised in this petition relates to the nature of possession of the respondent. The answer to this controversy depends on correct interpretation of the document at Exhibit A.

9. The trial Court after taking into account the above document and the oral evidence, held that the respondent was not a tenant of the suit premises protected under the Bombay Rents, Hotel and Lodging House Rates Control Act, ("Bombay Rent Act" for short).

10. The Appellate Court, as already stated hereinabove, reversed the above order of the trial Court and, in the facts and circumstances disclosed on record and after appreciating oral as well as documentary evidence on record, reached to the conclusion that all the main ingredients of tenancy were well established and duly proved by the respondent.

11. The lower Appellate Court, in support of its view, relied upon the following eight characteristics of the document at Exhibit A, which are reproduced hereinbelow :

(i) "I have taken a portion consisting 3 rooms, kitchen, bathroom, latrine etc., from the portion of landlord Shri Sardar Singh Pruthi, 1st floor, 196 Pruthi Blg., Bombay 55 at leave and licence basis at the rate of Rs. 200/- p.m. inclusive of water charges."

(ii) "I promise to pay the rent regularly up to 10th of each calender month."

(iii) "I have paid advance of t

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