Sandeep K. Shinde, J.

This Second Appeal is preferred by the defendants against the judgment and decree passed in Regular Civil Appeal No. 98 of 2014.

2. I shall refer the parties by their nomenclature in the suit.

3. The facts in brief are as under :

The plaintiff-respondent, is owner of the Shop No.8 ("the suit property") for short. Defendant was inducted in the suit shop as a licensee in the year 2007 for 11 months. The license was renewed in 2008 and further in 2009 for the period of eleven months each. By efflux of time, the license period expired on 17th August, 2010 and thereafter the plaintiff vide notice on 3rd September, 2010, called upon the defendant to handover possession of the suit property along with outstanding license fees payable from June, 2010 to October, 2010. The defendant did not accede to his request, which compelled the plaintiff to file suit for possession and for consequential relief’s.

4. The evidence on record reveals that, the plaintiff has proved three leave and license agreements; dated 25th July, 2007 (Exhibit-40), 16th September, 2008 (Exhibit-41), 18th September, 2009 (Exhibit-42). It may be stated that the execution of these leave and license agreements has not been disputed by the defendant. However, defendant would contend that, he was inducted in the suit premises as a "lessee", in the year 2007 for a period of seven years. He thus pleaded oral lease in his favour. However, both the Courts upheld the plaintiff's case and rejected the defendant's defence.

5. I have gone through the evidence and leave and license agreements. Now the question is, in view of evidence on record, whether both the Courts were justified in fact and law in upholding status of the defendant as licensee as against that of lessee.

6. The apparent tenor of the documents i.e. leave and license agreements at Exhibits-40, 41 and 42, show a clear intention to deprive the defendant (licensee) of an interest in the property. The covenants of leave and license agreements do not show that the defendant was left in exclusive occupation of the suit property. Evidence reveals, that during the subsistence of third leave and license agreement, plaintiff had constructed loft in the suit property. It clearly shows no interest in the suit property was created in his favour and he had mere right to occupy the suit property. Intention assumes importance in differentiating between the two transactions. This is made clear by the Apex Court in the case of Puran Singh Sahni v. Sundari Bhagawandas Kriplani, (1991) 2 SCC 180.

"The intention of the parties in making the agreement is determinative of the question whether it was a lease or licensee. The test of exclusive possession though of significance, is not decisive. By mere use of the word lease or 'licensee' the correct categorisation of an instrument under law cannot be affected. While interpreting the agreement the court has also to see what transpired before and after the agreement.... The best interpretation is made from the context. The intention of the parties to an agreement has to be gathered from the terms of the agreement construed in the context of the surrounding, antecedent and consequent circumstances. The crucial test would be what the parties intended. If in fact it was intended to create an interest in the property, it would be a lease, if it did not, it would be a licensee.... What was given to the licensee was the use of the flat with furniture, fittings etc., which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time."

7. The learned Counsel for the appellant has relied on the evidence of PW2 in support of his contention. However, his evidence does not even suggest that in the year 2007, defendant was inducted as a lessee in the suit property.

8. As against the leave and license agreements, the appellant-defendant has set up the defence of oral lease. Both the Courts rejected this defence upon a