1. The plaintiff is the appellant in this second appeal. The suit in question had been filed on behalf of the plaintiff for a declaration that he was a lessee of the defendant Bihar State Road Transport Corporation (hereinafter referred to as the "said Corporation") and as such he cannot be evicted from the premises which had been let out to him. It is the case of the plaintiff that the said corporation owned and possessed survey plot No. 666 of village Sherghati and it was let out to the plaintiff to run a refreshment room on a monthly rental of Rs. 60.00. The said premises was leased on basis of an agreement allowing the plaintiff to run the refreshment room for a period of one year from 1.01.1959.

2. According to defendant Corporation the plaintiff was not a lessee but a licensee and after expiry of the period, aforesaid he can be asked to vacate the premises in question.

3. The learned Munsif on a consideration of the document aforesaid and other facts and circumstances came to the conclusion that the plaintiff was a licensee and as such he can be directed to vacate the premises after the expiry of the period of license. On that finding the suit was dismissed. The appeal filed on behalf of the plaintiff was also dismissed by the learned Additional District Judge holding that the plaintiff was a licensee.

4. Learned counsel appearing for the appellant has raised the same point before this Court and has urged that on proper construction of the agreement (Ext. A/5) it should be held that the plaintiff was a lessee of the premises in question and he can be evicted only in accordance with law.

5. On many occasions when a person is granted the right to enjoy an immovable property belonging to another, question arises as to whether such person is a licensee or a lessee. However, there is a marked distinction between a lease and a licence. Lease has been defined in Sec. 105 of the Transfer of Property Act, as a transfer of the right to enjoy an immovable property made for a certain time expressed or implied in consideration for a price paid or promised. Whereas licence has been defined under Sec.52 of the Indian Easements Act as a grant to another person "the right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to easement or an interest in the property". In either case the person concerned is in possession of the property but the question which is to be ascertained is as to whether an interest in the land has been created in his favour. If an interest in the land has been created then he is a lessee otherwise he is just a licensee. For ascertaining this aspect of the matter the document has to be examined and construed. In the case of Associated Hotels of India Ltd. V/s. R.N. Kapoor, AIR 1959 SC 1262, it was observed.

"If document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred."

In that very case it was pointed out that whether a document creates a licence or lease, the substance of the document must be preferred to the form. It should be ascertained as to what was the real intention of the parties, whether they intended to create a lease or a licence. Again in the case of Mrs. M.N. Clubwala V/s. Fida Hussain (AIR 1965 SC 610) the same view was expressed. In the case of Qudrat Ullah V/s. Municipal Board, Bareilly (AIR 1974 SC 396) it was observed: