In determining whether an agreement is a lease or an agency agreement, the court will look to the substance of the agreement, rather than its form.

( 1 ) THIS appeal by Abhoy Singh Surana and others is directed against the judgment and decree passed by the learned Chief Judge, City Civil Court, the 18th day of January, 1979, in Ejectment Suit No. 237 of 1974. The learned Chief Judge having tried the suit dismised the same on contest with costs.

( 2 ) BEING aggrieved, the plaintiffs have come up before this Court in appeal. The plaintiff's case may be stated in short.

( 3 ) THE plaintiffs are the owners of the Premises No. 3 Mangoe Lane, Calcutta, and the defendant No. 1 is a monthly tenant under the plaintiff's in respect of the suit premises comprising of one godown on the ground floor. The defendant No, 1 has without the knowledge and/or consent of the plaintiffs, illegally transferred and/or sub-let the suit premises to the defendant No. 2, after the commencement of the West Bengal Premises Tenancy Act, 1956. The defendant made additions and alterations of permanent character by making construction and structural alteration etc. and thereby committed acts contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, causing material deterioration of the suit premises. The plaintiffs protested against such action but without any avail. The plaintiffs prayed that on the ground of sub-letting and causing unauthorised construction or alteration the defendants Nos. 1 and 2 were liable to be evicted from the suit premises. The plaintiffs further pleaded that they had duly issued notice under Section 13 (6) of the W. B. P. T. Act but the defendants did not comply with the same.

( 4 ) THE suit was contested. The defendant No. 1 W. Evans and Company Limited has contested the suit by filing a written statement denying the relationship of landlord and tenant between the plaintiffs and the defendants. The defendant denied that it made any alteration and addition or construction of permanent or temporary character in the suit premises. It also denied the allegation of sub-letting of premises to the defendant No. 2 Messrs. Kanubhai Engineers (p) Ltd. and submitted that it had not transferred possession thereof to the defendant No. 2. The defendant No. 1 pleaded that the defendant No. 2 had appointed defendant No. l as its agent for distribution and exhibition of the goods and products manufactured by or belonging to or dealt with by the defendant No. 2 on remuneration and as per terms of agency agreement has allowed the defendant No. 2 to use the suit room jointly with defendant No. 1 as its licensee for mutual convenience and for furtherance of defendant's agency itself.

( 5 ) THE defendant No. 2 has also contested the suit by filing a separate written statement, denying the plaintiff's allegations and pleaded that defendant No. 2 had appointed defendant No. l as its agent on remuneration for distribution and exhibition of the goods and products manufactured by or belonging to or dealt with by the defendant No. 2. It further pleaded that as per terms of the agency agreement, the defendant No. 1 had allowed, the defendant No. 2 to use the suit room jointly with the defendant No. 1. The defendant No. 2 had denied that it was a sub-tenant of defendant No. 1 and that there had been any transfer of suit premises to the defendant No. 2. Upon these pleadings, the learned Chief Judge raised eight issues for trial in the suit. Evidence both oral and documentary was adduced by the parties and after considering the evidence on record and hearing the parties, the learned Chief Judge dismissed the suit. Hence this appeal.

( 6 ) THE point before us is whether a sub-tenancy was created by defendant No. 1 or not in favour of defendant No. 2 and whether there has been transfer of possession of the suit premises or not.

( 7 ) MR. Kapoor who appears for the appellants takes us through the oral evidence adduced by the parties. Plaintiffs' witness No. 1 A. S. Surana in his evidence furnishes the background as to how the tenancy was created and