BHASKAR BHATTACHARYA, J.

This appeal is at the instance of a third party in a proceeding for eviction of a tenant whose tenancy is governed by the provisions of the Transfer of Property Act and is directed against the judgment and decree dated 4th August, 2010, passed by a learned Single Judge of this Court by which His Lordship decreed the suit for eviction ex-parte against the tenant.

Being dissatisfied, the appellant has come up with this appeal with a prayer for permission to file such appeal as a third party to the decree.

It appears from record that the suit out of which the present appeal has been filed was instituted by the respondent Nos.1 to 3 against the respondent No.4 alleging forfeiture of the lease by treating the respondent No.4 as a tenant governed by the provisions of the Transfer of Property Act. None appeared on behalf of the respondent No.4 and the learned Single Judge on the basis of ex-parte evidence was satisfied that the plaintiffs proved the ground alleged in the plaint and consequently, passed a decree for eviction and recovery of arrears of rent.

As indicated earlier, the respondent No.4, the tenant, has not preferred any appeal but this appeal has been preferred by the appellant before us alleging that it is a subtenant under the respondent No.4 and in view of collusion between the plaintiff/respondent Nos.1 to 3 in one hand and the respondent No.4/defendant on the other, its right will not be affected in view of the last part of Section 115 of the Transfer of Property Act.

In support of the contention that the appellant is a sub-tenant, Mr. Mitra, the learned senior advocate appearing on behalf of the appellant, has drawn our attention to an agreement between the appellant and the respondent No.4 wherein the appellant has been described as a contractor and the agreement has been described as one for management, maintenance and keeping clean, operative and in good order the common parts of the entire subject matter of tenancy held by the respondent No.4 including the right conferred upon the appellant to provide Durwans and Sweepers and other staff and also making minor running repairs and inner renovations of the common part.

In the agreement, it is further provided that for the aforesaid services the appellant is required to enter into separate agreement with all co-lessees for the management and maintenance and for supply of electricity to the co-lessees in the property.

After going through the said agreement, we find, that was merely an agreement for maintenance and looking after the common part of the building held under the lease of the respondent No.4 and thus, by no stretch of imagination, the appellant can be described as a sub-lessee under the respondent No.4. It is admitted that no deed of lease has been executed between the defendant No.4 and the appellant.

We, therefore, find that the plea of Mr. Mitra, the learned senior counsel appearing for the appellant, that his client is a sub-lessee is not tenable.

Mr. Mitra, in this connection placed strong reliance upon the decision of the Supreme Court in the case of Qudrat Ullah vs. Municipal Board, Bareilly, reported in AIR 1974 SC Page 396 and contended that in order to construe an agreement, the nomenclature of the same is not the decisive one, but the intention of the parties is the primary consideration.

In the aforesaid case the Supreme Court was considering the effect of Exhibit 1 as to whether the same was a lease or only a licence or a composite one. In the said Exhibit 1, it was specifically provided as follows:

“During the entire period of Theka, the first party shall have all the rights and powers, as per conditions laid down in the auction sale and agreement in respect of use of shed and shops as enjoyed by the second party as proprietor in possession of the said property.”

“The first party shall have possession of the sheds aforesaid detailed in the said map and 11 shops aforesaid.”

“In all the eleven shops i