S. T. DESAI, V. B. RAJU, J.

( 1 ) THIS is an application under Article 227 of the Constitution of India.

( 2 ) THE only contention urged by the petitioner is that there is an error of law apparent on the face of the record in the order of the Revenue Tribunal confirming the decision of the Tenancy Mamlatdar in Tenancy Case No. 244/53-54 and the order in appeal dismissing the appeal from the decision of the Tenancy Mamlatdar. The Revenue Tribunal held that the Tenancy Mamlatdar was right in his decision that opponent No. 1 was a tenant of the petitioner in respect of the land S. No. 228 in village Kabilpore Taluka Navsari consisting of a bungalow 150 mango trees 100 coconut trees and a well. There was a registered agreement between the parties dated 21-6-1949 and after considering the terms of this agreement and drawing the presumption under sec. 4 of the Bombay Tenancy and Agricultural Lands Act 1948 the Tenancy Mamlatdar held that the relationship between the parties was one of landlord and tenant. This decision was confirmed in appeal by the Assistant Collector Navsari and also in revision by the Revenue Tribunal of Gujarat and the only contention urged before us is that there is an error apparent on the face of the record in the order of the Revenue Tribunal confirming the construction of the document as a lease.

( 3 ) IT is contended that the document recites at various places that it is a licence that the property in question was given to opponent No. 1 for management that the document does not create any interest in immovable property and that by construing the document which is a licence as a lease the authorities below committed an error of law apparent on the face of the record.

( 4 ) THE learned counsel for opponent No. 1 relied on Associated Hotels of India Ltd. v. R. N. Kapoor A. I. R. 1959 Supreme Court 1262 where the distinction between a lease and licence has been explained. He contends that on a true construction of the document it amounts to a lease and not a licence.

( 5 ) THE question therefore is whether on a true construction of the document it amounts to a lease. A lease is defined in section 105 of the Transfer of Property Act as follows :

( 6 ) A lease of immovable property is a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money a share of crops service of any other thing of value to be rendered periodically or on special occasions to the transferor by the transferee who accepts the transfer on such terms.

( 7 ) THE essential requirements of the lease are therefore (1) there should be a transfer of a right to enjoy immovable property; (2) it should be for a certain time express or implied or in perpetuity; and (3) it should be in consideration of a price paid or promised or of money a share of crops service or any other thing of value to be rendered periodically or on special occasions to the transferor by the transferee. The right to enjoy immovable property would of course amount to an interest in the immovable property. It is not in dispute that the document is for a period of 10 years and that it provides for a consideration as contemplated in sec. 105 of the Transfer of Property Act. The real controversy turns upon the first requirement that there should be a transfer of a right to enjoy such property. The right to enjoy immovable property has to be distinguished from a right to do or continue to do in or upon the immoveable property of the grantor something which would in the absence of such right be unlawful and where such right does not amount to an easement or interest in the property. Licence is defined in sec. 52 of the Easements Act and sec. 52 reads as follows :where one person grants to another or to a definite number of other persons a 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

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