Rajesh H. Shukla, J.

1. The present First Appeal is filed by the Appellant/Original Plaintiff being aggrieved with the impugned judgment and order in Civil Suit No. 5440 of 1985 by the City Civil and Sessions Court, Ahmedabad dated 31.3.1992 dismissing the suit filed by the Plaintiff on the grounds stated in the memo of Appeal inter alia that the court below has misread and misinterpreted the agreement dated 1.4.1972. The court below has erred in holding that it has no jurisdiction to try and decide the suit except Issue No. 1 that the deceased Dhirajben was a licensee or not. The court below has misread the agreement dated 1.4.1972 and also erred in ignoring Clause Nos. 1 and 4 reading without other clauses to arrive at the conclusion that the agreement is not a rent note or license. The court below having observed that Ambalal Maneklal Parikh had expired in 1978 and fresh agreement of leave and license at Exh. 82 was executed between the deceased husband of the Plaintiff and the deceased mother of the Defendant, has erred in coming to the conclusion that the relationship between the parties was that of tenant and not that of licensee. The court below has also erred in holding that whatever may be the exception and intention which may be gathered from the documents, unless it is reflected in the conduct of the parties, in actual practice, such intention expressed on papers would lose all the meaning and and convert the so-called agreement of leave and license into lease.

2. Heard learned Advocate Shri Amar N. Bhat for the Appellant. Though served, as the Respondents/Original Defendants were not served, the efforts were made for substituted service, and thereafter, as the places were not found in view of the report of the Bailiff, they were served by public notice. Learned Advocate Shri Bhatt referred to the issues and submitted that Clause No. 4 of the agreement and the issue about the lease or license was required to be examined in light of the other issues as well as the two documents Exh. 62 and Exh. 82. Learned Advocate Shri Bhatt referred to the agreement and submitted that Clause 4 and 24 of the agreement clearly suggest that it was an agreement for leave and license. He pointedly referred to Clause 4 and 24 of the agreement which reads as follows:

"4. That by this Agreement no exclusive possession of the premises is given to the Licensee and that this Agreement does not create any tenancy rights or any other rights, interest or relationship excepting that of Licensor and Licensee.

24. On the expiry of the period of this Licence, the Licensee may be given preference in case of the renewal of the licence to use the said premises or part thereof for any further period on such terms and conditions that would be laid down by the Licensor."

3. Learned Advocate Shri Bhatt referred to the background of the facts referring to the averments in the plaint of Civil Suit No. 5440 of 1985 and submitted that the Plaintiff in the averment has stated that the Plaintiff and her husband as well as the parents of the Defendants Ambalal M. Parikh and Dhirajben Ambalal Parikh were residing in the premises. It is averred that as the parents of the Defendants were known to the husband of the Appellant/Original Plaintiff - Kantaben, and as the Plaintiff and her husband were residing alone in the bungalow, due to relations, four rooms on the first floor of the bungalow were permitted to be used by the parents of the Defendants by leave and license agreement which was executed between Ambalal Parikh and the husband of the Plaintiff. Thereafter, again, leave and license agreement was entered into between Dhirajben and the husband of the Plaintiff on 14.10.1980. Thus, a leave and license agreement was executed, by which the mother of the Defendant Dhirajben was permitted to use the same. However, learned Advocate Shri Bhatt submitted that though it was a leave and license agreement, it is specifically averred in the plaint by the Plaintiff in