The main legal point established in the judgment is that the intention of the parties is crucial in determining whether a transaction creates a licence or lease, and the appropriate remedy for the plaintiff after the revocation of the licence.

1. This is an appeal by the defendant. The suit was based on a licence. Plaintiff submitted that a licence was granted to the defendant for using the shop room for a particular purpose. Ext. Al is the deed of licence. A reading of this document would make it clear that parties intended to create a relationship of a licensor and a licensee. After issuing a notice Ext. A2, the plaintiff filed the present suit. Ext. A2 is dated 4-6-1979. The suit was instituted on 26-11-1979. The suit is framed as one for perpetual injunction restraining the defendant or his men from entering into the plaint schedule property.

2. The trial court, after considering the evidence adduced in the case, decreed the suit. The defeated defendant filed an appeal. The appellate court considered the evidence in the case and confirmed the judgment and decree of the trial court. Now, the defendant appeals.

3. The chief questions that have to be considered in this appeal are:

(i) whether the transaction evidenced by Ext. Al creates a licence or lease;

(ii) Assuming that Ext. Al has created a licence and that licence has been revoked by Ext. A2 notice, whether the suit as framed can be decreed?.

The question whether Ext. Al has created a licence or not, is a question which has to be decided on the terms of Ext. Al document. I have read carefully the document. The counsel for the appellant also highlighted the points which are in bis favour to say that the document evidences a lease. But, I am not convinced with the points highlighted by the counsel for the appellant to say that there are trappings of a lease in the document Ext.Al. A reading of the document as a whole, would convince any court that the parties intended to create a licence and they bad no intention to create a lease. In fact, they wanted to make it clear that they never wanted to enter into a relationship of a lessor and lessee. Words clearly indicating that they never wanted to create a lease are abundant in the document. It is very clearly stated in the document that the parties should not set up a case of lease on the basis of the document. Whatever safeguards that can be made to avoid a contention that the document is a lease, have been incorporated in the document itself. Inspite of all these, the parties have gone to court and contended that the document has to be treated as one creating a lease.

4. The counsel for the appellant very rightly brought to my notice the recent decision of the Supreme Court reported in Rajbir Kaur v. M/s S. Chokosiri & Co. (AIR. 1988 SC. 1845). Being a very recent decision it has got its own fascination. Almost all the decisions on the subject-matter have been referred to in this decision. Finally, the Supreme Court has said:

"In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmus test to distinguish one from the other. The "solution that would seem to have been found is as one would expect, that it must depend on the intention of the parties" (See Cobb v. Lane (1952) 1 All E. R.1199."

5. What I have tried earlier is to find out the intention of the parties and to my mind, the intention of the parties is very clear that the parties wanted only to create a licence and not a lease. So, on the first point, I have to hold that the defendant has not sustained his case of lease.

6. The second question is not free from difficulty. The counsel submitted before me that the licence has been revoked at any rate on 4-6-1979 and the suit was instituted only on 26-11-1979 and in such a circumstance, the plaintiff ought to have filed a suit for recovery of possession. As a second line of defence, the counsel also submitted before roe that at any rate, the plaintiff ought to have filed a suit for mandatory Injunction and in this case, the plaintiff has chosen to file a suit for perpetual injunction and there cannot be any cause of action for the plaintiff to