Exclusive possession of a property, coupled with the payment of rent, is a strong indication that the transaction is a lease and not a license.

1 What is the thin line of distinction between the lease and a licence, when exclusive possession is delivered to the person in occupation of the premises? is the main question requiring determination in this case.

2. The facts giving rise to the filing of this second appeal are that the plaintiff- respondent filed a suit for mandatory injunction against the appellant with prayer of directing him to handover the possession of the shop in dispute to the plaintiff which was allegedly given to the defendant 0n 14-10-1975 as a licensee for such a period as the plaintiff desired. It was submitted that the defendant had offered and assured the plaintiff that he would enter into a partnership and in the shop in dispute the business of the sale of dry-fruits in partnership with both the parties shall be carried on. Notwithstanding the assurance and undertaking, it was pleaded that the defendant-appellant was only a licensee in the disputed shop and the license was terminable at any moment at the instance of the plaintiff The defendant-appellant after being put in possession of the suit shop did not settle the terms of partnership allegedly on lame excuses with the result that the plaintiff by virtue of a notice dated: 16.2.1976 terminated the license calling upon licensee to handover the possession of the shop to the plaintiff. In reply to the notice of the plaintiff, the defendant appellant stated that he was a tenant of the shop and not a licensee. The suit of the plaintiff was resisted by the defendant on various grounds. Main plea taken was that the defendant was a tenant of the plaintiff and that the suit had been filed with the intention of getting the rent of the shop enhanced.

3 On the pleadings of the parties, the following issues were framed by the trial court on 10.12-1976:

1. Whether the suit in the present form is not maintainable? OPP

2. Whether the defendant is a licensee in the suit shop? OPP

3. In case issue No. 2 is not proved whether the defendant is a tenant in the suit shop ? OPD.

4. Whether the value for the purpose of court fee is not fixed properly? OPD.

5. Whether the plaintiff has no cause of action ? OPD.

6 Relief? OPP.

S/Shri Mela Ram, Girdhari Lal, Om Prakash, Ruder Mani. Nanak Chand, Ram Murti and Jagdish Chander, appeared as witnesses of the plaintiff. The defendant produced Kundal Lal Tilak Raj, Mulkh Raj, Kidar Nath and Surrinder Nath as his witnesses Both the parties also appeared as witnesses in support of their cases. The trial court after appreciation of the evidence led in the case decided issue No. 2 in favour of the plaintiff and issue No 3 against the defendant and held that as the possession of the defendant-appellant was permissive, he was a licensee, Issues 1,4 and 5 were also held decided against the defendant but no separate reasons were given for that. A decree for mandatory induction directing the defendant-appellant to vacate the suit shop was passed in favour of the plaintiff-respondent with costs.

4 In appeal the first appellate court found that issue No. 2 was the only issue which required determination and a finding given in that behalf would govern the other issues. After discussing the pleadings and the evidence led in the case, the first appellate court came to the conclusion that the finding of the trial court with respect to issue No. 2 was based upon evidence and that the defendant-appellant was a licensee and not a lessee of the plaintiff-respondent. Not satisfied with the judgment and decrees of the courts below the present second appeal has been filed mainly on the ground that the courts below have not properly appreciated the points of law applicable on the basis of the admitted facts. It is submitted that the whole of the transaction between the parties, the conduct of the plaintiff-respondent and the documents relied upon by the owner clearly proved that the transaction between the parties was intended to grant a lease and not a license.

5 I have heard the learned counsel for the

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