The distinction between a lease and a license is determined by the intention of the parties, the presence or absence of payment of rent, and the exclusive possession of the property.

S.S.Sodhi, J.

1. Behind the shop of the defendant-Narinder Nath Saini in Ludhiana is a godown which belongs to the plaintiff-Prem Parkash Kaur but has been in his possession. The controversy here is whether this godown is held by the defendant as a tenant or a licencee ?

2. According to the plaintiff Parkash Kaur, she had granted a licence to the defendant Narinder Nath Saini for use of this godown for a period of two years by the licence deed Exhibit P/1 executed on January 1, 1970. In the term of this deed he was required to hand back possession of the godown on the expiry of the said period of two years and also to reconstruct the wall which he had been allowed to be removed by an earlier agreement of September 1, 1968. The licence deed also provided for payment of damage at the rate of Rs. 40/- per day, if possession was not delivered by the due date. The defendant now not having delivered possession, she sought a decree for mandatory injunction directing him to vacate the godown and to reconstruct the wall which he had removed in pursuance of the agreement of September 1, 1968.

The defendant, Narinder Nath Saini, on his part took up the plea that he was in occupation of the said property as a tenant and the jurisdiction of the civil Court consequently stood barred under the provisions of the East Punjab Urban Rent Restriction Act, 1949 .

3. The trial Court held in favour of Narinder Nath Saini on the finding that he was a tenant. This was, however, reversed in appeal by the lower appellate Court where it was held that the defendant was a licencee under the licencee deed Exhibit P/1 and was, in terms thereof, liable to hand back possession of the godown to the plaintiff. Mandatory injunction was accordingly granted to the plaintiff, as prayed for also with regard to the reconstruction of the wall.

4. As is well known, there is a marked distinction between the lease and a licence. To ascertain whether a document creates a lease or the licence, the test as laid down by the Supreme Court in Associated Hotels of India Ltd. v. R.N. Kapoor, A.I.R. 1959 Supreme Court 1262, is "(1) The substance of the document must be preferred to the form; (2) The real test in the intention of the parties-whether they intended to create a lease or licence; (3) If the document creates an interest in the property, it is lease, but if it only permits another to make use of the property on which the legal possession continues to be with the owner, it is a licence; and (4) If under the document, a party gets exclusive possession of the property prima facie he is considered to be tenant, but circumstances may be established which negative the intention to create a lease."

5. Seen in this light, what stands out in the licence deed Exhibit P/1 to justify the lower Appellate Court reading it to be what it purports to be namely; licence deed is the absence therein of any provision relating to payment of any amount by the defendant to the plaintiff in respect of the premises in question. Payment has been prescribed in this deed only on the defendants failing to deliver back possession after the expiry of the two years period granted by it. In this behalf, it would pertinent to note that, when the defendant-Narinder Nath Saini came into the witness box, he deposed that he had been paying rent for these premises and he also had with him receipts showing such payment. No such receipts were, however, ever produced on record during the trial or before the lower Appellate Authority. It was only after the conclusion of arguments in this Court that an application under Order 41 Rule 27 of the Code of Civil Procedure was filed whereby permission was sought to place on record documents purporting to be receipts issued on behalf of the plaintiff in respect of the said godown. This application was vehemently opposed by the plaintiff and for good reasons. As objection was taken there not only on the grounds that so called receipts were being produced at a very