The intention of the parties is the crucial test in determining whether an agreement creates a lease or a licence. Exclusive possession is not a conclusive test.

This second appeal came to us on a reference made by a learned single Judge in view of "the importance and the difficulty of the question involved therein. "

2. The main point which arises for consideration in this appeal is whether the defendant-respondents were the lessees of the plaintiff-appellant or only his licensees. In order to appreciate the point certain facts need be stated.

3. The appellant filed a suit giving rise to this appeal for possession after demolition of the constructions over the land in dispute and for the recovery of Rs. 900/- by way of past damages for use and occupation for the period from 1-6-1944 to 30-6-1947 and also for the recovery of pendente lite and future damages at the rate of Rupees 25/- per month.

4. The plaint allegations were that the plaintiff was the owner of a big plot of land, that in June 1944 the eastern portion of this land was taken by the defendants on payment of Rs. 25/- per month with a definite promise that the defendants would use the said portion of the plaintiffs land during the period of the second World War and would not make any construction thereon and they would also vacate it immediately on the plaintiffs demand after the end of the war, that despite these terms and conditions and the repeated demands made by the plaintiff in this regard after the end of the war the defendants did not give up the disputed land from their use and occupation; on the other hand, they made constructions over a part thereof without the knowledge and consent of the plaintiff and against the terms and conditions originally settled, that their possession had now become that of a trespasser and hence they were liable for ejectment and also to pay damages mentioned in the plaint. The plaintiff, therefore, claimed the relief for possession of the land after demolition of the constructions made by the defendants and also for recovery of damages.

5. The suit was resisted by the defendant No. 1 mainly on the ground that the disputed land was taken on a premium of Rs. 15/- per month in the year 1944 expressly for the purposes of making constructions and installing a factory thereon, that the defendants had made permanent constructions at a cost of Rs. 10,000/- with the permission and consent of the plaintiff and hence the defendants position bad been that of a licensee and a permanent tenant and they were not liable for ejectment. It was further contended by defendant No. 1 that he had installed a saw machine, an oil expeller and a flour mill over the land in dispute in the very beginning, that as the plaintiff did not object to the making of those constructions and installations, he was estopped from claiming demolition of the constructions, removal of the said machines and possession over the said land.

6. The suit was dismissed both by the trial court and the lower appellate court and the concurrent findings of fact recorded by those courts were that the land was given by the plaintiff to the defendants for the making of constructions and for establishing a factory over it and without specification of the period whatsoever and, therefore, the defendants had been in occupation of the aforesaid land as licensees, that the licence had become irrevocable by virtue of the provisions of Section 60 of the Indian Easements Act owing to the fact that the defendants had made costly and permanent constructions over the land acting upon the licence.

7. The question, therefore, which arises for determination in this case is the status of the defendants i. e. whether they were licensees or lessees. It is well established that it is the substance of the agreement which matters and not the form or the label which the parties chose to put upon it, otherwise clever drafting can camouflage the real intention of the parties. Nevertheless since the appellant is the plaintiff who can succeed only if he is able to prove his allegations, it is appropriate to examine his pleadings. Normally there is no