TMI Blog1971 (1) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... araindas-hereinafter referred to as 'the plaintiff-commenced an action in the City Civil Court, Bombay, for a decree in ejectment against Laxmidas Raghunath hereinafter called 'the defendant'- alleging that the defendant was occupying a loft 19' x 15' on the upper floor of a building at Pragraj Galli, Mulji Jetha Market, Bombay under an agreement of licence dated November 3, 1958 and that the licence had been duly terminated and withdrawn but the defendant had failed and neglected to vacate the loft notwithstanding the demand. The defendant contended that he was a tenant of the loft, that the tenancy had not be duly terminated as required by law, that he was entitled to the protection of the Bombay Rents Hotel Lodging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he loft was given on leave and licence basis for use and occupation of the defendant on the terms and conditions mentioned therein. The relevant conditions were 1. The owner (the plaintiff) has agreed to grant the leave the licence for use and occupation of the said loft (Medo) of the said shop for a period one year commencing from Aso Vad 13 S. Y. 2014 to Aso Vad 12 S. Y. 2,015. 2. The Licensee (the defendant) shall pay to the Owner monthly compensation or Licensee fee at the rate of ₹ 250/- per month, and the Licensee has paid ₹ 3000/- (Rupee three thousand) only to the Owner as compensation or licence fee for the said period in advance on or before the execution of this agreement. 3 The Licensee shall have no right a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the plaintiff may terminate the agreement by giving one month's clear notice, the agreement could not be terminated by notice of a shorter duration. An attempt was deliberately made to camouflage the true nature of the agreement, by reciting in several clauses that the agreement was for leave and licence, and to emphasise the presence it was also recited that the defendant was not to have any right as tenant or sub-tenant in respect of the loft. At the trial the elder brother of the defendant was examined as a witness. He stated that the agreement dated November 3, 1958 was intended to be an agreement of lease, but the plaintiff insisted that the agreement be drafted with the conditions set out therein. Section 52 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive epossession, though not decisive, is of significance. Mrs. M. N. Clubwala v. Fida Hussain Saheb and Ors(1). The Trial Court regarded exclusive possession of the premises, given to the defendant as conclusive of the question whether the loft was in the occupation of the defendant as a tenant. The Court obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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