TMI Blog2004 (3) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... w and directed a decree as prayed for being passed. The defendant has preferred this appeal by special leave. 2. The building is a double-storey building. On the upper floor the respondent is conducting hotel business. On the ground floor there are several shops. A photo of the building, produced for the perusal of the Court at the time of hearing, shows a number of shops in continuity located on the ground floor. 3. According to the respondent the premises in occupation of the appellant is a car parking place. As between the parties there exists a document dated April 1, 1981 executed by the appellant in favour of the respondent which is styled as a deed of licence. The document begins with a recital -- Whereas licencee is desirous of having the use of the premises for conducting a stationery shop in room ............in Woodlands building, intended as car parking space for lodgers at the time of construction . The next para states -- And whereas the licensor is willing to grant licence to the licencee in respect of the aforesaid room for the purpose of carrying on business in stationery goods as licencee of the premises . 4. A brief resume of the relevant out of the nin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tenant in the premises in the month of April 1972 on a monthly rent of ₹ 300/- and has continued to remain in occupation of the premises ever since then. The rent was increased from ₹ 300/- to ₹ 360/- and then to ₹ 500/-. The business carried on by the appellant in the suit premises is not in any manner connected with the hotel business of the respondent. The nature of the premises is not such as can be said to be necessarily an adjunct of the premises in possession of the respondent for his own use. Though a part of the same building, the shop in possession of the appellant is a separate entity or a separate unit of premises. The appellant is in exclusive possession of the premises. The business conducted by the appellant in the premises is not only different from the one carried on by the respondent, the respondent has no supervisory power or any other connection with the business run by the appellant. The compensation paid by the appellant to the respondent for user of the premises is paid month by month. The appellant entered in the witness box but the respondent did not adduce any evidence relevant for the purpose of determining the nature of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffice to refer to a recent decision of this Court in Corporation of Calicut v. K. Sreenivasan, [2002]3SCR783 . 9. A few principles are well settled. User of the terms like 'lease' or licence', 'lessor' or 'licensor', 'rent' or 'licence fee' are not by themselves decisive of the nature of the right created by the document. An effort should be made to find out whether the deed confers a right to possess exclusively coupled with transfer of a right to enjoy the property what has been parted with is merely a right to use the property while the possession is retained by the owner. The conduct of the parties before and after the creation of relationship is of relevance for finding out their intension. 10. Given the facts and circumstances of a case, particularly when there is a written document executed between the parties, question arises as to what are the tests which would enable pronouncing upon the nature of relationship between the parties, Evans Smith state in The Law of Landlord and Tenant (Fourth Edition) - A lease, because it confers an estate in land, is much more than a mere personal or contractual agreement for the occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dlord and tenant where circumstances and conduct negative that Intention; but the fact that the agreement contains a clause that no tenancy is to be created will not, of itself, preclude the instrument from being a lease. If the effect of the instrument is to give the holder the exclusive right of occupation of the land, though subject to certain reservations, or to a restriction of the purposes for which it may be used, it is prima facie a lease; if the contract is merely for the use of the property in a certain way and on certain terms, while it remains in the possession and under the control of the owner, it is a licence. To give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee require that he should have exclusive possession. On the other hand, the employment of words appropriate to a lease such as 'rent' or 'rental' will not prevent the grant from being a mere licence if from the whole document it appears that the possession of the property is to be retained by the grantor. (at pages 14-15). 12. On the facts found by the two Courts below which findings have not been rev ..... 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