B Y DSOUZA Vs. ANTONIO FAUSTO FERNANDES

JUDGEMENT

(1.) The only point involved in this appeal is whether the document (Ext. 20) executed by the parties at the time the appellant was inducted in the disputed premises is an agreement of leave and licence or a deed of lease. The building belongs to the respondent, and the appellant claims to be in its occupation as a month to month tenant. The respondent instituted the suit in the civil court, out of which this appeal by special leave arises, for a decree for eviction of the appellant alleging that he has been in occupation of the building as a licensee and has illegally refused to vacate in spite of service of notice. The appellant's defence is that he is a tenant protected by the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, and in view of S. 56 thereof the suit in the civil court is not maintainable. Agreeing with the plaintiff-respondent, the trial court passed a decree which was confirmed on appeal by the District judge. The High Court dismissed the second appeal filed by the appellant observing that it was concluded by concurrent findings of fact.

(2.) We do not agree with the High Court that the findings of the courts below were those of fact so as to be binding on the High Court under S. 100 of the Code of Civil Procedure. The case has to be decided on the nature of possession of appellant which is dependent on a correct interpretation of the document Ext. 20.

(3.) The document Ext. 20 has been described as an agreement of leave and licence and the parties as the Licensor and the Licensee. But it is significant to note that in the very first sentence of the document the respondent is described as "Landlord hereinafter called the Licensor". However, this cannot answer the disputed issue as it is firmly established that for ascertaining whether a document creates a licence or lease, the substance of the document must be preferred to the form. As was observed by this Court in Associated Hotels of India Ltd. v. R. N. Kapoor (1960) 1 SCR 368, the real test is the intention of the parties - whether they intended to create a lease or licence. If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property "of which the legal possession continues with the owner", it is a licence. If the party in whose favour a document is executed gets exclusive possession of the property, prima facie he must be considered to be a tenant; although this factor by itself will not be decisive. Judged in this light, there does not appear to be any scope for interpreting Ext. 20 as an agreement of leave and licence.