NARINDER NATH SAINI Vs. PREM PARKASH KAUR

JUDGEMENT

(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.

(3.) 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."