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PETITIONER: KHALIL AHMED BASHIR AHMED

       Vs.

RESPONDENT: TUFELHUSSEIN SAMASBHAI SARANGPURWALA

DATE OF JUDGMENT13/11/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1988 AIR  184            1988 SCR  (1)1057  1988 SCC  (1) 155        JT 1987 (4)   342  1987 SCALE  (2)1034  CITATOR INFO :  D          1988 SC1845  (21)  RF         1989 SC1642  (36)

ACT:      Presidency Small  Causes Courts  Act, 1882: Section 41- Suit   for    ejectment-Question    whether    occupant    a licensee/tenant-Intention of  the parties  to the  agreement decisive   consideration-Lease    and    license-Distinction between.      Transfer of  Property Act,  1882: Sections 105 and 108- Lease and  license-Distinction between-Interest in immovable property entitling  transferee to  enjoyment  created-Effect of-Whether agreement creates relationship of landlord/tenant or    licensor/licensee-Intention     of    parties-Decisive consideration.      Practice  &   Procedure:  High  Court-Jurisdiction  of- Whehter entitled to interfere with view of Trial Court which is a  possible and plausible one merely because another view is attractive.

HEADNOTE: %      The appellant, who was stated to be a monthly tenant of the suit  premises, entered  into an  agreement,  which  was described as  an agreement  of ’leave and licence’, with the respondent on  9th February, 1965 and the respondent and the appellant were  described therein  as licensor  and licensee respectively. It  was  stated  in  the  agreement  that  the licensor was  seized of the premises in dispute as a monthly tenant and  gave and  granted ’leave  and  license’  to  the licensee to use and occupy the said premises for a period of five years,  merely for the purpose of workshop business, at a monthly  compensation of Rs.225 that the licensor shall be entitled to  terminate the  agreement and  cancel and revoke and withdraw  the leave  and licence  granted earlier and to take possession  forthwith  of  the  said  premises  if  the licensee committed  any default  of any terms and conditions or failed  to pay  the compensation for two months or if the licensee at  any time  put up  false  or  adverse  claim  of tenancy or  sub-tenancy, that  the licensee  shall  pay  the electric charges  in respect  of consumption  of electricity

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and the  rent of  the said  premises should  be paid  by the licensor only,  and that  the licensor  shall have  the full right to enter upon the premises and inspect the same at any time. 1058      In November  1970, the  respondent filed  an  ejectment proceedings against  the appellant  under section  41 of the Presidency Small Cause Courts Act, 1882. It was contended by the appellant  that there  was sub-tenancy by the respondent in his favour as monthly tenant.      The  trial  court  passed  a  decree  and  ordered  the appellant to  vacate the premises holding that the agreement was for  leave and  licence and  that the  appellant  was  a licensee and not a subtenant.      On the  case being  remanded by  the Supreme Court in a Special Leave  Petition filed  by the respondent against the earlier decision of the High Court, allowing the appellant’s special civil  application, the  High Court upheld the order of the  Court of  Small Causes,  and ordered eviction of the appellant.      In the  Special Leave  Petition against  the  aforesaid decision, it  was contended  that the  document in  question read as a whole was a lease and not a license.      Dismissing the appeal by special leave, ^      HELD:  1.1   If  an   interest  in  immovable  property entitling the  transferee to  enjoyment was  created, it was lease;  if   permission  to   use  land   without  exclusive possession was  alone  granted,  a  licence  was  the  legal result. [1067D-E]      1.2 In determining whether an agreement creates between the parties  the relationship  of  landlord  and  tenant  or merely that of licensor and licensee, decisive consideration is the intention of the parties. [1068B-C]      In view of the intention of the parties in the document and the  facts and circumstances of the instant case, it was a licence  and not  a lease. This is clear from the language used and  the restrictions  put upon the use of the premises in question  by the  appellant. In  the document in question the expression  "licence" was introduced and clause (2) said that it  was only for the business purposes. The licence fee was fixed.  It permitted user only for 20 hours. Restriction in the hours of work negates the case for lease. Clause (12) gives to  the licensor  right to enter upon the premises and inspect the same at any time. [1067E-F] 1059      1.3 Where  two views  are possible  and the trial court has taken  one view  which is  a possible and plausible view merely because  another view  is attractive,  the High Court should not  interfere and  would be  in error in interfering with the  finding of  the trial  court or  interfering under Article 227  of the Constitution over such decision. [1068E- F]      H. Maniar  and others  v. Woman  Laxman Kudav, [1977] 1 S.C.R. 403;  Miss Mani  J. Desai  v. M/s.  Gayson & Co. Pvt. Ltd. 73  Bombay Law Reporter 394; Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] 1 S.C.R. 368; Mrs. M.N. Clubwala and another  v. Fida  Hussain Saheb  and  others,  [1964]  6 S.C.R. 642  at page  653;  Sohanlal  Naraindas  v.  Laxmidas Raghunath Gadit,  68 Bombay  Law  Reporter  400;  Sohan  Lal Naraindas v.  Laximdas Raghunath Gadit, [1971] 3 S.C.R. 319; Qudrat Ullah  v. Municipal  Board, Bareilly, [1974] 2 S.C.R. 530; Booker  v. Palmer,  [1942] 2  All ER  674 at  676, 677; Venkatlal G.  Pittie & Anr. v. M/s. Bright Bros. (Pvt) Ltd., [1987] 2 scale 115; M/s. Beopar Sahayak (P) Ltd. & others v.

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Shri Vishwa  Nath &  5 others, [1987]2 scale 27; Satyanaryan Laxminarayan Hegde  and  others  v.  Mallikarjun  Bhavanappa Tirumale, A.I.R.  1960  S.C.  137  and  Halsbury’s  Laws  of England., Fourth Edition, Volume 27 page 13, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1377 of 1982.      From the  Judgment and  Order dated  17.11.1980 of  the Bombay High Court in Special Civil Appeal No. 251 of 1977.      F.R. Nariman,  E.K. Jose,  P.H. Parekh  and Miss Sunita Sharma for the Appellant.      Y.H. Muchhala,  B.R. Aggarwala  and Miss.  S. Manchanda for the Respondent.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. This  appeal by  special leave arises from  the judgment  and order  of the  High Court  of Bombay dated  17th of  November,  1980.  The  main  question involved in  this appeal  is whether  the  appellant  was  a licensee or  a tenant  and also  incidentally  the  question whether the  Court of  Small Causes, Bombay had jurisdiction to deal  with  the  eviction  petition  in  this  case.  The premises in  question belongs  to the  Bombay  City  Weavers Cooperative  Limited.   They  filed   ejectment  proceedings against one 1060 Sugrabhai Mohammed  Husain,  their  tenant  and  obtained  a decree. It is stated that the appellant was a monthly tenant of the  suit premises  since about 2nd February, 1965. On or about 9th  of February,  1965 a fresh document of that date, was executed  and it is alleged that the appellant continued by virtue  of  that  agreement.  It  is  alleged  that  this agreement was  entered into  between the  parties since  the respondent wanted to charge more rent or mesne profits. This agreement is  in writing  and this  was for a period of five years, i.e.,  from 1st  September, 1965  to 31st  of August, 1970. The main contention involved in this appeal is whether the appellant  was a  tenant or a licensee? The answer would be  dependent   upon  the   construction  of  the  aforesaid document. It  is necessary,  therefore, to refer to the said agreement in little detail. The agreement is described as an agreement of  ’leave and  licence’ entered  into between the respondent on  the one  hand and  the appellant on the other wherein the  respondent had  been described as the ’licensor and the  appellant had  been described  as the licensee’ and the recitals therein recite that the licensor was seized and possessed of  and was otherwise well entitled as the monthly tenant of the workshop premises situated at 231, Ripon Road, Cooperative Building, Bombay, being the premises in dispute, and whereas  the licensee  had approached  the  licensor  to allow him  to occupy  and use  the  said  premises  for  the purpose of  carrying out  his business  of  workshop  for  a period of  five years and whereas the licensor had agreed to allow the  licensee to use the premises under the said leave and licence  of the licensor for a period of five years from 1st of  September, 1965  till 31st  of  August,  1970,  that agreement  was  being  executed.  it  was  stated  that  the licensor gave  and granted  his ’leave  and licence’  to the licensee to  use and occupy the said premises for the period of five  years. Clause  2 of the said agreement recites that the licensee  had agreed  to use  the premises  as above and merely for the purpose of workshop business. It further goes on  to   state  that  the  "licensee  shall  not  under  any

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circumstances  be  allowed  to  use  the  premises  for  the residential purposes  or any  other purpose  save and except specified therein".  The period  of leave and licence was to commence from 1st of September, 1965 to 31st of August, 1970 and it  was further  submitted that  the  licensee  and  the licensor shall not terminate the said agreement earlier save and except  on the  ground of breach of any of the terms and conditions written  therein. The  licensor was  entitled  to terminate the  agreement earlier  notwithstanding  the  fact that the  period of the agreement might not have expired. It further stipulated that the licensee should deposit a sum of Rs.2,500 for the due performance of the terms and conditions of the  agreement. The  said deposit  was to be kept free of interest and the same was to be refunded to the 1061 licensee on the licensee surrendering possession of the said premises by  removing himself  and  his  belongings  on  the expiry of  the period of the agreement or sooner termination or determination thereof after deducting all the dues if any for payment  of compensation. It further stipulated that the licensee shall pay to the licensor a monthly compensation of Rs.225 per month. It is further stipulated that the licensee would be entitled to keep the keys of the said premises with him and shall be at liberty to work in the said premises for twenty hours subject to restriction of rules and regulations imposed by  the Municipal  or any  other local  authority or authorities. It  is further provided that the licensee shall be  alone   responsible  and   liable  for   any  breach  or contravention  of   any  rule  or  regulation  of  the  said authorities and  he shall  indemnify the  licensor therefor. The document  further stipulated  that the licensee shall be at liberty  to construct  loft  and  electric  fittings  and apparatus and  tools and  shall be entitled to the ownership thereof and  shall be  free to  carry away such articles and the licensor agreed and undertook that he shall not obstruct the removing of such articles at the time of the delivery of the possession of the said workshop. It is further mentioned in the  said agreement  that it  was agreed  by the licensee that if  he commits  any default of any terms and conditions or fails  to pay  the compensation  for two months or if the licensee at  any time  puts up  false or  adverse  claim  of tenancy or  sub-tenancy the  licensor shall  be entitled  to terminate the  agreement and  cancel and revoke and withdraw the leave  and licence granted earlier and shall be entitled to take  possession forthwith  of the  said premises.  It is further stipulated  that the licensee shall pay the electric charges in  respect of  consumption of  electricity and  the rent of  the said  premises should  be paid  by the licensor only. The  agreement recited  that the  licensee  shall  not allow any  other person  to use and occupy the said premises and shall  not do  any unlawful or illegal business therein. The agreement  further recited  that the licensor shall have the full  right to  enter upon  the premises and inspect the same at  any time. In setting out the terms of the agreement the emphasis  has been  supplied to  the relevant clauses to highlight the points in controversy.      On or  about 9th  November, 1970, the respondent herein filed an  ejectment proceeding  against the  appellant under section 41  of the  Presidency Small Cause Courts Act, 1882. It is  well to  refer to section 41 of the said Act which is in  Chapter  VII  and  deals  with  summons  against  person occupying property  without leave and provides that when any person has  had possession of any immovable property situate within  the   local  limits   of  the  Small  Cause  Court’s jurisdiction and  of which the annual value at rack-rent did

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not exceed two 1062 thousand rupees, as the tenant, or by permission, of another person, or  of some  person through  whom such  other person claims, and  such tenancy  or permission has been determined or withdrawn  then a  suit can be filed by a summons against the occupant  calling upon him to show cause therein. It was only when  the person was in occupation by permission of the grantor that after the recovery of the permission a suit for possession could  have been  instituted under  section 41 of the said Act.      On or  about 9th  of November,  1970 the  owner of  the premises filed an ejectment proceeding against one Sugrabhai Mohammed Husain  and obtained  a decree.  The trial Judge in the instant case passed a decree in ejectment petition filed by the  respondent and  ordered the  appellant to vacate the premises before  31st of  January, 1975.  Before the  Judge, Court of  Small Causes  the points of defences were filed in which the  appellant had stated that the application was not maintainable and  the plaintiff  was himself  occupying  the premises under one Sugrabhai Mohammed Husain who himself had adopted ejectment  proceedings against  the respondent.  The appellant was  contending that he was a direct tenant of the respondent. Without prejudice to the above contention it was contended by  the appellant  that the respondent was not the owner of  the workshop and also denied that he had given the workshop  to   respondent  for   conducting  business.   The submission was  that there was sub-tenancy by the respondent in favour  of the  appellant as  a  monthly  tenant  of  the business with  the articles  and machinery  belonging to the appellant and not to the respondent. On those grounds it was contended  that  ejectment  proceedings  was  liable  to  be rejected.      It was recorded by the court with the expression "B.C", a term  of some  ambiguity  as  explained  later,  that  the appellant was  not claiming protection as a sub-tenant under the Rent  Act but only the subtenancy as such and therefore, it was  recorded that  as agreed ’B.C’. no preliminary issue was to  be framed.  The learned  Judge, noted  that the only point that arose for consideration was whether the appellant proved that  he was  a sub-tenant  as such  or  not.  It  is interesting to  note that in the judgment of the Small Cause Court and  also of  the High  Court at  several  places  the expression "B.C."  was used;  this is  intriguing as we find that it  intrigued Vaidya,  J.  because  he  stated  in  his judgment dated  9th of  December, 1975  what the  expression "B.C." was  meant by  Court. He  recorded  further  that  he thought that  "B.C." meant  ’by consent’.  The learned Judge recorded further  that it was practice in the Court of Small Causes, Bombay of using the expression 1063 "B.C.". The  said learned  Judge, however, observed that the use of  the words  in the  paragraph which  we  have  stated hereinbefore made the entire paragraph meaningless. We could not agree more.      In order  to go  back to  the findings  of the  learned Judge of the Court of Small Cause and the learned High Court Judge found  that the  appellant had failed to prove that he was a  sub-tenant of  the respondent  and the  learned Judge found him  to be  a licensee. On an analysis and examination of evidence  recorded and in the background of the documents in  question  the  learned  Judge  came  to  the  conclusion factually that it was an agreement for leave and licence and the appellant was a licensee and not a sub-tenant. It was an agreed  position   as  the  learned  Judge  noted  that  the

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respondent therein  was a tenant of the entire suit premises and had produced a rent receipt for the month of April, 1971 for a  monthly rent  of Rs.56.25 p.m. inclusive of municipal taxes and  had also  produced  light  bill  for  the  period 20.10.65 and  19.11.65. The learned Judge observed that from the evidence  it would  be seen  that it was not the case of the appellant  even that  he had  gone to  occupy  the  suit premises any  time before  that date and the dispute started only from  the date  of the  agreement. In  the light of the legal position  and also  the fact that the rent, light bill stood in the name of the respondent showed that there was no desire  to  create  any  lease  by  the  document  mentioned hereinbefore and  the  appellant  regarded  him  as  a  mere licensee. There  was no  error of  fact as  such on that. To this finding  our attention was drawn and great reliance was placed. To go back to the narration of events, the appellant filed special  civil application in the High Court of Bombay under Article  227 of  the Constitution.  The High  Court of Bombay  allowed   the  special   civil  application  on  9th December, 1975.  Thereafter in 1977 a special leave petition to this  Court under  Article 136  of the  Constitution  was filed being  S.L.P. No.  274/77 and  an order  was passed in Civil Appeal  No. 2181  of 1977  by which  the case was sent back to the High Court for a fresh decision, keeping in view the decision  of this  Court in  D.H. Maniar  and others  v. Waman Laxman Kudav, [1977] 1 S.C.R. 403. Thereafter the High Court disallowed  the special civil application by its order dated 17th of November, 1980.      That decision  was a  case where the appellants therein had granted a licence in respect of certain shop premises in Bombay to the respondent under a Leave and Licence Agreement which expired on 31st March, 1966. Thereafter the appellants had served  a notice upon the respondent calling upon him to remove  himself  from  the  said  premises.  The  respondent refused to do so. In July, 1967 the appellants 1064 filed an  application for  eviction under  section 41 of the Presidency Small  Cause Courts  Act. The  contention of  the respondent that  he was  a tenant was negatived by the Small Cause Court,  Bombay. The  respondent  approached  the  High Court under  Article 227 of the Constitution. The High Court refused to  interfere with  the finding  of the  Small Cause Court that  the respondent  was a licensee and not a tenant. The Bombay  Rent Act  was amended  by Maharashtra  Act 17 of 1973. By  the amending  Act, sections  5(4A)  and  15A  were introduced in  the parent Act to confer on the licensee, who had a  subsisting agreement  on February 1, 1973, the status and protection of a tenant under the Bombay Rent Act.      The respondent  in that  case by an amendment had taken the plea  of protection  under the Maharashtra Amendment Act 17 of  1973 on  the ground  that he was in occupation of the premises on  1st February, 1973 under a subsisting agreement for licence.  The Small  Cause Court,  Bombay negatived  the plea on  the ground  that there  was no subsisting agreement for licence  on the  1st of  February,  1973  as  there  was nothing on  record to  show that  after 31st March, 1966 the leave and  licence agreement between the parties was renewed or any  fresh agreement was entered into. The respondent had filed a revision petition under section 115 of C.P.C. in the High Court.  The High  Court allowed  the  revision  on  the ground that  the licence  was not  put  an  end  to  by  the appellants and  that in  any event by filing the application for eviction  the appellant  licensor had granted an implied licence to the respondent licensee to continue in possession till a  decree of  eviction was  passed in  his favour. This

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Court allowing  the appeal  held that  in order  to get  the advantage of  section  15A  of  the  Bombay  Rent  Act,  the occupant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February, 1973. If he was  such a  licensee, the non-obstante clause of section 15A(1) give  him the  status and  protection of  a tenant in spite of  there being  anything to the contrary in any other law or  in contract.  But if  he was  not a licensee under a subsisting agreement  on the  1st of February, 1973, then he did not  get the  advantage of  the amended provision of the Bombay  Rent   Act.  It  was  further  held  that  a  person continuing in  possession of the premises after termination, withdrawal or  revocation of the licence continued to occupy it was  a trespasser or a person who had no semblance of any right to  continue in  occupation of  the premises.  Such  a person could  not be called a licensee at all. It was futher held that a person continuing in occupation of such premises after revocation  of the  licence was  still liable  to  pay compensation or  damages for  its use and occupation. It was further held  that filing an application under section 41 of the 1065 Presidency  Small   Cause  Courts   Act  might   in  certain circumstances have  the effect  of putting  an  end  to  the licence if  it was subsisting on the date of its filing. But that cannot possibly have the effect of reviving the licence as opined  by the learned Judges. Such a proposition of law, it was  further concluded  by this Court, was both novel and incomprehensible. It was further held that it was right that the Court  should act  in consonance  with the spirit of the Maharashtra Amending  Act 17  of 1973,  but the Court cannot and should not cast the law to the winds or twist or stretch it to  a breaking point amounting to almost an absurdity. It was observed  that the  finding of  the High  Court that the respondent  was  in  occupation  of  the  premises  under  a subsisting  licence  was  wholly  wrong  and  suffered  from serious infirmities  of law  and fact and deserved to be set aside.      The High Court disallowed the special civil application under Article  227 of  the Constitution on 17th of November, 1980 and  that is  the judgment impugned in this appeal. The High Court in the judgment under appeal noted that if it was held that the document created a lease rather than a licence than the  tenant would be entitled to protection. The Bombay High Court  in Miss  Mani J. Desai v. M/s. Gayson & Co. Pvt. Ltd., 73  Bombay Law Reporter 394 had held that the Court of Small Causes  would have no jurisdiction to proceed with the application filed  under section  41 of the Presidency Small Cause Courts  Act. The learned Judge rejected the contention of the  appellant that he was a tenant and having found that the period of licence had come to an end, he passed an order of eviction  against the  appellant. The  High Court  in the judgment under appeal noted the facts mentioned hereinbefore by this Court in the decision of D.H. Maniar and allowed the appeal. This  decision was  remanded back  to the High Court and it  was directed  that the  appellant  should  be  heard afresh in accordance with law because in a previous decision Vaidya, J.  by the  judgment dated  9th of December, 1975 as mentioned hereinbefore  had allowed  the appellant’s appeal. The learned  Judge referred  to the  several  decisions  and background of  the facts  and affirmed  the decision  of the learned trial  judge that  the payment  to be  made  to  the respondent for  the use  and occupation was compensation and not rent. The High Court affirmed the decision of this Court and upheld  the order  of the  Court  of  Small  Causes  and

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ordered eviction.      In support  of  this  appeal  Sree  R.F.  Nariman  very laboriously took us through the documents. He submitted that the document in question in the instant case read as a whole was lease  and not a licence. He referred us to the decision of this Court in the case of Associated 1066 Hotels of  India Ltd.  v. R.N.  Kapoor, [1960]  1 S.C.R. 368 where at  page 383  this Court noted that there was a marked distinction between  a lease  and a  licence. Section 105 of the Transfer  of Property  Act,  1882  defined  a  lease  of immovable property  as a  transfer of  a right to enjoy such property made for a certain time in consideration of a price paid or  promised. Under  section 108  of the  said Act, the lessee is  entitled to be put in possession of the property. A lease  involves a  transfer of  an interest in land, Subba Rao, J.  as the  learned Chief Justice then was, observed in that case. This Court referred to the well-known decision in the case  of Errington  v. Errington,  [1952] 1 All E.R. 149 where Lord  Denning reviewing  the case  law on  the subject summarized the position as follows:           "The result of all these cases is that, although a           person who  is let  into exclusive  possession is,           prima  facie,  to  be  considered  to  be  tenant,           nevertheless he  will not  be held to be so if the           circumstances negative  any intention  to create a           tenancy." The Court of Appeal in England again in Cobb v. Lane, [1952] 1 All  E.R. 1199 considered the legal position and laid down that the  intention of  the parties  was the  real test  for ascertaining the  character of  a document. Somervell, L.J., had observed:           "... The  solution that  would seem  to have  been           found is, as one would expect, that it must depend           on the intention of the parties." Denning, L.J.  also reiterated  the same decision. Reviewing these decisions  Denning, L.J.  had observed  at page 384 of the report  (1) that to ascertain whether a document created a licence  or lease,  the substance  of the document must be preferred to  the form;  (2) the real test was the intention of the  parties-whether they intended to create a lease or a licence; (3)  if the  document created  an interest  in  the property, it is a lease; but if it only permitted another to make use  of the  property, of  which the  legal  possession continued with the owner, it was a licence; and (4) if under the  document  a  party  got  exclusive  possession  of  the property, prima facie, he was considered to be a tenant; but circumstances  might   be  established  which  negative  the intention to create a lease.      Mr.  R.F.   Nariman  very  strenuously  relied  on  the decision of  this Court in Mrs. M.N. Clubwala and another v. Fida Hussain Saheb and 1067 others,  [1964]  6  S.C.R.  642  at  page  653.  This  Court emphasised the if the exclusive possession to which a person was entitled  under an agreement with a landlord was coupled with an  interest in  the property,  the agreement  would be construed not  as  a  mere  licence  but  as  a  lease.  Mr. Nariman’s  point  was  that  the  facts  of  the  case  were identical to  the facts  of the  present case. Our attention was drawn to a decision of the Bombay High Court in the case of Sohanlal  Naraindas  v.  Laxmidas  Raghunath  Gadit,  (68 Bombay Law  Reporter 400)  where Tarkunde,  J. Observed that the intention  of the  parties and exclusive possession were important elements.  This decision was approved in appeal by

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this Court  in Sohan  Lal Naraindas  v.  Laxmidas  Raghunath Gadit, [1971]  3 S.C.R. 319 where this Court reiterated that the test  of exclusive  possession was  important point.  He drew our attention to the observations of Shah, C.J. at page 321  of   the  Report.  Reliance  was  also  placed  on  the observations of  Krishna Iyer,  J. in the decision of Qudrat Ullah v.  Municipal Board,  Bareilly, [1974]  2  S.C.R.  530 where at  page 533  of the  report Krishna Iyer, J. Observed that there  is no  simple litmus test to distinguish a lease as defined  in section  105, Transfer  of Property  Act from licence as  defined in  section 52 of the Easements Act, but the character  of the  transaction turns  on  the  operative intent of  the parties.  To put  precisely if an interest in immovable property entitling the transferee to enjoyment was created, it  was a  lease; if permission to use land without exclusive possession  was alone  granted, a  licence was the legal result.  we are of the opinion that this was a licence and not  a lease as we discover the intent. For this purpose reference  may   be  made  to  the  language  used  and  the restrictions put upon the use of the premises in question by the appellant.  In the  document in  question the expression "licence" was  introduced and  clause (2)  said that  it was only for  the business  purposes. The licence fee was fixed. It permitted  user only  for 20  hours. Restriction  in  the hours of  work negates  the case for a lease. Clause (12) is significant which  gave to  the licensor  the right to enter upon the  premises and  inspect the same at any time. In our opinion the  background of  the facts  of this  case and the background of  the entire  document negate the contention of the appellant that it was a lease and not a licence.      good deal  of submission  was made before us that if it was a  lease and  not a  licence, then  this point  could be taken in  aid of  the  submission  that  the  Court  had  to jurisdiction, and  there was  no estoppel.  It was contended that estoppel  was a  plea in  equity and  that there was no equity in  favour of  the respondent.  We  were  invited  to embark upon the traded field of estoppel and equity and very many learned  passages from  judgments of  eminent Judges of Calcutta, Bombay and 1068 of this  Court were  cited. But in this case we had not been tempted. Our attention was drawn to several decisions but in the view  we have taken we cannot say that the view taken by the High  Court or  the Court of Small Causes was incorrect. It was a possible view. That is sufficient for us.      The distinction between leave and licence has been well summarised in  Halsbury’s Laws  of England,  Fourth Edition, Volume 27  page 13.  In  determining  whether  an  agreement creates between the parties the relationship of landlord and tenant or  merely that of licensor and licensee the decisive consideration is  the intention  of the parties. Lord Greene MR had  observed this  in Booker  v. Palmer, [1942] 2 All ER 674 at 676,677. This is a salutary test.      The intention  here is manifest. In any event this is a possible view  that could  be taken. This Court in Venkatlal G. Pittie  & Anr. v. M/s. Bright Bros. (Pvt). Ltd., [1987] 2 Scale 115  and M/s. Beopar Sahayak (P) Ltd. & others v. Shri Vishwa Nath  & 5  others, [1987] 2 scale 27, held that where it cannot  be said  that there  was no error apparent on the face of the record, the error if any has to be discovered by long process  of reasoning,  and the  High Court  should not exercise jurisdiction under Article 227 of the Constitution. See in  this connection  the observations  of this  Court in Satyanarayan Laxaminarayan  Hegde and  others v. Mallikarjun Bhavanappa Tirumale,  A.I.R. 1960  S.C. 137. Where two views

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are possible and the trial court has taken one view which is a possible and plausible view merely because another view is attractive, the High Court should not interfere and would be in error  in interfering with the finding of the trial court or interfering  under Article  227 of  the Constitution over such decision.      In the  aforesaid view of the matter, we are clearly of the opinion  that in view of the intention of the parties in the document  and the  facts and circumstances of this case, it was  a licence  and not  a  lease.  We  need  not  detain ourselves with  the question  of estoppel  upon  which  very interesting arguments were advanced before us by Mr. Nariman is noted above.      In the  aforesaid view  of the  matter this appeal must fail as  we find no ground to interfere with the decision of the High  Court. The  appeal fails  and is dismissed. In the facts and circumstances, there will be no order as to costs. 1069      In view  of  the  fact  that  the  appellant  has  been carrying on  business for  some time,  we give the appellant time upto  31st March,  1988 to  give up  and deliver vacant possession  provided   the   appellant   files   the   usual undertaking with the Registrar of the Court of Small Causes, Bombay within three weeks from this date. N.P.V.                                     Appeal dismissed. 1070