- (1.) The short question that arises for consideration is whether Ex. P-1 dated 11-9-1979 is a licence or a lease. We may extract the document Ex. P-1 : "I Swarn Singh, s/o Raghbir Singh, r/o Mohalla Bawiyan, Kapurthala do hereby declare as under: i have taken one plot having enclosure at the spot, the plot number whereof is 22/9, bounded on the east by house, on the west by road, on the north by house and on the south by house, owned and possessed by Madan singh, s/o Sadhu Singh, r/o Kapurthala, from its plot owner at the rate of rs. 200 per month for 11 months as licence fee. I shall pay fee every month to the owner without any objection against a receipt. It will be under me for use and occupation. I shall not sublet it further to anybody else. The possession and control shall remain with the owner. I, the executant, shall continue doing the work in tractor garage. The owner can come for inspection at any time he likes. This writing shall never be considered as rent deed nor I, the executant, shall consider myself as tenant. On the expiry of limitation of the licence deed, I, the executant shall execute a writing afresh. In case of refusal, the owner can take legal proceedings, I, the executant shall not be entitled to make any alteration or construction. This writing in the form of licence deed has been executed so that it may serve as authority. "
(2.) Though the courts below have held it to be a licence, the learned counsel for the appellant argued that on an entire reading of the document the intention that could be gathered is that it is a lease. If it were not to be so there was no need to incorporate the clause forbidding the licensee from subletting it to anybody else. In support of this submission, reliance is placed on Capt. B. V. D'souza v. Antonio Fausto Femandes. Continuing in the same vein, the learned counsel for the appellant further argues that the statement of the plaintiff is also to the effect that the site was under the lock and key of the appellant.
(3.) On a careful consideration of the above arguments, we feel that there is no substance in any one of them. To our mind it is very clear that the right granted under the above document is nothing at a licence. Our reasons are as under: (1 The nomenclature of the document is licence. Of course, we hasten to add that nomenclature is not always conclusive; (2 The document in question in no unambiguous terms says that the possession and control shall remain with the owner. This is a clear indication of the fact that no interest in immovable property has been conferred on the grantee. If it were to be a case of lease under Section 105 of the Transfer of Property Act, there must be an interest in the immovable property. On thecontrary, if it were to be a licence under Section 52 of the Easements Act, no such interest in immovable property is created. The case on hand is one of such.;