- (1.) THE sole question involved in these two Second Appeals is whether the two appellants hold the respective suit-premises as Lessees or Licensees under the respondent and it is not disputed that if they are Licensees only, as held by the two courts below, the Second Appeals are to be dismissed, but if they are held to be Lessees, the second Appeals would have to be allowed.
(2.) THE Transfer of Property Act, 1882, dealing with Lease in Chapter v thereof and the Easement Act of the same year, dealing with Licence in Chapter VI thereof, are in operation for more than a century and, therefore, the distinction between a lease and a licence should by now, as it in fact is, well-settled. Four decisions of the Supreme Court may be taken' to have crystallised the matter and those decisions are associated Hotels of India v. R. N. Kapoor (AIR 19 59 SC. 1262), M. N. Club wala v. Fida Hussain (AIR 1965 SC 610), B. M. Lall v. Dunlop Rubber co. (AIR 1968 SC 175) and Konchanda Ramamurty Subudhi v. Gopinath (AIR 1968 SC 919 ). And the impact of these decisions, which have really reiterated what was held by the earlier authorities, both judicial and textual, is that in order to ascertain whether an arangement or agreement has amounted to a lease or a licence, the intention of the parties is the real and decisive test, as under the law the parties shall not be deemed to have created a legal relation which they did not or could never intend.
(3.) IT is the concurrent finding of both the courts below that in these cases the parties did not intend to create any sub-lease and this is obviously a finding of fact. This concurrent finding of fact can not be assailed before us in Second Appeal, even if we would have been inclined to take some other view, unless that finding is based on no evidence. But we are satisfied that, far from being based on no evidence, the finding arrived at by both the courts below is not reasonably impossible on the materials on record. And once we hold that, a reconsideration or reappraisal of the materials on record would become a prohibited area for us in second Appeal.;