SWARNSINGH Vs. MADAN SINGH

JUDGEMENT

(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 :

(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.