1975 (12) TMI 185

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....ally revoked by lapse of time, and in any case impliedly revoked by the institution of the suit. The defence in the suit was that the defendant was not a licensee but a lessee and that the lease was still continuing by holding over, and unless it was terminated the defendant could not be ejected. 2. The trial Court, on a consideration of the evidence held that the defendant was a lessee and not a licensee, and since the lease had not been terminated, the suit for ejectment was not maintainable. It accordingly dismissed the suit. On appeal filed by the plaintiff the decree of the trial Court was set aside and the plaintiff's suit for ejectment was decreed. The first appellate court took the view that the transaction created a licence ....

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....see or a lessee. 4. There is no dispute that the defendant was put in exclusive possession of the property. One of the ingredients of ownership is possession. If possession is transferred an interest in the property of the owner can, prima facie, be deemed to be transferred. Hence, the transfer of exclusive possession by an owner must be deemed to be indicative of the intention of the parties that they wanted the transaction to be a lease and not a licence. The question was considered by the Supreme Court in the case of Associated Hotels of India Ltd. v. R. N. Kapoor, (AIR 1959 SC 1262). It was pointed out that if the document creates an interest in the property, it is a lease; but if it only permits another to make use of the property, ....

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.... another a right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an interest in the property. In the present case there was nothing which the defendant was required to do or continue to do n the shop in dispute. He could have even kept it locked. As he was not given a right to do any particular act, but to enjoy exclusive possession of the property, the transaction could not be deemed to create a licence. The notice of auction contemplated transfer of possession by the Municipal Board and payment of premium by the defendant. The defendant must therefore be held to have become a lessee and not a licensee when he ente....