JUDGMENT : Narasimham, J. - This is an appeal from the concurrent decisions of the two lower Courts decreeing the Plaintiffs suit for recovery of possession of a house that was in the occupation of the Defendant and for other consequential reliefs. 2. The disputed house stands on four cents of land in plot Nos. 1265, 1266 and 1267 of Mouza Harekrishnapur. The Plaintiffs' Case was that the house was constructed by their father and was used as their Khamar house for the purpose of temporary storage of paddy, mung and other products of that village. The Plaintiffs were residents of Puri town where they had Jatri business but they had extensive lands amounting to about 100 acres in village Hakrishnapur and several other villages in the vicinity. On 15-1-43, the Defendant agreed to look after their property and hence the Plaintiffs permitted him to reside in the house as a licensee. Subsequently the Defendant was dismissed from the Plaintiffs' service and asked to vacate the house. But he refused to do so and hence the necessity for the suit. The Plaintiffs alleged that the Defendant was a mere licensee and was therefore not entitled to a regular notice to quit like a tenant. 3. The Defendant's plea was to the effect that he took an oral lease of the disputed land from the father of the Plaintiffs sometime in 1928 on an annual rental of Re. 1/- and on payment of Rs. 10/- as Salami and that he subsequently constructed a house on that plot and remained there after paying regularly the stipulated rent to the Plaintiffs and also choukidari tax. 4. Both the lower Courts disbelieved the Defendant's story that he obtained lease of the house site from the Plaintiffs' father and constructed the house thereon. The main reason for disbelieving the Defendant's case was the absence of documentary evidence either, to prove the original lease or to show payment of any rent to the Plaintiffs' family all along. Having thus disbelieved the Defendant's case they accepted the Plaintiffs' version that the disputed house belonged to the Plaintiffs and that the Defendant was merely permitted to occupy the same as a licensee so long as he was in the service of the Plaintiffs. Having thus disbelieved the Defendant's case they accepted the Plaintiffs' version that the disputed house belonged to the Plaintiffs and that the Defendant was merely permitted to occupy the same as a licensee so long as he was in the service of the Plaintiffs. They, therefore, held that the Defendant was liable to eviction as soon as he was discharged from service and that as a licensee he was not entitled to the usual notice under the provisions of the Transfer of Property Act. 5. Mr. Das on behalf of the Appellant did not rightly challenge the concurrent findings of fact of the two lower Courts; but, urged that on the Plaintiffs' own case the Defendant was not a licensee but a tenant who instead of paying rent for the house in cash used to pay it by rendering service to the Plaintiffs. Hence, Mr. Das urged that the Defendant was entitled to a valid notice to quit. 6. Hence, the sole question for consideration is whether on the evidence of the Plaintiffs' witnesses it "could be held that the Defendant was a tenant and not a licensee. Doubtless a specific issue on this point was not taken up in either of the two lower Courts. But Mr. Das urged that if on the facts as stated by the Plaintiffs' witnesses it could be held that the legal status of the Defendant was that of a tenant and not of a licensee it was open to him to take up this point in the second appellate stage. 7. When a person in the employment of his master occupies a house of his master without any payment, a question naturally arises as to whether he is a tenant or a mere licensee. If it could be reasonably held that the rent for the occupation of the house was paid by way of service rendered to the master, the relationship of landlord and tenant between the two follows as a necessary inference. But if it could be held that the occupation of the house was for the purpose of his employment in the service of his master, his position is merely that of a licensee. The distinction between the two is somewhat fine. But the point has been settled by several English decisions. 8. But if it could be held that the occupation of the house was for the purpose of his employment in the service of his master, his position is merely that of a licensee. The distinction between the two is somewhat fine. But the point has been settled by several English decisions. 8. Thus in the well-known case of Hughes v. The Overseers of Chatham 134 E.R. 479, the distinction was brought out in the following manner: But it may be, that a servant may occupy a tenement of his master's, not by way of payment for the services, but for the purpose of performing them; it may be that he is not permitted to occupy, as a reward, in the performance of his master's contract to pay him, but required to occupy in the performance of his contract to serve his master...as there is nothing in the facts stated, to show that the claimant was required to occupy the house for the performance of his services, or did occupy it in order to their, performance, or that it was conductive to that purpose more than any house which he might have paid for in any other way than by his services; and, as the case expressly finds that he had the house as part remuneration for his services, we cannot say that the conclusion at which the revising barrister has arrived is wrong. In The Queen v. Spurrell 1874 L.R. Q.B. 422, Cockbmh, C.J. answered the same question as follows: If the occupation of the servant be necessary to the service, then I think his occupation is the occupation of the master, although the remuneration which the servant receives is the less on account of his having the advantage of premises or a house of the master for the purpose of his habitation. On the other hand, if the occupation be not necessary to the service, then the fact, that the advantage of the occupation is part of the remuneration of the service, will not render that occupation less an occupation qua tenant, than it would have been if the man had paid rent.... As I said before, the essential element in the determination of the question is, whether or not the servant simply occupies as part remuneration for his services, or whether the occupation is subservient to and necessary to the service. As I said before, the essential element in the determination of the question is, whether or not the servant simply occupies as part remuneration for his services, or whether the occupation is subservient to and necessary to the service. Similarly, in Smith v. Seghill 1865 L.R. Q.B. 72 it was pointed out: The governing principle is that in order to constitute an occupation as a servant, it must be an occupation ancillary to the performance of the duties which the occupier has engaged to perform. In Dover v. Prosser 1904 L.R. K.B.D. 84, Lord Alverstone C.J. answered the same question as follows: The governing test in cases of this sort is whether or not the occupier of the premises, in respect of which the claim is made, is required to occupy them, either by the express terms of his employment or by the nature of his duties. 9. The aforesaid principles have been followed in several Indian decisions. I may refer to Athakuti v. Govinda ILR 16 Mad. 96 where the Madras High Court held that if a person was allowed to occupy the land of another without any payment On condition that he would do blacksmith's work for the latter he was liable to eviction on ceasing to do the work inasmuch as he was not tenant but a mere licensee. In a latter Nagpur decision reported in Wasudeo Gharpure v. Gantt Kumbi 1907 ILR 185, it was held that if a landlord employed another person as his agent to carry on the duties of a Mokaddam in the landlord's village and in remuneration for those services and for no other purpose allowed the agent to occupy a piece of land and to appropriate its usufruct the arrangement did not constitute a tenancy. The learned Judges pointed out: In the present case there was admittedly an express contract. It has been found that the contract was primarily one of service. The service was not ancillary to the occupation of the land, as a substitute for, or a form of, rent. The occupation of land was ancillary to the service, and was a substitute f the usual cash salary given by a master to his servant. The master could dismiss, or the servant resign, from the service, each at his own option. The land was the remuneration for the service and not the service for the land. 10. The occupation of land was ancillary to the service, and was a substitute f the usual cash salary given by a master to his servant. The master could dismiss, or the servant resign, from the service, each at his own option. The land was the remuneration for the service and not the service for the land. 10. Hence, it has to be seen whether on the Plaintiffs' case the Defendant was permitted to occupy the house for the purpose of his employment as an agent of the Plaintiffs and whether the occupation was ancillary to the performance of his duties. The purpose for which the contract was entered into between the parties should also be looked into. If the original contract between the two was for letting out the house of the Plaintiffs to the Defendant as a tenant and in lieu of rental the latter was permitted to serve the Plaintiffs as their agent, the relationship of landlord and tenant may follow. If the main contract between the two was for the purpose of employing the Defendant as an agent of the Plaintiffs in the village and the occupation of the house was ancillary to such contract, it seems clear that no tenancy was created. 11. The evidence of Plaintiff No. 1 (P. W. 1) and that of P. W. 2 is as follows: P.W. 1: 1 had necessity to engage a man for looking after our lands. So I allowed him to live in the suit house and to look after my lands. P.W. 2: (In cross-examination) The Defendant agreed to look after the properties and help me and so he was given the suit house for residence without payment of any rent. It also appears from their evidence that the Defendant had no house in the village on the day on which he was permitted to occupy the disputed house and that the disputed house was used as the Khamar house of the Plaintiffs prior to its occupation by the Defendant. P. W. 2 further admitted that some of the paddy collected on his behalf used to be stored in the suit house. P. W. 2 further admitted that some of the paddy collected on his behalf used to be stored in the suit house. On these facts it seems a reasonable inference that the primary contract between the parties was for employment of the Defendant as an agent of the Plaintiffs to look after their lands in the village and that the occupation of the house was ancillary to such contract of employment. Doubtless, further facts bearing on the question might have been elicited if a specific issue had been raised in the trial Court. But on the evidence on the side of the Plaintiffs summarised above it cannot be hold that the occupation of the house was not by virtue of the Defendant's employment as an agent of the Plaintiffs but was independent of the same or else that it was the rent due for the house that was commuted to service. The evidence does not show that there was any talk of letting out the house on rent and subsequently to accept service from the Plaintiffs in lieu of payment of rent. 12. I am therefore of the opinion that the Defendant was only a licensee and not entitled to any notice to quit. The appeal is dismissed with costs. 13. Appeal Dismissed. Final Result : Dismissed