Judgment :- 1. The question to be decided in this case depends upon the true effect of Ex. P 1 dated 17-8-1964 executed by the defendant in favour of the plaintiff. 2. The plaint A schedule property comprises an extent of 45 3/4 cents of land and a cinema theatre standing thereon by name 'Pioneer Theatre' in Irinjalakuda. The suit is for preventive injunction to restrain the defendant from entering into the plaint A schedule property and conducting cinema shows in the Pioneer Theatre and for mandatory injunction directing him to hand over the movables mentioned in the plaint B schedule to the plaintiff. The plaintiffs case is that by Ex. P 1 the defendant was given a personal privilege to conduct cinema shows in the 'Pioneer Theatre' for which purpose the theatre along with the movables mentioned in the plaint B schedule were entrusted to him. Since the term of three years in Ex. P 1 is over it is alleged by the plaintiff that the defendant is no longer entitled to conduct the shows. The defendant's plea is that Ex. P 1 is a lease and that he is not a mere licensee and that therefore the suit is not maintainable. It is further contended by the defendant that he has constructed a booking office, installed a rectifier and also provided the theatre with additional furniture. 3. The trial court denied the prayer of the plaintiff for mandatory injunction but allowed the preventive injunction prayed for. The District Judge dismissed the appeal filed by the defendant and allowed the cross-appeal filed by the plaintiff against the refusal of the trial court to grant the mandatory injunction. The result is that the plaintiff's suit was decreed in toto by the learned District judge. The second appeal is therefore filed by the defendant. 4. The learned counsel for the defendant raised before me broadly two contentions; (1) that Ex. P 1 is a lease and (2) that the relief for mandatory injunction in respect of plaint B schedule property is not maintainable. 5. To appreciate the first ground it is necessary to examine the terms of Ex. P-1. Ex. P 1 is called a karar and executed by the defendant in favour of the plaintiff. It is not registered. It is executed for a term of three years. The consideration fixed in Ex. P 1 is Rs. 5. To appreciate the first ground it is necessary to examine the terms of Ex. P-1. Ex. P 1 is called a karar and executed by the defendant in favour of the plaintiff. It is not registered. It is executed for a term of three years. The consideration fixed in Ex. P 1 is Rs. 4200/-for one year which has to be paid in monthly instalments of Rs. 350/-before the 16th of every month. The defendant has agreed in Ex. P1 that on 15-8-1967 at the expiry of three years he would pay the balance of consideration, if any remaining due on that date and also entrust back the theatre building and the equipments in good running condition and the movable properties described in Ex. P1 after taking a receipt from the plaintiff. The defendant has also undertaken to pay the electric charges, entertainment tax etc., except the municipal tax due on the buildings. Ex.P.1 provides that except during the time when films are exhibited in the theatre the plaintiff will have the right of inspection of the building. The defendant has agreed not to sublease or give on rent the theatre, the equipments and the furniture. Ex. P1 further states that the defendant has no other right except the possession as a licensee, in the theatre and the equipments mentioned in Ex. P1. It is recited in Ex. P1 that if any alteration is necessary to the theatre building for conducting the shows as per the directions of the Government it is the duty of the plaintiff to effect the same and the defendant cannot do such work. These are in main the terms of Ex. P1. 6. The question of interpretation of Ex. P1 was argued by both sides at considerable length with reference to a number of decided cases. It is a trite saying that interpretation of a document has to be on its own particular facts. These are in main the terms of Ex. P1. 6. The question of interpretation of Ex. P1 was argued by both sides at considerable length with reference to a number of decided cases. It is a trite saying that interpretation of a document has to be on its own particular facts. I do not think it necessary to discuss all these cases because as pointed out by Lord Wright, M. R. in Clore v. Theatrical Properties, Ltd, (1936) 3 All E.R. 483 "now, it is perfectly true that the construction of one contract is not necessarily a guide to the construction of another contract, and that is true certainly when there are differences of language in the documents to be construed, but where there is no such difference in language as would justify a court of law refusing to apply to the documents the construction which the court applied to the other cases, then the court should apply that construction." 7. In Booker v. Palmor (1942) 2A11 E.R. 674 at pp. 676 & 677, Lord Green M. R. observed: " Whether or not parties intend to create as between themselves the relationship of landlord and tenant, under which an estate is created in the tenant and.certain mutual obligations arise by implication of law, must in the last resort be a question of intention "....To suggest there is an intention there to create a relationship of landlord and tenant appears to me quite impossible. There is one golden rub which is of very general application, namely, that the law does not impute where the circumstances and the conduct of the parties negative any intention of the kind. It seems to me that this is a clear example of the application of that rule." 8. According to S.105 of the T. P. Act, a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The Section itself says that the price paid or promised is called the premium, and the money, share, service or other thing to be so rendered is called the rent. The Section itself says that the price paid or promised is called the premium, and the money, share, service or other thing to be so rendered is called the rent. lam mentioning this specifically because of the argument raised about the significance of the expression" {]XnAew in Ex.PI. S.108 of the T. P. Act imposes an obligation on the lessor to put the lessee in possession of the property leased at the latter's request. S.52 of the Easements Act defining 'licence' is in these terms: "Where one person grants to another, or to a definite number of other persons, 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 easement or an interest in the property, the right is called a licence." 9. The classic definition of licence is by Vaughan, C. J, in Thomas v. Sorrell 124 E.R.1098 at 1109: "A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful". 10. The cardinal distinction between a lease and a licence is that in the former there is a transfer of interest in immovable property to enjoy where as in the latter there is no transfer of interest in immovable property at all. An important feature of the lessee's right is his right to possession and enjoyment of the demise to the exclusion of the lessor. In Rally Dass Abiri v. Manmohini Dassee, ILR. 24 Cal. 440 at 447 Jenkins, J., observed: "A man who being owner of land grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his interest. This result is to be inferred by the use of the word 'lease' which implies an interest still remaining in the lessor. 24 Cal. 440 at 447 Jenkins, J., observed: "A man who being owner of land grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his interest. This result is to be inferred by the use of the word 'lease' which implies an interest still remaining in the lessor. Before the lease the owner had the right to enjoy the possession of the land, and by the lease he excludes himself during its currency from that right but the determination of the lease is a removal of that barrier, and there is nothing to prevent the enjoyment from which he had been excluded by the lease." In order that the transaction may be a lease apart from the right to exclusive possession a person should establish that the other requirements of S, 106 of the T. P. Act have also been satisfied. Under S.52 of the Easements Act if a person is given the right to use the immovable property in a particular way or under certain terms while retaining control and possession of the same the person so permitted is only a licensee. 11. The right of exclusive possession was at one time considered to be a decisive test to rule out a license. But the trend of later decisions show that is not conclusive though it may be an important circumstance to hold that the transaction is a lease. Sir Raymond Evershed, M. R., said in Marcroft Wagons Ltd. v. Smith (1951) 2 All. E. R.: 271 at p. 274: Until, in the present century, the Rent Restrictions Acts cams into force, the law broadly speaking, necessarily inferred, when exclusive possession was granted to one of the property of another at a rent payable to that other, that a tenancy had been created. The law did not recognise that those conditions were compatible with any other kind of relationship. That,1 think, sufficiently appears from the passage in HALSBURY'S LAWS OF ENGLAND, Hailsham ed., vol. 20, p. 8, to which counsel for the defendant referred. The law did not recognise that those conditions were compatible with any other kind of relationship. That,1 think, sufficiently appears from the passage in HALSBURY'S LAWS OF ENGLAND, Hailsham ed., vol. 20, p. 8, to which counsel for the defendant referred. But it is now quite clear that, to use the formula which before has been applied, a new monstrum horrendum, informa, ingens has come into our ken the conception of a statutory tenancy, the conception that a person may have such a right of exclusive possession of property as to entitle him to bring an action for trespass against the owner of that property, but yet that such right would not confer any interest whatever in the land on the occupier who would not be able to dispose of it by grant or by testamentary disposition. It is, as has been said, a statutory right of irremovability." 12. In Errington v. Errington (1952) 1 All. E R.149 Denning L. J., pointed out: "The difference between a tenancy and a licence is, therefore, that in a tenancy an interest pisses in the land, whereas in a licence it does not. In distinguishing between them, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession or not. If he was let into exclusive possession, he was said to be a tenant, albeit only a tenant at will: see Doed Tomes v. Chamberlaine (1839) 5 M. & W. 14, Lynes v. Snaith, (1899) I Q. B. 486; where if he had not exclusive possession he was only a licensee." After citing instances to show that this test has given rise to misgivings the learned judge said: "The result of all these cases is that, although a person who is let into exclusive possession is prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee." 13. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee." 13. It has to be mentioned that though the learned judge found in that case that the persons having exclusive possession of the house were not tenants but only licensees having merely a right to remain there with no right to assign or sub-let, it was held that they were not bare licensees but they were licensees with a contractual right to remain and that a licensor will not be permitted to eject a licensee in breach of the contract. 14. There is no such distinction under the Indian law as even such licences are revocable under the Easements Act. S.60 of the Easements Act makes licenses revocable by the grantor except in two cases. Contractual licenses do not come under that category. The Court of Appeal in Cobb v. Lane (1952) 1 All. E. R.1199 said that the fact of exclusive possession of the property is no longer inconsistent with the occupier being a licensee and not a tenant at will and the question whether a relationship of landlord and tenant or of licensor and licensee is created depends on the intention of the parties and in-acertaining the intention the court should consider the circumstances in which the person claiming to be a tenant at will went into occupation and whether the conduct of the parties shows that the occupier was intended to have an interest in the land or merely a personal privilege without any such interest. Somervell, L. J. said at page 1201: "No doubt, in former days, except for the question of the statute, the distinction between a tenancy, whether at will or for a period, and a licence was not so important as it has become since the Rent Restrictions Acts came into operation. In many cases under those Acts it has a special importance. In many cases under those Acts it has a special importance. That fact has led to an examination of the distinction and the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties." Denning L. J., said at page 1202: "The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land?" In Isaac v. Hotel De Paris, Ltd (1960) I All E. R.348 the facts as disclosed by the headnotes in the report cited are as follows: "The respondent company, owners of a hotel called the Hotel, de Paris in Trinidad, where the lessees of another building called the P. Hotel, J., who owned all the shares of the respondent company (sixty-four in number) had agreed to sell fifteen to the appellant. In December, 1955, at the appellant's suggestion, the respondent company let him into occupation of the first floor of the P. Hotel, it being agreed that a night bar should be established there and should be managed by the appellant on behalf of the respondent company. The appellant got a licence in his own name to use the first floor of the P. Hotel as a night bar, and he put in a stock of liquor at his own expense In February, 1956, relations between J. and the appellant became strained, but at a meeting to try to settle their differences they agreed on terms which were to be embodied in a written contract. No concluded contract was reached but some of the proposed terms were acted on,, viz. (i) the appellant was to remain in occupation of the first floor of the P. Hotel; (ii) he agreed to pay all expenses incurred in connexion with the running of the P. Hotel, including the monthly rent which the respondent company paid to their landlord; (iii) he would retain for himself all profits he made from the business carried on at the P. Hotel, in lieu of the dividends on his shares if he acquired them. Another term, which was not implemented, was that the appellant would pay the balance due for the purchase of the fifteen shares. Another term, which was not implemented, was that the appellant would pay the balance due for the purchase of the fifteen shares. The appellant remained in occupation at the P. Hotel, ran the night bar, paid all expenses, took all the profits and paid the monthly rent to the respondent company which was accepted by them. No contract having been executed and the balance due on the shares not having been paid, J., in May, 1956, gave notice to the appellant that the deposits made under the agreement to purchase the shares were forfeited, and required the appellant to remove and take away his stock and other materials from the P. Hotel within seven days The appellant did not do so, but the respondent company took no steps to have them removed. In October, 1956, the respondent company issued a writ asking for a declaration that they were entitled to possession of the P. Hotel and an order for possession. The appellant claimed he was a tenant at a monthly rent." 15. The Federal Supreme Court for the West Indies made an order for possession against the appellant. Archer, J., of the Federal Supreme Court stated the law thus: "'It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered. The circumstances in which (the appellant) was allowed to occupy the Parisian Hotel show that Joseph never intended to accept him as a tenant and that he was fully aware of it. The payments he made were only part of the disbursements for which he made himself responsible and the so called rent was in the nature of a reimbursement of the rent payable by (the respondent company)." 16. The appellant filed the appeal before the Privy Council. Their Lordships of the Privy Council while approving the statement of law by Archer, J. observed: "There was not only exclusive possession but there was also the payment.and acceptance of rent. (Furthermore, the appellant paid the disbursements, and so forth). The appellant filed the appeal before the Privy Council. Their Lordships of the Privy Council while approving the statement of law by Archer, J. observed: "There was not only exclusive possession but there was also the payment.and acceptance of rent. (Furthermore, the appellant paid the disbursements, and so forth). Counse admitted that these would not be decisive to establish the tenancy in the case of premises within the Rent Restriction Acts such as Marcroft Wagons, Ltd. v. Smith, (1951) 2 All. E.R. 271, and Murray, Bull & Co. Ltd. v. Murray, (1952) 2 All. E.R. 1079, but it was altogether different, he said, in the present case where the premises were not subject to rent restriction legislation. The only proper inference here was a monthly tenancy. Their Lordships cannot accept this view. There are may cases in the books where exclusive possession has been given of premises outside the Rent Restriction Acts and yet there has been held to be no tenancy. Instances are Errington v. Errington & Woods, (1952) 1 All. E.R. 149, and Cobb v. Lane (1952) 1 All. E.R. 1199, which were referred to during the argument. It is true that in those two cases there was no payment or acceptance of rent, but even payment and acceptance of rent though of great weight is not decisive of a tenancy where it can be otherwise explained: see Clarke v. Grant, (1949) 1 All. E.R. 768." As early as 1954 Gajendragadkar, J. in Ramjibhai Virpal v.Gordhandas Maganlal AIR. 1954 Bombay 370 considered the question how far the right to exclusive possession of certain immovable property can be considered to be decisive for determining whether a transaction is a lease or licence. The learned judge observed: "Mr. Patel contends that in so far as the Courts below were disposed to take the view that bis client was no better than a licensee, their conclusion must be held to be wrong in law because his client was entitled to the exclusive possession and enjoyment of the property given in his possession. It is perfectly true that the observations from Halsbury and the comments made by the learned commentator in Mulla's Transfer of Property Act do lend support to this contention. It is perfectly true that the observations from Halsbury and the comments made by the learned commentator in Mulla's Transfer of Property Act do lend support to this contention. In our opinion, however, the statement that a licence is always ruled out as soon as the right to exclusive possession is granted to a party may not be regarded as a correct statement of the law without some qualification. The question as to whether a licensee can be given an indefeasible right to remain in possession for a stated period by an agreement between the parties has been considered by English Courts on several occasions in recent years, and it may be stated, with respect, that the tendency of recent decisions appears to be to widen the scope of the licensee's rights and to hold that if a license is also given the right to exclusive occupation for a stated period, this right does not convert the licence into a lease but merely adds certain contractual rights to the licence. It may be described as a possessory licence, it may be described as a licence to which are added certain contractual rights or, it may be. as Roxburgh J., has pointed out, that we are unable to name this particular species of rights specifically and succinctly today; that is a task which the jurists of tomorrow might perform."' I have already pointed out that exclusive possession can be compatible with a licence to which are added certain other contractual rights. That no doubt appears to be the view which has been taken in recent English judgments; but even if that not be the position in India all that can be said would be that the appellant is not a licensee. That does not necessarily mean that he is a lessee. It may be conceded that we might find some difficulty in properly or adequately describing the precise character of the rights with which he is clothed. But there is no difficulty in determining the real substance of the matter. His possession is permissive, and though it is exclusive it is not that of a lessee. It may be conceded that we might find some difficulty in properly or adequately describing the precise character of the rights with which he is clothed. But there is no difficulty in determining the real substance of the matter. His possession is permissive, and though it is exclusive it is not that of a lessee. This exclusive possession gives him rights which are larger than those of a licensee technically so called under the provisions of S.52, Easements Act, but which are less than those of a lessee properly so called under the provisions of S, 105, Transfer of Property Act". In Associated Hotels of India Ltd. v. R. N. Kapoor AIR. 1959 SC. 1262 their Lordships of the Supreme Court followed the dictum laid down by the Court of Appeal in Errington v. Errington (1952)1 All. E. R.149 and Cobb v. Lane (1952) 1 All E. R.1199. Subba Rao, J., speaking for the court stated the following propositions: "The following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document roust be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) 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 of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease". Much to the same effect are the observations of their Lordships of the Supreme Court in M. N. Clubwala v Fida Hussain Saheb AIR. 1965 SC. 610. In Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh (1968) 1 SCWR. 914, Bachawat, J. said: "The test of exclusive possession, though not conclusive, is a very important indication in favour of tenancy, see Addiscombe Garden Estates Ltd. and Ann v. Crabbe and Ors. 1958 (1)Q. B. 513,525." 17. The question whether Ex. P1 is a lease or licence has to be decided in the light of the principles stated above. 914, Bachawat, J. said: "The test of exclusive possession, though not conclusive, is a very important indication in favour of tenancy, see Addiscombe Garden Estates Ltd. and Ann v. Crabbe and Ors. 1958 (1)Q. B. 513,525." 17. The question whether Ex. P1 is a lease or licence has to be decided in the light of the principles stated above. The learned counsel for the defendant submitted that the conclusion of the courts below that Ex. P1 is a licence is because of the statement of the defendant therein that the effect of Ex. P1 is only to create a licensee's possession in his favour. I shall extract the relevant clause itself as no agreed English translation of Ex.p1 has been filed: It is not correct to say that the finding of the courts below is because of the above recital. The above provision has also been taken into account by the courts below in holding that Ex. P1 is only a licence. The submission on behalf of the defendant was that in view of the words as distinguished from in the above clause it is nothing but an expression of inference by the defendant as to the legal right between the parties created by the several clauses in Ext. P1 and therefore the said clause should have been ignored in construing Ex. P1. I do not think that I can accept the extreme contention advanced on behalf of the defendant. As was observed by Denning Q. in Errington v. Errington (1952) 1 All E R.149 parties cannot turn a tenancy into a licence merely by calling it one, but if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee. The above clause is therefore not totally irrelevant in the matter of finding out the intention of parties to Ex. P1. 18. There is no statement which I can find in Ex. P1 nor was any brought to my notice creating an interest in immovable property in favour of the defendant or giving him exclusive possession of the theatre building. The clause in dispute therefore is an acknowledgment by the defendant that Ex. P1 is merely for using the theatre to exhibit the films and conduct dramas and other entertainments. P1 nor was any brought to my notice creating an interest in immovable property in favour of the defendant or giving him exclusive possession of the theatre building. The clause in dispute therefore is an acknowledgment by the defendant that Ex. P1 is merely for using the theatre to exhibit the films and conduct dramas and other entertainments. It is difficult to construe any possession of the theatre with the defendant to the exclusion of the plaintiff based on the recitals in Ex. P1. 19. The learned counsel for the defendant submitted that inference of exclusive possession in favour of his client under the terms of Ex. P1 is radicated because of his undertaking to entrust back the theatre and the equipments to the plaintiff after the expiry of the term in good running condition. The said recital is to the following effect: The emphasis was upon the expression But I do not think that this clause is susceptible of such an interpretation as it has to be interpreted only in the light of the other clauses in Ex.P1. In Board of Revenue v. South Indian Railway Co. Ltd, ILR. 48 Madras 368 the Madras High Court had to construe an agreement executed between the South Indian Railway Company Ltd., referred to as the administration and the Chairman of the Municipal Council, Chidambram, referred to as the licensee. Clause.12 of the agreement was as follows: "nothing herein contained shall be construed to create a tenancy in favour of the licensee of the said land and the Administration may of their mere motion upon the determination of this license re-enter upon and re-take and absolutely retain possession of the said land". Krishnan, J., held that the above clause taken by itself cannot be construed as conferring exclusive possession and it has to be interpreted only in the light of the other recitals in the document. 20. Another circumstance relied on by the learned counsel for the defendant to show defendant's exclusive possession was based upon the right of inspection reserved in favour of the plaintiff under Ex. P1. According to the learned counsel this clause is quite inconsistent with any continuance of possession of the plaint property with the plaintiff after the date of Ex. PL In Board of Revenue v. South Indian Railway Co. P1. According to the learned counsel this clause is quite inconsistent with any continuance of possession of the plaint property with the plaintiff after the date of Ex. PL In Board of Revenue v. South Indian Railway Co. Ltd., ILR 48 Madras 368 already referred to, their Lordships had to construe Clause.4 of the agreement to the effect that'the licensee shall allow the General Traffic Manager for the time being of the Administration (hereinafter referred to as the Manager) or any one authorised by him in this behalf free access at all times to the said land". Spencer, Officiating Chief Justice, pointed out: "The fact that certain clauses of the agreement impose conditions which would be ordinarily implied by the grant of a licence but would be exceptions to the grant of a lease,, does not necessarily indicate that it is a lease. These clauses were probably inserted ex abundante cautela: for instance, under Clause.4." Kumaraswami Sastri, J. said: "It may be that the mere fact that there are restrictive covenants would not by itself make a lease a licence if the other terms are clear bat in considering what the intention of the parties was, it is relevant to see what control the one party has over the property on which another party is allowed to do certain things. Here I think the Railway Company reserved to itself a very large measure of control; and, reading the document as a whole, I think it is merely a licence given to the grantees to keep the coal on the Railway premises for some time and to pay for the privilege which they have got." 21. In my view the clause in Ex. P-1 dealing with the plaintiff's right to inspect, is not a conferment of that right on the plaintiff but only a restriction on his right-to inspect the building when the show is running in the theatre. This restriction is necessary to make the primary right granted to the defendant effective. 22. Counsel for the defendant then submitted that at the time of the execution of Ex. P-1 the property was already in the possession of the defendant and that accounts for the absence of a clause in Ex. P1 giving him possession of the plaint property. Ex. 22. Counsel for the defendant then submitted that at the time of the execution of Ex. P-1 the property was already in the possession of the defendant and that accounts for the absence of a clause in Ex. P1 giving him possession of the plaint property. Ex. D-13 dated 22 111958 is the gift in favour of the plaintiff in respect of the plaint and other properties executed by his father Sangameswara Iyer. Ex. D 13 authorises the plaintiff to recover the rent from the lessees. Ex. D14 dated 1811964 is an assignment executed in favour of the plaintiff by his brother Ramaswami Iyer in respect of his right to exhibit films in the plaint theatre. The following recital occurs in Ex. D 14: not in any way affected by the execution of Ex. P-1. The agreements between the defendant and the executants of Exs. D13 and D14 have not been produced. It is not suggested that these agreements are with the plaintiff. That apart, subsequent to Exs. D 3 and D14 and prior to Ex. P1 there was an agreement dated 1611964 between the plaintiff and the defendant which is referred to in Ex. P1. Ex. P1 says thus: Whatever may have been the position prior to 161 1964 for which there is absolutely no evidence it does not appear from the terms of Ex. P1 that any of those rights were retained under the agreement of 16 1 1964 and there was a transfer of possession to the defendant in pursuance to that agreement. The submission on behalf of the defendant that there was transfer of possession to the defendant under the agreement of 16 11964 and there was therefore no specific provision in Ex. P-1 placing the defendant in possession of the property cannot be accepted. The learned counsel for the defendant argued that steps were taken to the plaintiff to produce the karar of 16 1 1964 and though he stated at the outset that he had produced it in the Income Tax Office, subsequently he alleged that the document is missing and therefore an adverse inference has to be drawn against the plaintiff on account of the non-production of the karar. The defendant has no case in his written statement that the karar of 1611964 is a lease creating an interest in immovable property in his favour or there was transfer of possession to him under the said karar. When the defendant himself has no such case I do not think it proper to draw any adverse inference against the plaintiff because of the non-production of the karar. On the other hand Ex. P1 recites that on its date the plaint item was in the possession of the plaintiff. The only inference possible is that there was no transfer of possession of the plaint property either under Ex. P1 or earlier in favour of the defendant. The learned counsel for the defendant relied on Ex. Dl dated 22 31967 and Dl (a) dated 1711967 which are cheques issued by the defendant to the plaintiff towards the amounts due under Ex. P1. Below the signatures of the defendant in Exs. Dl and Dl (a) is the seal 'lessee of the Pioneer Theatre.' This is relied on as a circumstance to show that Ex. P1 is a lease. The cheques were no doubt accepted by the plaintiff. But that by itself does not lead to the inference that Ex. P1 is a lease. Exs.Dl and Dl (a) are only payments towards the amounts due under Ex. P1 and the cashing of the cheques by the plaintiff will not amount to an admission that the defendant is his tenant whatever may be the legal import of Ex. P1. This circumstance is not sufficient to construe Ex. P1 as a lease. 23. The learned counsel for the plaintiff pointed o the restraint on the defendant from alienating or transferring or subletting the theatre or the equipment, the absence of a schedule of property in Ex. P1 are circumstances which prove that there was no interest in land created in favour of the defendant and that the intention of the parties was not to create a lease but only to confer a personal privilege. In considering the question of intention of the parties the circumstances pointed out above are very relevant and cannot be easily brushed aside. The submission on behalf of the defendant was that the expression" in Ex. In considering the question of intention of the parties the circumstances pointed out above are very relevant and cannot be easily brushed aside. The submission on behalf of the defendant was that the expression" in Ex. P1 means only 'consideration' which is the expression used in S.105 of the T. P. Act and clauses restraining the defendant from subletting or alienating the plaint property are only in the nature of restrictive covenants which are contracts to the contrary under S.108 of the T. P. Act, and the non-registration of Ex. P1 cannot destroy the character of Ex. P1 as a lease. 24. The expression QXnAew 'no doubt means consideration. But it is common knowledge that in the lease deeds executed in the State, the consideration is usually referred to as rent or pattom and not as . Though the omission to register Ex.P1 may not destroy its effect as a lease if it was intended as one, it is a circumstance to show that the parties to Ex. P1 never intended it as a lease. The provisions in Ex. P1 preventing the defendant from alienating or subletting are incorporated by way of abundant caution to safeguard the interest of the plaintiff and not as contracts to the contrary within the meaning of S.108 of the T. P. Act. 25. It has to be mentioned that the learned counsel for the defendant was not able to point out those clauses in Ex. P1 from which a grant of an interest in land or in the theatre in favour of the defendant can be inferred. In the whole of Ex. P1 there are no words of demise of land. There are no words in Ex. P1 creating an estate in land. Reading Ex. P1 as a whole one is left with the impression there is no transfer of interest in the theatre in favour of the defendant. Normally one would not expect a document of lease to be executed without a schedule of property. I therefore agree with the findings of the courts below that Ex. P1 is not a lease but only a licence. 26. The next question to be decided is whether the plaintiff is entitled to the mandatory injunction. Though the trial court denied this relief it was granted by the appellate court relying on the decision in Prabirandra Nath v. Narendra Nath AIR. 1958 Calcutta 179. P1 is not a lease but only a licence. 26. The next question to be decided is whether the plaintiff is entitled to the mandatory injunction. Though the trial court denied this relief it was granted by the appellate court relying on the decision in Prabirandra Nath v. Narendra Nath AIR. 1958 Calcutta 179. It was decided therein that the owner of an immovable property can, on the termination of a licence, maintain a suit against his licensee for. mandatory injunction directing him to vacate the property. When the owner of immovable property terminates a licence, he can sue for mandatory injunction directing the licencee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession. The defendant has not pleaded in the written statement that the equipments and furniture mentioned in Ex. P1 are not now in the theatre. On the other hand his contention in the written statement.is that he has provided additional furniture in the theatre and if the suit is to be decreed he should be allowed to remove the same. It is therefore not possible to hold that the learned appellate judge did no exercise his discretion properly when it granted the mandatory injunction which he is entitled to do under S.39 of the Specific Relief Act, 1963. The learned judge has allowed the defendant to remove his own articles which he has brought into the building. There are thus no grounds for interference with the decision of the courts below. The second appeal is thus without merit and is dismissed with costs.