JUDGMENT G. D. Sahgal, J. - This is a defendant's second appeal against whom a suit for ejectment has been decreed by both the courts below and also for rent and damages, the claim of rent and damages being decreed only against defendant-appellant No. 1. 2. The allegations in the plaint were that the plaintiff-respondent had purchased the house in question from one Smt. Lallo Bibi who was the original landlord. She had tenanted a portion of the house to defendant-appellant No. 1 who became the tenant of the respondent after the sale of the house in his favour by the original landlord. Defendant-appellant No. 1 has been allotted accommodation in the compound of the Colvin Taluqdars' College where he is employed and defendant-appellants 2 and 3 were said to have been allowed to occupy these premises as sub-tenants. The tenancy was accordingly terminated on account of the premises having been sub-let and the premises having not been vacated, the suit was filed giving rise to this appeal for the ejectment of the defendants and for arrears of rent and damages. As pointed out above, the suit was decreed by both the courts below for ejectment and as to arrears of rent and damages it was decreed against Defendant-appellant No. 1 the original tenant alone. 3. The plea of the defendants was that defendant No. 1 had been living alone with defendants 2 and 3 in the house for the past 15 years; that defendant No. 2 was a brother-in-law (wife's brother) of defendant No. 1 and defendant no. 3 was the wife of defendant No. 2. Their case was that the premises were never sub-let by defendant No. 1 to defendants 2 and 3 and that the plaintiff was not entitled to evict them. Defendants 2 and 3 who filed a separate written statement also denied the sub-tenancy. A plea was also raised to the effect that the matter of sub-tenancy was not raised in an earlier suit (Suit No. 182 of 1963) filed by the original landlord Smt. Lallo Bibi against defendant no. 1 which was dismissed and as such the question of sub-letting stands concluded against the plaintiff-respondent as constructive res judicata. None of these pleas found favour with the two courts, the plea of res judicata being not taken up before the appellate court at all and the suit was decreed. 4. 1 which was dismissed and as such the question of sub-letting stands concluded against the plaintiff-respondent as constructive res judicata. None of these pleas found favour with the two courts, the plea of res judicata being not taken up before the appellate court at all and the suit was decreed. 4. First let us consider as to whether the decision in the earlier suit being Suit No. 182 of 1963 acts as res judicata as to the plea of sub-letting taken by the plaintiff-respondent in this suit for the ejectment of the appellants. That suit was filed on the 9th of April 1963 against defendant-appellant No. 1 and one Dhanpat Rai. That suit was filed by Smt. Lallo Bibi and was for ejectment of defendant-appellant No. 1 on the ground of nuisance. There was also a plea in that case to the effect that defendant-appellant No. I had committed default of payment of rent. That suit was dismissed on the 17th of January, 1966. Reliance is placed on Explanation IV to section 11 of the Code of Civil Procedure for advancing the argument to the effect that the plea that the premises had been sub-let by defendant No. 1 to defendants 2 and 3 could have been taken by the then landlord Smt. Lallo Bibi in that suit as being another cause of action for, the reliefs claimed in that suit. 5. Explanation IV to section 11 of the Code reads : "Any matter which might and ought to have been made ground of defence of attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." 6. The question is as to whether the plea of subtenancy could be a ground of attack in the former suit. According to the statement made by defendant-appellant No. 2 under Order 10, Rule 2 of the Code of Civil Procedure on the 9th of May, 1968 he and his wife live in the house, defendant no. 1 having ceased to live in the house, for about a year and a half. Apart from the fact that this statement on behalf of Defendant No. 2 is not binding on Defendant No. 1 it only means that defendant no. 1 having ceased to live in the house, for about a year and a half. Apart from the fact that this statement on behalf of Defendant No. 2 is not binding on Defendant No. 1 it only means that defendant no. 1 continued to live in the house till about the end of 1966 and only since then have defendants 2 and 3 been residing in the house as sub-tenants. Defendant no. 2 being the brother-in-law of defendant no. 1, he might have been residing with defendant no. 1 without being his tenant, but as a relative of his. But if the premises were let out at all they could be let out only, on defendant no. 1 being allotted another accommodation in the compound of Colvin Taluqdars' College and shifting to it. The sub-tenancy, if it came into being at all, therefore, came into being only in the end of 1966 by which time the previous suit had already been dismissed. There was, therefore, no occasion for the plea of sub-tenancy being raised in that suit and as such Explanation IV to section 11 of the Code of Civil Procedure would not apply in such a case. The plea of res-judicata, therefore, has been rightly repelled by the trial court and was advisedly not raised in the first appellate court. 7. We have now to see whether there was in fact sub-letting of the premises by defendant No. 1 to defendants 2 and 3 As we know defendant No. 2 is the brother-in-law (wife's brother) of defendant No. 1 and defendant No. 3 is the sister of defendant No. 1 being the wife of defendant No. 2. The learned Additional District Judge has taken into consideration the statement of defendant No. 2 under Order 10 Rule 2 of the Code of Civil Procedure to the effect that he and his wife had been residing in the house and that defendant No. 1 had not been living there for a year and a half and was living in the compound of Colvin Taluqdars' College. Apart from it, he has also taken into consideration the copy of the electoral rolls which had been filed before him which indicated that defendant No. 1 had been residing in the Colvin Taluqdars' College compound and defendants 2 and 3 had been residing in Mohalla Churi Wali Gali, where the house in dispute is situated. Apart from it, he has also taken into consideration the copy of the electoral rolls which had been filed before him which indicated that defendant No. 1 had been residing in the Colvin Taluqdars' College compound and defendants 2 and 3 had been residing in Mohalla Churi Wali Gali, where the house in dispute is situated. He has on this evidence came to the conclusion that while defendant No. 1 resides in Colvin Taluqdar's College compound, defendant No. 2 resides in the house of which defendant No. 1 was the tenant of the plaintiff. The ration cards relating to the defendants were also placed before him which showed that the three defendants drew ration together but he was of the opinion that they could not displace the effect of the other circumstances in the case. His conclusions, therefore, were that though the premises had been originally allotted to defendant No. 1, he had ceased to reside therein and defendants 2 and 3 alone were now residing in those premises with the consent and approval of defendant No. 1 from this finding he came to the conclusion that defendants 2 and 3 were the sub-tenants of defendant No. 1. 8. Relying on the definition of the word 'tenant' in section 2(g) of the U.P. (Temporary) Control of Rent and Eviction Act which provides that a 'tenant' means the person by whom rent is or but for a contract express or implied, would be payable for any accommodation' and a sub-tenant being a tenant of the tenant he held that it is not essential that the tenant should pay rent of the accommodation of which he is a tenant. What was essential was that but for a contract express or implied be would be liable to pay rent. He held defendants 2 and 3 to be the sub-tenants of defendant No. 1, even though it was not proved that defendants 2 and 3 were paying rent to defendant No. 1, but as they were residing in the accommodation with the consent of defendant No. 1 and rent would have been payable by them to defendant No. 1 but for a contract express or implied, they were the sub-tenants of defendant No. 1. This argument of the learned Additional District Judge was sought to be reinforced by the learned counsel for the respondent by his relying on an authority of this Court in the case of Ram Bharose v. Ajeet Kumar and another, 1952 A.L.J. 280. wherein a certain firm which was in the occupation of certain premises was held to be a sub-tenant of the tenant of those premises even though that firm did not pay any rent to the tenant. The following observations were made in that case : "When the appellant is not proved to have any interest in the firm it is admitted that the firm is in possession of the shop and carrying on business there and it appears that it has been doing so with the consent and approval of the appellant, it follows that it is in possession as a sub-tenant. It was not essential for the landlord to prove that the firm has been paying rent to the appellant. Rent need not be payable by the firm to the appellant in order to create the relationship of landlord and tenant. The definition of 'tenant' contained in the Rent Control Act makes it clear that in order that a person be a tenant of another, it is not essential that he is under a liability to pay rent. What is essential is that but for a contract, express or implied, he is under a liability to pay rent. It was open to the appellant to sublet the shop to the firm on condition that no rent would be payable by the firm. The existence of a contract under which no rent would be payable by the firm to the appellant would not mean that the firm is not a sub-tenant of the appellant. Therefore, the landlord's failure to prove any contract of payment of rent or the fact of payment of rent did not mean that the appellant had not sublet to the firm." 9. The case, however, is distinguishable from the instant case. In that case the tenant had been proved not to have any interest in the firm which was alleged to be the sub-tenant. Here the case of the tenant is that defendant No. 2 is the own brother-in-law of defendant No. 1 and had been residing with him all along and could not be his sub-tenant. In that case the tenant had been proved not to have any interest in the firm which was alleged to be the sub-tenant. Here the case of the tenant is that defendant No. 2 is the own brother-in-law of defendant No. 1 and had been residing with him all along and could not be his sub-tenant. There is difference between a tenant and a licensee. If defendant No. 1 had allowed his wife's brother to reside along with him when he was in occupation of the premises, he would at the most be a licensee of his for the relationship between the two was such that it cannot be presumed, as it would be presumed in the case above cited that the firm must have been let in as a sub-tenant though it could not be established that they were paying any rent to the tenant. It may not be essential to establish sub-tenancy that the rent was necessarily being paid for the premises if it is established that but for a contract, express or implied, it would be paid. But that does not mean that simply because a tenant has allowed some one to reside with him and does not charge rent from him or even when he has left ha allows that person to continue to occupy those premises, it should necessarily be presumed that the person who had been allowed to reside with the tenant war his sub-tenant or will become his sub-tenant at least when he left the premises to reside elsewhere. The distinction between a lease and a licence has been brought out in the case of Associated Hotels of India Ltd. v. R. N. Kappor, AIR 1959 Supreme Court 1962. In the judgment of Subba Rao, J., it has been pointed out that a lease is a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease and it follows from it that the lessee gets that right to the exclusion of the lessor. But in the case of a licence the legal possession continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission his occupation would be unlawful. But in the case of a licence the legal possession continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is thus a clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. It was further pointed out that though at one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But the trend of the judicial opinion is that though a person who is led into exclusive possession is prima facie considered to be a tenant nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy (vide Lord Denning in Errington v. Errington, (1952) 1 All England Reporter 149. The following quotation from Lord Denning from in Cobb v. Lane, (1952) 1 All England Reporter 119. was also cited with approval : "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 ? The position was summarised as follows : "To ascertain whether a document creates a licence or lease, the substance of the document must 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." 10. In the instant case there is no document. In the instant case there is no document. The case of the defendant-appellant No. 1 was that he had kept his brother-in-law and his sister in the premises and he was occupying the same and he continues to occupy the premises though he may have shifted to another premises and they are living there as his licensees. The mere fact that from a particular date ever since he has shifted to the new premises, defendants 2 and 3 have been exclusively occupying the premises of which defendant No. 1 was the tenant, in view of the nature of relationship between them does not necessarily lead to the conclusion that the premises had been sub-let by defendant No. 1 to defendants 2 and 3. Defendant No. 1 alone continues to be the tenant of the premises and defendants 2 and 3 are not his sub-tenants. The finding of the Additional District Judge, therefore, that simply because defendants 2 and 3 were living in the premises they became the sub-tenants of the chief-tenant is not correct and defendants 2 and 3 cannot be said to be the sub-tenants of defendant No. 1 who still continues to be the tenant. Hence this is not a case of sub-letting. 11. The learned counsel for the respondents strongly relied on another authority reported in (Skinner v. Goary), (1931) II K.B.D. 546. In that case the question to be decided was whether a man who in every other respect is a tenant of the premises was entitled to the protection of Rent Restrictions Act if he did not reside at the premises itself, and the finding was that he was not. We do not know exactly what the relevant provisions of Rent Restrictions Act were. Moreover, that was not a case where the interpretation of a similar provision of law like the one we have was involved. We do not know exactly what the relevant provisions of Rent Restrictions Act were. Moreover, that was not a case where the interpretation of a similar provision of law like the one we have was involved. It may be that under the provisions of Rent Restrictions Act, referred to in that case, a person who shifts from the premises occupied by him to the new premises is not entitled to the protection of that Act, but in the absence of any material to indicate that the provisions were similar and that in similar circumstances a person who remains in the occupation of the premises must be deemed to be a sub-tenant, no reliance can be placed on that authority in support of the view taken by the Additional District Judge. 12. The appeal is accordingly allowed only to this extent that the decree for ejectment passed by the first appellate court in favour of the plaintiff-respondent is set aside, though the rest of the decree for arrears of rent remains intact. The suit shall be dismissed for ejectment though it shall remain decreed for the amount of Rs. 19.37P. In the circumstances of the case the parties shall bear their own costs throughout.