JUDGMENT - G.N. VAIDYA, J.:---The above Special Civil Application arises out of Ejectment Application No. 78/E of 1962, filed by the respondent under section 41 of the Presidency Towns Small Causes Court Act, 1882, in the Court of the Small Causes at Bombay, on the footing that the petitioner was a licensee of the respondent and the respondent was his licensor in respect of the subject matter of the dispute, a tailoring shop, known as "Swastik Tailoring Firm" on the ground floor of Deoshi Tokersey Building, at 227-229, Jijibhoy Lane, Lalbaug, Bombay- 400 012. In his application, the respondent stated that by an agreement, dated July 16, 1960, he gave to the petitioner-defendant and the dependent took from the plaintiff, his tailoring shop for conducting it on the terms and conditions stipulated therein. By the said agreement, the respondent gave leave and licence to the petitioner to occupy the premises for a period which expired on December 31, 1961, and the respondent by his Advocates notice date January 3, 1962, called upon the petitioner to give vacant petitioner was falsely contending to be the sub-tenant in the premises in reply to that notice. The respondent prayed for recovery of peaceful possession of the shop premises from the petitioner. The application was opposed by the petitioner by filing points of defences contending that the petitioner was in the premises as a sub-tenant from 1947, uninterruptedly and not merely under he so called agreement of leave and licence dated July 16, 1960, as contended by the respondent. He submitted that the agreement was intended not to be acted upon and was made to save the position of the respondent, because it is clear that under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, he respondent would not be permitted to sub-let the premises to the defendant. The defendant claimed to be in occupation of the premises, since 1947. He claimed to have been in exclusive possession of the suit premises and, therefore, contended that he had rightly denied the allegations made by the respondent in his notice and stated that he was a sub-tenant lawfully protected under the provisions of section 15 of the Bombay Rent Act, from the year since 1947, as amended by the Ordinance of 1959, which came into force on November 15, 1959. As issue was framed under section 42-A of the Presidency Small Causes Court Act, before the trial Judge, in the Small Causes Court. The plaintiff respondent examined himself. The defendant-petitioner examined himself as also one Lele from whom he claimed to have purchased a Singer sewing machine. The plaintiff produced a receipt from the Singer sewing machine dated October 26, 1942, which was not proved by him and was marked Ex. "X" on the record. The Municipal licence standing in the name of the petitioner, was produced by the petitioner. The petitioner produced one licence in Form No. II under the Bombay Ready Made Cloth Tailoring Licence which was standing in his name. He also produced the receipt given by lele on 15-3-1947, showing that Singer Machine No. E. C. 550 belonged to him, was sold to the petitioner on March 15, 1947; and the receipt of July 11, 1960, stating that he had received Rs. 210/- on that day in respect of the rent of the shop. The petitioner examined Lele as his witness. The parties produced the correspondence between their lawyers. The parties also produced the Leave and Licence documents, dated July 15, 1957 (Ex. B) and July 16, 1960 as Ex. D. The plaintiff produced the agreement by which he had purchased the shop from Sahadeo Gopal Vasta at Ex.A. The learned trial Judge by his judgment and decree, dated January 29, 1966, carefully considered the oral and documentary evidence and the correspondence before him, arrived at the conclusion that notwithstanding the leave and licence agreement produced at Exs. B and D and the correspondences between the parties, the real relationship between the petitioner and the respondent was that of a sub-tenant and tenant and not that of a licensee and licensor, as contended by the respondent, though he was inclined to accept the evidence of the respondent that he gave the machine and articles along with the shop to the petitioner in the year 1947. In arriving at this conclusion, the learned Judge relied on the following facts and circumstance : (1) there was no evidence to show that the plaintiff was doing any tailoring business in the name and style of M/s. Swastik Tailoring Firm, when he gave the shop to the defendant in 1947; and it was common ground that from 1947, the defendant was the Swastik Tailoring Firm, in the premises in dispute; running (2) the plaintiff gave to the defendant the machine and furniture along with the shop in 1947; (3) The defendant i.e. the petitioner has been and is in exclusive possession of the shop premises and this fact was not even disputed by the respondent. It was also admitted that the defendant was conducting the tailoring business in the shop and the business conducted by the defendant was not under any control or directions of the plaintiff; (4) the defendant was carrying on his business according to his wished and used to employ employees and dismiss them according of his choice :(5) the defendant got the shop registered in his name under the Bombay Shops and Establishments Act; (6) the fact that the machine and articles were given under he circumstances to the defendant by the plaintiff by itself created a relationship that the plaintiff had also given his tailoring business for conducting to the defendant merely from the fact that the machine and articles were given; (8) the primary object of the agreement between the parties was to give the premises to the defendant for conducting the independent tailoring business ad not to give business merely incidentally for conducting of the business, as contended by the respondent, as there was no evidence to show that the plaintiff-respondent was doing any tailoring business prior to 1947; (9) the plaintiff admitted that in the beginning the amount of royalty was Rs. 50/- per month, but after some time the defendant told him that he was not able to pay the amount of royalty at Rs. 50/- per month, and it was, therefore, agreed that the defendant should pay Rs. 30/- per month as and by way of royalty and the amount of rent of the shop business, which was undisputedly Rs. 30/- per month ; and this supported the evidence rent of the suit premises from the beginning, and further corroborated by the recitals in Exhs. 30/- per month as and by way of royalty and the amount of rent of the shop business, which was undisputedly Rs. 30/- per month ; and this supported the evidence rent of the suit premises from the beginning, and further corroborated by the recitals in Exhs. B and D to the effect that the defendant had to pay Rs. 30/- as monthly royalty and the amount of rent of the suit premises to the plaintiff; (10) it was also admitted by the respondent that three was no written agreement in 1947, and that the defendant was at liberty to give up the shop when he liked, and he was entitled to termine the agreement by giving the defendant an oral notice of six months. In view of the aforesaid ten circumstances, the learned Judge concluded : "Now, this and other circumstances clearly go to show that the relationship between the plaintiff and the defendant in 1947 was not that of licensor and licensee, as alleged by the plaintiff. The defendant was given possession of the shop premises and also the machine and articles for the use of the defendant." The learned Judge, therefore, concluded that the defendant petitioner was a lawful sub-tenant of the petitioner-respondent, that Rs. 30/- per month which was paid as royalty was in fact the amount for the hire of the machine and articles, and therefore, the petitioner was a lawful sub-tenant of the respondent. This finding on the preliminary issue under section 42-A was challenged by the plaintiff-respondent in an appeal before the Appellate Bench of the Small Causes Court at Bombay. The Appellate Bench reversed the said finding without taking into consideration the conduct of the parties, the intention of the parties as it appeared from the several circumstance enumerated above, and relying only on the words contained in the agreements Exhs. B and D and the absence of the claim of sub-tenancy in the correspondence at Ex. C. The Appellate Court was of the view that the mere fact that the plaintiff was unable to produce any documentary evidence to show that he was conducting in the year 1947, when he transferred the business to the defendant, was not enough to show that he was not carrying on the tailoring business, as presumed by the trial Judge. C. The Appellate Court was of the view that the mere fact that the plaintiff was unable to produce any documentary evidence to show that he was conducting in the year 1947, when he transferred the business to the defendant, was not enough to show that he was not carrying on the tailoring business, as presumed by the trial Judge. The learned appellate Judges also presumed from the absence of the claim of the sub-tenancy in the correspondence subsequent to the date of the Ordinance of 1959, that the defendant must be presumed to have admitted that he was conducting the respondents tailoring shop and was paying the royalty for the same. Though they agreed with the finding of the trial Court that the sewing machine in the shop belonged to the plaintiff and not to the defendant, so far as the fact of residence of the members of the family of the defendant in the suit premises from the year 1959, which was an admitted fact, was concerned, the Appellate Bench said in the absence of the ration card and the correspondence to show that the shop premises was used for the residence, it was difficult to accept that the large family of the respondent was staying in the suit premises. The Appellate Bench, therefore, came to the conclusion that the circumstances established in the case were consistent with the defendant being a licensee, observing as follows : "Thus it will be seen that the circumstances pointed out by the respondents Advocate were not in any way inconsistent with the respondents status as a licensee of the appellant. The appellant as the evidence shows, had given a well equipped and running tailoring shop to he respondent. The respondent admitted this position even in 1957 and 1960 and did not allege that he was a sub-tenant on the premises. This story, therefore, that he is sub-tenant of the appellant cannot be accepted." It may be noted that before the Appellate Bench, the respondent had made an application for leading additional evidence to show that the suit premises belonged to the Bombay Municipal Corporation, and, therefore, the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, did not apply to the premises in view of section 4 of the Bombay Rent Act. But the Appellate Bench after having come to the conclusion thought it unnecessary to allow him to lead evidence; and came to the conclusion thought it unnecessary to allow him to lead evidence; and came to the conclusion that if the building belonged to the Municipal Corporation, the petitioner would not get the protection under the Rent Act. The findings of the appellate Bench are challenged in the above Special Civil Application. Mr. Morje, the learned Counsel appearing for the petitioner, submitted that the Appellate Bench erred in reversing the finding of the trial Court, without taking into consideration the test laid down by he Supreme Court in (Associated Hotels of India Ltd. v. R.N. Kapur)1, A.I.R. 1959 S.C. 1262 and (Qudrat Ullah v. Municipal Board, Bareilly)2, A.I.R. 1974 S.C. 396 and other decisions of this Court, which need not be referred, as the last decision of the Supreme Court, has set out, with respect, in the most authoritative and clear manner the law on the point, at page 398, as follows : "To put it pithily, if an interest in immovable property, entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result." The Supreme Court has pointed out that the law on the point was stated authoritatively in the earlier decision in the Associated Hotels case and the guidelines could be followed from the passages referred to by the Supreme Court from the Halsburys Laws of England, Volume 23, pages 427, 428 and 429. Mr. Morje submitted that the Appellate Bench has completely ignored the most vital fact in the case that the defendant was inexclusive enjoyment of the suit premises without any interruption whatsoever from the respondent from the year 1947; and the conduct of the parties and the circumstances relied upon by the trial Court, clearly established that the dominant intention of the parties was to create a sub-tenancy under which the premises were sub-let by the respondent to the petitioner in the year 1947, under an oral agreement till the written agreements were executed for avoiding the provisions of the Rent Act, which prohibited sub-letting in 1957 and in 1960 by the agreements at Exhs. B and D. He also argued that the appellate Bench was wrong in inferring from the fact that the plaintiff had not produced any documentary evidence that there was probability of his carrying on tailoring business in the year 1947, merely because the recitals in the agreement of sale are of the year 1945, which is at Ex. A. He further contended that the evidence of Lele clearly showed that the Singer sewing machine, which was only one of the other machines in the tailoring shop, belonged to Lele, and there was some old arrangement between Lele and the respondent with which the petitioner was not concerned; and the two Courts erred in ignoring the receipt which clearly showed that Lele had sold the machine to the petitioner. Mr. Morje also relied on an affidavit filed in this Court today, after serving on the other side, mentioning new facts and submitting that in the year 1967, the Bombay Municipal Corporation had sent a notice to the petitioner stating that the Municipal Corporation had acquired the building in which the premises in dispute are situated. But the matter was kept hanging because of pending dispute in this litigation. He has pointed out that the respondent has four shops not of tailoring but of button-hole stitching viz.:(1) Sudha Button-hole Stitching at Narayan Ashrma, Lalbuag, (2) Mangal House, Delisle Road, 377-R. 15, (3) Suparibaug Mansion, Shop No. 12, and (4) Kirtikar Market, Dadar, Shop No. 48. Mr. Dighe, the learned Counsel appearing for the respondent, tried to repel these contentions by pointing out that the Appellate Bench, had correctly taken into consideration the conduct, as evidenced by the correspondence between the lawyers of the parties and the recitals in the documents particularly the document and the correspondence after the Ordinance of 1959, which clearly indicated that there was no intention of creating any lease, when the respondent gave the premises and tailoring business to the defendant. Mr. Dighe argued that the finding recorded by the Appellate Bench was a finding of fact. Mr. Dighe argued that the finding recorded by the Appellate Bench was a finding of fact. He also submitted that the very fact that the two courts had concurrently found that the machine and articles were given to the defendant and the royalty was being paid for the machine and the articles of the tailoring business, supported the finding of the Appellate Bench that there must have been a tailoring business run by the respondent when he gave the premises with the business to the respondent in the year 1947. Mr. Dighe further contended that the petitioner is not entitled to rely on the facts which were alleged in the affidavit filed today. He denied the allegation that the respondent had no tailoring business and did not carry on tailoring business and also denied that he had a shop known as "Sudha-Button-hole Stitching" at Narayan Ashram, Lalbaug; and said that shop was already disposed of long ago. But he admitted the existence of the other shop, mentioned in the affidavit. He, however, contended that in the even of the defendant contending that the Municipal Corporation, at present owned the premises, the respondent was entitled to counted that the petitioner is not entitled to claim the provisions of section 4 of the Bombay Rent Act. Mr. Dighe further strenuously urged that the Appellate Bench was the final Court of fact under the Rent Act, and this Court should not interfere with the finding of fact recorded by the appellate Court, after considering the evidence before the Court in the exercise of its extraordinary power under Article 227 of the Constitution of India. Before dealing with the above contentions, it is necessary to deal with the two technical points, one raised by Mr. Morje and the other raised by Mr. Dighe. Mr. Morje contended that there was no issue in the trial Court as to whether there was an agreement between the plaintiff and the defendant for conducting the tailoring shop; and the only issue before the trial Court was the issue under section 42-A as to whether the relationship between the plaintiff and the defendant was that of licensor and licensee, or tenant and sub-tenant; and hence the Appellate Court acted without jurisdiction in holding that there was an agreement to conduct the shop. The point is without substance inasmuch the question as to whether there was an agreement to conduct the shop was incidental to the plea with regard to the sub-tenancy set up by the defendant; and the parties led evidence in support of their respective contentions; and the specific issue as to whether there was an agreement to conduct the shop cannot be said to be an issue independent from the general issue as to whether the defendant was a sub-tenant of the plaintiff. Mr. Dighe contended that in the lower Appellate Court, the plaintiff had applied for leave to produce additional evidence to show that the building in question belonged to the Municipal Corporation, as stated above, and now the petitioner has filed an affidavit in this Court admitting the fact that the building has been acquired by the Bombay Municipal Corporation. It was not open to him to contend that the trial Court erred in law in framing the issue under section 42-A and in holding that the petitioner was protected under the provisions of the Bombay Rent Act. This contention is also without any merit, because on the date when the application was made in 1962 under section 41, there was nothing to show that the building vested in the Municipal Corporation. The issue has been framed under section 42-A as required by the provisions of the Bombay Presidency Small Causes Court Act, because the plaintiff applied under section 41; and to decide that the application was maintainable it was unnecessary to consider whether the defendant was a sub-tenant on the date of the application. If the defendant was sub-tenant on the date of the application, the application itself was incompetent. All that the petitioner, has stated in his affidavit is that in 1967, he received a notice from the Municipal Corporation that the building was acquired by the Municipal Corporation. That does not mean that the Municipal Corporation was the owner of the building in 1962, when the application was filed by the plaintiff under section 41. The maintainability of that application will depend on the question whether the petitioner was or was not a sub-tenant. Therefore, the plea that the issue should not have been framed under section 42-A is untenable. The maintainability of that application will depend on the question whether the petitioner was or was not a sub-tenant. Therefore, the plea that the issue should not have been framed under section 42-A is untenable. The main question to be decided in the case is as to whether the trial Court was right in holding that the petitioner was sub-tenant or whether the Appellate Bench was right in coming to the conclusion that the petitioner was a licensee, whose licence was terminated. The principles of law, which should guide the courts in the matter of deciding whether a particular transaction between the plaintiff and the defendant was intended to be a lease or a licence, particularly in the context of the legislation relating to accommodation in the big cities like Bombay, are well settled, but the real difficulty, as usual, is in applying those principles to the facts of the case. A licence is traditionally defined as a permission given by the occupier of land to the licensee to do some act which would otherwise be a trespass. A licence is traditionally defined as a permission given by the occupier of land to the licensee to do some act which would otherwise be a trespass. Under section 52 of the Indian Easement Act, it is land down :- "Whether 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 on an interest in the property, the right is called licence." Section 105 of the Transfer of Property Act, defines a lease as follows : "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 transferror by the transferee, who accepts the transfer on such terms." In the leading case of (Addiscombe Garden Estates Ltd. v. Crabbe)3, 1958(1) Q.B. 513 the Court of appeal in England laid down : "that the agreement taken as a whole, although described as a licence, on its true construction created the relationship of landlord and tenant and not that of licensor and licensee, for the relationship was determined by the law and not by the label which the parties chose to put on it XXXXXXXX XXXXXXXX. It is simply a matter of ascertaining the true relationship of the parties." Referring to a statement of law by Denning, L.J. (as he then was) in (Errington v. Errington)4, (1952) All.E.R. 149 to the effect : "The test of exclusive possession is by no means decisive". Jenkins, L.J. observed at page 528 : "I think that wide statement must be treated as qualified by his observations in (Facchini v. Bryson)5, 1952(1) T.L.R. 1386 and it seems to me that, save in exceptional cases of the kind mentioned by Denning, L.J., in that case, the law remains that the fact of exclusive possession, if not decisive against the view that there is a mere licence, as distinct from a tenancy, is at all events a consideration of the first importance. In the present case there is not only the indication afforded by the provisions which shows that exclusive occupation was intended but there are all the various other matters which I have mentioned, which appear to me to show that the actual interest taken by the grantees under the document was the interest of tenants and not the interest of mere licensees." Observations of Denning, L.J., referred to above, in Facchini v. Bryson are as under : "We have had many cases lately where an occupier has been held to be a licensee and not a tenant. In addition to those which I mentioned in Errington v. Errington we have recently had three more, Gorham Contractors Ltd. v Field, Forman v. Rudd and Cobb v. Lane. In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or suchlike, to negative any intention to create a tenancy. In such circumstances it would be obviously unjust to saddle the owner with a tenancy, with all the momentous consequences that entails now a days, when there was no intention to create a tenancy at all. In the present case, however, there are no special circumstances. It is a simple case where the employer let a man into occupation of a house in consequence of his employment at a weekly sum payable by him. The occupation has all the features of a service tenancy, and the parties cannot by the mere words of their contract turn into something else. Their relationship is determined by the law and not by the label which they choose to put on it." These principles were reiterated by Lord Denning, M.R. Sachs, L.J., and Buckley, L.J., in (Shell-Mex and B.P. Ltd. v. Manchester Garages Ltd.)6, 1971(1) All.E.R. 841 where they construed that an arrangement for a petrol filing station is a personal licence and not as a lease referring to an argument that the provisions contained in an agreement in that case showed that there was a tenancy. Lord Denning, M.R., observed at page 844 : "As I have said many times, exclusive possession is no longer decisive. We have to look at the nature of the transaction to see whether it is a personal privilege, or not. Lord Denning, M.R., observed at page 844 : "As I have said many times, exclusive possession is no longer decisive. We have to look at the nature of the transaction to see whether it is a personal privilege, or not. Next Counsel for the defendants says that all these clauses are just what one would find in an ordinary tenancy of a filling station. He suggests that, if this case were to go for trial and he was to have discovery, he would find many a tenancy agreement of a filing station in which there were parallel clauses. He refers to (Little Park Service Station Ltd. v. Regent Oil Co. Ltd.)7, where there was a tenancy of a filing station and not a licence. It seems to me that when the parties are making arrangements for a filing station, they can agree either on a licence or a tenancy. If they agree on a licence, it is easy enough for their agreement to be put into writing, in which case the licensee has no protection under the landlord and Tenant Act 1954. But, if they agree on a tenancy, and to express it, he is protected. I realise that this means that the parties can, by agreeing on a licence, get out of the Act; but so be it; it may be no bad thing. Especially as I see that the parties can now, with the authority of the Court, contract out of the Act, even in regard to tenancies: see section 5 of the Law of Property Act, 1969. I think it is plain that in this case there was a licence for one year, and not a tenancy." In the same case, Buckley Lord Justice observed at p. 845 : "It is clear on authority that in considering whether a transaction such as we have before us in this case constitutes a licence or a tenancy the Court is not to have regard to the label which the parties give to the document or to the formal language of the document, but to the substance of the transaction. During the course of his argument Counsel for the defendants has taken us through the detailed provisions of the document with which we are here concerned and has pointed out that many of the clauses in it are clauses which could appropriately find their place in a tenancy agreement. During the course of his argument Counsel for the defendants has taken us through the detailed provisions of the document with which we are here concerned and has pointed out that many of the clauses in it are clauses which could appropriately find their place in a tenancy agreement. That I think is perfectly true; but it is not to say that they do not equally appropriately find their place in a licence. One must look at the transaction as a whole and at any indications that one finds in the terms of the contract between the two parties to find whether in fact it is intended to create a relationship of landlord and tenant or that of licensor and licensee." In Megarrys Rent Act, Vol. I, 1967 Tenth Edition, at pages 54 to 60, the circumstances which are relevant for deciding the question, are set out as : "(a) Grantors ability to grant a tenancy; (b) the intention of the parties; (c) the terms of any agreement; (d) the existence of any badges of a tenancy or a licence; (e) the surrounding circumstances; (i) avoidance of the Acts; with reference to which Megarry has observed at page 60 : "The Court will certainly scrutinise with great care any document or transaction which has the avoidance of the Acts as its sole or main object, because, if by being sufficiently careful in their drafting and explicit in their refusal to grant tenancies landowners could escape the acts with ease, the social consequences would be grave." Meggary has observed in this connection at page 60 : "One day, however, the Court will have to meet the challenge of well drafted licences of a row of suburban villas. It is difficult to see how the challenge can be met save by evolving some new doctrine that, on grounds of public policy or otherwise, a purported licence will in fact create a tenancy if the circumstances require this, e.g., if, but for the Rent Acts, it is probable (or, perhaps, virtually certain) that a tenancy and not a licence would have been created. Untill recently, a less drastic alternative was available; for in consonance with the older authorities it could have been held that where the grantor had power to grant a tenancy and the occupier had exclusive possession, either as of right or, perhaps, de facto, he necessarily had a tenancy. Untill recently, a less drastic alternative was available; for in consonance with the older authorities it could have been held that where the grantor had power to grant a tenancy and the occupier had exclusive possession, either as of right or, perhaps, de facto, he necessarily had a tenancy. But now that the doctrine of possessory licences has been established in order, it seems to meet cases where it appeared unjust to hold that a tenancy existed, this line of escape appears to be closed to all save the House of Lords." In Associated Hotels of Indian Ltd. v. R.N. Kapoor, the majority of the Supreme Court found the arrangement with respect to a room in the hotel, contained in writing, to be a lease and not a licence for running business as hair-dresser under the name and style of "Ladies and Gents cloak rooms". At page 1269, Subararo, J., (as he then was) observed after referring to some of the above principles laid down by English Courts : "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 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." The same principles were reiterated by the Supreme Court in Oudrat Ullah v. Municipal Board, Bareilly, where Krishna Iyer, J. observed at page 398 : "There is no simple litmus test to distinguish a lease as defined in section 105, Transfer of Property Act, from a licence as defined in section 52 Easements Act, but the character of the transaction turns on the operative intent of the parties. To put it pithily, if an interest in immovable property, entitling the transfer to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result. Marginal variations to this broad statement are possible and Exs. 1 and 4 fall in the grey are of unclear recitals. The law on the point has been stated by this Court in Associated Hotels case. In Halsburys Laws of England, Volume 23, the distinctive flavour, the deceptive labels and the crucial considerations in a lease licence situation have been stated and excerpts therefrom may serve as guidelines (see pages 427, 428 429) and has quoted paras, 1022 to 1025 of Halsburrys Laws of England, Volume 23." After a careful perusal of the oral and documentary evidence in the case and the judgments in the courts below, I find that although the learned trial Judge did not say so in the course of his judgement the ten circumstances relied upon by him were based on an unconscious and inarticulate application of the above well settled principles in what is described by Krishna Iyer, J. as "lease versus licence situation", and the Appellate Bench has totally ignored the principles and relied merely on the recitals of the agreement and the correspondence Exhs. A, B and C, ignoring also the context of the emerging Rent Legislation from the year 1947 to 1962, when the application under section 41 was filed, in the present case; and particularly after the amendment was effected in section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, by the Bombay Ordinance No. 3 of 1959; and the various amendments, of section 15 by the Bombay Act, 49 of 1959, Maharashtra Act, 17 of 1973 and Maharashtra Act, 38 of 1962, with retrospective substitution in sub-section (2) in that section with effect from May 21, 1959. The Appellate Bench ignored the most crucial or vital, though not decisive test of exclusive possession of the defendants from 1947 till the filing of the suit and relied merely on labels put by the parties in the agreements, which came to be made for the first time in 1957 and 1960, for getting that the plaintiff had not even referred to the agreement and had relied merely on the agreement of 1960, in his application under section 41. Reading the judgment of the Appellate Bench, over and over again, Mr. Dighe was unable to find anything to support the finding of the learned Appellate Judges to show that they had applied their mind to the uninterrupted exclusive possession of the defendant in the tailoring business and the premises from 1947, which made the trial Judge believe the defendant and disbelieve the plaintiff." Mr. Morje is also further right in his contention that the Appellate Bench wrongly assumed that when the defendant was inducted in the premises in 1947, the plaintiff was running a tailoring business in the premises, even though the plaintiff did not care to produce and documentary evidence by way of accounts, measurements of a customers or any other evidence to show that he was in fact carrying on any tailoring business in the premises. Further, it may be noted that the finding of the trial Court that there was nothing to show that there was a tailoring business, which the plaintiff transferred to the defendant is supported by the fact that in the agreement executed for the first time on July 15, 1957 Exh. B, the schedule of the articles mentioned is as under : "(i) Umbrella Brand Singer Sewing Machine No. E.C. 370550, (ii) Writing table, (iii) Cutting table, (iv) Mirror, and (v) 4 stools." The receipt which is produced by the plaintiff, in connection with this machine, as already stated above, is of the year 1942. Before the plaintiff purchased the suit premises under the agreement dated July 13, 1945 at Ex. Before the plaintiff purchased the suit premises under the agreement dated July 13, 1945 at Ex. A which refers to the articles mentioned in the schedule of the Shyam Sundar Tailoring Bureau under the name and style, which the defendant has been carrying on the business i.e. Swastik Tailoring Firm; and those articles are: "(1) Singer Sewing Machine No. E.D. 045944, Class 15 K.S.V. Treadle Machine with cover and accessories; (2) One table used for cutting purposes; (3) One cupboard; (4) One writing table; (5) One Looking Glass (Mirror); (6) One Fashion Plate and one Photo Frame of "Datta"; (7) One big signboard; (8) Two chairs; and (9) One large Scissor, One measure tape, One "kat-kone", Electric Fittings, Bulbs and other articles and things pertaining to tailoring business." Further, in the last agreement Ex. D. dated July 16, 1960, the articles mentioned are: "(1) One Umbrella Band Singer Sewing Machine No. E.C. 370550; (2) One wooden writing table; 3) One cutting wooden table; (4) One Mirror; (5) Four wooden stools; and (6) Electric Fittings". It is thus clear that the machine which the plaintiff had purchased in 1942, from Lele, according to his story was the machine which was mentioned in the agreements at Exhs. B and D, but Lele himself said and gave evidence that he sold that machine to the defendant. It is true that both the courts have come to the conclusion that the machine and some articles were given by the plaintiff to the defendant but both the courts have lost sight of the fact that the receipt produced by the plaintiff was of the year 1942; and he was trying to make out a case that he purchased the business in 1945 and gave that very business in 1945 and gave that very business for conducting to the defendant, which it is difficult to accept, having regard to the fact that the machine, which is mentioned in the subsequently written agreements could not be the machine which the plaintiff had purchased, according to the receipt produced by him in the year 1942. Mr. Morje is also right in his contention that the matter rested entirely on the oral testimony of the plaintiff as against the oral testimony of the defendant for determining what was their intention when the premises were given to the defendant for the first time in the year 1947. Mr. Morje is also right in his contention that the matter rested entirely on the oral testimony of the plaintiff as against the oral testimony of the defendant for determining what was their intention when the premises were given to the defendant for the first time in the year 1947. The finding of the trial Judge was based on the appreciation of the oral evidence of persons whom he had the advantage of seeing and hearing and the Appellate Bench ought to have been slow to interfere with that finding having regard to the well settled principles which ought to guide the Appellate Court in dealing with such findings based on appreciation of the oral evidence. In a matter of appreciation of evidence and the credibility of witnesses, the opinion of the trial Judge should not be lightly disturbed in appeal. It is open to an Appellate Court to differ from the Court which heard the evidence where it is manifest that the evidence accepted by such Court of first instance is contradictory or is so improbable as to be unbelieved or is for other sufficient reasons unworthy of acceptance. But such grounds must exist, if a conclusion as to credibility, opposed to that of the judge who had the great advantage of seeing and hearing the witnesses, is to be justified. (See Sarkar on Evidence 12th Edition, pages 52 and 53). The trial Judge took into consideration, the 10 circumstances set out above, and believed the defendant when he said that from 1947, he was inducted as a sub-tenant paying only a Royalty to the plaintiff, first at Rs. 50/- per month and later Rs. 30/- plus the rent of the premises i.e. Rs. 13/- and the plaintiff had no other interest whatsoever in the premises or in the business run by the defendant. The Appellate Court could not have lightly interfered with that finding after taking into consideration all the facts and circumstances set out by the trial Court, in support of its careful and well considered conclusion. The Appellate Bench relied on what is called the probability of the plaintiff having a tailoring business in 1947, without any basis on the record. The Appellate Bench completely ignored the exclusive and uninterrupted possession of the defendant of the suit premises from 1947 till the filing of the suit, on payment of royalty at Rs. The Appellate Bench relied on what is called the probability of the plaintiff having a tailoring business in 1947, without any basis on the record. The Appellate Bench completely ignored the exclusive and uninterrupted possession of the defendant of the suit premises from 1947 till the filing of the suit, on payment of royalty at Rs. 30/- plus the rent of the premises. The Appellate Bench ignored that the Municipal Licence and and Shop Establishment Certificate stood only in the name of the defendant and the plaintiff had nothing to do with it. The plaintiff had also nothing to do with the workmen in the tailoring business or in the business. All these circumstances, ought to have been considered as a sufficient to infer that the defendant was conferred a right to be in uniterrupted possession and enjoyment of the premises right from 1947; and it is clear that what was intended by the parties was a tenancy; and the agreements and labels were put at "leave and licence and conducting agreements" later in the forms of documents in 1957 and 1960, to avoid the consequences of the provisions of the Rent Act, which prohibited sub-letting, in the circumstances, like the ones which existed in the present case, both before and after the Ordinance in 1959. Mr. Dighe rightly pointed out that the Appellate Bench was impressed with the fact that even after the Ordinance came into force on May 21, 1959, in the course of the correspondence between the lawyer and the Solicitors, on behalf of the defendant, no claim was put forward that the defendant was a sub-tenant. As has been rightly laid down in the aforesaid cases in the context of the Rent Control legislation, it is not for the parties to determine their relations but it is for the law courts to determine what is the relation in the context of the accommodation legislation in modern times. Just as the parties cannot finally label the transaction, their lawyers and solicitors also cannot bind the parties to any particular label. It is for the Court to take into consideration with due circumspection and scrutiny of all the surrounding circumstances, including the labels out by the parties and to arrive at the correct conclusion with regard to the real relation between the parties. It is for the Court to take into consideration with due circumspection and scrutiny of all the surrounding circumstances, including the labels out by the parties and to arrive at the correct conclusion with regard to the real relation between the parties. In the present case, the Appellate Bench relied too much on the absence of the claim of sub-tenancy under the correspondence subsequent to 1959. It should be noted that so far as the replies given by M/s. Aibara and Company, Solicitors, wherein they replied about the payment of arrears of royalty and rent, were concerned, they were only interested in saying that the same was sent by money order and they were not in arrears. At that stage, the defendant did not want to raise a dispute or anticipate a litigation between them by calling himself a sub-tenant and run a risk of being called unlawful sub-tenant landlord of the building. I did not suit either the lawyer for the plaintiff or the lawyer for the defendant to raise that question at the time of the said correspondence. In fact, it is because of the prohibition under the Rent Act, of sub-letting that the parties and the lawyers representing them, often manouver or play hide and seek with the words "Leave and Licence" according to their convenience. The Appellate Bench, in my opinion, lost sight of these real aspects and the background of the correspondence and relied on the absence of the label of sub-tenancy in the correspondence as an implied admission of the defendant that he was conducting the tailoring business in the shop premiss and paid the royalty for the same. The conclusions reached by the Appellate Bench are inconsistent with the most vital circumstances in the present case that from 1947 he defendant was enjoying the suit premises without any interference by the plaintiff for the rights of enjoyment, including the right of the premises for using it for the business and for the residence of himself and all the members of his family. The finding of the Appellate Bench is resting on : (1) the probability of the tailoring business being run by the plaintiff, which as found above, was not proved at all by the plaintiff; (2) Recital (Ex. 8) dated July 15, 1957; (3) Correspondence at Ex. C. (4) Recitals in the agreement at Ex. The finding of the Appellate Bench is resting on : (1) the probability of the tailoring business being run by the plaintiff, which as found above, was not proved at all by the plaintiff; (2) Recital (Ex. 8) dated July 15, 1957; (3) Correspondence at Ex. C. (4) Recitals in the agreement at Ex. D. dated July 16, 1960; and (5) The so called implied admission of the defendant in the correspondence that he was conducting the tailoring shop on payment of royalty to the plaintiff. All these five aspects are nullified by the most important aspect ignored by the Appellate Bench that the defendant was having uninterrupted enjoyment of the suit premises, and the business which he runs in the promises by merely paying Rs. 30/- plus the rent per month and this made the relation between the parties much more consistent with tenancy rather than the licence, as held by the trial Judge. The decisive test, as laid down by the latest Supreme Court decision is "if an interest in immovable property entitling the transferee to enjoyment is created, it is a lease." There can be no doubt that in the present case, the defendant had a right of enjoyment from 1947. There was no relationship, which excluded the tenancy between the plaintiff and the defendant. In the circumstances, the trial Judge had drawn the proper inference, and the Appellate Bench acted beyond its powers as an Appellate Court, in reversing that finding ignoring all the cogent and valid reasons given by the trial Judge in the case. In the result, the decision of the Appellate Bench is liable to be set aside and the decision of the trial Judge must be restored. In view of this, it would be further necessary to dismiss the application made by the plaintiff under section 41, instead of unnecessarily sending it back for the formal order, which must be the consequence of the decision declaring that the defendant is a lawful sub-tenant and not a licence. In the result, the Special Civil Application is allowed. The decision of the Appellate Bench dated September 19, 1972, is set aside and quashed, and the finding of the learned trial Judge dated January 29, 1966, is restored. The application filed by the respondent under section 41 is dismissed. In the result, the Special Civil Application is allowed. The decision of the Appellate Bench dated September 19, 1972, is set aside and quashed, and the finding of the learned trial Judge dated January 29, 1966, is restored. The application filed by the respondent under section 41 is dismissed. The respondent shall be, however, at liberty to withdraw all the amounts, including the amounts which were paid by the defendant towards the costs in the lower Court and adjust the same towards the royalty and rent payable in respect of the promises by the defendant. Having regard to the fact that the defendant himself joined the plaintiff in bringing into existence the agreements, which did not reflect the real relations between the parties, the parties should bear their own costs in this petition. -----