JUDGMENT - G.N. VAIDYA, J.:---The petitioners in the above Special Civil Application were defendants Nos. 2 and 3 in a suit filed in the Court of Small Causes at Bombay on Novmber 3, 1961 to recover possession of Flat No. 25 from the said defendants and defendant No. 1 Parasram V. Tahilramani. 2. The plaintiffs case as made out in the suit, briefly stated was as follows. 3. The plaintiffs Mrs. Ratnam Kumarappa and Mrs. Lalita Kotwal, who are no more and who are now represented by respondents Nos. 1 to 3 in the above petition, as their heirs and legal representatives, were the members of a Co-operative Housing Society Limited, having its registered office at Thakur Niwas, 173, Jamshedji Tata Road, Fort. Bombay-1, in which the suit flat No. 25 is on the 6th Floor. First defendant was their tenant in the said flat. The plaintiffs described the petitioners as the licensees of the first defendant using only a portion of the flat now in the respective occupation which undisputedly consists of two rooms in the above flat. It was alleged that the first defendant was recovering from defendants Nos. 2 and 3 a monthly compensation of Rs. 600/-. 4. It was further stated that the original owner of the flat, Dr. J.M. Kumarappa, after whose death the plaintiffs succeeded to his estate had let out the flat to the first defendant, in or about April 1953, on the terms and conditions, which were confirmed in a writing, dated 19th April, 1953 agreed between Dr. J.M. Kumarappa and the first plaintiff on the one part and the first defendant on the other part. It was agreed that the first defendant should pay rent of the said flat at the rate of Rs. 550.00 per month; that he should carry out the alternations and additions set forth in the schedule marked B to the said agreement; re-distemper the ceiling and walls of the flat, re-polish and re-paint the wood work and the grills in the flat, clean the floor of the same, and repair any loss or damage caused to the fittings and fixtures. It was also alleged that Dr. Kumarappa and the first plaintiff agreed that they would pay the ground rent, municipal taxes and maintenance charges in respect of the said flat which were then being levied or recoverable. 5. It was also alleged that Dr. Kumarappa and the first plaintiff agreed that they would pay the ground rent, municipal taxes and maintenance charges in respect of the said flat which were then being levied or recoverable. 5. The original agreement was for a period of two years. The contractual rent was Rs. 550.00 when the premises were first let out to the first defendant inclusive of taxes then payable. But the first defendant raised dispute regarding the standard rent and made an application to the Court of Small Causes for determination of standard rent. Thereafter, he requested the late Dr. Kumarappa and the first plaintiff to reduce the same to Rs. 525.00 p.m. which was done though Rs. 550/- was the reasonable standard rent having regard to the investment made and the prevailing prices. 6. After the expiry of the period of two years, the first defendant continued to be the monthly tenant of the premises on the same terms and conditions i.e. on payment of Rs. 525/- p.m. However, the first defendant failed and neglected to pay the rent and permitted increased from January 1960. He also failed and neglected to pay the rates, taxes and other outgoings allowable in law in spite of repeated demands and statutory notice. Further in breach of the terms and conditions of the said agreement and in breach of the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, the first defendant was profiteering by taking compensation from defendants Nos. 2 and 3 at the rate of Rs. 600/- p.m. though they were occupying only two out of six rooms in the said flat. 7. The plaintiffs, therefore, terminated the tenancy of the first defendant by a notice dated March 7, 1960 calling upon him to pay all the arrears of rent and taxes and other dues. The first defendant failed to do so. Thereafter, another letter was sent to the first defendant on September 27, 1960 informing the first defendant that the Co-operative Society had called upon to demolish the unauthorised construction which was made by the first defendant. A further notice was given on November 9, 1960 with no effect. The plaintiffs, therefore, called upon the first defendant under section 12(1) of the Bombay Rent Act to pay the arrears commencing from January 1, 1960 at the rate of Rs. A further notice was given on November 9, 1960 with no effect. The plaintiffs, therefore, called upon the first defendant under section 12(1) of the Bombay Rent Act to pay the arrears commencing from January 1, 1960 at the rate of Rs. 525/- p.m. and additional municipal taxes at the rate of Rs. 283.89 for every six months from June 12, 1956. The plaintiffs further stated in the said notice that the notice was given under section 12(1) of the Bombay Rent Act. Even then the first defendant did not comply with the notice and send the arrears of rent. 8. Thereafter, the plaintiffs moved the Registrar of Co-operative Societies in February 1961 under section 54 of the Bombay Co-operative Societies Act (Act of 1925) and withdrew the same in view of the decision of the Full Bench of this Court in (Manohar v. Konkan Co-operatives Housing Society)1, 63 Bom.L.R. 1001 and then filed the present suit in the Small Causes Court at Bombay for recovery of the possession of the premises from defendants Nos. 1 to 3 under section 28 of the Bombay Rent Act. 9. It is unnecessary to set out the defences taken by the defendant in chief Tahilramani because he was allowed to contest the suit on the condition that he should deposit Rs. 11,550/- by 16-2-1962. He did not comply with the condition and a decree for eviction for Rs. 14,949.27 was, therefore, passed against him on 23-2-1962. Mrs. Ratnam Kumarappa and Mrs. Lalita Kotwal have recovered the portion which was in occupation of Tahilramani. It is stated in the judgment of the lower Appellate Court that the plaintiffs had already let out that portion to another. 10. So far as the two petitioners are concerned, they resisted the suit contending that they were lawful sub-tenants in respect of the premises in their respective possession. Petitioner No. 1 contended that he was not aware of what was transpired between the plaintiffs and defendant No. 1, and he was not concerned with the plaintiffs except that he is and was the sub-tenant of the first defendant from February 1959 of the room in his occupation. He denied that he was using the premises for business viz. a photo studio or as a show room as stated by the plaintiffs in their plaint. 11. He denied that he was using the premises for business viz. a photo studio or as a show room as stated by the plaintiffs in their plaint. 11. He also denied the other allegations made against him and contended that he is the sub-tenant of defendant No. 1, there was no privity of contract between the plaintiffs and defendant No. 2; and further he contended that there was no notice to him given by the plaintiffs and the notice to the first defendant was not valid. He, therefore, contended that being in occupation of the one room in his possession since the beginning of 1959, he was entitled to the protection of the Bombay Rent Act and the suit was liable to be dismissed with costs so far as he was concerned. 12. Defendant No. 3, also contended similarly that he was the sub-tenant of the first defendant in respect of one Room No. 25-B which is a part of Flat No. 25, and that it was independent and was in his exclusive possession as a lawful sub-tenant since November 1958, and that the said room was provided with furniture consisting of one Almira, 2 beds, one dinning table, one writing table and one shelf at a monthly rent of Rs. 200/- inclusive of electric charges and amenity to use the telephone. He stated that he had paid rent of Rs. 200/- p.m. 13. He also denied that he was a licensee of the said room as contended by the plaintiffs, and submitted that the allegations made against him were false, he was occupying the room only for residence as a sub-tenant and had paid the rent and he was liable to pay the rent to the first defendant and there being no privity of contract between him and the plaintiffs he was not liable to pay any amount to the plaintiffs. He also contended that he had not contravened any terms and conditions in the agreement between the plaintiffs and first defendant; and being a sub-tenant of the tenant of the room in his occupation his possession thereof was protected under the Bombay Act 57 of 1947 as amended; and the defendant was not liable to be evicted by the plaintiffs. He too submitted that as his sub-tenancy was not terminated by a notice, the plaintiffs were not entitled to file a suit against him. 14. He too submitted that as his sub-tenancy was not terminated by a notice, the plaintiffs were not entitled to file a suit against him. 14. The learned Judge of the Court of Small Causes by his judgment and decree dated June 30, 1964 passed a decree of eviction against the petitioner on the ground of non-payment of arrears of rent, permitted increases and the municipal taxes, after he had already passed a decree for eviction against the first defendant and the suit was proceeded only against the petitioners. No evidence was led by the parties on the grounds of eviction against Tahilramani except with regard to non-payment of rent. The defendants had merely denied their liabilities to pay arrears of rent to the land-lady. The learned trial Judge held that as nobody had paid the rent to the land-ladies the suit fell squarely under section 12(3)(a) of the Bombay Rent Act; and the tenant Tahilramani having been rightly evicted, the petitioners who were held to be the licensees, were also liable to be evicted. 15. According to the learned Judge, the petitioners who were defendants Nos. 2 and 3 failed to establish that they were sub-tenants of the first defendant; and he observed as follows : "It was contended that plaintiff No. 1 has not been examined even though she is likely to know about the facts of the case and it is admitted by the plaintiffs daughter Prita that her mother, plaintiff No. 1 could walk and talk, not only this, but it would be seen that the only evidence to prove unlawfull sub-tenancy is that of Prita the daughter of plaintiff No. 1, and sister of plaintiff No. 2. It would, however, appear that on looking to the admission given by this daughter, it will have to be concluded that she had miserably failed to prove the alleged sub-tenancy, she admits in her cross-examination that she had nothing to show that defendant No. 2 was a licensee. She also admits that she does not know on what basis and terms one flat was given by defendant No. 1 to defendant No. 3. She does not know when defendant No. 3 came to reside, nor is she in a position to say if defendant No. 1 sub-let the premises to defendant No. 1. She has very little personal knowledge in the matter, and consequently the statements of defendants Nos. She does not know when defendant No. 3 came to reside, nor is she in a position to say if defendant No. 1 sub-let the premises to defendant No. 1. She has very little personal knowledge in the matter, and consequently the statements of defendants Nos. 2 and 3 that they are lawful sub-tenants of the suit premises should be believed. Defendant No. 1 is in Bombay and an attempt should have been made to examine him as a witness in order to prove the nature of the transaction between him and defendants Nos. 2 and 3. The plaintiffs did not attempt to do so, and consequently it was argued by the learned Advocate for the defendants that it should be held that defendants Nos. 2 and 3 are sub-tenants of the property prior to the Ordinance of 1959 and are as such protected under law." The learned Judge further observed in para 22 of his judgment : "I do not think that the argument advanced by the learned Advocates for the defendants can be upheld. It is no doubt true that the statement of plaintiffs daughter, Prita does not in fact help the plaintiffs in coming to a conclusion about the nature of the relationship between defendants No. 1 and Nos. 2 and 3 to whom portions of the premises have been given by her. I would however note some circumstances in order to come to conclusion as regards the nature of possession of defendants Nos. 2 and 3. It would be seen that defendant No.1 took the entire flat on the 6th floor at Rs. 550/- per month on 9-4-1953. This rent was reduced to Rs. 525/- as standard rent, as per RAN No. 833 of 1955. Defendant No. 1 put defendant No. 2 in possession of only room, kitchen and balcony with a bathroom and added to it his own furniture and gave the premises for Rs. 250/- per month since 1-2-1959. This amount was reduced by Rs. 50/- as stated by defendant No. 2, when the furniture is alleged to have been returned. Similarly defendant No. 3 was put in possession of only one room along with pieces of furniture at the rate of Rs. 200/- per month. Defendant No. 1 had retained with himself a major portion of the premises. However, he was recovering per month Rs. 450/- from both defendants Nos. Similarly defendant No. 3 was put in possession of only one room along with pieces of furniture at the rate of Rs. 200/- per month. Defendant No. 1 had retained with himself a major portion of the premises. However, he was recovering per month Rs. 450/- from both defendants Nos. 2 and 3 and was paying only the balance of Rs. 75/- to the landlord. The figures recovered by defendant No. 1 from defendants Nos. 2 and 3 are undoubtedly more than the rent to which the premises would be chargeable and consequently the amount charged cannot be said to be way of rent but must be as compensation or licence fees. I would here also note the contents of the letter Ex. 2 written by defendant No. 1 to defendant No. 2 on 10-12-1960 which would go to show the relationship between the parties. It is stated by defendant No. 2 in answer to Court question, that Ex. 2 was given to defendant No. 2 by defendant No. 1, in order to take away the fears from out of the mind of defendant No. 2 in regard to the relationship. He states that the letter Ex. 2 shows that he was a tenant. However, on reading the terms of the letter it would be quite clear that it does not at all show that defendant No. 2 was recognised as a tenant. The letter purports to state that defendant No. 1 would not disturb the occupation and possession of defendant No. 2 of the said room, and that defendant No. 2 should not at all worry over it. It would thus appear that if at all defendant No. 1 wanted to confer the right of a sub-tenant on defendant No. 2 he would have positively written in the letter that defendant No. 1 takes defendant No. 2 as a lawful sub-tenant of the property, and not go on assuring him about his possession and peaceful enjoyment. It would thus appear that if at all defendant No. 1 wanted to confer the right of a sub-tenant on defendant No. 2 he would have positively written in the letter that defendant No. 1 takes defendant No. 2 as a lawful sub-tenant of the property, and not go on assuring him about his possession and peaceful enjoyment. This conclusion can well be supported from the fact that the letter has been written after 21st May, 1959 when all unlawful sub-tenancies were validated under law and protection was extended to persons who came in possession even as unlawful sub-tenants." Similarly the learned Judge observed as regards the relationship between defendant No. 1 and defendant No. 3 and held that their relationship was merely that of licensor and licensee and the use of the word rent in the receipt given to them would not convert the relationship of licensor and licensee to tenant and sub-tenant. 16. The learned Judge applied the ratio in Manohar v. Konkan Co-operative Housing Society, and passed a decree for possession against all the defendants. 17. The said judgment and decree were challenged by the defendants Nos. 2 and 3 claiming that they were sub-tenants of Tahilramani protected by the Bombay Rent Act as amended by Ordinance No. 3 of 1959. The Appellate Bench of the Court of Small Causes set aside the finding of the trial Court with regard to the status of defendants Nos. 2 and 3 as licensees of defendant No. 1; and found that the relationship was that of tenant and sub-tenants observing in para 13 of their judgment as follows :--- "The fact that the appellants are in exclusive possession of their respective premises is conceded in the plaint wherein it is stated that they are in occupation of the premises in their respective possession. It does not appear that Parsram Tahilramani had retained any control over the premises in their occupation. The mere fact that he was residing in the same flat in another unit and he had control over the passages or the corridors does not necessarily suggest that the appellants cannot be tenants. There is no cross-examination of the appellants that they are not in exclusive occupation of their respective premises. The evidence clearly establishes that the appellants are in exclusive possession of their respective premises. There is no cross-examination of the appellants that they are not in exclusive occupation of their respective premises. The evidence clearly establishes that the appellants are in exclusive possession of their respective premises. The transfer of a right to enjoy immovable property necessarily implies a grant of the right to exclusive possession of immovable property by the transferror to the transferee. Exclusive possession is an important test to determine the nature of the transaction, though it is not a conclusive test. The transfer is made for valuable consideration. The appellants have been paying Rs. 200/- a month. The transfer is for a certain time. All the elements of a lease are present in this case." 18. The Appellate Bench also relied on the rent receipts signed by Tahilramani which were produced by defendants Nos. 2 and 3, but they were not proved to have been given by Tahilramani as defendants Nos. 1 and 2 did not examine Tahilramani. The Appellate Bench further observed with regard to the reasoning given by the trial Judge in para 15 of their judgment : "In fact the respondents themselves have come out with a case that Parsram Tahilramani was their tenant. The Court cannot go behind the pleadings and proceed to base its conclusions on the footing that there is no relationship of landlord and tenant or sub-tenant between the parties. With regard to the second argument it is held in (Josephy Santa v. Ambico Industries)2, 70 Bom.L.R. 224 that the protection of the Rent Act extends upto a sub-tenants sub-tenants also. It is held that section 15(2) of the Act protects a transferee, whether by way of sub-lease, assignment or otherwise, of a contractual tenant as well as of a lawful contractual sub-tenant. These considerations have influenced the trial Court in coming to the conclusion that the appellants are not the sub-tenants of the premises. In our opinion, this is not a correct approach to the problem." 19. The Appellate Bench, however, confirmed the decree passed by the trial Court and dismissed the plaintiffs, suit relying on the decision of the (Indian Coffee Workers Co-operative Stores Ltd. v. Bachoobhai)3, 66 Bom.L.R. 338 observing in para 17 of their judgment as follows : "There is no dispute on the question that Parsram Tahilramani did not pay the arrears of rent as per the demand notice. On the principles laid down in Indian Coffee Workers Co-operative Stores v. Bachoobhai, the appellants are also liable to be evicted from the premises along with the tenant Parsram Tahilramani." 20. The concurrent decrees passed by the two courts below are challenged in the above Special Civil Application under Article 227 of the Constitution of India by defendants Nos. 2 and 3. 21. Mr. Abhyankar, appearing for the petitioners submitted that the appellate bench having come to the conclusion that defendant Nos. 2 and 3 were lawful sub-tenants erred in law in confirming the decree because the plaintiffs suit was liable to be dismissed in the absence of a notice given to defendants Nos. 2 and 3 under section 12(2) of the Bombay Rent Act after the termination of the tenancy of Tahilraramani for non-payment of rent. 22. In support of his argument Mr. Abhyankar relied on the decision of the Supreme Court in (Hiralal v. Kasturbhai)4, A.I.R. 1967 S.C. 1853 and also the decisions of two learned Single Judges of this Court in (Mangharam v. B.C. Patel)5, 73 Bom.L.R. 140 and (Birdichand Hiralal v. Sadashiv)6, 73 Bom.L.R. 887 where the learned Single Judges with respect appeared to have expressed a view inconsistent with the view of the Division Bench in the Indian Coffee Workers Co-operative Stores Ltd. v. Bachoobhai, applied by the Appellate Bench to the facts of the present case as found by the Appellate Bench. 23. Mr. Podar, the learned Counsel appearing for the respondents, on the other hand submitted that the question of giving notice to defendants Nos. 2 and 3 did not arise in the present case because defendants Nos. 2 and 3 were not sub-tenants but were merely the licensees as found by the learned trial Judge. Mr. Podar contended that the Appellate Bench wrongly assumed that the trial Court had gone behind the pleadings and had arrived at the conclusion that defendants Nos. 2 and 3 were licensees. He also submitted that because of this misconception of the pleadings, the Appellate Bench wrongly applied the ratio in Josephy Santa v. Ambico Industries, which applied only to a lawful sub-tenant of a contractual sub-tenant. 24. As against the argument of Mr. Podar, Mr. Abhyankar relied on my judgment in (K.H. Bhivandiwalla v. Miss Nargesh)7, A.I.R. 1971 Bom. He also submitted that because of this misconception of the pleadings, the Appellate Bench wrongly applied the ratio in Josephy Santa v. Ambico Industries, which applied only to a lawful sub-tenant of a contractual sub-tenant. 24. As against the argument of Mr. Podar, Mr. Abhyankar relied on my judgment in (K.H. Bhivandiwalla v. Miss Nargesh)7, A.I.R. 1971 Bom. 225 distinguishing the facts of that case from the judgment of the Division Bench in the Indian Coffee Workers Co-operatives Stores Ltd. v. Bachoobhai, where a suit for ejectment of a tenant after terminating his tenancy for non-payment of rent was dismissed against the sub-tenant on the ground that the sub-tenant was protected under section 15(2) of the Bombay Rent Act as I found that there was nothing to show that respondent No. 1 sub-tenant had not paid rent at any time to the plaintiff. 25. In view of the above contentions, the first point which arises for determination in this case is whether the petitioners were licensees as held by the learned trial Judge or sub-tenants as found by the Appellate Bench. The plaintiffs had described the tenants as licensees of defendant No. 1. Defendant No. 1 did not even care to file his written statement because he was given leave to defend subject to the condition which he did fulfil. As already stated above, the suit was heard against him and finally decided on February 23, 1962, and he was even dispossessed of the four rooms and the remaining portion of the flat in his possession. 26. Neither defendant No. 2 nor defendant No. 3 thereafter filed any written statement contending that they were ready and willing to comply with the terms and conditions of the tenancy subject to the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 as required by section 12(1) or section 14 as it stood then. In the written statement filed by the defendants Nos. 2 and 3, they merely claimed protection of the Bombay Rent Act without offering to pay the arrears of rent and permitted increases in taxes as required by law to the plaintiffs. 27. In the written statement filed by the defendants Nos. 2 and 3, they merely claimed protection of the Bombay Rent Act without offering to pay the arrears of rent and permitted increases in taxes as required by law to the plaintiffs. 27. Defendant No. 2 filed his written statement after the decree was passed agaisnt defendant No. 1 on June 27, 1962 stating that there was no privity of contract between the plaintiffs and defendant No. 2 and merely claiming protection of the Bombay Rent Act without expressing his readiness and willingness to abide by the provisions of the Bombay Rent Act. 28. Defendant No. 3 had filed written statement on February 23, 1962 contending that the tenancy of defendant No. 1 was not determined according to law and that he was entitled to protection under sections 14 and 15 of the Bombay Rent Act as he was sub-tenant of a room in his occupation and so far as the rent and other charges of the first defendant were concerned, he was not liable for the same. 29. In other words, defendants Nos. 2 and 3 had not pleaded in the written statements filed by them that as self described sub-tenants they were ready and willing to observe and perform the conditions of the tenancy as required by section 12(1) or section 14 under which after they termination of the tenancy of defendant No. 1 they claimed to be deemed tenants and the become statutory tenants of the land-ladies on the same terms and conditions as they would have held from the tenant if the tenancy continued subject to the provisions of the Bombay Rent Act. There is also nothing to show the defendants No. 2 and 3 moved the Court for fixing the standard rent after they became the tenants under section 14 even assuming that they were the tenants. 30. However, Mr. There is also nothing to show the defendants No. 2 and 3 moved the Court for fixing the standard rent after they became the tenants under section 14 even assuming that they were the tenants. 30. However, Mr. Podar is right in his contention that the Appellate Bench committed an error in assuming that the learned trial Judge held them to be the licensees to whom the ratio of Josephy Santa v. Ambico Industries, would apply because the Appellate Bench assumed that the trial Court could not go beyond the pleadings and proceed to base its conclusions on the footing that there is no relationship of landlord and tenant or sub-tenant between the parties, inasmuch as it wrongly assumed that the respondents themselves had come out with a case that Tahilramani was their tenant. 31. It is difficult to appreciate this part of the reasoning of the learned Appellate Bench when it was specifically averred in the plaint that the defendant No. 1 was the tenant of the plaintiffs and defendants Nos. 2 and 3 were his licensees. The Appellate Bench was, therefore, not justified in assuming that merely because the plaintiffs had described defendant No. 1 as their tenant the trial Court had gone beyond the pleadings in coming to the conclusion that defendants Nos. 2 and 3 were licensees. 32. The principle to be applied by the courts for deciding whether a particular relation is a relationship of land-lord and tenant or licensor or licensee are well settled but the difficulty lies in applying them to the given facts of the case before the Court. Exclusive possession is not decisive in deciding whether a licence or a lease has been created. See (Shell-Mex and B.P. Ltd. v. Manchester Garages Ltd.)8, 1971(I) All.E.R. 841 in which Buckley L.J. concluded : "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. The intentions of the parties are certainly an important factor in the situations above, but as was emphasised in (Addiscombe Garden Estates Ltd. v. Grabbe)9, 1958(I) W.B. 513; 1957(3) All.E.R. 563 the terminology of an agreement must not be allowed to disguise its substance." 33. The intentions of the parties are certainly an important factor in the situations above, but as was emphasised in (Addiscombe Garden Estates Ltd. v. Grabbe)9, 1958(I) W.B. 513; 1957(3) All.E.R. 563 the terminology of an agreement must not be allowed to disguise its substance." 33. In (Qudrat Ullah v. Bareilly Municipality)10, A.I.R. 1974 S.C. 396 after referring to the earlier decision of the Supreme Court in the (Associated Hotels)11, A.I.R. 1959 S.C. 1262 case, the Supreme Court observed : "to put it pithily if an interest in immovable property, entitling the transferors 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 parties to an agreement cannot however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all the relevant provisions of the agreement, nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence. In absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties...... Exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance...." "A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession thereof, or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the possession and control of the owner, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease." 34. Turning to the facts of the present case, what I find is that defendants Nos. Turning to the facts of the present case, what I find is that defendants Nos. 2 and 3 were wrongly assumed to be in exclusive possession merely because the room which were let to them had their independant bath-room and lavatory although the flat was in the occupation of defendant No. 1. In support of so-called exclusive possession, defendants Nos. 2 and 3 examined themselves. The Appellate Bench has accepted their evidence merely because they were not cross-examined on the point. But the Appellate Bench forgot that they were not believed by the trial Court for very good reason as they did not examine defendant No. 1 or anyone else to prove that they were really having exclusive enjoyment of the part of the flat which was let to them. 35. The Appellate Bench also completely forgot that the flat was situated in a Co-operative Housing Society. It would be impossible for a person who is not a member of a Co-operative Housing Society to occupy the premises vested in the members and also with the Co-operative Society usually. As pointed out in Manohar v. Konkan Co-operative Housing Society, with reference to the Bye-laws of the Society in that case, the Full Bench of this Court observed : "The mutual rights and obligations of a Co-operative Housing Society and its members are, therefore, quite different from those of a landlord and a tenant. The relationship is of a special type, which is governed by a special type, which is governed by special laws made for this purpose viz. the Co-operative Societies Act and the Rules, Bye-laws and Regulations made thereunder. Even though, therefore, a member to whom a tenement is given for occupation, is described in the Bye-laws and the Regulations as a tenant, he is not a tenant in the sense in which this term is used in the Transfer of Property Act or in the Rent Act, nor is the Society his landlord." "Any other view would make it difficult for a Co-operative Housing Society to function in the manner prescribed by the Rules and Bye-laws. If a member to whom a tenement has been given is held to be a tenant, the Society will only be entitled to receive standard rent from him. It cannot then recover from him, as provided in regulation No. 4, the cost of buildings etc. If a member to whom a tenement has been given is held to be a tenant, the Society will only be entitled to receive standard rent from him. It cannot then recover from him, as provided in regulation No. 4, the cost of buildings etc. and the charges for maintenance and management of the estate as part of rent. It will also not be able to determine the tenancy under regulation No. 21 owing to failure on the part of the member to pay the amounts due from him. A person will also be able to continue in occupation, even if he has ceased to be a member or has been expelled from the Society. This will not be in accordance with the object of a Co-operative Housing Society, which is to provide houses to its members by joint efforts and contributions of all the members." The Full Bench also considered the relationship which comes into existence when a member transfers the tenement to someone else as follows : "Under regulation No. 5, a tenement cannot be given to any other member without the consent of the Society. The person to whom a tenement is given must also become a member of the Society, if he is not already a member. The Society is however, not a direct party to the transaction. It only gives its consent to the transaction and grants the application of the proposed occupant for his becoming a nominal member. The payment for the use and occupation of the tenement is also made to the member and not to the Society." 36. Under the 1925, Bombay Co-operative Societies Act the definition of the words "Housing Society" is given in section 3(h)(4) as meaning a society formed with the object of providing its members with dwelling houses on conditions to be determined by its Bye-laws and even under the new Maharashtra Co-operative Societies Act, 1960 which came into force on 26th January, 1962, a "Housing Society" is defined in section 2(16) as a society the object of which is providing its members with dwelling houses. 37. In the present case, the plaint alleged that defendants Nos. 2 and 3 were licensees of defendant No. 1 and in para 14, it is stated that first defendant was a member of the society and that fact is not denied by the defendants. 37. In the present case, the plaint alleged that defendants Nos. 2 and 3 were licensees of defendant No. 1 and in para 14, it is stated that first defendant was a member of the society and that fact is not denied by the defendants. On behalf of the plaintiffs, the daughter of the original plaintiff No. 1 was examined because plaintiff No. 1 was very old and suffering from illness and she was not able to leave the house since 1960, and plaintiff No. 1 died on November 2, 1963. She stated in her evidence that her father had purchased suit flat from a Co-operative Society and her mother plaintiff No. 1 was the owner. These statements were not challenged by the defendants in the cross-examination of the plaintiffs witness. 38. It is true that she was asked in the cross-examination whether defendant No. 1 had sub-let the premises to defendant No. 3, and she replied that she did not know. Immediately thereafter she said that she let India in 1961-62 and she was back from Kabul in November 1963. There was nothing in her evidence to suggest that the real relation between defendant No. 1 on the one hand an defendants Nos. 2 and 3 on the other was that of landlord and tenant. Rigth till filing of the suit, defendant No. 1 continued possession of the flat, and therefore, apart from the interested statements of defendants Nos. 2 and 3, there was nothing to show that there was sub-lease or lease by defendant No. 1 to them. 39. Mr. Abhyankar, the learned Counsel appearing for the petitioners, submitted that the finding of the learned Appellate Bench was supported by the evidence of the receipts in respect of the respective rooms in the flat issued by Tahilramani to defendants Nos. 2 and 3; and also by the clause in the agreement between defendant No.1 on the one hand and Dr. Kumarappa and plaintiff No. 1 on the other authorising defendant No. 1 to sub-let the premises, which were relied upon by the Appellate Bench; and therefore, this Court should not interfere with the finding of fact recorded by the Appellate Bench of the Court of Small Causes. 40. Kumarappa and plaintiff No. 1 on the other authorising defendant No. 1 to sub-let the premises, which were relied upon by the Appellate Bench; and therefore, this Court should not interfere with the finding of fact recorded by the Appellate Bench of the Court of Small Causes. 40. Now, it is true that the Appellate Bench referred to some of the facts especially the so-called exclusive possession and recorded what appears to be a finding of fact contrary to the finding recorded by the trial Judge. But as already stated above, the finding with regard to exclusive possession ignores and defendant No. 1 continued in possession of the major portion consisting of 4 rooms in that flat till he was evicted in the course of the present suit, and the assumption of exclusive possession was not borne out by the facts and any evidence which is worth relying upon apart from the interested statements of defendants Nos. 2 and 3 which was disbelieved by the trial Judge. 41. The Appellate Bench also ignored that the flat was in a Co-operative Housing Society which would not normally permit a member to sub-let or transfer possession to non-member. The fact that the present dispute between the plaintiffs and defendant No. 1 started because the Society called upon the plaintiffs and defendant No. 1 to demolish the unauthorised construction was not denied by any of the defendants. The Appellate Bench was therefore, in these circumstances not justified in drawing an inference of an intention to create a lease in favour of defendants Nos. 2 and 3 when the Co-operative Housing Society was not a party to that lease or sub-letting. 42. An inference must be drawn having regard to common course of human events and circumstances. The Appellate Bench was not justified in ignoring that the flat belonged to a member of the Society who had entered into an agreement for 2 years with defendant No. 1, who in his turn inducted in the premises defendants Nos. 2 and 3, without any written permission of the Co-operative Society. Defendants Nos. 2 and 3 neither examined any office bearers of the Society nor defendant No. 1 to show that what was given to them was a right to enjoy the property independently of defendant No. 1 . 2 and 3, without any written permission of the Co-operative Society. Defendants Nos. 2 and 3 neither examined any office bearers of the Society nor defendant No. 1 to show that what was given to them was a right to enjoy the property independently of defendant No. 1 . On the contrary, the facts and circumstances clearly show that defendant No. 1 was in possession of the flat as a member under the aforesaid agreement with Rules till he was evicted under the decree in the present suit. 43. In these circumstances, the finding of the trial Judge is to be preferred to the finding recorded by the Appellate Bench without taking into consideration the nature of the accommodation available to defendants Nos. 2 and 3 at the instance of defendant No. 1. Once it is held that defendants Nos. 2 and 3 were mere licensees of defendant No. 1, who was evicted under the decree passed in the present suit, defendant Nos. 2 and 3 were also liable to be evicted. It is, therefore unnecessary to refer to the decisions cited to Mr. Abhyankar which relates to sub-tenants. 44. For the aforesaid reasons, I find no ground for interfering with the decrees of eviction passed against the petitioners. The above Special Civil Application fails and the rule is discharged with costs. The plaintiffs heirs shall be at liberty to withdraw the amount deposited by the defendants in the lower Court, subject to accounting, in respect of their right to recover compensation. -----