JUDGMENT Gopi Nath, J. 1. THIS is a defendant's appeal arising out of a suit for possession and damages. The plaintiff is the owner of the premises in dispute, which is a drawing room of house No. 112/114, Mohammad Ganj, Benajhawal, Kanpur. The plaintiff's case was that the defendants occupied the room as a licensee in the year 1962. It was taken for carrying on a business of vegetable vending. The defendant No. 1 was the son of the plaintiff while defendant No. 2 was his friend. The plaintiff alleged that the defendants requested him to permit them to use the room which he did for the consideration that defendant No. 1 his son would be benefitted by the business carried on by defendant No. 2. At the time the room was taken defendant No. 2 had assured the plaintiff that he would vacate the same within a short time and would arrange for another accommodation. It appears that relations between the plaintiff and defendant No. 2 became strained and the plaintiff asked defendant No. 2 to vacate the room. His case was that the defendants were mere licensees of the premises and their licence had been revoked ; they accordingly were liable to vacate the same. They were further required to pay damages for use and occupation of the premises. The defendants neither vacated the premises nor paid the damages ; hence the suit. 2. THE defendant No. 1 admitted the plaintiff's case that the defendants were licensees and were liable to vacate the premises and pay the damages. The defendant No. 2 contested the suit on the allegation that the shop was leased out to the defendants and they were the tenants thereof. It was further alleged that the defendants had been regularly paying the rent to the plaintiff, they were accordingly not liable to be evicted without termination of their tenancy. 3. THE trial court dismissed the suit holding that there existed a relationship of landlord and tenant between the parties and since the defendants tenancy had not been determined by a valid notice they were not liable to be ejected from the premises. 4. ON appeal the lower appellate Court reversed that decree and has decreed the suit for possession and damages at the rate of Rs. 7/- per month. 4. ON appeal the lower appellate Court reversed that decree and has decreed the suit for possession and damages at the rate of Rs. 7/- per month. ON the findings that the defendants were permitted to occupy the premises as licensees ; that the shop was taken in partnership by the two defendants to carry on a business, that no rent was either agreed or paid by the defendants to the plaintiff. It was found that the only consideration to the plaintiff for allowing the defendants to use the premises was that respondent No. 1 who was the son of the plaintiff would be benefited by the business carried on in the premises by the defendant No. 2. No relationship of landlord and tenant was found to be existing between the parties and the defendants being only licensees of the accommodation were found liable to vacate the same after revocation of the licence in their favour. They were further found liable to pay damages at the rate of Rs. 7/- per month for use and occupation. The defendant No. 2 alone has come up in appeal to this Court. 5. THE only question requiring consideration in the appeal is whether the defendant No. 2 was a licensee of the accommodation in dispute. Defendant No. 1 was the son of the plaintiff and it prima facie suggested a relationship of licensor and licensee between them. See V. N. Pari v. Bishan Lal Agarwal, 1972 Rent Control Journal 703. THE defendant No. 1 himself admitted that he was not a tenant of the premises. Thus one of the defendants was admittedly not a lessee of the premises which was jointly taken by the two defendants. THE case of lease as set up by the defendant No. 2 does not appear to be probable. 6. THE nature of franchise mainly depends upon the intention of the parties to the transaction. While a lease creates an interest in immoveable property, a licence permits a mere user thereof. THE accommodation in dispute was a room in the plaintiff's house and the question to be seen is whether while granting the permission to the defendants to use the same the control over it was retained by the plaintiff. THE distinction between a lodger franchise and a tenancy, in our opinion, lies in the exclusive use as distinguished from an exclusive occupation of the accommodation. THE distinction between a lodger franchise and a tenancy, in our opinion, lies in the exclusive use as distinguished from an exclusive occupation of the accommodation. Exclusive use may point to a mere licence while exclusive occupation may lead to an inference of lease. Where a claimant dwells in rooms forming part of a structure, in any other part of which the landlord resides, and over which he exercises a control as master- a paramount governing control, which is to be attributed to his position as master, and which is different from that of a man who merely occupies rooms in the same structure-then the occupants of the rooms are in the position of a lodger unless they prove themselves to be tenant. In Bradley v. Baylis, 8 Q.B.D. 195 Sir George Jessel M. R. observed as follows : - "It seems to me, as to unfurnished lodgings (and I will only deal with unfurnished lodging, as it is the only class of cases with reference to which questions are likely to arise) where the owner of the house does not let the whole of it, but retains a part for his own residence, and resides there, and where he does not let out the passages, staircase and outer door, but gives to the "inmates" (I use that term for my present purpose) merely a right of ingress and egress, and retains to himself the general control, with the right of interfering-I do not mean an actual interference, but a right to interfere, a right to turn out trespassers, and so on ; there I consider that such owner is the occupying tenant of the house, and the inmate, whether he has or has not the exclusive use of the room, is a lodger." In Allan v. Overseers of Liver-poo, Law Reports 9 Q. B. 180, it was pointed out by Blackburn, J. that in order to constitute a lease "the occupier must be the exclusive occupier, a person who, if there was a trespass committed on the premises, would be the person to bring an action of trespass for it." In Morfee v. Novis (1881) 8 Q. B. 200 at 201, Bowen, J., pointed out that "exclusive use does not necessarily imply exclusive occupation". A lodger may have the exclusive use of an accommodation but he may not have an exclusive occupation thereof. A lodger may have the exclusive use of an accommodation but he may not have an exclusive occupation thereof. In Toms v. Luckett, 5 C. B. at page 28, Maulse, J. said : - "Where the owner of a house takes in a person to reside in a part of it, though such person has the exclusive possession of the rooms appropriated to him, and the uncontrolled right of ingress and egrees, yet, if the owner retains his character of master of the house, the individual so occupying a part of it, occupies it as a lodger only, and not as a tenant............The question depends upon whether or not the owner of the house resides upon the premises, retaining his quality of master, and reserving to himself the general control and dominion over the whole." 7. IN the light of the opinions cited, we have to see in the instant case whether the defendant No. 2 along with defendant No. I was permitted only an exclusive use of the room or was granted an exclusive occupation thereof. The Court below has found that the plaintiff had permitted the defendant No. 2 a mere right of user with a view to enabling the defendant No. 1 his son to earn an income through the partnership business. The plaintiff had not lost control over the premises and it could not be said that he had no right to turn out trespassers if they entered the room. IN Sridhar v. Shri Jagannath Temple, 1975 (3) SCC 485 the vendors of Mahaprasad of Lord Jagannath Ji asserted a right of lease in the premises in which they stored the Mahaprasad and sold it from, to public. The claim was negatived and they were found to be mere licensees. It was found that by the license granted no interest was created in the premises. The intention of the grantor which is the dominant factor in such oases is to be gathered from the circumstances attending the demise. For the distinction between a lease and a licence see also Board of Revenue v. A. M. Ansari, 1976 (3) SCC 512 , Associated Hotels of INdia Ltd. v. R. N. Kapoor, 1959 SC 1262, Konchada Ramamurty Subudhi v. Gopinath Naik, 1968 SC 919. 8. For the distinction between a lease and a licence see also Board of Revenue v. A. M. Ansari, 1976 (3) SCC 512 , Associated Hotels of INdia Ltd. v. R. N. Kapoor, 1959 SC 1262, Konchada Ramamurty Subudhi v. Gopinath Naik, 1968 SC 919. 8. THE Court below has reached a conclusion after considering the evidence on record that the plaintiff never intended to create a lease in favour of the defendants in respect of the property in dispute. THE finding is supported by the material on record. Further a finding on the question of relationship of landlord and tenant between the parties has been held by this Court in Smt. Kunti Devi v. Radhey Shyam, 1977 AWC 597 as a finding of fact. We are of the opinion that the legal possession of the room in question continued with the owner and he did not intend to create any interest in it in favour of the defendant-appellant. THE defendants may have occupied the room for purposes of business; but it was not to the exclusion of the plaintiff's control over the same. THE appellant was accordingly only a licensee of the premises and liable to be evicted on the revocation of the licence. THE suit was rightly decreed for possession and damages. The appeal fails and is dismissed, but in the circumstances of the case we make no order as to costs. Appeal dismissed.