( 1 ) THIS is defendant's second appeal against the judgment and decree dated 15-1-1973 of the Court of the II Addl Civil Judge, Belgaum, in ra. 511 of 1967, affirming the judgment and decree dated 5-10-1967 of the court of the Munsiff, Belgaum, in ROS. 365 of 1966, which was a suit filed by the plaintiff for permanent injunction restraining the defendant from interfering with his possession and enjoyment as tenant of the shop in Block 4, CTS. 2041, in Vijaya Building, Ganapath Galli Blegaum, belonging to the defendant. The shop in Block 4 in Vijaya Building, Ganapath Galli, belongs to the defendant. The said shop was admittedly occupied by one Killedar prior to its occupation by the plaintiff. Under a document styled as "leave and Licence Agreement' entered into between the plaintiff and the defendant on 5-12-63, the plaintiff set up his business in the shop as a t. ader in steel trunks, bags and stationery articles. The period during which he could continue that business in the said shop was stipulated as 11 months. The compensation payable every month for use of that premises by the plaintiff was fixed at Rs. 125. On the expiry of the period Of 11 months fixed in the agreement, another agreement styled as the first agreement, marked in the suit as Ext. 50, was entered into between the plaintiff and the defendant on 5-11-64. The terms and conditions contained in the second agreement were similar to those contained in the first agreement. Again, with the expiry of the period stipulated in Ext. 50, another agreement styled in the same fashion was entered into between the Pltff and the defendant on 5-10-65. Though the period during which the aaid agreement had to be in operation was fixed as 11 months, the amount of monthly compensation payable by the plaintiff to the defendant was raised from Rs. 126 to 175. It is not disputed that the terms and conditions of all the agreements are similar except for the change with regard to the rate of monthly compensation and the periods during which they had to be in operation. For purposes of facility, the preamble and the relevant clauses of the latest agreement, Ext. 126 to 175. It is not disputed that the terms and conditions of all the agreements are similar except for the change with regard to the rate of monthly compensation and the periods during which they had to be in operation. For purposes of facility, the preamble and the relevant clauses of the latest agreement, Ext. 59 are extracted hereunder: " Whereas the Licenser is the owner of the Block mentioned above and in possession of the same; and whereas the licenser is in a position to spare the said Block, and whereas the Licensee being desirous of opening a new business, as Manufacturers of Waheed Trunk mart has requested the Licenser to permit him the Licensee to use and Occupy the said Block on Leave and Licence basis for the purpose of the above said business in trunks, bags and stationery articles as a shop, and whereas the Licenser is agreeable to permit the Licensee to use and occupy the said Block on leave and Licence basis, from the 5th of October 1965; and whereas it is deemed necessary to reduce into writing the terms and conditions on which said permission and licence have been agreed to be granted to; now this indenture witnesseth as follows: (1) The Licenser shall permit the Licensee to use and occupy the said Block for the purpose of enabling the Licensee to do the above business only on the Leave and licence basis. ( 2 ) THIS agreement shall be demed to have come into force from the 5th October 1965, and shall remain in force for a period of eleven months therefrom, i. e. , 4th day of September 1966, ( 3 ) THE Licensee shall pay to the Licenser for the permission hereby granted Licence fee at the rate of Rs. 175 (One hundred and seventy five rupees) per month on or before the 5th of each month. The licensor shall be entitled to keep one Almirah , one table and 3/4 chairs and one small treasury (cash box), in one part of the said block for office purposes. ( 4 ) THE licensee shall use the said block only for the above said purpose and for no other purpose whatsoever. The licensee shall not part with the possession of the said Block Or allow any other person or persons to occupy the said Block. ( 4 ) THE licensee shall use the said block only for the above said purpose and for no other purpose whatsoever. The licensee shall not part with the possession of the said Block Or allow any other person or persons to occupy the said Block. ( 5 ) IF the licensee shall commit a breach of the terms and conditions or commit default in payment of any of the amount payable by the licensee to Licenser, under this agreement on due dates of payment thereof as herein provided the Licenser shall give the Licensee a notice calling upon the Licensee to rectify such breach or to make payment in arrears within a period of fifteen days from the date of such notice. If the licensee shall fail to rectify such breach or to make the payment, in arrears within the said period of fifteen days this agreement shall cease and determine on the expiry of the said period of fifteen days notwithstanding that the eleven months period of this agreement as herein provided; the Licenser shall have right to recover the licence fees for the then unexpired period f this agreement as originally stipulated. ( 6 ) ON the expiry of the period of this agreement as herein provided or in the event of earlier determination thereof as provided in the preceding clause the Licensee shall remove themselves, their servants and agents and all their goods, furniture and belongings from the said block and on failure to remove as aforesaid, it shall be open to the licenser to remove the Licensee from the said block at the cost of the licensee and the Licenser shall be entitled to recover the costs from licensee either by public auction or by private auction sale of the goods of the Licensee at the risk, costs and account of the Licensee and to appropriate the sale proceeds thereof firstly towards all costs, charges and expenses of such removal and sale and secondly towards the amount payable by the licensee to the Licenser under this agreement and thirdly towards the costs of restoring the said space to its original condition, and if there be any residue left in the hands of the licenser the same shall be paid over the Licensee. ( 7 ) IT is hereby expressly agreed and declared that the intention of the parties in entering into and executing this agreement is only that the Licensee shall be permitted to use such space for the purpose and in the manner aforesaid on Leave and Licence basis subject to the terms and conditions herein contained. It is not the intention of the parties to confer or create any right of tenancv Or sub-tenancy in favour of the Licensee. The Licensee hereby agrees and binds themselves not to claim any right of tenancy or sub-tenancy in the said space and hereby declares that no interest wnatsoever in the said space has been or has been intended to be transferred to the Licensee by virtue of or under this agreement and that he shall be a mere licensee of the Licenser in respect of the said space, ( 8 ) THE Licensee shall not damage the premises or commit any nuisance therein; the Licensee shall well and properly take care and keep the premises as well as the furniture and articles lying therein in good condition. " as would be clear from the terms of the said agreement, the period of its operation had to come to an end on 4-9-1966. Immediately on the expiry of the period referred to in the agreement, it is stated by the plaintiff, that an attempt was made by the defendant to disturb the plaintiff's possession on the plea that the plaintiff had no right to continue in possession of the shop after the expiry of the period stipulated in the agreement Ext. 59, and therefore, the plaintiff instituted the suit from which the present second appeal arises on 4-10-1966, praying for the relief of injunction adverted toearlier. The claim of the plaintiff in the suit was that though the agreements under which he continued to be in possession of the shop were styled as "leave and Licence Agreement" they were in truth, agreements of lease, and as such the defendant was not entitled to dispossess the plaintiff in the way he had attempted. The claim made in the suit was resisted by the defendant on the ground that the agreements relied upon by the plaintiff in the suit being only Leave and Licence Agreements, the plaintiff could not maintain the suit in the form in which it was instituted. The claim made in the suit was resisted by the defendant on the ground that the agreements relied upon by the plaintiff in the suit being only Leave and Licence Agreements, the plaintiff could not maintain the suit in the form in which it was instituted. The trial Court, after settlement of issues, examined 3 witnesses on behalf of the plaintiff and one witness on behalf of the defendant. At the conclusion of the trial, it decreed the suit of the plaintiff. Aggrieved by said decree, the defendant preferred an appeal in the Court of the Civil judge at Belgaum, who dismissed the appeal ahd affirmed the judgment ard decree of the trial Court. Aggrieved by the said judgment and decree of the learned Civil Judge, the defendant has preferred this second appeal. Both the trial Court and the appellate Court have, on a consideration of the terms of the agreements referred to herein before and the evidence on record, found: (1) that the agreements in question were a deliberate attempt on the part of the defendant to camouflage the true nature of the agreements by reciting in them several terms and conditions which would make them appear to be agreements of leave and Licence, though, in truth, they were only Lease Agreements; (2) that the evidence on record and the terms and conditions in the agreement have established that the shop premises in question was in the exclusive possession of the plaintiff; (3) that the evidence in the case would show that the parities to the agreements were strangers to each other belonging to different communities and there was no evidence in the case to show that the agreements came into -exis- tence on account of sympathy, friendship, relationship or similar motive which existed between the parties at the time of the agreements. As a result of he said findings, both the Courts below found that the agreements in quest n, though styled as 'leave and Licence Agreements' were, in truth, Agreements of Lease. In this second appeal, Sri W. K. Joshi, learned counsel for the defendant, attempted to assail the said findings of the Courts below as also the consequential inference drawn by them, namely, that the agreements were, in truth, agreements of lease. In this second appeal, Sri W. K. Joshi, learned counsel for the defendant, attempted to assail the said findings of the Courts below as also the consequential inference drawn by them, namely, that the agreements were, in truth, agreements of lease. The first ground of attack of Sri Joshi was directed against the finding of the Courts below that the agreements in question were, in truth, a deliberate attempt on the part of the defendant to camouflage the true nature of the agreements by introduction of recitals, which, though on the face of them, give an impression that the agreements are Leave and Licence Agreements, are in fact not such agreemems, but on the contrary, they are agreements of leave. His contention was that when in Clause 7 of the Agreements, it is specifically stated that it was not the intention of the parties to confer or create any right of tenancy or sub-tenancy in favour of the licensee and that when the licensee had agreed and bound himself not to claim any right or tenancy or sub-tenancy in respect of the shop premises, and had further declared that no interest whatsoever in the said shop had been intended to be transferred to the licensee by virtue of or under the agreements, it was not open to the Courts below to examine the surrounding circumstances attending the execution of the documents and the terms and conditions of the documents to come to a conclusion which would be opposed to the express terms of the agreements contained in Clause 7 of the said agreements. Though the contention Of the learned counsel appearing on behalf of the defendant is attractive at the outset, a careful examination of the law on the point as settled by the Supreme Court and the Bombay High Court will show that the contention cannot at all be sustained in law. In Sohan Lal Naraindas v. Laxmidas Raghunath Golodit, (1971) 1 SCWR. 545. In Sohan Lal Naraindas v. Laxmidas Raghunath Golodit, (1971) 1 SCWR. 545. the Supreme Court, while considering a case, where it had to decide the1 question as to whether a purported agreement was not a licence, but a lease, has observed as follows at page 548: "an attempt was deliberately made to camouflage the true nature of the agreement, by reciting in several clauses that the agreement was for leave and licence and to emphasise the pretence was also recited that the defendant was not to have any right as tenant or subtenant. " it is further observed in'the said decision that- "a recita] that the agreement does not create a tenancy is also not decisive. " in assocuated Hotels of India Ltd. v. R. N. Kapoor, AIR 1959 SC 1262 . the Supreme Court, in its majority judgment has pointed Out that the clever phraseology used or the ingenuity of the document-cwriter would not conceal the real intent of the parties. In the case of p. L. Bapuswami v. N. Pattay Gounder, AIR 1966 SC 902 . the Supreme Court, while considering the question as to how "the true relationship between the parties to a document has to be decided, has observed thus: "if the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect. " it is further observed therein as follows; "the form in which the deed is clothed is not decisive. The question in each case is one of determination of the real character of the" transaction to be ascertained from the provisions of the document viewed in the light of surrounding circumstances. '' in the case Of aninha D'costa v. Parvathi Bai M. Thakur, 67 Bomlr. 452. a division Bench of the Bombay High Court has held that an agreement styled as Leave and Licence Agreement could be construed as an agreement of lease despite the specific clause in the agreement which was as follows: "that the licensee shall not claim any right as a tenant. 452. a division Bench of the Bombay High Court has held that an agreement styled as Leave and Licence Agreement could be construed as an agreement of lease despite the specific clause in the agreement which was as follows: "that the licensee shall not claim any right as a tenant. " if regard is had to the law well settled by the decisions referred to above, it becomes clear that despite the recital in the document styled as 'leave and Licence Agreement', such document will not nave the effect' of creating a tenancy, it is open to the Courts to find out on a consideration of the entire terms and conditions of the document and also the surrounding circumstances attending the execution of such document, its, true legal effect and to come to a conclusion that such agreement is a lease agreement. Hence the contention to the contrary urged by the learned counsel for the defendants has to fail. The important questions which now arise for my consideration are as to whether the agreements in question were brought into existence with the object of camouflaging the real intent of the partifes to the agreement and, if so, whether the agreements in truth are lease agreements. The defendant hate admitted in the course of his evidence that the shop premises in question is one of the shops in a huge building known as 'vijaya Building' comprised of 30 to 35 shops. It is also admitted by him that he had brought into existence, documents similar to those under consideration in this appeal, in respect of several other shops in the same building and that the terms and conditions of those documents regulated the relationship between the defendant and the persons in Occupation of those shops. One other fact admitted by the defendant is that his father was an eminent lawyer and his brother, who is again a lawyer with 20 years' standing at the Bar, gave him this idea of 'leave and Licence agreement'. PW. 2 Janafdan, one of the witnesses examined on behalf of the plaintiff, has, stated that the agreement entered into between himself and the defendant in respect of one of the shops in the said Vijaya Building, was also styled as 'leave and Licence Agreement' while, in truth, it was not intended to be such document. PW. 2 Janafdan, one of the witnesses examined on behalf of the plaintiff, has, stated that the agreement entered into between himself and the defendant in respect of one of the shops in the said Vijaya Building, was also styled as 'leave and Licence Agreement' while, in truth, it was not intended to be such document. He has further stated that when he agreed to enhance the amount of compensation payable in respect of the said shop, the defendant entered into an agreement called 'lease agreement'. In the course of his evidence, the said witness has stated that the agreements called 'leave and Licence Agreements' were taken by the defendant on the plea that if initially agreements in that form were not taken, they would attract penalties provided for under the Karnataka rent Control Act. In this context, it has to be mentioned that the suit of the plaintiff is based on the plea that the agreements in question were brought into existence by the defendant on the plea that if the agreements were not brought in to existence styling them as 'leave and Licence agreements', the lease could not be granted in view of the provisions of the Rent Control Act in operation in that area. It is this evidence of surrounding circumstances which has to be kept in the background before an attempt is made to find out as to what is the real intent of the parties which is sought to be concealed by use of clever phraseology as a camouflage in the agreements under consideration. In Associated Hotels of India Ltd. v. R. N. Kapoor (2) the Supreme Court summarised the well established proposition which have to be kept in view while deciding the question as to whether a particular agreement is a lease or a licence. In Associated Hotels of India Ltd. v. R. N. Kapoor (2) the Supreme Court summarised the well established proposition which have to be kept in view while deciding the question as to whether a particular agreement is a lease or a licence. At page 1269 of the said Report it is stated thus:"the following propositions may, therefore, be taken as wellestablished: (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. "bearing in mind the background of the circumstances which surround the agreements and the above tests required to be applied to find out whether the agreements under consideration in this case were in truth lease agreements, though camouflaged in the phraseology of licence, I shall examine the matter further. Both the Courts below have found, on a consideration of the material evidence on record, that exclusive possession of the shop premises was with the plaintiff pursuant to the agreements in question. For arriving at the said conclusion, the factors which have weighed with the Courts below and which have been established by the evidence on record are; (1) That the plaintiff was doing his trunk business in the shop premises along with his brothers; (2) that the plaintiff had the keys of the said premises; (3) that the plaintiff was getting the premises cleaned and he was maintaining the same at his cost; (4) that the plaintiff was maintaining the watch and ward in relation to the premises; that the plaintiff was paying electricity charges; (5) that the defendant was not using the premises for office purposes as claimed by him. Besides the said factors adverted to by the Courts below, there are important recitals in the agreements themselves which would clearly indicate that exclusive possession of the shop premises was given to the plaintiff by the defendant and the plaintiff continued to be in exclusive possession of the shop premises. In clause (4) of the Agreement, it is stated that the licensee shall not part with the possession of the said block or allow any other person or persons to occupy the said block. The question of parting with possession would not arise unless the person was put in possession. The insertion of such a clause in the document is one of 'the factors which would show that exclusive possession of the shop was given by the defendant to the plaintiff In clause (5) of the agreement, it is provided that in the event of default in payment of arrears or rent, it was necessary for the defendant to issue a notice with 15 days' time to take further action which may arise pursuant to such default. This clause is consistent with the concept of exclusive possession claimed by the plaintiff in contra'-distinction to the claim of possession made by the defendant i do not find any other clause in the agreement which would lead me to the conclusion that the plaintiff was not in exclusive possession of the shop premises. Sri Joshi, learned counsel for the defendant, strongly relied upon clause (3) of the agreement to persuade me to take the view that exclusive possession of the shop premises was not with the plaintiff. The relevant portion of that clause on which reliance was placed by the learned counsel for the defendant, reads thus;"the Licenser shall be entitled to keep his four almirahs, one safe in the said Block. Further he shall be entitled to keep one table and three or four chairs in one part of the said Block for his office purposes. A perusal of the said part of clause (3), instead of persuading me to take the view that the plaintiff did not have the exclusive possession of the shop premises in question, persuades me to the contrary view, namely that, in fact the plaintiff was given exclusive possession of the shop premises by the defendant. A perusal of the said part of clause (3), instead of persuading me to take the view that the plaintiff did not have the exclusive possession of the shop premises in question, persuades me to the contrary view, namely that, in fact the plaintiff was given exclusive possession of the shop premises by the defendant. The part of the clause to which 1 have adverted, would show that the defendant had reserved his right to keep his things in the shop premises and nothing more. In other words, the said part of the clause would only establish that he had obtained the permission of the plaintiff to keep his things in the shop premises for the reason that exclusive possession of the shop premises was given to the plaintiff. For these reasons, i uphold the finding of the Courts below that the plaintiff was put in exclusive possession of the shop premises pursuant to the agreements under consideration and has continued as such. From the finding of the Courts below which is upheld by me, the legal consequence that nas followed is the passing of an interest in the shop from the defendant to plaintiff and the retention of such interest by the plaintiff. The interest so passed to and retained by the plaintiff is the lease-hold interest in the shop. As the recital in Clause 7 of the agreements to the contrary cannot bring about the displacement of the said legal consequence, I am of the view that the court cannot give effect to such recital, and such a recital has to be ignored as clever phraseology employed in the agreements! to camouflage the real intent of the parties. The other finding of the Courts below that the agreements in question had not come into existence on account of sympathy, friendship, relationship or anything of the kind is not contested before me. to camouflage the real intent of the parties. The other finding of the Courts below that the agreements in question had not come into existence on account of sympathy, friendship, relationship or anything of the kind is not contested before me. The conclusions which would follow from the aforesaid discussion of the whole matter may be summarised thus: (1) Plaintiff got under the first agreement exclusive possession of the shop in question from the defendant; (2) Exclusive possession of the shop got by the plaintiff from the defendant continued with the plaintiff under the subsequent two agreements making up a total period of 33 months; (3) After the coming into existence of the agreements, the defendant was never in possession of the shop; (4) Despite the stipulation in Clause 7 of the Agreements to the contrary, the relationship which was brought about between the plaintiff and the defendant was that of a tenant and land-lord, if regard is had to the surrounding circumstances and the relevant terms of the very agreements. The phraseology employed in the agreements is a clever device adopted to conceal the real intention of the parties with a view to avoid the imposition of penalties which the parties would otherwise suffer under the provisions of the Karnataka Rent Control Act 1961; (5) As the plaintiff and the defendant were strangers to each other, the possibility of bringing about a relationship of a Licenser and Licensee between them has to be ruled out; (6) The period of 11 months fixed in each of the 3 agreements would indicate that the agreements were intended to be leases which would not attract registration; (7) The increase in monthly compensation brought about in the third agreement would indicate increase of monthly rent and not licence fee; (8) Agreements have created an interest in the shop in favour of the plaintiffs. Since these conclusions, in my view, are sufficient to satisfy the tests required to constitute lease agreements, I hold that the agreements under consideration are in truth lease agreements, and the relationship that has been brought about by the agreements between the defendant and the plaintiff is that of a lessor and a Lessee. As a necessary consequence, I further hold that even after the expiry of the last day of the lease stipulated in the last agreement, vitz. As a necessary consequence, I further hold that even after the expiry of the last day of the lease stipulated in the last agreement, vitz. , 4-9-1966, the defendant cannot evict the plaintiff from the suit shop except in accordance with the provisions of the Karnataka Rent Control Act, 1961. In the said view of the matter, the judgments and decrees of the Courts below do not call for interference and therefore, they are affirmed. "the Second Appeal is, accordingly, dismissed. But, in the circumstances of the case, there shall be no order as to costs. --- *** --- .