JUDGMENT (1.) THIS appeal at the instance of the plaintiff arises out of a suit for declaration that he is a tenant in respect of Suite No. 42 in the ground floor of Block no. 4 at Premises no. 10, Galiff Street, Calcutta under the defendant at a monthly rent of Rs, 160/- and for permanent injunction restraining the defendant from interfering with peaceful possession of the plaintiff. In consequence of a suit being Suit no. 2303 of 1972 filed by the defendant before the 4th Judge, Small Causes Court the defendant got a decree against the plaintiff. Against the said order a revision application was filed before this Court by the plaintiff on which a Rule was obtained by him. But ultimately the said Rule was discharged. It is stated that while discharging the Rule the Hon'ble single Judge left it open to the petitioner, appellant herein to file a suit under section 49 of the Presidency Small Causes Court Act, if he is so advised. The suit out of which this appeal arises was on the basis of the said leave granted by the Hon'ble Judge. (2.) THE case made out by the plaintiff appellant is that on or about 1st of August 1967 the parties entered into an agreement whereby the defendant agreed to let out to the plaintiff a flat being Suite no. 42. In the said agreement it is provided that the plaintiff was to hold the said flat as a monthly tenant for one year only commencing from the date of the agreement and the tenant shall pay Rs. 160/- per month as rent. It was also agreed that the tenant plaintiff shall not sublet or underlet the flat or any portion thereof and immediately on the expiry of one year from the date of agreement he will quit, vacate and deliver up the vacant possession to the defendant landlord. On the basis of the said agreement the plaintiff occupied the said flat. It is alleged that between the parties the tenancy will continue even after one year is elapsed and it will be governed by the West Bengal Premises Tenancy Act, 1956. It is alleged in the plant that after expiry of one year stipulated in the original agreement, the term of one year was extended from time to time. It is alleged that between the parties the tenancy will continue even after one year is elapsed and it will be governed by the West Bengal Premises Tenancy Act, 1956. It is alleged in the plant that after expiry of one year stipulated in the original agreement, the term of one year was extended from time to time. It is stated by the plaintiff that he is a tenant under the West Bengal Premises Tenancy Act, which, however, was denied by the defendant. It is stated by the defendant in the written statement that the plaintiff was a licensee for one year as asked for and the defendant has no right to let out the premises in question without permission of the Co-operative Society which was a tenant under the Calcutta Improvement Trust and the plaintiff was only a licensee under the sub-tenant, that is, the defendant in the suit. It is stated that the defendant has no right to sublet the premises in question without specific permission of the Co-operative Society. The said permission was sought for and granted only for one year and the said permission was extended on the specific letter of request being made by the plaintiff for such permission which was again extended for another year. But in spite of expiry of the said year the plaintiff failed and neglected to vacate the premises and as such a suit was filed under section 41 of the Presidency Smelt Causes Court Act and a decree was obtained which was to be executed. But in the meantime the plaintiff has filed the suit out of which the present appeal has arisen. The only question for our consideration is whether in view of the documents executed between the parties and letters addressed, the demise of the premises is a licence or a lease. It must be made clear that the documents executed between the parties specifically mentioned the relationship between the parties as landlord and tenant. Rent was specifically reserved. It has also been pointed out in the recital that the permission was taken from the Co-operative society for one year and therefore, it was within the knowledge of both the parties that the premises cannot be let out without the permission of the Co-operative Society who is a tenant under the Calcutta Improvement Trust. (3.) MR. It has also been pointed out in the recital that the permission was taken from the Co-operative society for one year and therefore, it was within the knowledge of both the parties that the premises cannot be let out without the permission of the Co-operative Society who is a tenant under the Calcutta Improvement Trust. (3.) MR. Motilal appearing for the appellant referred to various judgments of the Supreme Court reported in A.I.R. 1965 S.C., 610, and A.I.R. 1959 SC 1262, A.I.R. 1968 S.C., 175 and A.I.R. 1979 S.C. 272. Mr. Saktinath Mukherjee appearing for the respondent relied upon the Supreme Court decision reported in A.I.R. 1953 S.C. 16 and A.I.R. 1959 S.C., 1262 and wanted to apply principles laid down therein in the facts of this case. In the cases reported in A.I.R. 1965 S.C. 610 and A.I.R. 1959 S.C. 1262 the Supreme Court laid down a distinction between the lease and licence. It has been made clear in the said judgment that the documents will have to be considered as well as the intention of the parties whether they want to create a lease or licence. Mr. Motilal contended that if the term of the lease is unambiguous, Court cannot go behind the terms of the lease to find out the intention of the parties. In our opinion, as we read the judgment of the Supreme Court it cannot be said that the intention of the parties cannot be gone into even if the terms of the deed are not ambiguous. In the background of this case it appears to us that it is always necessary to go into the question and find out what was the intention of the parties by which the plaintiff came into possession of the property. It is clear from the documents and letters addressed by the plaintiff to the defendant that the plaintiff was in dire necessity of some accommodation. The defendant had in his possession a flat as a tenant under the Co-operative Society. It was not possible at that point of time for the defendant to occupy the flat. He applied before the Co-operative Society, tenant under the Calcutta Improvement trust to give him permission to sublet the premises. Permission was granted for one year and thereafter reciting all these facts in the document itself a tenancy was created for one year only. But Mr. He applied before the Co-operative Society, tenant under the Calcutta Improvement trust to give him permission to sublet the premises. Permission was granted for one year and thereafter reciting all these facts in the document itself a tenancy was created for one year only. But Mr. Motilal contended that the document speaks of landlord and tenant and rent is reserved Therefore, this is a tenancy agreement and we need not go into the other question at all. If it is a tenancy agreement under the West Bengal Premises Tenancy act, he cannot be evicted unless section 13 of the said Act comes into the aid of the defendant. In our opinion, as the Supreme Court has said, the word 'rent' may be loosely used in respect of stall holder who is a licensee. But that word will not make difference in nature of the holding under a particular person. In the present case as we have seen permission was taken by the sub-tenant from the tenant Go-operative society for letting out the property for one year. After expiry of one year the plaintiff applied to the defendant for permission to continue for sometime more. Again permission was obtained by the defendant from the Co-operative Society. But thereafter, after lapse of one year the plaintiff did not vacate and wanted to continue till he gets another accommodation. Taking all these letters into consideration it is quite clear to us that what was applied for was licence to stay; but for this the plaintiff's stay in the house would have been illegal. Moreover, in a case reported in A. I. R, 1968 S.C., 919 it has been held by the Supreme Court that intention of the parties must be considered in order to show whether the parties intended to create a lease or licence. In the lease while legal possession of the owner is transferred, in the licence legal possession continues, but for the permission granted by the owner the possession of the plaintiff would be unlawful. In our opinion this case supports the contention of Mr. Saktinath Mukherjee that the intention of the parties is vital thing which is to be considered to come to a finding whether a particular document creates a lease or a licence. (4.) MR. In our opinion this case supports the contention of Mr. Saktinath Mukherjee that the intention of the parties is vital thing which is to be considered to come to a finding whether a particular document creates a lease or a licence. (4.) MR. Mukherjee further content ended that the West Bengal Premises Tenancy Act is not applicable in the facts of this case in view of section 1 (3) proviso. In our opinion, similar provision was relied upon in the Supreme court decision as reported in A.I.R. 1953 S.C. 16. In the said case the Supreme Court was considering section 4 (1) of the Bombay Act 57 of 1947. In paragraph 9 of the said judgment the Hon'ble Supreme Court held as follows :- "the main controversy between the parties is as to whether the Act applies to the demised premises. The solution of that controversy depends upon a true construction of s. 4 (1) of the Bombay Act 57 of 1947, which runs as follows : "4 (1). This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government, but it shall apply in respect of premises let to the Government or a local authority". It is clear that the above sub-section has three parts, namely (1) This Act shall not apply to p emeses belonging to the Government or a local authority. (2)This Act shall not apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government. (3)This Act shall apply in respect of premises let out to the Government or a local authority. " The contention of the appellant Society is that the demised premises belonged to the Trustees for the improvement of the City of Bombay and now belong to the Bombay Municipality both of which bodies are local authorities and, therefore, the Act does not apply to the demised premises. Learned counsel for the respondent, however, urges that the object of the Act, as recited in the preamble, is inter alia, to control rent. Learned counsel for the respondent, however, urges that the object of the Act, as recited in the preamble, is inter alia, to control rent. It follows, therefore, that the object of the legislation was that the provisions of the Act would be applicable only as between the landlord and tenant. Section 4 (1) provides for an exemption from or exception to that general object. The purpose of the first two parts of S. 4 (1) is to exempt two cases of relationship of landlord and tenant from the operation of the Act namely, (1) where the Government or a local authority lets out premises belonging to it, and (2) where the Government lets out premises taken on lease or requisitioned by it will be observed that the second part of s. 4 (1) quite clearly exempts "any tenancy other like relationship" created by the Government but the first part makes no reference to any tenancy or other like relationship at all but exempts the premises belonging to the Government or a local authority. If the intention of the first part were as formulated in item (1), then the first part of S. 4 (1) like the second part, would have run thus : this Act shall not apply to any tenancy or other like relationship created by government or local authority in respect or premises belonging to it. The Legislature was familiar with this form of expression, for it adopted it in the second part and yet it did not use that form in the first part. . The conclusion is, therefore, irresistible that the Legislature did not by the first part intended to exempt the relationship of landlord and tenant but intended to confer on the premises belonging to Government an immunity from the operation of the Act. . . . The conclusion is, therefore, irresistible that the Legislature did not by the first part intended to exempt the relationship of landlord and tenant but intended to confer on the premises belonging to Government an immunity from the operation of the Act. . . (11) It is said that if the first part of the section is so construed as to exempt the premises from the operation of the Act, not only as between the Government or a local authority on the one hand arid its lessee on the other but also as between that lessee and his sub-tenant then the whole purpose of the Act will be frustrated, for it is well known that most of the lands in Greater Bombay belong to the Government or one or other local authority, e.g., Bombay Port Trust and Bombay Municipality and the greater number of tenants will not be able to avail themselves of the benefit and protection of the Act. In the first place, the preamble to the Act clearly shows that the object of the Act was to consolidate the law relating to the control of rents and repairs of certain premises and not of all premises. The Legislature may well have thought that an immunity given to premises belonging to the Government or a local authority will facilitate the speedy development of its lands by inducing lessees to take up building leases on terms advantageous to the Government or a local authority. Further as pointed out by roamer L. J. in Clark v. Dowries, (1931) 145 L. T. 20, which case was approved by Lord goddard C. J. in Rudler vs. Franks, (1947) I. K. B. 530, such immunity will increase the Value of the right of reversion belonging to the Government of a local authority. The fact that the Government or a local authority may be trusted to act fairly and reasonably may have induced the Legislature all the more readily to give such immunity to premises belonging to the Government or a local authority but it cannot be overlooked that the primary object of giving this immunity was to protect the interests of the Government or a local authority. This protection requires that the immunity should be held to attach to the premises itself and the benefit of it should be available not only to the lessee deriving title from it. This protection requires that the immunity should be held to attach to the premises itself and the benefit of it should be available not only to the lessee deriving title from it. If the benefit of the immunity was given only to the Government or a local authority and not to its lessee as suggested by learned counsel for the respondent and the Act applied to the premises as against the lessee, then it must follow that under s. 15 of the Act it will not be lawful for the lessee to sublet the premises or any part of it. If such were the consequences, nobody will take a building lease from the Government or a local authority and the immunity given to. the Government, or a local authority will, for all practical purposes and in so far as any rate as the building leases are concerned, be wholly illusory and worthless and the underlying purpose for bestowing such immunity will be rendered wholly ineffective. In our opinion, therefore, the consideration of the protection of the interests of the sub-tenants in premises belonging to the Government or a local authority cannot override the plain meaning of the preamble or the first part of s. 4 (1) and frustrate the real purpose of protecting and furthering the interests of the Government or a local authority by conferring on its property as immunity from the operation of the Act. " In our opinion, the same principle can be applied also in the West Bengal Premises Tenancy Act in view of section 3 (1) of the proviso. In our opinion, in the facts of the present case what was transferred to the defendant was a right of enjoyment being always with the plaintiff, on payment of some fees, that is Rs. 160/- said to be rent which is loosely used for licence fee. Mr. Motilal, however, contended that the terms of the deed are all terms of tenancy and no question arises that any licence was granted ln our opinion, if in the letters written by the plaintiff for permission to stay he is stated as a tenant, such question would not have arisen at all. Mr. Motilal, however, contended that the terms of the deed are all terms of tenancy and no question arises that any licence was granted ln our opinion, if in the letters written by the plaintiff for permission to stay he is stated as a tenant, such question would not have arisen at all. Therefore, in our opinion it can be safely concluded that both the parties proceeded on the footing that permission was granted of the enjoyment of the property as a licensee on payment of licence fee, though it is stated to be rent as has been loosely used. (5.) THERE is another fact which must be held that West Bengal Premises Tenancy Act does not apply in respect of the property of which the tenant was the Co-operative Society and the less or was Calcutta Improvement Trust. Admittedly the land on which the premises was constructed was the land of the local authority, that Is the trustees of the Calcutta Improvement Trust which gave a lease to the Co-operative Society for the term of 99 years. The Go operative Society allotted different flats on constructed by the Society to the different allotters who were the sub-lessees under the tenant and that there was specific provision in the deed of sub-lease that it cannot be sublet or subleased or assigned unless specifically authorised by the Co-operative Society. In the instant case as we have already said permission was sought for and it was granted but for a limited period. We are, therefore, of opinion that section 1 (3) of proviso of the West Bengal Premises Tenancy Act is applicable in the facts of this case in respect of the premises. (6.) IT is also argued by Mr. Motilal in reply to Mr. Mukherjee argument that if West Bengal Premises Tenancy Act does not apply the Transfer of Property Act is applicable in view of the fact that we have already held that the case was not made out in the plaint and more so we have already held- that it is an agreement for licence on permission being obtained from the Co-operative Society, we are not called upon to decide this question at all in this case. We, therefore, dismiss this Appeal, There will be no order as to costs. let the operation of this order and execution of the decree be stayed to three months from today. We, therefore, dismiss this Appeal, There will be no order as to costs. let the operation of this order and execution of the decree be stayed to three months from today. Original Civil Jurisdiction