G. N. SABHAHIT, J. ( 1 ) THIS appeal by the defendants is directed against the order of interim injunction dt. 17-3-1983, passed by the XVI Addl. City Civil Judge, Bangalore City, on IA nos. 1 and 3 in OS No. 325 of 1983, on his file, confirming the ad interim order of injunction already passed earlier ex parte, in favour of the plaintiff-applicant. The plaintiff instituted the suit OS No. 325 of 19s3 against the defendants, on the averments that the defendants were to carry out certain functions with regard to her touring talkies, styled as 'venus Touring Talkies' under an agreement dated 20-1-1982; that the period of agreement expired on 31-12 1982 ; thereafter, three weeks were granted as grace at the request of the defendants ; that period was also over ; but the defendants were interfering with her possession and therefore, she should be granted permanent injunction against the defendants. In that suit, the plaintiff filed IA No. 1 praying for temporary injunction. Ex parte order of temporary injunction was issued by the Court. Thereafter, the defendants, on entering appearance, filed IA No. 3, resisting the said ad interim order of temporary injunction and praying for vacating the same. ( 2 ) THE Court heard IAs 1 and 3 and passed the impugned order, against which the present appeal is directed. As stated in the order, the learned Judge raised three points in the course of his order, viz. ,"1. Whether the plaintiff has a prima facie case to go to trial ? 2. In whose favour the balance of convenience lies ? 3. Whether the plaintiff has shown that she will suffer irreparable injury if the temporary injunction sought for is not to be granted ?" ( 3 ) THE learned Civil Judge answered all these points in favour of the plaintiff and in that view confirmed the ad-interim order of temporary injunction issued ex parte, on hearing. ( 4 ) THE learned counsel appearing for the appellants defendants strenuously urged before me that the learned City Civil Judge did not properly exercise his judicial discretion in confirming the order of ad-interim injunction granted ex parte in the suit, on IA No. 1. According to him, the lease was renewed and it was not properly terminated also, and as such the plaintiff had not made out a prima facie case for issue of temporary injunction. According to him, the lease was renewed and it was not properly terminated also, and as such the plaintiff had not made out a prima facie case for issue of temporary injunction. According to him, the balance of convenience was not in favour of issuing iajunction and it was the defendants who would be put to irreparable injury if the order of injunction were to be confirmed. Hence, he submitted that the appellants are entitled to succeed. ( 5 ) AS against that, the learned counsel for the respondent-plain tiff argued supporting the impugned order passed by the learned city Civil Judge. He submitted that the defendants were not lessees but they were licensees to do certain work in the theatre and since the period had expired, they had ho semblance of right to enter the theatre and disturb the possession of the plaintiff. Hence, he submitted that the order passed by the learned City Civil Judge was perfectly legal and valid and the appeal was liable to be dismissed. ( 6 ) THE points, therefore, that arise for my consideration in the appeal are : (1) Whether the City Civil Judge was justified in holding that the plaintiff established a prima facie case ? and (2) Whether he was justified in holding that irreparable Injury would be caused to the plaintiff if injunction was not issued, and as such, the balance of convenience lay in confirming the injunction order ? the difference between Mease' and 'licence' is no doubt a vexed question. The matter engaged the attention of the Supreme Court in cases more than one. In associated Hotels of India Ltd. , v. R. N. Kapoor (1), the Supreme Court had occasion to consider the distinction between 'lease' and 'licence'. Speaking about it in para 27 of the judgment, their Lordships observed :"there is a marked distinction between a lease and a licence. S. 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under S. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. Under S. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas S. 52 of the Indian easements Act defines a licence thus : "where one person grants to another, or to definite number of other persons, a right to do or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence". ( 7 ) UNDER the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in the possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. ( 8 ) THERE is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that right of exclusive possession was infallable and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. Bit there was a change and the recent trend of judicial opinion is reflected in errington v. Errington, 1952-1 All ER 149, wherein Lord Denning reviewing the case law on the subject summarises the result of his discussion thus at p. 155 :"the result of all these cases is that, although a person who is let into exclusive possession is, 'prima facie', to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy". ( 9 ) THE Court of Appeal, in Cobb v. Lane, 1952-1 All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somerwell LJ, stated :"the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties". Denning L. J. said much to the same effect at p. 1202 :"the question in all these cases is one of intention. Did the substance and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land ?" ( 10 ) THE following propositions may, therefore, be taken as well established :"1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form ; (2) the real test is the intention of the parties-whether they intended to create a lease or a licence ; (3) if the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence ; and (4) if under the document a party gets exclusive possession of the property, 'prima facie', he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease". Bearing these principles of law in mind, i would presently read the agreement between the parties in the instant case viz. , the plaintiff and the defendants, to find out whether it was the intention of the plaintiff to lease the theatre or to treat the defendants as mere licensees. The document begins-"whereas the first party is the pro- prietrix of a Touring Cinema run under the name and Style of M/s. :venus Touring talkies situated at Thavarekere, bangalore South Taluk. " ( 11 ) WHEREAS the 1st party as a proprietrix has been maintaining the touring cinema set installed at the place stated above with all necessary equipment and establishment and has been running the cinema and exhibiting pictures in the said touring talkies. Whereas, the 1st party being a lady is feeling at present some difficulty in arranging for exhibition of cinemas viz. Whereas, the 1st party being a lady is feeling at present some difficulty in arranging for exhibition of cinemas viz. , procuring films, display, advertisements, etc. , concerning the exhibition of the pictures in the touring talkies and therefore she is in need of a person to take care of this portion of the industry for the time being that she runs. ( 12 ) WHEREAS, the 2nd party is a person having sufficient experience in the field of exhibition of pictures and running cinemas and being interested has come forward to take care of that portion of the industry and business relating to exploitation and exhibition of cinemas, collections from shows, finances for the purpose of running shows, procurement of films and advertisement and allied acts concerning the exhibition of films, whereas, the 1st party is agreeable to entrust that portion of the business as stated above to the 2nd party and the 1st and 2nd parties herein have agreed to abide themselves on the following terms and conditions". ( 13 ) SPEAKING about the functions on trusted to the defendants, Cl. (2) states :"2. The 2nd party shall : (a) be in charge of management of all acts that are required to be done for the purpose of exhibition of films, procuring and display of advertisements, finances for the purpose of show of films, procurement of films for the purpose of exhibition in the touring talkies of the 1st party; (b) The 2nd party be liable to pay a sum of Rs. 7,101 per month payable in 4 equal weekly instalments of Rs. 1,775 payable on every Monday by 9-00 A. M. , without committing 3 consecutive defaults in weekly payments ; only by cash. (c) (d ). . . . (e) The 2nd party shall be not liable to pay any charges towards the salary or maintenance of the equipment and the staff; electricity charges along with if any repairs but shall be liable to pay all kinds of levies, taxes, duties, and such other levies that may be stipulated by the Government or the local authorities for the purpose of exhibition of films in the talkies stated above, (f ). . . . to (h) (3 ). . . . . . . . . . . to (h) (3 ). . . . . . . . (4) The parties to this indenture hereby agree that this agreement is liable to be renewed at the option of the parties on the expiration of the terms agreed to on such terms and conditions that the parties may agree at that juncture. (5 ). . . . (6 ). . . . (7) The 1st party shall be responsible for the salaries of the staff due and proper maintenance of the equipments and the theatre or talkies and such other allied facilities for the purpose during the subsistence of this agreement". ( 14 ) THUS, by reading the agreement as a whole, it becomes very clear that the plaintiff has entrusted to the defendants certain functions in doing the business. The document makes it clear that the theatre and its equipments are with the first party and the maintenance of the same is the responsibility of the first party and that the plaintiff has to pay the salaries to the staff. It clearly indicates that the first party is prima facie in possession of the theatre and the second party is only required to perform certain functions. The document does not create any interest in the property in favour of the defendants. It merely permits the defendants to make use of the property, of which the legal possession continues with the owner. That being so, I have no hesitation to hold prima facie that the legal status of the defendants is that of 'licensees' and nothing more. The agreement fixes the period of licence till the end of 31 12-1982. Thereafter, the plaintiff granted three weeks grace period to the defendants. Therefore, the period, obviously, of the agreement, has expired. S. 60 of the Indian Easements Act states that :"a licence may be revoked by the grantor, unless- (a) it is coupled with a transfer of property and such transfer is in force ; (b) the licensee , acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution". S. 61 of the aforesaid Act states that- "the revocation of a licence may be express or implied". The section gives two illustrations ; they are :" (A) A, the owner of the field, grants a licence to B to use a path across it. S. 61 of the aforesaid Act states that- "the revocation of a licence may be express or implied". The section gives two illustrations ; they are :" (A) A, the owner of the field, grants a licence to B to use a path across it. A, with intent to revoke the licence, locks a gate across the path. The licence is revoked. (b) A, the owner of a field, grants a licence to B to stack hay on the field. A lets or sells the field to C. The licence is revoked". Then comes S. 62 of the Act, which reads :"a licence is deemed to be revoked- (a ). . . . (b ). . . . (c) where it has been granted for a limited period, or acquired on condition that it shall become void, on the performance or non performance of a specified act, and the period expires or the condition is fulfilled ;"thus, it is obvious that the licence may be revoked either expressly or impliedly and the licence gets terminated ipso facto on the expiry of the period of agreement. ( 15 ) THIS Court had occasion to deal with the question of revocation of licence, in thimmarayappa v. Narayanappa (2 ). Therein his Lordship has laid down, inter alia thus :"there is no provision either in S. 60, 61, 63 or 64 for the issue of any notice, much less for giving any specified time as in the case of leases, before a licence can be revoked". ( 16 ) IN the instant case, the period of agreement has expired and the only clause that we find in the agreement is Cl. (4) which is reproduced above. That clause states that after the period is over, the agreement is liable to be renewed at the option of the parties. It does not give option to either parties, much less in favour of the second party to renew the agreement on his own. Renewal should be brought about by agreement of both parties and the plaintiff has conceded that at the intervention of the panchayatdars, the agreement was renewed only for 3 weeks. That period was also over. That being so, the simple question that arises for my consideration is what is the portion of the licensee after the licence is revoked. The answer is obvious. He will be a trespasser. That period was also over. That being so, the simple question that arises for my consideration is what is the portion of the licensee after the licence is revoked. The answer is obvious. He will be a trespasser. He will have no vestige of right to enter the premises or to do any of the functions which he used to carry out by virtue of the agreement. In fact, in Beant Singh v. Cantonment Executive officer, Jammu (3), this aspect was considered at some length. His Lordship, in para 14 of the judgment, inter alia, has stated :"after the termination of the licence, the licensor is entitled to deal with the property as he likes and to treat an intruder as sheer trespasser. This right he gets as an owner in possession of his property. He need not secure a decree of Court to obtain this right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property". Again in para 17 of the judgment, it is laid down :"but a licensee whose licence has validly come to an end seems to have no vestige of any right, however slender. The personal privilege which he obtained under the licence has ceased to be ; and I am unable to see any thing in law which entitled him to claim to exercise any right in respect of the land to which his erstwhile licence related". ( 17 ) THE High Court of Calcutta, in Sayambari dasai v. Dwijapada Naskar (4), has further made it clear that the licensee has no interest in the property but only a personal privilege and as such a revocation of the licence by demand for possession is not necessary and no appropriate mode is prescribed. Thus, prima facie, on the facts of this case, parly No. 2, i. e , the defendants, were licensees. Their licence stood terminated and thereafter their acts are merely those of trespassers. In such cases, if they try to trespass into the property, the plaintiff has every right to prevent them from trespassing on the land by an order of injunction. That is what is laid down by the Court of Appeal in England (per goddard and Du Purg. L. JJ-1944 (2) All ER 476 ). In such cases, if they try to trespass into the property, the plaintiff has every right to prevent them from trespassing on the land by an order of injunction. That is what is laid down by the Court of Appeal in England (per goddard and Du Purg. L. JJ-1944 (2) All ER 476 ). Their Lordships, elaborating on the aspect at length, have laid down that the licensor, in order to prevent the licensee from interfering or entering into the land after the expiration of the agreement, can institute a suit for injunction and in such a suit the Court can grant an order of temporary injunction. This is what their lordships have observed:"that licence has been withdrawn. Whether it has been rightly withdrawn or wrongly withdrawn matters nothing for this purpose. The licensee, once his licence is withdrawn, has no right to re-enter on the land and say "i will stay there". If he does, he is a common trespasser". Thereafter, quoting from Solmond on torts, 9th Edn. , at page 258, their Lordships have observed that a temporary injunction order can be issued. ( 18 ) IN the circumstances therefore, considering the agreement as a whole and the legal position of the parties and the fact that the period of agreement is over, I am constrained to hold that the position of the defendants is those of trespassers and that therefore, the plaintiff has a prima facie case to restrain them by way of temporary injunction. Possession continues with the plaintiff and any disturbance to her legitimate use of the theatre would result in a substantial and irreparable loss to her and the balance of convenience is in issuing temporary injunction. The court below has issued the temporary injunction order. The discretion is judiciously used by the trial Court. I have no reason to interfere with the discretion properly used by the trial Court. Hence, the appeal fails and is dismissed. ( 19 ) AT this juncture, the learned counsel for the appellants submitted that the appellants have already purchased the projector. But the facts revealed that the projector was taken on hire by the plaintiff. If the lease is not renewed and the period of lease is over, the appellants are at liberty to proceed in accordance with law. --- *** --- .