Judgment :- Viswanatha Iyer, J This appeal is filed by the defendant in O.S. No. 20 of 1981 on the file of the Subordinate Judge's Court of Tirur. The suit was one for recovery of possession of the property scheduled to the plaint with arrears of rent, after removing, at the defendant's expense, the structures and sawmill erected by the defendant on the property, and restoring the same to its previous condition; and if that were not permissible for any reason, to ascertain the value of the improvements made by the defendant and to direct surrender of possession to the plaintiff on depositing the a mount for payment to the defendant. 2. The plaintiff is the owner of the plaint schedule property. It was entrusted to the defendant on 1-12-1970 on a monthly rent of Rs. 100/-. The entrustment was for the purpose of the defendant's business of establishing and running a saw mill in the premises. The term of the lease was three years. At the end of the said period, the defendant was to vacate and surrender possession after removing the structures and saw mill at his expense or after being paid the value of the improvements as determined by mediators, without any demur or objection. If, however, the defendant continued in possession of the property after the term fixed, the continuance shall be on the same terms and conditions as before. The plaintiff was however, allowed to take the usufructs from the trees in the property. The terms of the agreement were reduced to writing as per rent deed Ext. A2 dated 19-5-71 executed by the defendant in favour of the plaintiff, and got registered. The defendant defaulted in payment of the rent subsequent to November. 1979. The plaintiff issued notice Ext. A3 through his lawyer terminating the tenancy with effect from 1st January 19s1 or with the expiry of such other date, as according to the defendant, was the expiry of the month of tenancy. The defendant sent reply Ext, A4 through lawyer in which he did not controvert that he was holding under a lease transaction. On the other hand, be admitted that be was in possession and had put up the saw mill by virtue of the entrustment to him under the lease deed. He contended that he had filed and levelled up the property and that was entitled to fixity of tenure. On the other hand, be admitted that be was in possession and had put up the saw mill by virtue of the entrustment to him under the lease deed. He contended that he had filed and levelled up the property and that was entitled to fixity of tenure. He also said that the arrears of rent was being sent by Money Order and that Ext. A3 notice was not sufficient to terminate the tenancy ("). in view of these contentions raised by the defendant and his refusal to vacate the plaintiff filed the suit for the reliefs mentioned herein earlier. 3. The defendant contested the suit. He filed a written statement in the first instance under date 19th May, 19s1 wherein he contended that he was a tenant in respect of the property with fixity of tenure as under Ss.6C and 7 of the Kerala Land Reforms Act. He also contended that be had filled and levelled up the property and put op two tiled sheds spending about Rs. 50,000/-where he was running a saw mill. He also contended that he had sent about Rs. s lakhs for the building and the machinery and that the plaintiff had no right to evict him from the property. 4. The original written statement was thus categoric and clear in the plea that the defendant was a tenant in respect of the property entitled to fixity of tenure. 5. Subsequently, and for the obvious reason that his plea of tenancy and fixity of tenure under the Land Reforms Act was untenable, the defendant filed additional written statement pleading that the transaction in question was a licence and that, acting upon the licence, he had executed works of permanent character and incurred expenses in their execution rendering the licence irrevocable. 6. The lower court has inter alia found that the transaction Ext. A2 between the parties was a lease, and not a licence, and that the defendant was liable to remove all the structures erected by him in the property at his own cost and to surrender vacant possession to the plaintiff. The defendant was granted one month's time to surrender vacant possession to the plaintiff. The lower court also found that the sheds and other structures erected in the property and the machinery installed could be removed and that did not form permanent structure. 7. The defendant was granted one month's time to surrender vacant possession to the plaintiff. The lower court also found that the sheds and other structures erected in the property and the machinery installed could be removed and that did not form permanent structure. 7. When this appeal came up for preliminary hearing before us. the plaintiff entered caveat and appeared through counsel Shri. P.N. Krishnan-kutty Achan. We called for the records from the lower court. We have heard counsel on both sides and also perused the records of the case. 8. The appellant raised only two contentions before us. One is that the transaction evidenced by Ext. A2 was a licence and not a lease. The second is that the option, either to remove the structures and machinery, or to receive the value thereof as fixed by mediators, vested in the appellant, and therefore the lower court had gone wrong in directing removal of the structures and machinery without affording any opportunity to the appellant to exercise bis option. 9. Ext. A2 is dated 19-5-1971. It speaks of an entrustment of the properly on 1-12-1970 by the plaintiff to the defendant for a term of three years on rent of Rs. 100/- per month. The document styles itself as a ("") or "rend deed". The monthly payments are throughout described in Ext. A2 as ("") which is the equivalent of 'rent' in English. The entrustment is as lessee (" "). Possession of the property has been given to the defendant and the agreement provides for the contingency of the defendant continuing in "possession" () after expiry of the three years period, and as to the terms of the holding beyond such extended period and till the defendant vacates. The words used are ()' (possession) and () (vacates). The only right given up to the landlord is to take the usufructs from the trees and to plant fresh trees ( ) (improvements) without in any manner impeding the industry being carried on by the defendant. The defendant has undertaken that he will not transfer possession or construct buildings and lease them out or plant trees or use the property for any purpose other than the saw mill industry. 10. The document is registered by paying the stamp duty of Rs. The defendant has undertaken that he will not transfer possession or construct buildings and lease them out or plant trees or use the property for any purpose other than the saw mill industry. 10. The document is registered by paying the stamp duty of Rs. 30/- i.e. at 21/2 per cent of the average annual rent reserved under Article 33(a)(ii) of the Schedule to the Kerala Stamp Act, 1959, applicable to leases. If Ext. A2 were a licence, it could have been engrossed on stamp paper for Rs. 3/- as provided in Article 5(c) of the Schedule to the said Act, relating to agreements. 11. licence is defined in S.52 of the Easements Act, 1882, as a right to do or continue to do in or upon the immovable property of the grantor something which would in the absence of such right be unlawful. "Lease" is defined in S.105 of the Transfer of Property Act as the transfer of a right to enjoy immovable property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or atomised or of money, share, crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. The money, share, service or other thing to be rendered is called' rent'. 12. 'Licence' is a personal privilege to do something on the premises which otherwise would not be lawful. It does not create any interest or estate in the immovable property dealt with. On the other hand, 'lease' creates such an interest in the immovable property. 13. In Revenue Board v. A. M. Ansari (AIR. 1976 SC. 1813) the Supreme Court observed as follows in dealing with the distinction between 'lease' and 'licence'. "A close study of the above definitions shows that it is the creation of an interest in immovable property or a right to possess it that distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease. As to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case. For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential therefore, to look to the substance and essence of the agreement and not to its form. x x x 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." In determining whether an agreement creates, between the parties, the relationship of landlord and tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties. Though the grant of exclusive possession to the grantee may not in itself he conclusive, of the existence of the tenancy, it is nevertheless a consideration of sufficient importance and prima facie the grantee can be considered to be a tenant unless circumstances establish the contrary. The fact that exclusive possession is subject to certain reservations or restrictions as to the mode or purpose of enjoyment may not derogate from the grant operating as a lease. 14. we have to scrutinise the transaction evidenced by Ext. A2 in the light of these principles. The circumstances pointed out by us earlier in paragraphs 9 and 10 supra clearly indicate that the parties intended to create only a lease transaction between them. The document is of the year 1971. 14. we have to scrutinise the transaction evidenced by Ext. A2 in the light of these principles. The circumstances pointed out by us earlier in paragraphs 9 and 10 supra clearly indicate that the parties intended to create only a lease transaction between them. The document is of the year 1971. We are entitled to take note of the fact that in this State with its Land Reforms and Rent Control legislations, the parties who are literate and well informed were aware of the distinction between lease and licence. The intention of the parties has necessarily to be gathered primarily or in the first instance from the language used by them in the agreement, the substance of it, as opposed to the form. That is the first and manifest expression of their intent and what they intended to achieve under the transaction. It is a general principle that the intention which the framer of a document had In his mind when he brings it into existence is not the material factor, but what is incorporated in the document. The question is not what the writer of the document intended or meant (in his mind), but what a reasonable man reading the document as a whole would understand it to mean. The intention has thus to be gathered from the language of the document, explained if necessary by the circumstances and the conduct of the parties. Viewed in this angle there can be no doubt that Ext. A2 was intended only to be a lease and not a licence, 15. this view is reinforced by the conduct of the defendant himself. His plea in the reply notice Ext. A4 and in his original written statement was that he was a lessee, entitled to fixity of tenure. These are the earliest manifestations of the intention of parties, which is the crucial and determinative factor in the decision of this question. It was only subsequently that the defendant came forward with his case of licence. 16. We therefore bold that Ext. A2 evidences a transaction of lease and cot licence. We may also state that even if Ext. A2 were a licence, there is no evidence that the defendant had erected any permanent structures on the property. Hence the licence, does not become irrevocable as contended by the defendant. 17. 16. We therefore bold that Ext. A2 evidences a transaction of lease and cot licence. We may also state that even if Ext. A2 were a licence, there is no evidence that the defendant had erected any permanent structures on the property. Hence the licence, does not become irrevocable as contended by the defendant. 17. The further question is whether the option is that of the defendant, whether he should remove the structures and machinery, or receive the value of the improvements as fixed by mediators. We are not able to see in Ext. A2 any such option vested in the defendant. What is recited in Ext. A2 (executed by the defendant) is as follows: This only recognises the defendant's right either to remove the structures and machinery or to be paid the value of the same. It nowhere whispers about any right or option to the defendant to dictate to the plaintiff as to what shall be done with regard to the improvements. 18. This interpretation also stands to reason in that the plaintiff who has leased out the property to the defendant for a rent of Rs. 100/- per month with right to put up a sawmill could not have bargained for being improved out of his property by vesting an option with the defendant without his ever having a chance to get back the same, if the improvements made were substantial and of high value. 19. This view taken by us, apart from being warranted by the language of Ext. A2, is also in accord with the accepted position of law in this country. 19. This view taken by us, apart from being warranted by the language of Ext. A2, is also in accord with the accepted position of law in this country. As early as in 1866, it had been stated by Sir Barnes Peacock speaking for a Bench of five judges of the High Court at Calcutta as follows: "We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on land do not by the mere accident of their attachment to the soil, become the property of the owner of the soil, and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona-fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil - the option of making the building or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess." (Thakoor Chunder Poramanick v. Rumdhone Bhuttacharjee, VI Weekly Reporter 228). This principle of law has not so far been departed from. Actually it finds echo in S.51 of the Transfer of Property Act (which of course is not applicable in this case) under which it is now well established that the option is with the owner of the land and not with the transferee. 20. The lower court was therefore right in directing the defendant to vacate and surrender possession after removing the structures and machinery from the premises. No other points are raised before us. We dismiss the appeal, but without costs.