JUDGMENT K. M. Agarwal, J.- 1. This is defendant's second appeal against the judgment and decree of the lower appellate Court, affirming the decree for ejectment passed by the trial Court. It was admitted for hearing on 11-4-1989 on the following substantial question of law :- "Whether the Courts below committed any error in holding that the suit plot and superstructure was given under a licence and not under a lease"? 2. In his suit for ejectment and damages, the plaintiff asserted that the suit accommodation was given on licence to the defendant. Under the licence, the accommodation was being used by the defendant for the purpose of carrying on his business under the name and style of "Raza Small Industries". The licence was revoked with effect from 15-3-1985 by a registered notice dated 5-3-1985, but instead of vacating the accommodation, the defendant claimed himself to be the tenant in respect of the suit accommodation and also sent a cheque for Rs. 250/- by way of rent for two months. In his reply dated 14-3-1985, the plaintiff denied the defendant’s claim as a tenant and, thereafter tiled the suit for ejectment and carnages at the rate of Rs. 20/- per day. The defendant denied the plaint allegations and asserted that he had taken the suit plot on a monthly rent of Rs. 125/- from the plaintiff and was carrying on his business under the name and style of "Raza Small Industries", after constructing the superstructure on the suit plot. The trial Court decreed the suit for ejectment by holding the defendant to be a licensee in respet of the suit accommodation, but dismissed the suit for damages. Being aggrieved, the defendant preferred an appeal before the lower appellate Court and the plaintiff preferred a cross-objection against dismissed of his suit for damages. By its impugned judgment and decree, the lower appellate Court was pleased to dismiss the appeal but to allow the cross-objection of the plaintiff by decreeing his suit for damages at the rate of Rs. 125/- per month. Aggrieved by the decree for ejectment, the defendant preferred this second appeal, which was admitted for hearing on the aforesaid substantial question of law. 3. 125/- per month. Aggrieved by the decree for ejectment, the defendant preferred this second appeal, which was admitted for hearing on the aforesaid substantial question of law. 3. The short controversy between the parties is about the nature of the transaction between them, The learned counsel for the appellant argued that it was a lease and cited Khalil Ahmed v. Tufelhussein Samasbhai AIR 1988 SC 184 , in support of his argument. On the contrary, it was urged on behalf of the respondent that it was a licence by placing reliance on Rajbir Kaur, v. S. Chokesiri & Co. (1989) 1 SCC 19 ; Maniar Ismail v. Maniar Fakruddin (1989) 2 SCC 685 , and Sant Lal Jain v. Avtar Stngh (1985) 2 SCC 332 . 4. In Ag. Secy. Board of Rev v. S.I.Ry. Co. AIR 1925 Mad. 434 (FB)., it was held that in both the cases of lease and licence certain rights are conferred on the lessee or the licensee. In the case of a licence, something may be paid as consideration for allowing a person to do an act on another man's land. Both have several elements in common, but the difference between a lease and a licence is that in the case of a licensee there is no interest in immovable property transferred to the licensee while in the case of a lease there is a transfer or carving out of the interest in favour of the person in whose favour the lease is granted. One chief consideration is whether there is any right of exclusive possession given. When a document is clear and unambiguous we cannot go outside its terms for the purpose of determining the stamp duty but where it is otherwise........ the question is whether, having regard to the purpose of the agreement and the terms in which it is expressed, the document can be said to confer any interest in the land on the licensees". In Mrs. M. N. Clubwala v. Fida Hussain , Saheb AIR 1965 SC 610 ., it was emphasised by the Supreme Court that if the exclusive possession to which a person was entitled under an agreement with landlord was coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. In Mrs. M. N. Clubwala v. Fida Hussain , Saheb AIR 1965 SC 610 ., it was emphasised by the Supreme Court that if the exclusive possession to which a person was entitled under an agreement with landlord was coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. In Sohan Lal Naraindas v. Laxmidas Raghunath Gadit (1971) 3 SCR 319 , it was reiterated that the test of exclusive possession was an important point in deciding any transaction to be a lease or a licence. In Qudrat Ullah v. Municipal Board, Bareilly AIR 1974 SC 396 , it was observed that there is no simple litmus test to distinguish a lease as defined in section 105 of the Transfer of Property Act from a licence as defined in section 52 of the Easements Act, but the character of the transaction turns on the operative intent of the parties. In Khalil Ahmed v. Tufelhussein Samasbhai (supra) the Supreme Court stated the principle for distinguishing a lease from a licence and thereafter came to the conclusion that the particular transaction under consideration was a licence in the following passage of its judgment :- "To put precisely if an interest in immovable property entitling the transferee to enjoyment was created. it was a lease; if permission to use, land without exclusive possession was alone granted a licence was the legal result. We are of the opinion that this was a licence and not a lease as we discover the intent for this purpose reference may be made to the language used and the restrictions put upon the use of the premises in question by the appellant. In the document in question the expression 'licence' was introduced and Cl. (2) said that it was only for the business purposes. The licence fee was fixed. It permitted user only for 20 hours. Restriction in the hours of work negates the case for a lease. Clause (12) is significant which gave to the licensor the right to enter upon the premises and inspect the same at any time. (2) said that it was only for the business purposes. The licence fee was fixed. It permitted user only for 20 hours. Restriction in the hours of work negates the case for a lease. Clause (12) is significant which gave to the licensor the right to enter upon the premises and inspect the same at any time. In our opinion the background of the facts of this case and the background of the entire document negate the contention of the appellant that it was a lease and not a licence," In the present case, there is no difficulty in holding that the exclusive possession of the suit accommodation was given to the appellant by the respondent. In paint para 2, It was s at t e defendant was occupying the suit accommodation as licensee of the plaintiff and was doing his business in the name of "Raza Small Industries". In his deposition as P.W.1, the respondent stated that the appellant was in acute need of the suit accommodation and, therefore, he had given it to him on licence. Sheikh Usuf (PW 2) stated in paragraph 1 of his deposition that as per document dated 15-5-1978 (Ex. P.1) he had sold the superstructure on the suit land to the plaintiff and in paragraph 4 of his deposition he has stated that some days thereafter, the appellant came into possession thereof Similar evidence as given by Moho. Hanif (PW 3). In paragraph 2 of his deposition, Mohd. Hanif further stated that the appellant Sher Khan was in possession of the suit accommodation for about a period of 10 years. There is nothing in the evidence of the plaintiff or in that of any of his witnesses to indicate that the possession given to the appellant was not exclusive or that the possession was restrictive in any sense. Now the difficulty arises when one proceeds to look at the operative intent of the parties, because the transaction was oral and not in writing. Since the plaintiff's case was based on a licence the burden as on him to prove/that the transaction was a licence and not a lease, I am of the view that the respondent utterly failed to discharge the burden. Since the plaintiff's case was based on a licence the burden as on him to prove/that the transaction was a licence and not a lease, I am of the view that the respondent utterly failed to discharge the burden. Only because the respondent denied any agreement about payment of rent of the suit accommodation or the appellant failed to Provo the agreement for payment of rent by production of any rent receipt, the transaction between them cannot be said to be that of a licence. As pointed out by the Supreme Court in Rajbir Kaur v. S. Chokesiri & Co (supra), in appropriate cases it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration, i.e., rent in mind. From the evidence brought on record there appears no reason why the respondent would have obliged the appellant by allowing him to enter into exclusive possession of the suit accommodation for a considerable length of time for no consideration and with a control of his own over the suit accommodation. It must, therefore, be inferred that there was an agreement between the parties for payment of rent and that the transaction between the parties was that of a lease and not that of a licence. 5. The decision of the Supreme Court in Maniar Ismail v. Miniar Fakruddin (supra) relied on by the learned counsel for the respondent lays down that the High Court in second appeal is not justified in reversing the finding of facts of the Court below. There can be no dispute with the principle laid down by the Supreme Court but according to me erroneous conclusions of law arrived at by the Courts below on proved facts would certainly be a question of law, liable to be reversed in second appeal under section 100 CPC. In the present case, the facts were not at all in dispute but without keeping in mind the cardinal distinction between a lease and a licence, the Courts below recorded a wrong conclusion that the transaction between the parties was a licence and not a lease. Accordingly I see no reason why such a finding of the Courts below cannot be reversed in this second appeal. The other two cases relied on by the learned counsel for the respondent do not support the case of the Respondent. Accordingly I see no reason why such a finding of the Courts below cannot be reversed in this second appeal. The other two cases relied on by the learned counsel for the respondent do not support the case of the Respondent. Sant Lal Jain v. Avatar Singh (supra) is quite distinguishable on facts and needs no consideration. The case of Rajbir Kaur (supra) has been dealt with earlier and is, in fact against the respondent. 6. It may be made clear that the appellant bas not challenged the decree for damages at the rate of Rs. 125/- per month given by the lower appellate Court. Court fee on this second appeal was paid only on the valuation made by the plaintiff on his claim for ejectment. No Court fee on plain6ff's claim for damages was paid by the appellant. Further, all along the appellant bas been admitting his liability for payment of Rs. 125/-per month to the respondent in respect of the suit accommodation. I am, therefore, of the view that the decree for damages at the rate of Rs. 125/- per month granted to the respondent by the lower appellate Court calls for no interference in this second appeal. 7. For the foregoing reasons, this second appeal succeeds and it is hereby allowed. The impugned judgments and decrees of the Courts below for ejectment of the appellant from the suit accommodation are hereby set aside. However, the decree for damages granted by the lower appellate Court in favour of the respondent is maintained. In the circumstances of the case, I make no order as to costs of this second appeal.