JUDGMENT - S.M. DAUD, J.:---An interesting question of jurisdiction arises in this appeal. 2. Appellant is the lesses of premises described as shop No. 3 and under an agreement dated 2-6-1955 (Ex. A), respondent was permitted to put up a wooden cupboard upon a portion of the said premises. The cupboard was to be used for storage, display and sale of hosiery and ready-made garments. The cupboard had a bulb for illumination of its contents. The consideration payable to appellant was Rs. 65/- per month inclusive or electricity charges. By notice dt. 2-11-1972 appellant claimed to have revoked the licence and called upon respondent to remove the cupboard. Respondent by reply dated 28-11-1972 set up the plea of being a tenant-the alleged tenancy being protested under the Bombay Rent Act. Faced with this reply, appellant filed a suit in the Civil Court seeking injunctions-mandatory and prohibitory. The first was that defendant remove the cupboard from shop No. 3 and the second that he do not refix the cupboard to the shop or any part thereof. Respondent in his written statement raised various defences including the plea that the suit was not within the jurisdiction of the Civil Court. Appellant instead of claiming possession as it was bound to had sought a mandatory injunction. This was seeking possession and clever drafting could not conceal the attempted circumvention of the exclusive jurisdiction vested in the Small Causes Court. To this, appellant's reply was that the cupboard was a chattel, that the permitted affixation thereof to the shop did not create an interest in the shop, that there was neither a lease nor a licence vis-a-vis immovable property and that the reliefs claimed were the ones solicitable and solely within the jurisdiction of Civil Court. A preliminary issue relating to jurisdiction was framed. The same having been answered against the appellant, it questions the finding in this appeal. 3. A proper understanding of the point for decision requires the mention of the relevant parts of Ex. A and the plaint. The preface to Ex. A speaks of the document having its origin in a request of the licensee addressed to the licensor to be allowed to "use and occupy...a portion of the shop". The purpose is specified as "installation therein a cupboard for exhibiting therein hosiery and ready-made clothes and for effecting the sales of the said articles". The preface to Ex. A speaks of the document having its origin in a request of the licensee addressed to the licensor to be allowed to "use and occupy...a portion of the shop". The purpose is specified as "installation therein a cupboard for exhibiting therein hosiery and ready-made clothes and for effecting the sales of the said articles". Clause 1 speaks of the licensor allowing the licensee a licence to occupy "only a portion of the shop". The object of the permitted occupation is given out to be "installing therein a cupboard". The uses to which the installed cupboard will be put to are "exhibiting hosiery and ready made garments for effecting sale of the said articles" Clause 2 reserves to the licensor the "use of the remaining portion of Shop No 3". The third clause enjoins the licensee to pay compensation and electricity charges aggregating Rs. 65/- p.m. for "use and occupation of the said portion". Clause 4 binds the licensee to pay increased compensation proprate if there be an enhancement of the property taxes pursuant to his "using and occupying the said portion for purposes aforesaid". Clause 7 says that the agreement does not in any way confer a tenancy upon the licensee. Clause 8 absolves the licensor of "any loss or damage which may be caused by pilferage or loss" to the licensee. The goods of the licensee in the cupboard were to be there "solely at the risk of the licensee". The plaint which is the sole basis for ascertaining jurisdiction at the stage at which the suit was, has now to be looked into. Para 2 speaks of respondent having been permitted to put a wooden cupboard upon a portion of the shop". Para 6 describes the refusal of the respondent to remove the wooden cupboard attached to the wail and he trellis of appellant's shop as an "act of trespass upon plaintiff's shop". The reliefs sought are a mandatory injunction to respondent "to remove his wooden cupboard from the portion of the plaintiff's shop" and a prohibitory injunction from putting up the said cupboard or any other cupboard "on the said portion of the plaintiff's said ship". 4. Mr. Dharmadhikari in support of the appeal reiterates the contentions raised before the trail Court. The permission to instal a cupboard on the trellis did not confer on respondent any interest in the shop. 4. Mr. Dharmadhikari in support of the appeal reiterates the contentions raised before the trail Court. The permission to instal a cupboard on the trellis did not confer on respondent any interest in the shop. The injunctions claimed were not a disguise for the relief of possession. Respondent did not possess any portion of the shop. The affixation of the cupboard to the trellis did not amount to the creation of an interest in the shop. Counsel presses for acceptance the decisions of Single Judges of this Court in (M/s. Mathurbai v. Thakurdas)1, C.R.A. No. 973 of 1963 decided on 13-8-1984 and (Porbunderwala v. Gulam Hussain)2, A.I.R. 1974 Bom 288. The factual position in the two decisions has to be examined with some care lest their ratio be misconstrued. In M/s. Mathurabai, the premises were a stall No. 5 comprised of a cup-board fixed to the outer wall by means of nails-the said wall being the exterior of premises let out on a monthly rental to the licensor of that case. The point arising for determination was whether the above stall could be termed "premises" within the meaning of section 5(8) of the Bombay Rent Act (Act 57 of 1947). A difference in the verdicts of the Court of first instance and the appellate bench, brought the licensor to this Court by way of a revision. The point arising for determination was whether the above stall could be termed "premises" within the meaning of section 5(8) of the Bombay Rent Act (Act 57 of 1947). A difference in the verdicts of the Court of first instance and the appellate bench, brought the licensor to this Court by way of a revision. Taken as the bench-mark were the following passages from Hill and Redman's "Law of Landlord and Tenant", 12th edition, page 530 and Halsbury's "Laws of England", 2nd edition, Volume 20, under paragraph 107 respectively:--- "Where an article is actually attached to the land or to a building the rule to determine whether it is a chattel of a fixture, is to consider in the first place whether it can be removed without irreparable damage to itself or to the land or building, and in the text place whether the annexation was for the permanent and substantial improvement of the freehold of merely for a temporary purpose, or for the more complete use and enjoyment of it as a chattel." "Whether a chattel has been so affixed to land or buildings as to become a fixture depends on the object and purpose of the annexation, and if the chattel can be removed without doing irreparable damage to the premises, neither the method nor the degree of annexation, nor the quantum of damage that would be done to the chattel or to the premises by the removal, affect the question save in so far as they throw a light upon the object and purpose of the annexation. If the object and purpose was for the permanent and substantial improvement of the land or building the article will be deemed to be a fixture, but if it was attached to the premises merely for a temporary purpose or for the more complete enjoyment and use of it as a chattel, then it will not lose its chattel character and it does not become part of really." This Court on the basis of the (a) easily removability of the cupboard, (b) attachment of the cupboard to the outer wall not referable to the more beneficial enjoyment of the hotel or its outer wall and (c) the unnaturalness of the licensor who was a tenant permitting the affixation of the cupboard with the object of making a permanent addition of fixture to the tenement held that the stall was a chattel and not a fixture entitling it to the status of "premises" within the meaning of section 5(8) of the Rent Act. Porbandarwala (supra) again is the case of a stall like cupboard hanging on the outside wall of a shop. On this basis it was held that the ordinary Civil Court and not that under section 28 of the Rent Act had jurisdiction to try the suit. Both these decisions are an application of the principle incorporated in the passages reproduced above. 5. To turn to the cupboard in the present suit, it is annexed to a portion of the shop. This portion of the shop has been utilised for installing therein the suit cupboard. Bar this portion the "remaining portion of the shop" is to be used by the licensor. Apart from the agreed compensation and electricity charges, the licensee has undertaken to reimburse the licensor for the increase in taxes pursuant to the use and occupation permitted under the agreement. It may be argued, and, rightly so, that the issue of jurisdiction has at the inception to be ascertained on the basis of the recitals appearing in the plain . Here also para 2 speaks of respondent having been permitted to put up a wooden cupboard "upon a portion of the plaintiff's shop". Para 6 recites that the cupboard is attached to the wall and the trellis of the plaintiff's shop. The relief clauses speak of defendant being directed to remove his cupboard from and restrained from reinstalling the same upon a "portion of plaintiff's shop". Para 6 recites that the cupboard is attached to the wall and the trellis of the plaintiff's shop. The relief clauses speak of defendant being directed to remove his cupboard from and restrained from reinstalling the same upon a "portion of plaintiff's shop". What is unmistakeable from the above position is that a portion of the shops not its exterior or outer wall has been made available by the licensor to the licensee. This portion has been utilised for the affixation of a cupboard. To the extent of this annexation, the licensor is excluded, while retaining dominion over the remaining area of the shop. The annexation here is by appropriation of a part of the shop premises. The argument that the cupboard can be easily detached and without irreparable damage to the shop is one aspect of the problem. The space rendered vacant will not be an outer wall but a part of the shop. Counsel stresses the intention feature and argues that as in M/s. Mathurabai (supra), plaintiff could not have even thought of conferring on defendant an interest in the tenanted premises. But Ex. A and the plaint indicate the contrary. In fact Ex. A shows plaintiff protecting itself against a possible increase in the property tax pursuant to the transaction incorporated therein. The power to revoke at will is cited as a circumstance negativing the creation of an interest in realty. Like clauses are to be found in tenancy contracts without making any difference to the legal position. 6. Mr. Dharmadhikari posses the dominant purpose feature of Ex. A relying for this purpose upon (Dwarka Prasad v. Dwarka Das Saraf)3, A.I.R. 1975 S.C. 1758. The argument is developed thus plaintiff allowed defendant to instal a cupboard to store: display and sell his wares. The dominant purpose was to give him place to all this not to create an interest in his favour vis-a-vis the shop. Use of a part of the shop's wall or its trellis as a rest, was a bare permission uncoupled with an interest in real property. It is difficult to agree with this submission. A part of the demised property was carved out of the shop. This part was to be the site for the installation of the cupboard. The cupboard was the exclusive property of defendant. It is difficult to agree with this submission. A part of the demised property was carved out of the shop. This part was to be the site for the installation of the cupboard. The cupboard was the exclusive property of defendant. As long as the agreement remained in force, plaintiff could not make any other use of the space occupied by defendants cupboard. The installation of the cupboard was not to enable use of space in plaintiff's occupation for mere display of defendant's wares. The said receptacle was meant also for storage and sale of defendant's goods. The dominant intent test is also of no assistance to appellant. Counsel lastly submits that the cupboard is mere furniture and having regard to the attendant circumstances its annexation to the premises must not be inferred as creating an interest in the latter. Once the cupboard was 'installed' it would not be a mere chattel. In (Poona Municipal Corporation v. Shankar Ramkrishna Jabade)4, LX.B.L.R. 25 it was observed :--- "Therefore in deciding whether furniture falls in one category or the other, we agree with Mr. Kotwal and that is what the decisions lay down as we shall presently point out that the two tests that we have to apply are, one, the nature and extent or degree of annexation to the property, and the other is the object, intention or purpose of the annexation. Turning to the first test, what has got to be considered is how permanent is the annexation. Is the furniture solidly fixed to the building? Has it become a part of the structure itself ? Turning to the second test, the purpose or object or intention of the annexation, what has got to be considered, as we have already pointed out, is whether the furniture is for the permanent enjoyment of the furniture itself or for the permanent enjoyment of that to which it is attached." That the cupboard is removable me be assumed in plaintiff's favour for the case or difficulty therein and the extent of damage resulting consequent to the removal are matters of which a subjective view can be taken. The contention that the cupboard can never be linked to the permanent or more beneficial enjoyment of the shop remains to be considered. It is argued the plaintiff does not in any way enjoy the cupboard. The contention that the cupboard can never be linked to the permanent or more beneficial enjoyment of the shop remains to be considered. It is argued the plaintiff does not in any way enjoy the cupboard. Nor does its existence contribute in any way to the enjoyment of the shop. What this argument overlooks is the profit that is yielded by the giving of the space to the defendant. Plaintiff gets a monetary benefit out of the deprivation of the space or its use by defendant. Instead of letting the space go idle, plaintiff preferred to give it to defendant for a consideration. That the bargain now turns out to be to plaintiff's disadvantage is neither here nor there. At the time of Ex. A's execution plaintiff entertained a different opinion. The purpose or object of the annexation was to enable a permanent and more lucrative enjoyment of that to which it was attached. Consequently it must be held that the suit cupboard is a fixture and not a chattel. 7. Having regard to the foregoing the impugned verdict must be upheld. Hence the order. ORDER Appeal dismissed with parties left to bear their own costs. Appeal dismissed. -----