G. B. PATTANAIK, J. ( 1 ) BOTH these appeals are directed against one and the same judgment of the subordinate Judge, Bargarh, in Title Suit No. 85 of 1970. Defendants 1 to 3 are the appellants in First Appeal No. 184 of 1978 and plaintiffs are the appellants in First Appeal No. 229 of 1978. ( 2 ) PLAINTIFFS filed the suit for a decree for recovery of possession of the building described in Schedule-A of the plaint, for delivery of the mortgage deed and a sum of Rs. 5,400/- towards compensation for illegal occupation of the suit house from 1-12-1967 till 31-10-1970 and for further compensation as may be decreed by the Court till the possession of the suit property is delivered to the plaintiffs. It is alleged in the plaint that the disputed property was the self-acquired property of plaintiffs 3 and 4 and they had constructed the building on the land. For the construction of the said building, plaintiff No. 3 had taken a loan of Rs. 5,000/- from the father of defendants 4 and 5 by executing a deed of mortgage and gave him possession over the building. But as the building was under construction it was agreed that plaintiffs 3 and 4 would pay Rs. 50/- per month towards interest at 12 per cent, per annum for the principal amount advanced to the father of defendants 4 and 5 who would allow construction of the building by plaintiffs 3 and 4. The building was constructed by plaintiffs 3 and 4, but the finishing had not been done, as plaintiff No. 4 fell ill. Defendants 1 to 3 against the wishes of plaintiffs 3 and 4 took a temporary electric connection and are staying in the said house. Plaintiffs 3 and 4 in the meantime sold the building with the site to plaintiffs 1 and 2 for valuable consideration and gave them symbolical possession of the building. Although plaintiffs 3 and 4 promised to execute a regular sale deed, but they could not do so on account of illness of plaintiff No. 4, but duly authorised plaintiffs 1 and 2 to redeem the mortgage, pay Government dues and evict defendants 1 to 3 and recover possession of the land. Although plaintiffs 3 and 4 promised to execute a regular sale deed, but they could not do so on account of illness of plaintiff No. 4, but duly authorised plaintiffs 1 and 2 to redeem the mortgage, pay Government dues and evict defendants 1 to 3 and recover possession of the land. In accordance with the said agreement, plaintiffs 1 and 2 have paid all the Government dues, paid the mortgage amount to the mortgagee on 31-10-1967 and also had paid the full consideration money that was payable to plaintiffs 3 and 4. They requested defendants 1 to 3 to vacate the land, but as the defendants did not vacate, the suit was filed. According to the plaint case, Rambharosa Sukla, the original mortgagee, died in June, 1969, and defendants 4 and 5 being his legal representatives were impleaded in the suit. ( 3 ) DEFENDANTS 1 to 3 filed a written statement denying the allegations made in the plaint and according to their case, they were occupying one of the houses of plaintiff No. 1 as a tenant paying monthly rent of Rs. 50/ -. When the Court of the subordinate Judge was opened at Bargarh, there was no residential building for the subordinate Judge and, therefore, the members of the Bar including plaintiff No. 1 requested defendants 1 to 3 to vacate the house. The defendants agreed to vacate if they were provided with an alternative accommodation and, therefore, plaintiff No. 1, defendant No. 4 and the members of the Bar arranged the suit house for the occupation of defendants 1 to 3 which was then incomplete. Advocate Shri G. S. Shukla who is defendant No. 4 initially objected for the house being given on rent, but on the request of other members of the Bar he consented. The defendants thereafter spent a heavy amount for making the house habitable and shifted to the house. The rent for the house was fixed at Rs. 50 /- and the defendants had been paying that rent to said Shri Shukla from February, 196 6/10/1967. It is the further case of the defendants that there has been some payment thereafter and their tenancy not having been determined in accordance with law, the suit for eviction is not maintainable. The rent for the house was fixed at Rs. 50 /- and the defendants had been paying that rent to said Shri Shukla from February, 196 6/10/1967. It is the further case of the defendants that there has been some payment thereafter and their tenancy not having been determined in accordance with law, the suit for eviction is not maintainable. ( 4 ) DEFENDANT No. 4 filed a separate written statement and according to his case, his father was the mortgagee in respect of the disputed premises and was put in khas possession of the land. Later on for convenience on mutual agreement and consent, defendants 1 to 3 occupied the building and are still staying. The allegations made in the plaint were denied. It was also denied that plaintiffs 1 and 2 had paid the mortgage amount in full to the mortgagee, Rambharosa Shukla. ( 5 ) ON those pleadings, the learned trial Judge framed 9 issues and on issue No. 7 which is the issue with regard to jurisdiction came to hold that in view of Section 20 of the Orissa House Rent Control Act, the provisions of the said House Rent Control Act would not apply and, therefore, the Civil Court would have jurisdiction to try the suit. On issues Nos. 2, 4 and 6, the learned trial Judge found that defendants 1 to 3 were monthly tenants in respect of the suit house on a monthly rent of Rs. 50/- and they were not in wrongful possession of the suit house. He further found that Panchanan Padhan (plaintiff No. 3) accepted the house rent at the rate of Rs. 50 /- per month from defendants 1 and 2 which was directly being paid to defendant No. 4, as Panchanan was liable to pay the same amount to defendant No. 4. Further plaintiff No. 3 received Rs. 1,050/- towards house rent from defendants 1 to 3 which was paid by them to defendant No. 4 as per his direction. The conduct of defendants 1 to 3 appeared to be reasonable and they could not be termed as in wrongful possession of the suit house when they ceased to pay the rent after receipt of Ext. B Defendants 1 to 3 were tenants in respect of the suit house while the suit house was under mortgage with defendant No. 4. Ext. B Defendants 1 to 3 were tenants in respect of the suit house while the suit house was under mortgage with defendant No. 4. Ext. 3 did not comply with the provisions of Section 106 of the Transfer of Property Act and defendants 1 to 3 not being in wrongful occupation of the house were not liable to pay any compensation. On issue No. 8, the learned trial Judge came to hold that the mortgage had been redeemed and Panchanan became the full owner of the house in question. On issue No. 5 it was held that the plaintiffs were liable to pay a sum of Rs. 1564. 35 paise to the defendants or to adjust the said amount towards rent. The learned trial Judge on issue No. 1 held that defendants 1 to 3 were not in wrongful possession of the house and on issue No. 9 came to hold that no compensation could be decreed as the possession was not wrongful. But so far as the ownership of the house by plaintiff No. 1 is concerned, it was held that plaintiffs 1 and 2 could be declared to be owners of the house and defendants were liable to give vacant possession of the house to said plaintiffs 1 and 2. The mortgage being redeemed, the mortgage document should be returned to plaintiffs 1 and 2, but no compensation could be decreed as possession of defendants 1 to 3 could not be laid to be wrongful at any point of time. On these findings, the suit was decreed in part on contest against the defendants and plaintiffs were directed to get recovery of possession of 'a' Schedule property and get back the mortgage deed executed in favour of Rambharosa Shukla, father of defendants 4 and 5 and defendants 1 to 3 were directed to give delivery of vacant possession. It is against this direction to defendants 1 to 3 to give delivery of vacant possession that they have come up in appeal which has been registered as First Appeal No. 184 of 1978 and it is against the rejection of plaintiffs' claim for compensation that plaintiffs 1 and 2 have come up in appeal which has been registered as First Appeal No. 229 of 1978. ( 6 ) MR. ( 6 ) MR. Basu, the learned counsel for the defendants-appellants raises the following contentions in assailing the judgment and decree of the trial Judge :- (i) In view of the finding that defendants 1 to 3 were inducted as tenants and in view of the further finding that the tenancy has not been determined in accordance with Section 106 of the Transfer of Property Act, the direction for eviction of the tenants is illegal, invalid and inoperative and the judgment must be set aside; (ii) The mortgage in question was not a usufructuary mortgage but was a simple mortgage that was executed as security for the loan amount of Rs. 5,000/ -; and (iii) Plaintiff No. 1 not having purchased the land from plaintiffs 3 and 4, there is no title with plaintiff No. 1 and, therefore, the suit will not be maintainable. Mr. Sinha, the learned counsel appearing for the plaintiffs-respondents, on the other hand, contends that the finding that defendants 1 to 3 are tenants cannot be sustained on the material on record and the possession of defendants 1 to 3 could be that of a licensee. In that view of the matter, for eviction of defendants 1 to 3, compliance of Section 106 of the Transfer of Property Act is not necessary. Mr. Sinha then urges that even if it is held that defendants 1 to 3 were tenants then there has been due termination of the tenancy and provision of Section 106 of the Transfer of Property Act has been complied with. The learned counsel further urges that in any view of the matter, possession of defendants 1 to 3 cannot be held to be lawful and plaintiffs' title having been admitted, defendants 1 to 3 are liable to give vacant possession of the premises. Lastly, he contends that the Trial Judge committed an error in rejecting the plaintiffs' claim for compensation. ( 7 ) IN view of the rival submissions of the parties, the first question that requires to be answered is whether defendants 1 to 3 were inducted as tenant in respect of the suit premises and if so, by whom? Lastly, he contends that the Trial Judge committed an error in rejecting the plaintiffs' claim for compensation. ( 7 ) IN view of the rival submissions of the parties, the first question that requires to be answered is whether defendants 1 to 3 were inducted as tenant in respect of the suit premises and if so, by whom? It is the settled position that in order to establish the relationship of landlord and tenant, the necessary ingredients have to be satisfied, the ingredients being there must be a lessor who must be capable of giving the lease; there must be a lessee who is capable of taking the things demised; there must be a thing demised which must be demisable; if the demise in question is required to be granted by a deed, then a deed must be there and if it is a lease for years, it must have a certain commencement when it takes effect and a certain determination and lastly there must be an acceptance of the thing demised. Unless all these conditions are satisfied, it cannot be said to be a lease. The expression "lease" has been defined in Section105 of the Transfer of Property Act to mean a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of 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. According to defendants 1 to 3, the members of the Bar including plaintiff No. 1 and defendant No. 4 arranged the house in suit which was then incomplete and wanted those defendants to shift. Plaintiff No. 3 who was the owner of the house gave his consent, but defendant No. 4 who was the mortgagee objected to it and later on consented to the occupation of the house by the defendants till another suitable house is provided for them. The rent of the house was fixed at Rs. 50/ with the consent of plaintiff No. 3 and defendant No. 4 and accordingly defendants paid the same to Shri Shukla. The rent of the house was fixed at Rs. 50/ with the consent of plaintiff No. 3 and defendant No. 4 and accordingly defendants paid the same to Shri Shukla. From the averments made, it is not possible to pinpoint as to whether it is the mortgagor (plaintiff No. 3) who had inducted defendants 1 to 3 as tenants or it is the mortgagee (defendant No. 4) who inducted defendants 1 to 3 as tenants. In fact, a positive case of tenancy has not been made out and, on the other hand, the averments in the written statement of defendants 1 to 3 suggest that members of the bar prevailed upon the owner of the house as well as the mortgagee to permit defandants 1 to 3 to continue in the house until an alternative accommodation was available. On this pleading it is difficult for me to accept the contention of Mr. Basu and to sustain the finding of the court below that in terms of Section 105 of the Transfer of Property Act, there was in fact a lease of the premises in question in favour of defendants 1 to 3 so as to confer some right or interest in the property and so as to permit them to continue until the lease is lawfully determined in accordance with Section 106 of the Transfer of Property Act. On the other hand, the evidence of P. Ws. 1 and 2 and D. Ws. 1 and 2 when analysed would indicate that in the exigencies of the situation at the intervention of the members of the Bar, defendants 1 to 3 were granted permissive occupation of the premises which in law would be that of a licensee until a suitable accommodation was made available for them. Mr. Basu, the learned counsel for the defendants-appellants, vehemently argues that the fact that defendants 1 to 3 were delivered possession of the premises and were paying rent for a substantial period would indicate that it was a lease of the premises that had been granted and, therefore, the possession of defendants 1 to 3 was not that of a licensee but of a lessee. But exclusive possession itself is not decisive in favour of a lease and against a mere licence and whether a transaction is a lease or a licence turns on the intention of the parties and there is no single litmus test to distinguish one from the other. Admittedly, the premises in question belongs to plaintiff No. 3 and on the date defendants 1 to 3 were permitted to occupy, it was under a mortgage with defendant No. 4. The evidence on record does not disclose any contract between the mortgagee and defendants 1 to 3 pursuant to Which defendants 1 to 3 occupied the premises and paid rent to him so as to create a lease in their favour by the mortgagee. The averments in the written statement that members of the Bar put defendants 1 to 3 in possession will not constitute lease in favour of defendants 1 to 3 as the members of the Bar had no right, title or interest over the property. There was no payment of rent to plaintiffs 3 and 4 though according to defendants 1 to 3 the amount was being paid to defendant No. 4 on the instruction of plaintiffs 3 and 4. In the premises, as aforesaid, I am of the opinion that there had been no lease in favour of defendants 1 to 3 in respect of the premises in question and in the peculiar circumstances, they were permitted to occupy the premises as licensee on payment of licence fee of Rs. 50/- per month and since the premises was on mortgage, the said licence fee was required to be paid to defendant No. 4. Disagreeing with the learned Trial Judge, I hold that there has been no lease of the suit premises in favour of defendants 1 to 3 and, therefore, they cannot claim any right over the same and for eviction of a licensee, it is not necessary to comply with the formalities of Section 106 of the Transfer of Property Act. So far as the appeal of defendants 1, 2 and 3 is concerned, Mr. Basu for the appellants fairly states that if it is held that they are not lessees in respect of the suit premises, then their appeal is bound to fail and no other point is required to be considered. So far as the appeal of defendants 1, 2 and 3 is concerned, Mr. Basu for the appellants fairly states that if it is held that they are not lessees in respect of the suit premises, then their appeal is bound to fail and no other point is required to be considered. In view of my conclusion that they have failed to establish a case of lease, the impugned judgment must be sustained though for reasons other than those indicated by the learned Trial Judge. ( 8 ) IN this connection it will be necessary to consider the question of rights of plaintiffs 1and 2 even though plaintiffs 3 and 4 are parties. Though defendants 1 to 3 deny the title of plaintiffs 1 and 2, yet in view of the admission of plaintiff No. 3, it is no longer open for the defendants to assail the same and it must be held that plaintiffs 1 and 2 are the title-holders in respect of the property in question. The finding of the learned Trial Judge on that score is, therefore, unassailable. In the premises, as aforesaid, First Appeal No. 184 of 1978 at the instance of defendants 1 to 3 must fail. ( 9 ) COMING to the other first appeal by the plaintiffs, Mr. Sinha for the appellants vehemently argues that the possession of defendant to 3 must be held to be unauthorised and, therefore, they must be liable to pay compensation. I do not find any substance in the aforesaid contention, inasmuch as there are overwhelming evidence to indicate that defendants 1 to 3 were given possession of the premises with the consent and knowledge of the mortgagor and the mortgagee of the premises in question and, therefore, defendants 1 to 3 had the authority to occupy the premises as licensees. The non-payment on their part during the subsequent period is on account of the rival claims with regard to the title of the land and, therefore, the learned Trial Judge was wholly justified in rejecting the claim of the plaintiffs for damages and compensation. In my considered opinion, there is no material to dislodge the said conclusion of the learned Trial Judge and hence First Appeal No. 229 of 1978 filed at the instance of the plaintiffs is also liable to be rejected. In my considered opinion, there is no material to dislodge the said conclusion of the learned Trial Judge and hence First Appeal No. 229 of 1978 filed at the instance of the plaintiffs is also liable to be rejected. ( 10 ) IN the net result, therefore, both the First Appeals fail and are dismissed, but there will be no order as to costs. Appeals dismissed.