K. G. SHAH, J. ( 1 ) THIS appeal is directed against the judgment and decree dismissing the plaintiffs suit with costs, passed by the learned Civil Judge (S. D.) Kachehhi Bhuj. in Special Civil Suit No. 84 of 1977. The facts of the case may briefly be stated as follows: ( 2 ) ONE Haridas Kevalram was the owner and landlord of Shop No. D-23 situated at Gandhidham, Kachchh. He gave that shop on lease to thadharam Chawla, the father of appellant Nos. land 3 and the husband of Appellant No. 2 in or before 1951. In that shop, Thadharam was doing some business. From January 1,1959, Thadharam gave that shop to respondent No. 1 under various documents executed from time to time. Upto a certain time, those documents were executed by and between respondent No. 1 on one hand and thadharam on the other, and thereafter, by and between respondent No. 2 on one hand and the said Thadharam on the other. It appears that Thadharam died sometime in October 1966, and thereafter some litigations, to which I will have an occasion to refer hereafter, arose between the present appellants, respondents and the origninal owner Haridas. On September 20,1972, an agreement Exh. 129 came to be executed by and between the appellants on one hand and the two respondents on the other. That agreement is captioned as" Agreement to run a Business". The suit, from which this appeal arises is based upon that agreement. ( 3 ) IN the Plaint, the appellants contended that they are the owners and proprietors of the business concern of restaurant which is being carried on under the name and style of M/s. Chawla Cafe and Milk Bar, being run in the shop bearing No. D- 22-23 situated at Gandhidham and they are also the owners of the Ice Candy business, carried on in the said shop. According to the appellants, all the properties like furnitures, fixtures, fittings, machinery and other articles of the business belong to them. It is the case of the appellants that the said business was established by Thadharam chawla in or about 1951 A. D. and Thadharam chawla was the sole prroprictor of that business. The appellants contend that Thadharam Chawla had also installed in the aforesaid shops an Ice candy plant for manufacturing ice candy and had established a good business having a good will. The appellants contend that Thadharam Chawla had also installed in the aforesaid shops an Ice candy plant for manufacturing ice candy and had established a good business having a good will. The two respondents are brothers inter se. It is the case of the appellants that under the agreement, dated September 20, 1972 (Exh. 129), they granted a licence to the two respondents for manufacturing ice candy and to run the business concern in the name of M/s Chawla Cafe and milk Bar, for a period of five years, on the terms and conditions cnumerated in that agreement. It is further the case of the apppellants that this licence for manufacturing ice candy and to run the business of the Cafe and Milk Bar was given by them to the respondents, as a running business, with all its furnitures, fixtures, fittings, utensils, trade name and style as also all the facilities which were fixed in the business premises, including radio, telephone, etc. and a list of these articles has been attached to the aforesaid agreement Exh. 129. The appellants contend that under the agreement, the respondents were liable to pay to them licence fee of Rs. 475/- per month for manufacturing ice candy and to run the business of Cafe and Milk Bar and for the use of furnitures, fixtures, etc. ( 4 ) IN the plaint, the appellants have referred to certain earlier litigations between the parties. According to the appellants, the period of five years fixed under the licence agreement dated september 20, 1972 expired on September 19, 1977 and as the respondents did not express their desire for renewal of the licence in terms of the aforesaid licence agreement, the appellants informed the respondents by notice dated September 2, 1977 to hand over back the charge of the business of M/s. Chawla Cafe and Milk Bar on september 20, 1977 and to pay all the arrears of licence fees. However, as the respondents did not comply with the demand made by them, the appellants filed the suit. It is the case of the appellants that the respondents have no right to remain in charge of the business of M/s. Chawla cafe and Milk Bar after September 20, 1977 and the appellants are legally entitled to take back the charge of the said business concern along- with all its futnitures, fixtures, machinery, etc. from the respondents. It is the case of the appellants that the respondents have no right to remain in charge of the business of M/s. Chawla cafe and Milk Bar after September 20, 1977 and the appellants are legally entitled to take back the charge of the said business concern along- with all its futnitures, fixtures, machinery, etc. from the respondents. ( 5 ) IN the plaint, the Appellants also contended that the respondents have committed breaches of the licence agreement inasmuch as they did not pay the licence fee regularly in terms of the licence agreement. Further according to the appellants in breach of the terms of the licence agreement, the respondents have illegally claimed tenancy rights in the premises, wherein the business of Cafe and Milk Bar is situated. It is also the grievance of the appellants that in breach of the terms of the licence agreement, the respondents have carried out changes in the premises in which the aforesaid business is being run. According to the appellants therefor, the licence agreement stands cancelled because of the breaches of the conditions thereof having been committed by the respondents and secondly, the period of the licence having expired and in spite of the notice by post and telegram, the respondents have not handed back the charge of the business of the cafe and Milk Bar and the manufacturing of ice candy with the fixtures, furnitures, fittings, etc. to the appellants nor have the respondents paid to the appellants the arrears of the licence fees. On these allegations, the appellants prayed the following reliefs in paragraph 17 of the plaint:" (I) To order the defendants to hand over the peaceful charge of the running business of the "chawla Cafe and Milk Bar" situated in Shop No. D/22-23 at Gandhidham alongwith all its property articles as shown in the list attached with the licence agreement dated 20-9- 1972. (II) To order the defendants to pay sum of Rs. 4,100. 00 (Rupees four thousand one hundred only) towards arrears of licence fee due from 1/1/1977 to 19/9/1977 alongwith interest 12% p. a. from date of suit. (III) To order the defendants to account for the income and expenditure of the suit business and to pay all amount of the profits earned by them from 20/9/1977. (IV) To appointa receiver as prayed in para 12. (III) To order the defendants to account for the income and expenditure of the suit business and to pay all amount of the profits earned by them from 20/9/1977. (IV) To appointa receiver as prayed in para 12. (V) To pay all the costs of the suit including advocate fee. (VI) Such other relief as the Honblc Court deems fit or as plaintiffs may be entitled for. " ( 6 ) THE respondents by their written statement exh. 46 resisted the suit. They firstly contended that the trial court has no jurisdiction to hear and decide the suit on the ground that the appellants arc the tenants of the premises and respondent no. 2 is the lawful sub-tenant thereof, and therefore the suit is between the landlord and the tenant lor recovery of the vacant possession of the suit premises and also for arrears of rent and thus, such a suit would be cognizablc only by the court established under the Rent Act and not by the civil Court. According to the respondents, in essence, the present is the suit for recovery of the possession of the suit shop alongwith the furnitures, fixtures, etc. which would be "premises" within the meaning of the expression as used in the Bombay Rent act. Therefore, only the Court of Civil Judge (J. D.) at Gandhidham would have jurisdiction to try the suit under Section 28 of the rent Act. The respondents also contended that the suit in misconceived for the main relief of the appellants is for the recovery of the charge of the business of Chawla Cafe and Milk Bar, which according to the respondents could not be said to be tangible or intangible movable property, nor could it be said to be any easement right or any right which could be enforced by the court of law. Acccording to the respondents, without thcclaim for the recovery of possession of the suit shop, in which the business is carried on, the main relief claimed by the appellants would be abstract and the same therefore, cannot be granted. The respondents have also contended that the relief for accounts is also misconceived as they were never in the position of accounting party. They have also challenged the propriety of the valuation of the suit and the sufficiency of the court-fees paid by the plaintiffs on the plaint. The respondents have also contended that the relief for accounts is also misconceived as they were never in the position of accounting party. They have also challenged the propriety of the valuation of the suit and the sufficiency of the court-fees paid by the plaintiffs on the plaint. Then the respondents have contended that the suit is barred by res judicata and estoppel. According to them, in the earlier suit being Suit No. 12 of 1969 filed by the appellants against respondent No. 2 for accounts on the ground that respondent No. 2 was the manager of the business, the court while dismissing that suit, had held that respondent No. 2 is the lawful sub-tenant of the appellants and that respondent no. 2 is in exclusive possesion of the suit shops. Those findings, according to the respondents have become final and that would act as res judicata against the claim made by the appellants about the respondents being the licensees in the shops in question. Further according to the respondents, Haridas, the original owner of the shop had also filed against the appellants and respondent No. 2, a suit being Suit No. 1 of 1968, for possession of the suit shop on the ground that the appellants had unlawfully sub-let the shop to respondent No. 2 and that the appellants were charging more than the standard rent. That suit was transferred from the Gandhidham Court to anjar Court and came to be renumbered as Civil suit No. 113 of 1973, and in that suit also, according to the respondents, it has been held that the present respondent No. 2 is the lawful subtenant in the premises and that the appellants have been charging from respondent No. 2 more than the standard rent, and those findings having become final, according to the respondents, those findings would also operate as resjudicata to the appellants present stand about the respondents being licensees in the shops in question. ( 7 ) THE respondents have contended that earlier respondent No. 1 and thereafter respondent no. 2 came to be inducted in the suit shops as sub-tenants of Thadharam, and as they have been inducted as sub-tenants since January 1, 1959, they are the lawful sub-tenants in the premises, and they cannot be evicted from the premises by virtue of the provisions contained in the Rent Act. 2 came to be inducted in the suit shops as sub-tenants of Thadharam, and as they have been inducted as sub-tenants since January 1, 1959, they are the lawful sub-tenants in the premises, and they cannot be evicted from the premises by virtue of the provisions contained in the Rent Act. The respondents have also denied the allegation that the appellants are the owners of the business in the name of m/s. Chawla Cafe and Milk Bar being run in the suit shop and that they are the owners of the furnitures, fixtures, fittings, etc. which arc there in the suit shop. According to them, no business of manufacturing ice candy has ever been carried on in the suit shops, right from the beginning, i. e. from January 1, 1959. They have also denied the allegation that the appellants are the owners of the business in the name of M/s. Chawla Cafe and Milk Bar being run in the suit shops and that they arc the owners of the furnitures, fixtures, fittings, etc. which are there in the suit shop. According to them, no business of manufacturing ice candy has ever been carried on in the suit shop right from the beginning, i. e. from January 1,1959. They have also denied the allegation that late Thadharam chawla established the business and goodwill in the suit shop. They have denied that they are the licensees who have been brought on the suit shop only for the purpose of running the business of M/s. Chawla Cafe and Milk Bar and manufacturing ice candy. According to them, the suit agreement (Exh. 129) is nothing but the agreement of lease or rent agreement in respect of the suit shop. It is their case that originally, they were paying Rs. 200/- p. m. by way of rent of the shop. The rent was thereafter increased to Rs. 250/- p. m. and then to Rs. 300/- p. m. and as, after the death of thadharam, appellant No. 2 became the widow and appellant no. 3 was minor son of Thadharam, on account of sympathy for the heirs of late Thadharam, they (the respondents) agreed, by way of compromise, to increase the rent from Rs. 300/- p. m. to Rs. 475/- p. m. It is also the case of the respondents that they were not agrecable to execute the agreement Exh. 3 was minor son of Thadharam, on account of sympathy for the heirs of late Thadharam, they (the respondents) agreed, by way of compromise, to increase the rent from Rs. 300/- p. m. to Rs. 475/- p. m. It is also the case of the respondents that they were not agrecable to execute the agreement Exh. 129 in the form in which it was drafted. However, appellant No. 1 told them that all of them were in an embarrassing position on account of Suit No. 113 of 1973 filed by Haridas against all of them which was pending in the Anjar Court and if a rent agreement was executed, that would be used against them in that suit No. 113/73, and a decree for eviction from the suit shop could be passed against all of them and such a situation could be avoided if the agreement was termed as agreement to run a business. According to the respondents, therefore, upon such representation being made to them by appellant No. 1 and upon the assurance given by appellant No. 1 that the agreement would be treated to be a rent agreement, they signed and executed the suit agreement Exh. 129, together with the list of articles annexed thereto and other papers. On this premise, the respondents contend that the suit agreement has been obtained from them under misrepresentation and fraud and therefore, it is void. It is futhcr their case that the suit agreement is void as the entire object of it is unlawful, viz. to circumvent the provisions of the Bombay Rent Act. In the written statement, the Respondents have put forward several grounds on which according to them, the suit agreement Exh. 129 is void as contravenes provisions of the Rent Act. The respondents have denied the allegation that they have committed breaches of the terms of the agreement as averred by the appellants in the plaint or otherwise. According to them late thadharam and after his death, the present appellants have been in the habit of obtaining from them (the respondents) agreements such as exh. 129 for creating a show of the relationship of licenser and licensee, where, as a matter of fact, the relationship is of landlord and tenant, or the tenant and the sub-tenant. According to them late thadharam and after his death, the present appellants have been in the habit of obtaining from them (the respondents) agreements such as exh. 129 for creating a show of the relationship of licenser and licensee, where, as a matter of fact, the relationship is of landlord and tenant, or the tenant and the sub-tenant. According to them, they have taken the shop on lease from thadhram and they have established the business of the Cafe and Milk Bar therein and they have also been serving South Indian Dishes to the customers. It is their case that the Ice Candy machine is out of order and useless since prior to january 1,1959. According to them, Item No. 1 is useless and is lying without any use in the suit shop. On the aforesaid contentions in the main, the respondents prayed for the dismissal of the suit. ( 8 ) THE trial court, on the pleadings of the parties, framed the necessary Issues, and on issue No. 1 it held that the present suit is not maintainable as the appellants had not prayed for the vacant possession of the suit shop which was in the exclusive possession of the respondents and they had merely prayed for the charge of the running business of Chawla Cafe and Milk Bar with all its properties and articles shown in the list attached to Exh. 129 being handed over to them. In the opinion of the learned trial Judge the prayer in Clause (i) of Paragraph 17 of the plaint (reproduced hereinabove) is an abstract relief and such relief is obviously unacceptable and ineffective and therefore, such a relief cannot be granted. On this opinion, the learned Judge found that the suit is not maintainable. I may mention here that Miss V. P. Shah, the learned advocate for the respondents was not in a position to support the reasoning of the learned judge on this issue, and the finding recorded by him on this issue. The learned Judge found that the relationship between the parties was that of landlord and tenant or tenant and sub-tenant. Therefore, his court had no jurisdiction to hear and decide the suit. The learned Judge found that the relationship between the parties was that of landlord and tenant or tenant and sub-tenant. Therefore, his court had no jurisdiction to hear and decide the suit. He negatived the appellants contention that the respondents are the licensees inducted in the suit shop only for the purpose of running the business of M/s. Chawla Cafe and Milk Bar and for manufacturing ice candy. He found that the suit was correctly valued for the purpose of court-fees. He accepted the respondents contention that the suit was barred by res judicata. He negatived the respondents contention that the respondents had executed the agreement Exh. 129 under misrepresentation as averred by the respondents in the Written Statement. Agreeing with the respondents, he found that the suit agreement Exh. 129 was void as it was in breach of the provisions of the rent act. He negatived the appellants contention that the respondents had committed breaches of the conditions of the suit agreement. He also negatived the appellants contention that the suit agreement had been revoked and that it had come to an end. He found that respondent No. 2 was the owner of the business which was being run in the suit shop. ( 9 ) ON the aforesaid findings, the learned judge dismissed the suit with costs. ( 10 ) AS said above, the learned Judge on Issue no. 1 found that the suit is not maintainable for the appellants have not claimed any relief of possession of the suit shop and the relief claimed in Clause (i) of para 17 is in abstract. Reasoning of the learned Judge is, to say the least, not at all acceptable. Reading the reliefs prayed by the appellants in the plaint, it is clear that the appellants have prayed for getting back their business of M/s. Chawla Cafe and Milk Bar, and manufacturing of ice candy being run in the suit shop, and that relief would certainly mean that the appellants want to get back those businesses alongwith the shop in which they are being run. In essence, therefore, they have prayed for the possession of the property, viz. the business as also the shop in which the business is run. The relief as prayed can never be said to be a relief in abstract as the learned Judge has, in acceptance of the respondents contention, argued. In essence, therefore, they have prayed for the possession of the property, viz. the business as also the shop in which the business is run. The relief as prayed can never be said to be a relief in abstract as the learned Judge has, in acceptance of the respondents contention, argued. Even Miss v. P. Shah was not in a position to support either the reasoning or the finding of the learned Judge on Issue No. 1, though of course, as I will presently point out, she strenuously contended that the finding on other vital issues should not be distrubed. ( 11 ) AT the hearing of this appeal, mainly two points came up for canvassing : (I) Whether what was granted by the appellants to the respondents under the suit agreement was a licence or whether it was a tenancy ?and (ii) Whether the appellants contention that the respondents are the licensees is barred by resjudicata ?as a part of the first point that came to be canvassed, a question also arose whether what was granted by the appellants to the respondents under the suit agreement is "premises" within the meaning of that expression as defined in Section 5 (8) of the Bombay Rent Act. ( 12 ) IT is undisputed that the suit agreement came to be executed by and between the appellants on the one hand and the respondents on the other on September 20,1972. Though the agreementruns into minute details and is fairly lengthy, for the proper determination of the question about licence or lease, it is absolutely necessary to refer to some of the main terms thereof. (A) Firstly, the agreement is captioned as agreement to run a business. Secondly, in the opening paragraph of the agreement itself, the deed is styled as a Deed of Licence for running a business in the name of chawla Cafe and Milk bar. The grantors are described as licensers of the first part, and the grantees being respondent no. 2 and respondent No. l respectivedly are referred to as licensees of the second part. The grantors are described as licensers of the first part, and the grantees being respondent no. 2 and respondent No. l respectivedly are referred to as licensees of the second part. (B) The second paragraph of the deed recites the fact that the business of manufacturing ice candy and the business of Cafe and Milk Bar in the name of Chawla Cafe and Milk Bar being run in the suit shop being Shop No. D-23 having been started by late Thadharam Chawla, and it further states that Thadharam Chawla was the sole owner and proprietor of that business. Then, that paragraph refers to two suits being Suit No. 255/67 filed by respondent No. 2, and Suit No. 12 of 1969, filed by the appellants. (C) Paragraph 3 states that the licensees and the licensers having been satisfied, have agreed to withdraw their suits and objections referred to in the earlier paragraph. That paragraph also makes a mention of the fact that the licenesees have handed over the charge of the said business and possession of the premises to the licensers. (D) Paragraph 4 of the deed says that the licensees have approached the licensers with a request to grant unto them, leave and licence to run the said business in Shop No. D-23 including all its furntitures, fixtures, Ice Candy Machine, as a pure and simple licensee, and it further states that the licensers having felt the bona fides of the licensees, have agreed to do so on the terms and conditions mutually agreed upon, as enumerated thereinafter. Then follows the terms and conditions of the licence. (E) No. 1 of this document says that the licensers grant the leave and licence to the licensees for manufacturing ice candy and for running the said business of Chawla Cafe and Milk Bar alongwith the furnitures and fixtures as shown in the list annexed therewith commencing from september 20, 1972 for a period of five years. This term further grants the licensers an option to have the licence renewed for a further period of five years provided that licensees informed the licensers about their intention to have it so renewed, at least two months before the expiry of the initial period of five years. This term further grants the licensers an option to have the licence renewed for a further period of five years provided that licensees informed the licensers about their intention to have it so renewed, at least two months before the expiry of the initial period of five years. This term further says that if the licensees wanted the licence to be renewed for a third term, then they were required to approach the licensers at least three months prior to the expiry of the second term of five years, and to offer to pay a compensation equal to the market rate. But in that case, the licensers would give preference to the licensees for the further period of five years. Thus, this term No. 1 firstly shows the purpose of the grant and the nature and duration of the grant. It says that the grant is of a licence for manufacturing ice candy and for running the business of Chawla cafe and Milk Bar, alongwith the furnitures, fixtures, etc. as shown in the list. Secondly, it fixes the initial period of five years for the licence. Thirdly it gives an option to the licensees to have the licence renewed for a second term of five years provided they inform the licensers about their intention to do so, at least two months before the expiry of the first term of five years. Ncxtly it says that if, after the expiry of the second term of five years, the licensees had any intention of getting further renewal for a term of five years, they had to approach the licensers at least three months before the expiry of the second term of fiver yerars and offer to pay a compensation equal to market rate and the licnsers would give preference to the licensees for the further period of five years. Reading this term No. 1, it is clear that, whereas for the renewal of the licence for the second term of fiver years on the expiry of the first term of fiver years, the licensees had virtually a right to renew the same, so far as the renewal for the third term of five years, the licensers were only to give preference to the licensees for the renewal. In the matter of the renewal for the third term, the licensers were not bound or obliged. In the matter of the renewal for the third term, the licensers were not bound or obliged. (F) Term No. 2 of the agreement speaks about licence fees. For the first term, the licence fee has been agreed at Rs. 475/- p. m. and for the second term of five years, if for that second term, the licence was renewed, the licence fee was to be paid at the rate of Rs. 600/- p. m. Here also, the licence fee is fixed for running the business of cafe and Milk Bar and for manufacturing ice candy and for the use of furnitures, fixtures, Ice candy Machine, radio, etc. as shown in the list attached to the agreement. (G) Term No. 3 of the agreement is very material. It is undisputed that in the shop, there is an Ice-Candy machine of the ownership of the appellants which was installed there by late thadharam Chawla. As could be seen from the earlier terms of this agreement, one of the purposes of the grant is to permit and enable the grantees, i. e. the licensees, to run the Ice Candy machineand to manufacture ice candy. However, by term No. 3, even the grantors, i. e. the appellants have been given a right to operate this Ice candy Machine and to manufacture Ice Candy. This term No. 3, speaks about the use of the Ice candy Machine. It speaks about the agreement between the parties that the licensers, i. e. the appellants can also make use of that machine for manufacturing ice candy for their use, but they would do so at night lime and they would have to pay proportionately for the electric power which they used. Thus, though the ice candy machine which has been installed in the shop was to be in charge of the respondents, for their use, for the manufacture of ice candy, the appellants were also given a right to use that machine at night time, and to manufacture ice candy for their use, and if they so used the Ice Candy Machine, they were liable to pay proportionately for the electrical consumption occasioned on account of such use of the Ice Candy Machine. (H) Term No. 4 clearly states that the respondents had no connection with the landlord of the premises and that the appellants would pay rent to the landlord directly. (H) Term No. 4 clearly states that the respondents had no connection with the landlord of the premises and that the appellants would pay rent to the landlord directly. That term further states that outof the two family room cabins which are there in the hotel premises, some portion of the first one is kept in possession of the appelllants and they might use the same as they like, with a board on it as the owners cabin on the outer side of that cabin. Now, this term No. 4 is also very important. By that term, the possession of a part of one of the family room cabins in the hotel premises has been retained by the appellants for their use and they have been given a right to affix their sign board on the outer side of that cabin. (I) Term No. 5 of the agreement further refers to the use by the appellants of one of the cabins, about which a reference has been made in term no. 4, and it also gives a right to the appellants to use the other cabin, which is used for the sale of pan-beedi and cigarattes. This term says that the licensees will have no right or interest of whatsoever nature in these two cabins. This term further forbids the licensees from carrying on any business of pan-beedi or any other business in the hotel in any form whatsoever except the one for manufacturing ice candy, and for running of chawla Cafe and Milk Bar, for which the leave and licence is granted. This term, besides reserving the right of the appellants to use the two cabins referred to therein, forbids the licensees from carrying on any parallel business of pan-beedi, cigarattes, etc. being carried on in one of the cabins by the appellants, and also enjoins a duty upon the licensees not to carry on any business in the suit shop except manufacturing of ice candy, and running of Chawla Cafe and Milk Bar. This term puts fetters on the rights of the respondents to carry on in the shop, the business of their own choice. By virtue of this term No. 5, the respondents are forbidden from carrying on any business in the suit shop except of manufacturing ice candy and of running the business of Chawla cafe and Milk Bar. This term puts fetters on the rights of the respondents to carry on in the shop, the business of their own choice. By virtue of this term No. 5, the respondents are forbidden from carrying on any business in the suit shop except of manufacturing ice candy and of running the business of Chawla cafe and Milk Bar. They are forbidden from carrying on pan-beedi, cigarattes, etc. business, which would compete with the similar business carried on by the appellants in one of the cabins situated along-side the wall of the shop. (J) Term No. 6 enjoins the respondents to inform the appellants before the time stated therein, about their intention to discontinue the business in the said premises, which is given to them for use only as permissive use and ancillary to running the business. This term clearly mentions that the premises have been given to the respondents only by way of permissive use and as ancillary to running the business. (K) Term No. 7 explicitly makes it clear that the appellantts would remain in the legal possession of the shop building and would have control over the same and they allowed the respondentts to make use of the premises as permissive use only and ancillary to running the said business there, with the settled fee mentioned in the earlier part of the agreement. This term No. 7 further clearly states that the respondents would have no right or interest in the said shop premises in any form whatsoever, and it has further been made clear that no tenancy rights, nor any right of any nature is created or transferred or assigned to the respondents. This term No. 7 also clearly specifies that the relationship was of licensers and licensees ; what was granted to the respondents was only the right or permission to run the business, and the premises was given to them only ancillarily for and by way of permissive use, and no tenancy in favour of the respondents in any form was created. This term No. 7 standing by itself clearly goes to show that what the appellants granted to the respondents was a licence and no tenancy was ever created in favour of the respondents, and the parties never intended to create any tenancy in favour of the respondents. This term No. 7 standing by itself clearly goes to show that what the appellants granted to the respondents was a licence and no tenancy was ever created in favour of the respondents, and the parties never intended to create any tenancy in favour of the respondents. (L) Term No. 8 of the agreement makes it clear that the appellants would have complete control over the suit premises, and the premises would remain in the name of the appellants who would only be responsible to the landlord. This term further says that the respondents have not been given any occupancy right nor have they been given any right of whatsoever nature of exclusive possession of the premises. It further says that the premises will remain the property of the appellants and it will remain in the legal possession of the appellants. (M) Term No. 9 again makes the position clear. It says that no legal possession of the premises is given or transferred to the respondents, and the appellants do not charge any rent or any compensation for the permissive use of the said premises. This term clearly says that whatever amount was to be charged by the appellants from the respondents was not either by way of compensation for the permissive use of the premises. Read in light of the other terms of this agreement, this term No. 9, would go to show that the amount to be charged by the appellants from the respondents was the fees for the licence to run the business of Chawla Cafe and Milk Bar, and to manufacture ice candy and to use the furnitures, fixtures, etc. (N) Term No. 11 of the agreeement forbids the respondents from selling, mortgaging, transferring or assigning the business either by way of licence or in any other form to anyone else. (O) Term No 12 of the agreement says that the appellants could not cancel the leave and licence before the expiry of the stipulated period, unless the respondents committed breach of the conditions of the agreement. (P) Term No. 14 of the agreement reiterates the appellants right to make use of the cabins referred to in the earlier terms being Term Nos. 4 and 5 and further states that the appellants would be at liberty to inspect the business and the furnitures, fixtrures, machinery, etc. (P) Term No. 14 of the agreement reiterates the appellants right to make use of the cabins referred to in the earlier terms being Term Nos. 4 and 5 and further states that the appellants would be at liberty to inspect the business and the furnitures, fixtrures, machinery, etc. at any time during business hours, and the licences shall show them and shall create no obstructions to their entry in the premises in whatsoever manner. It also states that such entry of the appellants in the premises will be as of right, and will not be treated as trespass. It also states that the appellants could also depute anybody for the purpose. (Q) Term No. 16 of the agreement says that the necessary licences for running the business should remain in the name of Chawla Cafe and Milk Bar and Shri Vittal B. Shetty and Shri Mahabal Bogra shetty as Licensees, and it further states that if the licence is in the name of the licensees, they should get it cancelled and should apply to the respective authorities for the change in the name of the licence as mentioned in the earlier part of the term. (R) Term No. 17 inter alia speaks about the requirement of electric bills being obtained in the names of the appellants as owners of Chawla cafe and Milk Bar. (S) Term No. 18 speaks that the electric meter shall remain in the name of the appellants. However, the respondents shall have to pay the electric consumption charges. (T) Term No. 19 says that the respondent should not make any improvements or changes in the premises as they have to use it only by permission and ancillarily, for the running of the said business. (U) Term No. 20 confers upon the respondents, a right to use the telephone of the appellants which has been installed in the shop. (V) Term No. 21 says that the business should be carried on in the same style and under the same name, i. e. Chawla Cafe and Milk Bar, and in no other name whatsoever, singly or jointly. (V) Term No. 21 says that the business should be carried on in the same style and under the same name, i. e. Chawla Cafe and Milk Bar, and in no other name whatsoever, singly or jointly. (W) Term No. 23 says that the appellants would get the premises insured with certain insurance company for fire risk only, and the respondents would not be responsible for any loss or damage to the premises with furnitures and fixtures in case the same (insurance benefit) is paid by the insurance company. If, however, due to any reason, the insurance company did not pay the costs of the damages, the same would be born by the respondents. ( 13 ) A plain reading of the agreement Exh. 129 would show that it is an agreement to run a business, and the grantors have granted to the grantees, the licence to run the business of M/s. Chawla Cafe and Milk Bar, and of manufaccturing ice candy. Reading this document as it stands, there is no scope for the argument that the document created any tenancy in favour of the respondents. None of the terms of this document individually or taken in conjunction with others is capable of being interpreted to confer any tenancy rights on the respondents. Some of the terms of this agreement taken together, and some even individually, unerringly point to the parties intention being to grant to the respondents, a licence to run the business of manufacturing ice candy, and the business of M/s. Chawla Cafe and milk Bar. Take for example, the caption of the agreement which says that it is an agreement to run a business. The opening four paragraphs which are in the nature of preamble to the agreement also clearly indicate that it was a licence that was granted to the respondents, and the licence was for manufacturing ice candy and for running the Chawla Cafe and Milk Bar; arid for running the business, furnitures, fixtures, fittings, etc. were also put in possession of the respondents. The licence was to be initially for a period of five years, with an option to the respondents to have it renewed for a second term of five years, and yet to apply to the appellants for renewal for the third term, but in that case, the appellants were only to give preference to the respondents for the renewal. The licence was to be initially for a period of five years, with an option to the respondents to have it renewed for a second term of five years, and yet to apply to the appellants for renewal for the third term, but in that case, the appellants were only to give preference to the respondents for the renewal. For the first term, the licence fee was to be Rs. 475/- p. m. ; for the second term, it was to be Rs. 600/- p. m. and if the licence was renewed for the third term, the licence fee was to be equal to the market rate. Though the Ice Candy Machine was put in charge of the respondents, the appellants were given a right to use it, albeit, during night time and in that event, the appellants were to pay the proportionate electric consumption charges. The respondents had to have no connection with the landlord. Such connection was to be maintained only by the appellants. A portion of one of the family room cabins in the premises was to be kept reserved for the use of the appllants who were to put their sign-board outside that cabin. Another cabin which is just alongside the wall of the main building was also reserved for the exclusive occupation of the appellants and in that cabin, pan-bidi and cigarattes, etc. business was being run. The respondents were forbidden from carrying on any parallel business of a pan-beedi, cigarattes, etc. in the suit premises. They were also forbidden from carrying on any other business except manufacturing of ice candy and running the business of Chawla Cafe and Milk Bar. No freedom was left to them to run any business of their choice in the suit shop. At quite a number of places, in the terms of the agreement, it is clearly stated that what is granted to the respondents is a permission to run the business and the premises have been given to them only by way of permissive use, and only ancillarily to run the business. It is again clearly recited in this agreement that the legal possession of the premises was always to remain with the appellants and the appellants had retained the control over the premises, and that the appellants had allowed the respondents to make use of the premises only under the permission and ancillarily, for running the business. It is again clearly recited in this agreement that the legal possession of the premises was always to remain with the appellants and the appellants had retained the control over the premises, and that the appellants had allowed the respondents to make use of the premises only under the permission and ancillarily, for running the business. It is also clearly recited that the respondents would have no right or interest in the premises. As indicated hereinabove, it term No. 7, it is clearly stated that no tenancy right or right of any other nature has been created in favour of the respondents, so far as the premises are concerned. No occupancy right has been given to the respondents so far as the premises are concerned. No exclusive possession has been given to the respondents so far as the premises are concerned. The proprietory right and possessory right so far as the premises are concerned, has been retained with the appellants. As shown above, in term No. 9, it is stated that as no legal possession of the premises is given to the respondents, the appellants do not charge any rent or compensation for the permissive use of the premises. The respondents are forbidden from effecting any sort of transfer of premises in favour of anyone. The appellants have been given the right to inspect the business, furnitures, fixtures, and machineries at any time during working hours and for that purpose to affect entry into the premises as of right, and to depute anyone for that purpose. The necessary licence from the relevant authorities were also to be obtained in the name of Chawla Cafe and Milk Bar, and the respondents, and if the earlier obtained licences were differently obtained, the necessary applications were to be made by the respondents for obtaining the licence so as to conform to term No. 16 of the agreement. The electric meter, and the electric consumption bills were to remain in the names of the appellants. The respondents were not entitled to effect any improvements or changes in the premises. The respondents have been given the right to use the telephone on certain terms and conditions. The respondents were not to make any change in the name and style in which the business was done. The business was to be continued in the name of Chawla Cafe and Milk Bar, and in no other name. The respondents have been given the right to use the telephone on certain terms and conditions. The respondents were not to make any change in the name and style in which the business was done. The business was to be continued in the name of Chawla Cafe and Milk Bar, and in no other name. The insurance for the fire risk was to be obtained by the appellants. However, if for some reason, the insurance company filed to pay the insurance money, in case of fire, the respondents were to make good to the appellants, the loss arising out of the fire. ( 14 ) TAKING these terms individually or even collectively, one and the only one inference that can be arrived at is that the parties intended to create a licence in favour of the respondents to manufacture ice candy, and to run the business in the name of M/s. Chawla Cafe and Milk Bar and for running that business, the furnitures the fixtures, the fittings, the machineries, etc. of the appellants were put in charge of the respondents. It is interesting to note that the list of such furnitures, fixtures, fittings, machineries and other articles necessary for runnng the business has been annexed to this agreement Exh. 129. It is admitted that one of such items is a radio. Another item is an Ice Candy Machine worth about Rs. 4. 000/ -. The list contains crockery items, cups, saucers, cans, etc. All these movables, viz. furnitures, fixtures, fittings, machineries, radio, etc. have been put by the appellants in the custody and possession of the respondents to enable the respondents to run the business in the name of M/s. Chawla Cafe and Milk Bar, and to manufacture ice candy. If the intention of the parties was to create a tenancy in favour of the respondents, handing over the custody of these various items of movable property to the respondents was not at all necessary. If what was sought to be created was a tenancy, one would fail to understand why the radio was required to be given by the appellants to the respondents. One would also fail to realise why the telephone of the appellants was required to be retained for the use of respondents. If what was sought to be created was a tenancy, one would fail to understand why the radio was required to be given by the appellants to the respondents. One would also fail to realise why the telephone of the appellants was required to be retained for the use of respondents. The list appended to the agreement is a long list which includes ice cream separators, ice freezing cans, wooden cover over the ice candy, gas cylinders, thermos flasks, tables, electric fittings, ceiling fans, elecctric bulbs, wooden cabinets, mirrors, show cases, benches, cups, tumblers, jugs, trays, jars, stoves, aluminium pans, water tanks, etc. If the real intention of the parties was to create tenancy, the items of property mentioned in this list were not at all required to be given by the appellants to the respondents. Though, at the trial the respondents have tried to take exception to some of the items contained in this list Exh. 130 which is annexed to the agreement Exh. 129 there is no substance in that exception for it is almost admitted that all of these items mentioned in this list were there in the premises when the agreement Exh. 129 came to be executed, and they belonged to the appellants. Respondent No. 1 in his deposition stated that even to the earlier agreements executed between him and Thadharam for the earlier years, lists of movables were being annexed or attached. One such earlier agreement isexh. 113 executed in 1964, and the list attached to that agreement is Exh. 114. Respondent No. 1 while referring to this list Exh. 114 has stated that items at Sr. Nos. 1, 2, 3, 4, 7 and 10 to 20 mentioned in that list were of Chawla, meaning thereby Thadharam, while properties mentioned at Items Nos. 5,8 and 9 were his properties and he did not know to whom the properties at Sr. Nos. 6 and 21 belonged. He has categorically admitted that all the items of property mentioned in Exh. 130 were in the shop at the time that agreement was executed. Now, referring to Exh. 114, which is the 1 ist attached to the earlier agreement of the year 1964, items No. 5, 8 and 9, which respondent No. 1 claims to be of his ownership, those items arc some gas cylinders, a thermos flask and another tea thermos. 130 were in the shop at the time that agreement was executed. Now, referring to Exh. 114, which is the 1 ist attached to the earlier agreement of the year 1964, items No. 5, 8 and 9, which respondent No. 1 claims to be of his ownership, those items arc some gas cylinders, a thermos flask and another tea thermos. Barring these three items, respondent No. 1 docs not claim any of the items mentioned in Exh. 114 or Exh. 130 as of the respondents ownership. He admits that all the items mentioned in Exh. 130 were there in the shop at the time that document was executed. Thus, cost of the valuable movables including the machinery and radio, which are mentioned in the list Exh. 130 and which admittedly belonged to the appellants were there in the shop when the document Exh. 129 to which was annexed the list Exh. 130 came to be executed. As said above, if the intention of the parties was to create merely a tenancy in favour of the respondents, in respect of the suit shop, handing over of all these items of property by the appellants to the respondents was not at all necessary. Going by the terms of the agreement Exh. 129, as shown above, the intention of the parties was expilictly clear. Positively speaking, the intention was to create a licence in favour of the respondents permitting the respondents to manufacture ice candy, and to run the business of M/s. Chawla Cafe and Milk Bar; and negatively speaking, the intention was not to create any tenancy in favour of the respondents. ( 15 ) THE learned trial Judge has, in his judgment, after referring to some of the terms contained in Exh. 129,. said that the condition embodies in those terms arc consistent with the tenancy agreement. The learned Judge has notendeavoured to show as to how the said terms are consistent with the tenancy agreement. Presently, I will point out dial the learned Judges decision has been very much affected by irrelevant considerations. He has referred to S. ISA of the Rent act, which is applicable in Maharashtra State, but not applicable in Gujarat. ( 16 ) HAVING read and re-read the agreement exh. 129 and the list of movables Exh. Presently, I will point out dial the learned Judges decision has been very much affected by irrelevant considerations. He has referred to S. ISA of the Rent act, which is applicable in Maharashtra State, but not applicable in Gujarat. ( 16 ) HAVING read and re-read the agreement exh. 129 and the list of movables Exh. 130 annxed thereto, I am convinced that the manifest intention of the parties to the agreement was to create a licence to manufacture ice candy and to run the business of M/s. Chawla Cafe and Milk bar, in favour of the respondents and for running that business, the appellants gave to the respondents the movables, the fittings, the fixtures, the furnitures, the machinery, cockery, etc. mentioned in the list Exh. 130. I am also convinced that the parlies clearly inlended to exclude any relationship of tenancy in favour of the respondents. ( 17 ) THE learned Judge has been swayed way with the idea that as this agreement tries to get rid off the effects of the Rent Act, it is forbidden by the provisions of the Rent Act and therefore, it is void. I do not think the approacch could be sustained. True, the provisions of the Rent Act are intended to protect the possession of the lenants. But that would be so in case of a genuine relationship of landlord and tenant. At the same time, the Rent Act does not forbid bringing into existence the genuine relalionship of licenser and licensee. It does not forbid crealion of a licence so far as Slate of Gujarat is concerned. Putting it differently, notwithstanding the applicability of the Rent Act, in the State of gujarat, the creation of a genuine licence is not forbidden. As I will presently point out with reference to the various aulhorities, the question always is of the intention of the parlies; whether they wanted to create a tenancy or they wanted to create a licence. If the intenlion is clear and unambiguous that they wanted to create a licence, then there is no legal bar lo creating such a licence. If they wanted to creale a lenancy, such a tenancy could be created, and the provisions of the Rent Act would apply. If the intenlion is clear and unambiguous that they wanted to create a licence, then there is no legal bar lo creating such a licence. If they wanted to creale a lenancy, such a tenancy could be created, and the provisions of the Rent Act would apply. If, however, the evidence furnished by the instrument by which the relationship is brought about between the parties, is not clear or if mere is no instrument under which the relationship is brought about, then the court will have to look to the surrounding circumstances for the purpose of finding outas to what aclually, the parlies wanted lo bring about : Whelhcr they wanted lo bring about a lenancy or they wanted to bring aboul a licence ? ( 18 ) AS shown above, the document Exh. 129 is clear and explicit. Il unerringly shows the parlies intention to create a licence in favour of the respondents to manufacture ice candy and to run the business of M/s. Chawla Cafe and Milk bar. The intenlion of the parties never was to create a tenancy. There is, therefore, very lillle scope in this case for referring lo the surrounding circumstances. However, I will presently point out that even if the surrounding circumstances are taken into consideration, the result would be no different. The surrounding circumstances also point to the fact that the parties, right from the beginning, intended to create a licence in favour of the respondents and at no point of time, they ever intended to create any right of tenancy in favour of the respondents. ( 19 ) IT is undisputed that initially respondent no. 1 and after a certain time, respondent No. 2 continuously remained attached, under one authority or the other with the business in the name of M/s. Chawla Cafe and Milk Bar, right from january 1,1959 till the date, the suit came to be filed. At different points of time, agreements came to be executed between the parties, under which the relationship between the parties came to be created and thereby the respondents associated themselves with this business in the name of m/s. Chawla Cafe and Milk Bar. The earliest document between the parties came to be executed on January 1, 1959. The next was dated july 1, 1959. Then in 1960 another document came to be executed and the next one saw the light in 1961. The earliest document between the parties came to be executed on January 1, 1959. The next was dated july 1, 1959. Then in 1960 another document came to be executed and the next one saw the light in 1961. Then another document was executed in 1962. One more document came into existence in 1963 and the last of the type of those documents which came to be executed prior to the suit agreement Exh. 129 was executed in 1964. So far as the documents excuted from 1959 to 1963 are concerned, the certified copies thereof have been produced at Exhs. 145 to 150. They are the certified copies of the documents proper and there is evidence to show that alongwith each of the original of which these documents are the copies, the lists of movables have been annexed. Of course, with these certified copies Exh. 145 to 150, no such lists are annexed. The document executed in 1964 in original is at Exh. 113 and the list of movables annexed thereto in Exh. 114. All these documents Exhs. 145 to 150, and Exh. 113 are almost similar in tenor. They are all agreements of licence. Most of the terms of those agreements are almost similar to the terms of the suit agreement Exh. 129. Of course, the periods for which the relationship was created under those earliest documents were not as long as the period for which the relationship came to be created by the document Exh. 129. In Exh. 145dated january 1, 1959, the licence was created to run the business only for a period of six months. Under exh. 146 dated July 1, 1959, the licence was created fora period of 11 months commmencing from July 1, 1959. By Exh. 147 dated April 23, 1960, the licence was renewed for a period of 11 months commencing from June 1, 1960. Exh. 148 evidences the renewal of the licence for a further period of 11 months from May 1,1961 to march 31, 1962. Exh. 149 dated July 1, 1962 renewed the licence for a further period of 11 months commencing from July 1, 1962. Exh. 150 dated August 1, 1963 renewed the licence for 11 months from August 1, 1963, and by Exh. 113 dated July 7, 1964, the licence was renewed upto may 6, 1965. Exh. 149 dated July 1, 1962 renewed the licence for a further period of 11 months commencing from July 1, 1962. Exh. 150 dated August 1, 1963 renewed the licence for 11 months from August 1, 1963, and by Exh. 113 dated July 7, 1964, the licence was renewed upto may 6, 1965. ( 20 ) THUS, more or less continuously, right from January 1, 1959 upto July 7, 1964, the respondents were given the licence to run the business in the name of M/s. Chawla Cafe and milk Bar. Licence fee, of course, varied from time to time. The terms and conditions of the licence evidenced by the earlier documents Exhs. 145 to 150 and Exh. 113 are moreor less the same as we find in the suit agreement Exh. 129. Of course, there are certain minor variations as regards the periods for which the licence was created or granted, licence duration of notice on the part of the respondents about their intention to renew the licence etc. Barring those minor variations, all these agreements Exhs. 145 to 150 and exh. 113 are very much on the same lines as Exh. 129. A plain reading of those earlier agreements also shows that the parties to those agreements intended to create the relationship of licenser and licensee alone and they never wanted to create any tenancy rights in favour of the respondents. It is not the case of the respondents that those earlier agreements were obtained from them by any unfair means. Of course, so far as the suit agreement exh. 129 is concerned, the respondents have come out with a case that it was obtained from them under misrepresentation and fraud. The learned trial Judge has not believed that part of the respondents case, and I will presently refer to that, and point out that part of the respondents case cannot be believed. . ( 21 ) RESPONDENT No. 1 has admitted that before the agreement Exh. 129 was executed by him and his brother respondent No. 2, the same was read over to them and before that agreement was executed, he had shown all the conditions of that agreement to his advocate. Under these circumstances, the learned Judge has rightly disbelieved the respondents case that agreement Exh. 129 was obtained from the respondents under misrepresentation or fraud. Under these circumstances, the learned Judge has rightly disbelieved the respondents case that agreement Exh. 129 was obtained from the respondents under misrepresentation or fraud. The case of the respondents is that as Suit No. 113 of 1973 filed by the original owner Haridas was pending, appellnat No. 1 gave them to understand that if a writing of rent or tenancy was executed that would come in their way in contesting that Suit No. 113 of 1973, and therefore, hesitatingly, they (the respondents) agreed to execute the suit agreement Exh. 129. This cotention of the respondents has not been accepted by the learned trial Judge, and I am also not inclined to accept the same. As will be shown by me hereafter, the litigations were pending between the parties, and almost as a package deal, this agreement Exh. 129 came to be executed alongwith other documents, and the litigations between the respondents and the appellants were brought to an end as a part of the same package deal. It, therefore, cannot be accepted that this agreement Exh. 129 was obtained by the appellants from the respondents under misrepresentation or by fraud. As said above, it is not the case of the respondents that the earlier agreements exhs. 145 to 150 and Exh. 113 were obtained from them by any unfair means. All these agreements including the suit agreement Exh. 129, therefore, should be held to have been executed by the respondents voluntarily, free from any undue influence or from the influence of any unfair means. ( 22 ) THUS, it would be seen that not only while exeucting the agreement Exh. 129 the suit agreement dated September 20,1972 but even while executing the earlier agreements referred to hereinabove, the parties clearly envisaged and agreed to create a licence in favour of the respondents and the licence was to run the business M/s. Chawla Cafe and Milk Bar. By exh. 129, a specific right was granted to the respondents even to use the Ice Candy Machine and to manufacture ice candy with the help thereof, and while conferring that right, a right in favour of the appellants was also reserved entitling them to use that Ice Candy Machine, albeit, at night time and if they so used it, they would be responsible to pay the proportionate electric consumption charges. Thus, even if the suit agreement Exh. Thus, even if the suit agreement Exh. 129 is considered from the standpoint of the earlier agreements, the finding inevitable remains that the parties intended to create a licence in favour of the respondents to run the business in the name of M/s. Chawla Cafe and Milk Bar, and to operate the Ice Candy machine and to manufacture ice candy with the aid thereof. For running this business, it was absolutely necessary that the respondents were given permission to use the furnitures, fixtures, machinery, fittings and the movables which were there in the shop. The right to use those things has also been granted in Exh. 129 in much the same way as it was granted in the earlier agreements. It is also almost an admitted position that the lists of movables, furnitures, fixtures, etc. which were annexed to the earlier agreements were more of less in the same terms as the list annexed to the suit agreement Exh. 129. The ownership of the appellants of these movables, is not disputed except in case of two or three which i have dealt with earlier. Therefore, reading the present suit agreement Exh. 129 and the accompanying listof movable properties with the earlier agreements and the lists annexed therewith, the finding inescapable is that by the present suit agreement Exh. 129 as also the other agreements, the parties-intended to create only a licence in favour of the respondents, and they never intended to create any tenancy in favour of the respondents. ( 23 ) THEN we have other pieces of evidence pointing to attendant circumstances. There is evidence to show that all throughout, in the gandhidham Municipal records, the business establishment in the name of Chawla Cafe and milk Bar continued to be entered in the name of thadharam Chawla earlier, and thereafter in the name of appellant No. 1, even for the period during which the respondents enjoyed the licence under the earlier agreements Exhs. 145 to 150, and Exh. 113. The Sales Tax registration in respect of this business in the name of M/s. Chawla Cafe and Milk Bar used to remain in the name of late Thadharam, and after his death, in the name of the appellants. To show these facts, documents have been produced on the record. ( 24 ) IT is the case of the appellants that under the document Exh. To show these facts, documents have been produced on the record. ( 24 ) IT is the case of the appellants that under the document Exh. 113 dated July 7, 1965, the licence was granted to the respondents for a period of 11 months ending on May 6, 1965. However, on March 31, 1965, the respondents surrendered that licence to the appellants and thadharam took over thebusinessof M/s. Chawla cafe and Milk Bar in his hands. However, late thadharam appointed respondent No. 2 as the manager-cum-Accountant and Cashier of his Cafe with effect from April 1, 1965. The letter of appointment is produced at Exh. 111. According to the appellants, at the foot thereof, respondent no. 2 as the Manager of the business and respondent no. 2 has put his signature. Further according to the appellants, respondent No. 2 gave a duty joining report which is Exh. 112 dated April 1, 1965 to late Thadharam. It is the case of the appellants that on March 31, 1965, the licence was surrendreed by the respondents and with effect from april 1, 1965, Thadharam appointed respondent No. 2 as the Manager of the business and respondent No. 2 served as such. Of Course, respondents have denied this part of the appellants case, but that denial does not seem to be acceptable for there is further evidence show that in all probabilities, the respondents had surrendered the licence as alleged by the appellants. It appears that the licence to run the hotel business was obtained in the name of respondent No. 2 when the respondents were running the hotel business under licence in pursuance of the earlier agreements. Now, in order to act upon the new arrangement which came into effect as a result of the surrender of the licence by the respondents, and the appointment of respondent No. 2 as the manager of the business, respondent No. 2 gave an application Exh. 115 to the Sub-Divisional magistrate, Anjar at Anjar, with a statement that he had handed over the hotel to the proprietor Shri t. G. Chawla, and that the said Shri T. G. Chawla had independently applied to the Sub-Divisional magistrate for a licence to run the business in his name. 115 to the Sub-Divisional magistrate, Anjar at Anjar, with a statement that he had handed over the hotel to the proprietor Shri t. G. Chawla, and that the said Shri T. G. Chawla had independently applied to the Sub-Divisional magistrate for a licence to run the business in his name. With these statements, respondent No. 2 requested the Sub-Divisional Magistrate to cancel the hotel licence which was issued in his name and recommended that the hotel licence be issued in favour of Shri T. G. Chawla at the earliest. In pursuance of this application Exh. 115, it appears that the Sub-Divisional Magistrate passed an order Exh. 116 to cancel the hotel licence which was earlier issued in the name of respondent No. 2, and granted the hotel licence in the name of shri T. G. Chawla. The challan under which Shri t. G. Chawla paid the hotel licence fees is produced at Exh. 117. Even the documents from the municipal Corporation as regards the registration of the establishment of the hotel show that the business was owned by Thadharam Chawla earlier, and after his death, by Ashok Thadharam chawla, appellant No. 1, and in all those documents, the name of respondent No. 2 has been shown as the Manager. Exh. 119 is the statement under Section 7 (6) of the Bombay Shops and Establishments act, filed in connection with this business in the name of Chawla Cafe and Milk Bar. That statement is filed on January 3, 1969. It is interesting to note that it has been signed by respondent No. 2 and therein appellant No. 1 is shown to be the employer and respondent No. 2 is shown to be the Manager. Thus, there is ample evidence to show that on March 31, 1965, the respondents surrendered the licencce to the appellants and from the next date, i. e. from April 1,1965, only respondentno. 2 continued to associate with the business only in the capacity as a manager. There are several applications about the renewal of the registration under the Shops and Establishments Act and also under the Sales tax Act subsequent to April 1,1965. All of them show that the business in the name of Chawla cafe and Milk Bar was registered in the Government and the local authorities records in the name of Thadharam, and after his death, in the name of appellant No. 1. All of them show that the business in the name of Chawla cafe and Milk Bar was registered in the Government and the local authorities records in the name of Thadharam, and after his death, in the name of appellant No. 1. Appellant No. 1 in his deposition has identified the signatures of respondent No. 2 on the appointment letter Exh. 111, and the duty joining report Exh. 112. Of course, respondent No. 2 has denied that these document have been signed by him. But that denial in face of the overwhelming documentary evidence has got to be rejected. Even a bare comparison of the signatures on Exhs. 111 and 112 with the admitted signatures of respondent no. 2, would leave no room for doubt that Exhs. 111 and 112 have been signed by respondent No. 2. I have compared the signatures in the name of respondent No. 2 on Exhs. 111 and 112 with the other admitted signatures of resondent No. 2 and i come to this conclusion. It is not the case of respondent No. 2 that he had never applied to the sub- Divisional Magistrate for the cancellation of the hotel licence in his name. The fact that respondent No. 2 applied to the Sub-Divisional magistrate to cancel the hotel licence in his name would also lend support to the appellants case that the respondents had surrendered the licence with effect from 1-4-1965. In the application to the Sub-Divisional Magistrate Exh. 115, to which no exception has been taken, it is clearly stated by respondent No. 2 that he had handed over the hotel to the Proprietor Shri T. G. Chawla. Now, it is interesting to note that when this application exh. 115 was given on May 2, 1968 there were not disputes or litigations pending between the parties. Under those circumstances, there was no necessity for respondent No. 2 to have given such an application Exh. 115 to the Sub-Divisional magistrate, requesting to cancel the hotel licence in his name on the statement that he had handed over the hotel busincess to the proprietor Shri T. G. Chawla with any ulterior motive or imspired by any undue consideration. As at that time, there were no disputes between the parties, there was no need for respondent No. 2 to make any false or incorrect statement in Exh. 115, the application to the Sub-Divisional Magistrate. Though respondent no. As at that time, there were no disputes between the parties, there was no need for respondent No. 2 to make any false or incorrect statement in Exh. 115, the application to the Sub-Divisional Magistrate. Though respondent no. 2 has taken some exception to the signatures on Exhs. 111 and 112, he has not taken any exception to the signature on Exh. 115, the application to the Sub-Divisional Magistrate. He has not taken any exception to the contents thereof. Under these circumstances, this document Exh. 115, to my mind, more emphatically goes to support the appellants case that the respondents surrendered their licence to Thadharam Chawla on March 31, 1965, and from the next day, respondent No. 2 came to be appointed as the manager, to manage the business. This conclusion is buttressed by the statement Exh. 119 under the Bombay Shops and Establishments act, signed by respondent No. 2, wherein the employers name is shown as Ashok Thadharam Chawla, and the name of respondent no. 2 has been shown as the Manager. As said above, this statement Exh. 119 was filed on january 3, 1969. ( 25 ) THE above discussion would show that earlier the respondents were given a licence to run the busincess in the name of Chawla Cafe and milk Bar. On March 31, 1965, the respondent surrendered that licence. There is evidence to show that though some of the earlier agreements were taken and executed by respondent No. 1 - mahabal only, they were essentially meant for respondent No. 2 - Vittal, his younger brother. It appears that Vittal at that time was a minor and respondent No. 1 Mahabal was running a canteen in Burmah Shell. It was to establish vittal- respondent No. 2 that Mahabal - Respondent no. 1 entered into these transactions evidenced by the licence deeds commencing from exh. 145 onwards. Respondent No. 1 Mahabal, as said above, was running his own canteen in burmah Shell, and it was Vittal-respondentno. 2 who was earlier running the business of Chawla cafe and Milk Bar as a licensee. He surrendered that licence. He came to be appointed as a Manager. He wrote to the appropriate authorities to cancel the hotel licence in his name. All these facts would go to show that he was never accepted as a tenant and he never had any intention to claim any tenancy rights. He surrendered that licence. He came to be appointed as a Manager. He wrote to the appropriate authorities to cancel the hotel licence in his name. All these facts would go to show that he was never accepted as a tenant and he never had any intention to claim any tenancy rights. Thus, the earlier agreements, coupled with the conduct of the respondents as evidenced from Exhs. 111, 112, 115and 119 wouldalso negative the respondents case that right from the beginning, they were acccepted as tenants and the parties intended to create tenancy. ( 26 ) IT appears that after respondent No. 2 came to be appointed as the Manager as afore- shown, disputes arose between the appellants on one hand and respondent No. 2, Vittal on the other. On December 15, 1967, therefore, respondent no. 2 filed against the appellants and Haridas the original owner of the shop, a suit being suit No. 255/67 in the Gairdhidham Court, alleging that he is a statutory tenant in the shop and that the appellants were unauthorisedly trying to interfere with his possession of the suit shop, and he claimed a decree of permanent injunction restraining the appellants and Haridas from interfering with his possession of the suit shop. In the alternative he claimed a declaration that he is a sub-tenant in the suit shop. This suit, as stated by me just now, was filed by respondent No. 2 on december 15, 1967. The certified copy of the plaint in that suit is at Exh. 106. Six days after the filing of the aforesaid suit by respondent No. 2, haridas, the original owner, on December 21, 1967, filed Suitno. 1 of 1968 in the Gandhidham court against the appellants and respondent No. 2, inter aliia for a decree for possession of the suit shop on the ground that the appellants had unlawfully sub-let the suit shop to respondent no. 2 and that the appellants were charging from respondent No. 2 more amount then the standard rent. That Suit No. 1 of 1968 of the Gandhidham court was transferred to the Court of Civil Judge (J. D.) at Anjar where it was numbered as Suit No. 113 of 1973. Hereinafter I will refer to that suit as suitno. 113of 1973. 2 and that the appellants were charging from respondent No. 2 more amount then the standard rent. That Suit No. 1 of 1968 of the Gandhidham court was transferred to the Court of Civil Judge (J. D.) at Anjar where it was numbered as Suit No. 113 of 1973. Hereinafter I will refer to that suit as suitno. 113of 1973. In that Suit No. 113of 1973, respondent No. 2 admitted himself to be the sub- tenant in the suit shop, but he claimed to be the lawful sub-tenant as he having been inducted as a sub-tenant prior to 21-5-1959. On the other hand, the appellants, in that suit contended that respondent No. 2 was merely a licensee, who has been given the licence to run the business. That suit filed by Haridas so far as the relief of possession was concerned, came to be dismissed by the anjar Court, inter alia on the ground that the notice terminating the tenancy was illegal. In other words, no relief of possession was granted by the court in that suit filed by Haridas. However, the present appellants were ordered to pay to Haridas, the arrears of rent and mesne profits from the date of the suit till the date of the decree. That suit was decided by the trial court on may 9, 1975. ( 27 ) ON December 30, 1968, the present appellants filed S uit No. 12 of 1969 in Gandhidham court against respondent No. 2 alleging that respondent No. 2 was the Manager of their business, and in spite of being called upon to render accounts, did not render the accounts of the business. On that allegation in the main, the appellants, in that suit No. 12 of 1969 prayed for a decree for taking accounts from respondent No. 2 and for getting whatever might be found due to them on taking accounts from respondent No. 2. In that Suit No. 12/69, respondent No. 2 denied the allegation that he was the Manager and set up sub-tenancy as was done by him in his Suit No. 255 of 1967, and in Haridas Suit No. 113 of 1973. Suit No. 12/69 came to be dismissed by the trial court and the appellants preferred Appeal No. 97 of 1972 in the district Court at Bhuj. Pending that appeal the parties arrived at a settlement. On septemebr 20, 1972, an agreement Exh. Suit No. 12/69 came to be dismissed by the trial court and the appellants preferred Appeal No. 97 of 1972 in the district Court at Bhuj. Pending that appeal the parties arrived at a settlement. On septemebr 20, 1972, an agreement Exh. 126 came to be executed by and between the appellants on the one hand and the two respondents on the other. The settlement was to this effect: That a sum of Rs. 19,100/- was found due and payable by the respondents to the appellants. Out of that, a sum of Rs. 11,100/- was paid by respondent No. 2 to the appellants on that very day, and towards the payment of Rs. 8,000/-, post dated cheques were given by respondents to the appellants. On that very day, i. e. on September 20, 1972, the appellants passed a receipt Exh. 127 to respondent no. 2 for Rs. 11,100/-, which stated that the amount was paid towards the settlement of accounts of Chawla Cafe. Those two documents exhs. , 126 and 127, make it clear that the settlement was in regard to the accounts of chawla Cafe for which the appellants had filed suitno. 12/69, which was dismissed, and against the dismissal of which their appeal No. 97 of 1972 was pending in the District Court. Yet another document Exh. 129 - the suit agreement came to be executed on that very day, i. e. on september 20, 1972 and two days later, on september 22, 1972, the appellants withdrew their Appeal No. 97 of 1972 by theirpurshis Exh. 128 wherein it is stated that the appellants had settled with the respondents and had received the amount due to them from the respondents. It is also stated in that purshis that the possession of chawla Cafe and Milk Bar had been handed over by the respondents to the appellants. Therefore, on all those grounds, the appeal was not required to be proceeded further and therefore, the appellants wanted to withdraw that appeal. In this purshis, it is further stated that in token of the defendants (respondent No. 2s) consent to the facts stated in the purshis, his signature has been obtained. Below that purshis, the appellants as also respondent No. 2 put their signatures. In this purshis, it is further stated that in token of the defendants (respondent No. 2s) consent to the facts stated in the purshis, his signature has been obtained. Below that purshis, the appellants as also respondent No. 2 put their signatures. When that purshis was presented before the learned district Judge on that very day, i. e. on September 22, 1972, the learned District Judge observed that the appellants who were the plaintiffs in that case were present and they stated that the suit claim had been settled out of court, and therefore, the plaintiffs did not propose to proceed with the suit. The learned District Judge also observed that the defendant, meaning thereby respondent No. 2 was also present and he also admitted the genuineness of the arrangement and did not press for the costs of the suit. With those observations, the learned District Judge recorded the purshis and dismissed the appeal with no order as to costs of the suit and the appeal. ( 28 ) AS the time when the above settlement was arrived at in Septemebr 1972, Suitno. 255 of 1967 which was filed by respondent No. 2 against the appellants and Haridas was pending. In pursuance of the aforesaid settlement, respondent No. 2, on December 27,1972, by the purshis Exh. 105 withdrew that suit. In the purshis exh. 105, respondent No. 2 stated that the parties to the suit had compromised the suit out of court and hence respondentno. 2 withdrew the suit unconditionally. The above facts would show that towards the last quarter of 1972, the suits and proceedings between the parties were pending in the court. Suit No. 12 of 1969 filed by the appellants against respondent No. 2 for acounts had been dismissed earlier and their Appeal No. 97 of 1972 was pending before the District Court. Suit no. 255 of 1967 filed by respondent No. 2 against the appellants and Haridas was also pending then. It was in that background that settlement came to be arrived at between the appellants on the one hand and respondents on the other, whereby the accounts between the parties were settled, certain sum of money was admitted to be due and payable by the respondent to the appellants, towards the part payment of that amount Rs. 11,100/- was paid by respondent no. 11,100/- was paid by respondent no. 2 to the appellants in cash and for the remaining amount, post dated cheques were given, Appeal No. 97 of 1972 filed by the appellant was withdrew and in the purshis withdrawing the same, it was specfically stated that the possession of the Cafe and Milk Bar was handed over by the respondents to the appellants and the amount due to the appellants from the respondants was received by the appellants and therefore, the matter was not required to be proceeded further. In token of the correctness of the statements made in this purshis Exh. 128, respondent No. 2 had also put his signature on that document and respondent No. 2, before the district Judge admitted the genuineness of the arrangement between the parties. This purshis exh. 128 obviously was, as a sequel to the arrangement evidenced by the two main documents exh. 126 dated Septemeber 20,1972 and the suit agreement Exh. 129 of the even date. By this arragment arrived at between the appellants and the respondents on September 20,1972, all past accounts were squared up. The appellants claim for money, which would be found due to them on taking accounts of the business from the respondents was settled for a lumpsum. That sum was paid by the respondents and was recieved by the appellants and a new relationship came to be established by and between the parties under the suit agreement Exh. 129. I have discussed hereinabove, the terms and conditions of that agreement Exh. 129. In the background in which it came to be executed, the finding ineviatable is that once again the parties wanted to create a licence in favour of the respondents permitting the respondents to run the business in the name of Chawla Cafe and Milk Bar. The relationship between the appellants as the employer and respondent No. 2 as the Manager which was brought into existence under Exhs. 111 and 112 with effect from April 1,1965 was once again replaced by the relationship of licensers and licensees. What I want to emphasise is that even prior to September 20, 1972, on which date, the suit agreement came to be executed, at no point of time, the respondents were accepted as tenants or sub-tenants in the suit shop. 111 and 112 with effect from April 1,1965 was once again replaced by the relationship of licensers and licensees. What I want to emphasise is that even prior to September 20, 1972, on which date, the suit agreement came to be executed, at no point of time, the respondents were accepted as tenants or sub-tenants in the suit shop. At no point of time, in the past, the parties ever intended to bring about the relationship of landlord and tenant, or tenant and sub-tenant. The appellants never conceded that relationship at any point of time. Barring the assertions in the three suits one filed by Haridas, the other filed by the appellants and the third filed by respondent no. 2 respondent No. 2, at no place, claimed any right as a tenant or as a sub-tenant. Till the time, the first suit, i. e. Suit No. 255 of 1967 came to be filed on December 15, 1967, and soon then on December 21, 1967, the suit by haridas came to be filed, the respondents never put forward the case and never displayed any conduct of a tenant or sub-tenant. The earlier agreements were all of licence. The terms thereof also were that the parties intended to create a licence. Though under Exh. 113, the agreement of licence dated July 7,1964, the renewal of the licence was to inure upto May 6, 1965, respondents surrendered that licence on March 31, 1965, and from April 1, 1965, respondent No. 2 accepted the post of Manager in that business. This conduct on the part of respondent No. 2 was again inconsistent with any tenancy right in favour of the respondents. After having accepted the post of Manager, he filed the necessary returns also going to show the same fact, viz. that he was the Manager and the Chawlas were the employers. Therefore, the earlier conduct of the parties also, if it is required to be taken into consideration, spells out a clear intention of the parties to create a licence between them and not to create any tenancy between them. ( 29 ) AS indicated hereinabove, going simply by the terms of the suit agreement Exh. 129, it has got to be said that the parties intended to create a licence and not a tenancy. ( 29 ) AS indicated hereinabove, going simply by the terms of the suit agreement Exh. 129, it has got to be said that the parties intended to create a licence and not a tenancy. If the surrounding circumstances and the antecedents are required to be taken into account that, as indicated hereinabove, also point to the same intention of the parties. The finding of the learned trial Judge that the parties, under Exh. 129 intended to create a lease or tenancy, therefore, cannot be sustained. ( 30 ) WHILE the matter was being argued at the bar, one of the lines of argument on behalf of the appellants was that on the facts and circumstances of the case, what was granted by the appellants to the respondents could never be said to be Premises within the meaning of the word as defined in Section 5 (8) of the Rent Act. Section 5 (8) of the Rent Act reads as follows :" (8) premises means - (A) any land not being used for agricultural purposes, (B) any building or part of a building let separately (other than a farm building) including (I) the garden, grounds, garage and outhouses, if any, appurtenant to such building or part of a building, (II) any furniture supplied by the landlord for use in such building or part of a building, (III) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or lodging house;" ( 31 ) ON the basis of the above definition of the word "premise" as given in Section 5 (8) of the rent Act, Mr. Shelat, L. A. for the appellants contended that what was granted by the appellants to the respondents was not the premises at all. In the submission of Mr. Shelat, what was granted to the respondents was a permission or licence to run the business of M/s. Chawla Cafe and Milk Bar and to manufacture ice candy on the Ice Candy machine and for those twin purposes, the respondents were also put in charge of the furnitures, fixtures, fittings, etc. , mentioned in the list Exh. 130 which has been appended to the suit agreement Exh. 129. , mentioned in the list Exh. 130 which has been appended to the suit agreement Exh. 129. On the other hand, Miss V. P. Shah, L. A. for the respondents strenuously argued that it was the premises, viz. the shop in which the business was carried on, which was granted by the appellants to the respondents under the agreement Exh. 129. ( 32 ) I have examined the terms and conditions of the agreement Exh. 129. I have also herein- above, seen the surrounding circumstances, and these examinations leave no room for doubt that what the appellants granted to the respondents under the agreement Exh. 129 was only a licence to run the business in the name of Chawla cafe and Milk Bar and to manufacture ice candy on the Ice Candy machine. It was for running the business and manufacturing the ice candy that the movable items of property mentioned in the list exh. 130 were handed over in the charge of the respondents. The terms and conditions enumerated in Exh. 129 clearly go to show that the dominant intention of the parties was to grant to the respondents, a licence to run the business in the name of Chawla Cafe and Milk Bar. The parties never intended to create any interest in the immovable property, viz. the shop, in favour of the respondents. The parties also never intended to put the respondents in exclusive possession of the shop. Even while permitting the respondents to run the business in the shop, the appellants retained their right to inspect the business. They retained their right to use the Ice Candy Machine, albeit, during night time on payment of proportionate electric consumption charges. They retained their right to use the cabins as discussed hereinabove. The parties in terms, very much clear, stated that no tenancy rights were created in favour of the respondents, and the consideration that was charged by the appellants from the respondents was not by way of rent or compensation for the permissive use of the premises, viz. the room or shop. Thus the only intention of the parties, while executing this agreement Exh. 129 was to create a licence in favour of the respondents, permitting them to run the business of chawla Cafe and Milk Bar in the shop. It has, very much clearly, been stated in the agreement exh. 129 that the premises, viz. the room or shop. Thus the only intention of the parties, while executing this agreement Exh. 129 was to create a licence in favour of the respondents, permitting them to run the business of chawla Cafe and Milk Bar in the shop. It has, very much clearly, been stated in the agreement exh. 129 that the premises, viz. the shop was given to the respondents only by way of permissive use, and as ancillary to the running of the business in the name of Chawla Cafe and Milk bar. It is, therefore, clear that what was granted by the appellants to the respondents was the licence to run the business, and the permission given to the respondents to enter the shop in which the business was run, was only ancillary for running the business. ( 33 ) MR. Shelat, relied upon the Treatise on the law of Rent Control by Andhyarujina, 1974 Edn. at page 968, under the caption"a condtract to conduct business in premises does not transfer interest in premises". There the learned author has discussed the law on the subject, and said:"where an existing business conducted on the premises, to which is attached the goodwill of that business, is given by the owner thereof to another (hereinafter called "the conductor") for consideration for the purpose of running the business on the said premises, the transaction is a mere contract of conducting a business and the user of the premises by the conductor for the purpose of the said business is ancillary to the general object of the contract of conducting the busines and, therefore, no interest in the premises is intended to be transferred thereby even though the conductor may have possession of the premises to the exclusion of the owner of the business. To create a lease the primary object of the parties thereto must be to transfer "the right to enjoy (the immovable) property", within the meaning of Section 105, Transfer to Property act. Under a contract for conducting a business on the premises, on which the business of the owner is intended to be conducted, however, what is primarily contracted to be granted is the right to conduct the business, and since business cannot be conducted in air, the privilege by way of licence in respect of the premises has to be necessarily provided for. Such privilege by way of licence is obviously ancillary to the general purpose of the agreement. Even if the agreement states that the conductor should have "exclusive use" of the premises or any particular part thereof in which the business is to be carried on, these words do not destroy the main purpose of the transaction and does not create an interest in land. The effect of the user of the premises, even though it may be exclusive, given to the conductor, is that the same is merely intended to serve the general object of the agreement and, therefore, is not meant to create any interest in land. "the learned author has, under the aforesaid caption and heading discussed the classic judgment of the Appellate Bench of the Bombay court of Small Causes, in what has come to be known as "new Sassan Restaurant" case. The learned author has, after discussing that case, said that that case brings about correct proposition of law in a manner more illuminating than it has been done by the English cases bearing on the point referred to by the learned author at page 971. The learned author has also indicated the first principles on which the propositions bearing on the point which he has referred to earlier, which I have quoted hereinabove, could be held to be valid. Without saying much in support of the observations of the learned author andhyaruj ina under the aforesaid caption, I would only say that I am in full agreement with what the learned author has said therein. ( 34 ) MR. Shelat, also drew my attention to the decision in the case of Mangulbhai Ranchhodji desai v. Alibhai Nourmohamad and Others 1961 (2)G. L. R. p. 102. In that case, the property was a Weaving factory of which the possession, and arrears of rent was sought to be recovered by filing the suit. According to the case of the plaintiff in that suit the property together with the machineries which formed part of the factory had been leased out to the defendant for the purpose of running the weaving factory. In that case, the contention was that what was let out was not the premises within the meaning of the word as defined in the Rent Act. In that case, the contention was that what was let out was not the premises within the meaning of the word as defined in the Rent Act. The Division Bench of this court in that case said that on the facts of the case, the connotation of the precise ambit of the expression "premises" laid down in the Rent Act has become an important point for consideration. The Division Bench referred to some of the imporatant terms of the agreement between the parties in that case and found that though the definition of the word Premises is wide in its application, it would not mean that anything and everything which is installed in a building would become premises. In that case, the weaving factory contained certain electric meters, certain power-looms, bobbin machine, khol mahcine, etc. and the Division Bench of this court said that "what was granted by the plaintiffs to the defendant of that case could not be premises. The Division Bench referred to, with approval, the judgment of Justice Bavdekar of the Bombay high Court in Civil Revision Application No. 917 of 1950 wherein also it was held that a factory of Jari works was not premises within, the meaning of Section 5 (8) of the Rent Act. This decision would make it clear that where a factory is granted to the grantee for the purpose of running, it wouuld not be a premises within the meaning of the word as defined in Section 5 (8) of the Rent Act. ( 35 ) MR. Shelat very heavily relied upon the decision in the case of Uttamchnd v. S. M. Lalwani A. I. R. 1965s. C. p. 716. It wasacaseof a Dal Mill. The Dal Mill building with fixed machinery and accessories was leased out on an annual rent. The intention of the lessee in accepting the lease was to use it as a Dal Mill. The question was whether the Dal Mill was an accommodation, within the meaning of Section 3 (a) M. P. Accommodation Control Act, 1955, and whether the Rent Control authority had jurisdiction to determine the standard rent. It was, in that case, held that the factory was not a building within the meaning of Section 3 (a) of the M. P. Accommodation Control Act, 1955, and therefore, was outside the purview of that Act. It was, in that case, held that the factory was not a building within the meaning of Section 3 (a) of the M. P. Accommodation Control Act, 1955, and therefore, was outside the purview of that Act. In coming to that decision, Their Lordships of the supreme Court ruled that the court must apply the principle of dominant intention of the parties, and the court must determine the character of the lease by asking itself as to what was the dominant intention of the parties in execuing the document. In that case, it was held that the dominant intention of the lessee in accepting the lease was to use the building as Dal Mill, and though the document purported to be a lease in respect of the Dal mill building, the said description was not decisive of the matter becuase even if the intention of the parties was to let out the mill, the building would still have to be described as Dal Mill building. It was not the case where the subject- matter of the lease was the building, and alongwith the leased building incidentally passed the fixture of the machinery in regard to the mill; in truth, it was the mill which was the subject-matter of the lease and it was becuase the mill was intended to be let out that the building had inevitably to be let out along with the Mill. It was also held in that case that the fact that the machinery which was transferred to the lessee under the lease was found to be not very serviceable and that the lessee had to bring his own machinery would not alter the character of the transaction. It was also held in that case that the fixtures described in the schedule to the lease were in no sense intended for the more beneficial enjoyment of the building. The fixtures were the primary object which the lease was intended to cover and the building in which the fixtures were located came in incidentally. Therefore, the rent which the lessee agreed to pay to the lesser under the document could not be said to be the rent payable for any accommodation to which the Act applied. The fixtures were the primary object which the lease was intended to cover and the building in which the fixtures were located came in incidentally. Therefore, the rent which the lessee agreed to pay to the lesser under the document could not be said to be the rent payable for any accommodation to which the Act applied. ( 36 ) IN the above case, Their Lordships of the supreme Court were concerned with the expression "accommodation" as defined in Section 3 (a) of the M. P. Accommodation Control act, 1955, which is almost similar to the definition of the word premises as given in Section 5 (8) of the Rent Act. In that case, the terms and conditions were very much similar to the terms and conditions contained in Exh. 129 in the instant case with which I am concerned. There, the insurance was to be taken by the lesser. The lessee was given the option to renew the lease. The lessee had to give three months notice before the expiry of the second lease. The lessee was prohibited from sub-letting the premises or his rights therein. The lesser or his agent had a right to enter and inspect the premises and machinery. The Schedule attached to the lease described 15 items of machinery fixed in the premises which was covered by the lease. Thus, applying this decision in the case of Dal Mill to the facts of the case before me also, it has got to be said that the dominant intention of the parties was to grant to the respondents a licence to run the business in the name of M/s. Chawla Cafe and Milk Bar, and to manufacture ice candy on the Ice Candy machine, and it was for the purpose of running that business that the items of furnitures, fixtures, fittings, machinery, radio, etc. as described in the list Exh. 120 were also put in charge of the respondents. Of couse, all these things were required to be housed in a building which in the present case is a shop. But then, merely because the business, and the furnitures, fixtures, fittings, machinery, etc. required for running the business, are housed in a shop, it cannot be said that what was granted by the appellants to the respondents was a right in the premises. But then, merely because the business, and the furnitures, fixtures, fittings, machinery, etc. required for running the business, are housed in a shop, it cannot be said that what was granted by the appellants to the respondents was a right in the premises. The right to have entry in the shop for running the business was only an incidental right as explained in this dal Mill case by the Supreme Court. The same is the logic of the proposition of law enumerated by the learned author Andhyarujina, as shown by me hereinabove. ( 37 ) MR. Shelat nextly relied upon the decision in the case of Dwarka Prasad v. Dwaraka Das saraf, A. I. R. 1975 S. C. 1758. It was the case of grant of a right to run a cinema theatre. There also, Their Lordships of the Supreme Court were concerned with the interpretation of the word "accommodation" as understood within the U. P. (Temprorary) Control of Rent and Eviction Act. The definition of the word "accommodation" there also is almost identical with the definition of the word "premises" as given in Section 5 (8) of the Rent Act, with which I am concerned. In that case, Their Lordships of the Supreme Court said :"a lease of an accommodation must essentially be of a building not a business or industry together with the building in which it is situated. Of course, a building which is ordinarily let, be it for residential or non-residential purposes, will not be the bare walls, floor and roof, but will have necessary amenities to make habitation happy. That is why the legislature has fairly included gardens, grounds and out-houses, if any, appurtenant to such building. Likewise, leases sometimes are of furnished buildings and that is why any furniture supplied by the landlord for use in such building is treated as part of the building. These additions are appurtenant, sub- servient and beneficial to the building itself. They make occupation of the building more convenient and pleasant but the principal thing demised is the building and the additives are auxiliary, where the lease is composite and has a plurality of purposes, the decisive test is the dominant purpose of the demise. Under the Act the protected category of accommodation is residential and non-residential buildings and not business houses. Under the Act the protected category of accommodation is residential and non-residential buildings and not business houses. The legislature by the amending Act clarified what was implicit earlier and expressly carved out what otherwise might be mistakenly covered by the main definition. The proviso does not expand, by implication, the protected area of building tenancies to embrace business leases. "a lease of a lucrative theatre with expensive cinema equipment, which latter pressed the lessee to go into the transaction, cannot reasonably be reduced into a mere tenancy of a building together with fittings which make the user more comfortable. When the, last renewed lease of 1959 was executed, there was a running cinma buisness and further the rent apportioned for the building qua building was only a fraction of the rent for the costly fixtures intended for the cinema business. " On the above facts, Their lordships held that "the lease did not fall within the definition of accommodation. " ( 38 ) APPLYING the test laid down in the last- mentioned decision of the Supreme Court to the facts of the case before me, it has got to be said that in the present case, what was let out was the running busines and the grant to the respondents of a permission to enter the building was only ancillary or incidental to the running of that business. ( 39 ) IN Mrs. M. N. Clubwala and Another v. Fida Hussain Saheb and Another A. I. R. 1965 s. C. p. 610, it has been held :"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. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. Similarly where the terms of the document are not clear, the surrounding circumstances and the conduct of the parties have to be borne in mind for ascetaining the real relationship between the parties. The fact that the premises are in exclusive possession of a person would not make him a lessee. Similarly where the terms of the document are not clear, the surrounding circumstances and the conduct of the parties have to be borne in mind for ascetaining the real relationship between the parties. The fact that the premises are in exclusive possession of a person would not make him a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease. "this decision in the case of Mrs. M. N. Clubwala, makes it clear that if the relationship is created under an agreement which is clear, normally, the decision on the question whether what the parties intended to create was a lease or a licence, is required to be reached upon theconsideration of all the provisions of the agreement itself. It would only be when there is no formal document or if there is a formal document, the terms thereof are not clear that the surrounding circumstances would have to be looked into. In the instant case, as I have pointed out hereinabove, the relationship has been created under the document Exh. 129, the terms of which are very clear and they unerringly point to the parties intention being to create a licence in favour of the respondents permitting them to run the business of M/s. Chawla Cafe and Milk Bar, and manufacture of ice candy. Obviously therefore, there would be very little scope for looking at the surrounding circumstances. Even if surrounding circumstances are looked at, as pointed out hereinabove, the antecedent facts clearly go to show that the parties had always and at all times intended to create a licence and they never intended to create a tenancy in favour of the respondents. Referring the earlier judgments with approval in this case of Mrs. M. N. Clubwala, it has been held that though the fact about the exclusive possession with the grantee would be a consideration of first importance, none-the-lcss, it would not be conclusive evidence of the existence of tenancy. In that judgment towards the close of paragraph 13, Their Lordships found that the intention of the parties to that case was to bring into existence merely a licence and not a lease, and the word "rent" was used loosely for "fee". In that judgment towards the close of paragraph 13, Their Lordships found that the intention of the parties to that case was to bring into existence merely a licence and not a lease, and the word "rent" was used loosely for "fee". In that case, importance was also attached to the fact that though physical possession was with the grantee, the legal possession always remained with the granters. In the case before me also, the parties have clearly stipulated that the legal possession will always remain with the appellants. ( 40 ) BEFORE the trial court on behalf of the appellants, reliance was placed on the decision in the case of Utlamchand v. 5. M. Lalwani (supra) (Dal Mills case ). In that connection, the learned judge of the trial court has made the following observations in his judgment:"the Honble Supreme Court has distinguished and has not followed the judgment of uttamchand (Dal Mill), which is relied upon by the plaintiffs in A. I. R. 1981 SC. 537. "i think the view of the learned trial Judge as reflected in the aforesaid observation is wholly misconceived for the decision in the case of natraj Studios (P) Ltd. v. Navarang Studios and another. A. I. R. 1981 SC. p. 537, proceeded upon Section 15a and Section 5 (8a) of the Rent act which are applicable only in Maharashtra and not in Gujarat. The Natraj Studios case arose from Bombay and not the property which was in dispute was situated in Bombay. The Rent Act as amended from time to time, in so far as it applied to Maharashtra was applicable and it is clear that in Maharashtra, with effect from February 1, 1973, Section 15a was inserted. Similarly, in the definition section, Section 5 (8a) which is applicable only in Maharashtra and not in Gujarat included the premises let or given on licence for business, within the ambit of the word "premises". That Section 5 (8a) reads as follows :"premises let or given on licence for business includes, and shall be deemed always to have included premises let or given on licence for the purpose of practising any profession or carrying on any occupation therein. "in Maharashtra, by the newly added Section 15a, even a licensee is treated to be a tenant. That Section 5 (8a) reads as follows :"premises let or given on licence for business includes, and shall be deemed always to have included premises let or given on licence for the purpose of practising any profession or carrying on any occupation therein. "in Maharashtra, by the newly added Section 15a, even a licensee is treated to be a tenant. It was on this peculiar legislative change, which was brought about in Maharashtra that the case in natraj Studios (P) Ltd. came to be decided, and after having gone through the decision in the case of Nairaj Studios (P) Ltd. I am convinced that the decision in the case of Uttamchand (Dal Mills case) referred to hcreinabove, has, in no manner, been dissented from in Natraj Studios case, and it is not that Their Lordships of the Supreme court have not followed the decision in the case of Uttamchand, in Natraj Studios case. The principles enunciated in the case of Uttamchand still hold the field. . ( 41 ) THE terms and conditions on which the grant was made in the case of Khalil Ahmed bashir Ahmed v. Tufelhussein Samasbhai sarangpurwala A. I. R. 1988 S. C. 184, were in many respects similar to the terms and conditions of the agreement in the present case. In that Khalil Ahmeds case also Their Lordships of the Supreme Court held that "the intention of the parties in the document, and the facts and circumstances of the case, led to the conclusion that the agreement was a licence and not a lease. " ( 42 ) MR. Shclat referred to the decision in the case of Frank Warr and Co. Limited v. London county Council, 1904, 1 K. B. 713. There, by the contract made between the lessees of a theatre and the plaintiffs, it was agreed that the plaintiffs should have the exclusive right for a term of years to supply refreshments in the theatre, and for the purpose should have the necessary use of the rcfrcshcmnt rooms, bars, and wine cellars of the theatre, and that they should have an exclusive right to advertise and let spaces for advertisements, in certain parts of the theatre. On these facts, it was held that "the contract did not confer on the plaintiff an interest in the land". On these facts, it was held that "the contract did not confer on the plaintiff an interest in the land". ( 43 ) THE above referred authorities would show that whether the transaction between the parties brought about a lease or a licence, would purely depend upon the intention of the parties, and in order to decide that question, the basic test is whether any interest in the land or the immovable property was intended to be created in favour of the grantee. Of course, exclusive possession if handed over to the grantee, would be a consideration of great importance, but that by itself is not decisive. Even with the exclusive possession with the grantee, there could be a licence. In other words, the mere fact that the grantee has been put in exclusive possession, by itself would not clinch the issue in favour of tenancy. Right since the decision in the case of associated Hotel of India Ltd. v. R. N. Kapoor, a. I. R. 1959 S. C. 1262, this is the law on the point consistently and repeatedly interpreted by their Lordships of the Supreme Court, without any departure having been made therein. Applying this law, to the facts of the case before me, as indicated hereinabove, the respondents have never been put in exclusive possession of the shop. As a matter of fact, the shop has never been the subject-matter of the grant. The subject-matter of the grant was the business and the shop, as the structure in which the business was run, went only as ancillary to the business. The appellants had retained their right to inspect the business and for that purpose they had a right to enter the premises. They could depute a man for that purpose. The amount that was to be charged by the appellants from the respondents was only for running the business and not by way of rent or compensation, or licence fees in relation to the shop. All these, and other factors discussed hereinabove clearly point to the fact that the parties intended to create only a licence in favour of the respondents. ( 44 ) MISS V. P. Singh, L. A. for the respondents, while meeting with the Dal Mill case, dwarka Prasads case, (A. I. R. 1975 S. C. 1758) and the Kings Bench decision argued that in those cases, the properties, viz. ( 44 ) MISS V. P. Singh, L. A. for the respondents, while meeting with the Dal Mill case, dwarka Prasads case, (A. I. R. 1975 S. C. 1758) and the Kings Bench decision argued that in those cases, the properties, viz. the structures, were so specially constructed as to house a particular type of business, viz. running of a Dal Mill in the first, and screening cinema films in the remaining two, that no other business could be carried on in those premises or structures and it was therefore, that the courts took the view they took in those cases. While in the instant case, in the submission of Miss Shah, the premises is simply a shop which can be put to any use and it is not a specially contracted structure suited only for any particular type of business of Cafe or milk Bar or ice candy. Therefore, in the submission of Miss Shah, the decisions in relation to the Cinema theatre buildings and the dal Mill have no application to the facts of the case before me. I think the submission of Miss shah cannot be accepted. The decisions in the case of Dal Mill, and the cinema theatre case have not proceeded in the way they proceeded merely on the ground that the structures were peculiarly constructed for being suitable to the running of the Dal Mill or cinema theatres. In those decisions, the principles have been laid down on the basis that what the grant or granted to the grantee was a running business and the structure in which the busines was carried on, went only as ancillary to that business because, the the business cannot be run in air. Whether the business was of running a Dal mill or whether it was the business of running cinema theatre, or whether it was the business of running a canteen or supplying snacks to the audience, the principle that came to be enunciated proceeded upon the basis that the grantor granted to the grantee, only the business with which, as a necessary corollary went the structure in which it was housed. In that view of the matter, the submission of Miss Shah cannot be accepted. ( 45 ) MISS V. P. Shah, relied upon the decision in the case of Virji Lavji Makwana v. Rainbow screen Shades, XX (1979) G. L. R. p. 352. In that view of the matter, the submission of Miss Shah cannot be accepted. ( 45 ) MISS V. P. Shah, relied upon the decision in the case of Virji Lavji Makwana v. Rainbow screen Shades, XX (1979) G. L. R. p. 352. In that case, under what circumstances, a genuine relationship of licenser and licensee can be conceivably arrived at has been considered and some three types of circumstances have been enunciated in para 3 of that report. Having gone through that judgment, I do not think that the circumstances in which a genuine relationship of licenser and licensee can be conceivably arrived at, as given therein, are in any sense, exhaustive. The list is only illustrative and it came to be given only for the purpose of high-lighting the issue which there arose. That judgment, in my opinion, does not at all help the respondents to contend that on the facts and circumstances of the case before me, the parties should be held to have intended to create a tenancy. ( 46 ) MISS Shah nextly relied upon the decision in the case of Lakhi Ram Ram Das v. M/s. Vidyat cable and Rubber Industry, Bombay, 1970 All india Rent Control Journal, p 40. That case has no application to the facts of the case before me. In that case, the grantees with the consent of the grantors, had incurred heavy expenditure for the installation of the machinery in the premises, and the grantees had been put in exclusive possession of the premises. There, the grantees were to be responsible for effecting the necessary repairs to the premises at their own costs. These were the peculiar features on which their Lordships of the supreme Court held the transaction between the parties to be a lease. There, the grantees were to be responsible for effecting the necessary repairs to the premises at their own costs. These were the peculiar features on which their Lordships of the supreme Court held the transaction between the parties to be a lease. Even so, Their Lordships have quoted with approval in that decision, the principles laid down in the case of Associated hotel of India Ltd. v. R. N. Kapoor, A. I. R. 1959 S. C. p. 1262, where it has been laid down as under:" 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 parties whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it isa lease; but if ilonly 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 a exclusive possession of the properly primafacie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. ( 47 ) MISS Shah really relied upon the decision in the case of Bhagwan Dass and Another v. S. Rajdev Singh and Another. A. I. R. 1970 S. C. p. 906. That decision is on an entirely differrent type of facts. There the appellants were the tenants of the respondents. The respondents had filed the suit against the appellants and Usha sales Pvt. Ltd. , on the allegation that the appellant-tenant had unlawfully sub-let the premises to Usha Sales Pvt. Ltd. The appellants contended that he was the agent of M/s. Usha sales Pvt. Ltd. for displaying and selling the products of that Private Limited Company and it was he who was in possession of the premises on his own behalf for the purpose of his business as agent of that Private Limited Company. The agreement between the appellant of that case and usha Sales Pvt. Ltd. was produced on the record and Their Lordships of the Supreme Court, on examining the terms of that agrecmant found it to be a curious mixture of inconsistencies. The agreement between the appellant of that case and usha Sales Pvt. Ltd. was produced on the record and Their Lordships of the Supreme Court, on examining the terms of that agrecmant found it to be a curious mixture of inconsistencies. Their lordships found that the document was plainly an attempt to camouflage the sub-tenancy which was intended to be created thereby. Their lordships have pointed out how the terms were inconsistent and how there was a plain attempt to camoufage. Nothing of the sort as available in the case of bhagwan Dass, relied upon by Miss Shah is present in the case with which I am concerned here. The decision in that case, therelore, cannot be of any assistance to the respondents. ( 48 ) THE decision in the case of Smt. Rajbir kaur and Another v. M/s. S. S. Chokosiri and Co. A. I. R. 1988 p. 1845, was relied upon by miss Shah. That judgment has nothing special to assist the argument advanced on behalf of the respondents. On the contrary in that judgment also, the decision in the cuse of Mrs. M. N. Clubwala ( AIR 1965 S. C. 610) (supra) has been relied upon and on that basis, it has been reiterated :" Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensers and licensee, the decisive consideration is the intention of the parties. This intention has to be ascertained on the consideration of all the relevant provisions of the agreement. "in that decision in the case of Smt. Rajbir kaur, it was sought to be argued that the terms of the agreement should be held to be conclusive. While examining that contention, this is what their Lordships of the Supreme Court have said:" The import significance and conclusiveness of such documents making or evidencing, the grant fall to be examined in the two distinct contexts. The dispute may arise between the very parties to the written instrument, where on the construction of the deed one party contends that the transaction is a licence, and the other that it is lease. The intention to be gathered from the document as a whole, has quite obviously, a direct bearing. The dispute may arise between the very parties to the written instrument, where on the construction of the deed one party contends that the transaction is a licence, and the other that it is lease. The intention to be gathered from the document as a whole, has quite obviously, a direct bearing. But in cases where, as here, the landlord alleges that the tenant has sub-let the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed entered into inter se between himself and the alleged licensee, the landlord who is not a party to the deed, is not bound by what emanates from the construction of the deed. "these observations of Their Lordships make it clear that so far as the parties to the document arc concerned the intention of the parties to be gathered from the document read as a whole has obviously a direct bearing. In the present case, the appellants and respondents are the parties to the document Exh. 129 with which I am concerned. Their intention as could be gathered from the document read as a whole, as indicated herein above is clear. Their intention is to create a licence. Such an intention gathered from the document read as a whole, in the words of. Their Lordships of the Supreme Court would obviously have a direct bearing on the determination of the question whether the parties intended to create a lease or licence. In this sense, the decision in the case of Rajbir Kaur instead of helping the respondents, to an extent helps the appellants. ( 49 ) HAVING considered all the facts and circumstances of the case, in light of the settled legal principles as could be carved out from the aforesaid judgments, I am more than convinced that what the appellants granted to the respondents under Exh. 129 was a licence pure and simple to run the business in the name of chawla CAFE and MILK BAR, and to manufacture ice candy. So exclusive possession was ever intended to be given to the respondents. The shop in which the business was run was never the subject-matter of the grant. No interest of the respondents was ever intended to be created in the shop. So exclusive possession was ever intended to be given to the respondents. The shop in which the business was run was never the subject-matter of the grant. No interest of the respondents was ever intended to be created in the shop. The intention of the parties as aforesaid being fast and clear, the finding inevitable is that the respondents are the licensees of the appellants. Admittedly, by the legal notice that licence has been terminated. The appellants were, therefore, entitled to a decree. ( 50 ) THIS brings me to the other question and that is about resjudicala. I have hcrcinabove set out the history of the previous litigations between the parties. Suit No. 12 of 1969 in the gandhidham court was filed by the appellants against respondent No. 2 for accounts of the business. In that suit, respondent No. 2 claimed sub-tenancy. On that contention, Issue No. 7 in the judgment (Exh. 99 in this case) was raised as follows:" Whether the defendant provides that he is the lawful sub-tenant of the suit shop, i. e. premises and the defendant is doing the business of hotel since 1-1-1959 and he is the propritcor of the Hotel ? "that issue was found in the affirmative. The learned trial Judge dismissed that suit. On the basis of this finding on Issue No. 7 in Civil Suit no. 12 of 1969, the respondents contend that the present contention of the appellents that the respondents are licensees and that respondent No. 2 is not the lawful sub-tenant, is barred by res judicata. The learned trial Judge has accepted this contention. I think, the view of the learned trial Judge is manifestly erroneous. Even Miss V. P. Shah, L. A. for the respondents was not in a postilion to support this view. The reason is this. Against the dismissal of that suit No. 12/69, appellants had preferred Appeal No. 97 of 1972. During the pendency of that appeal, on September 20, 1972, there was settlement between the parties. The accounts were settled and the amount due from respondent No. 2 to the appellants was settled and paid. On the same day, the suit agreement exh. 129 creating a new relationship was brought into existence and as a sequel to that settlement, on Septemeber 22,1972, Appeal No. 97 of 1972 was withdrawn, as the matter was settled between the parties, outside the court. On the same day, the suit agreement exh. 129 creating a new relationship was brought into existence and as a sequel to that settlement, on Septemeber 22,1972, Appeal No. 97 of 1972 was withdrawn, as the matter was settled between the parties, outside the court. Therefore, though the judgment and decree passed by the trial court in Suit No. 12 of 1969 may not have been formally set aside, in view of the settlement between the parties, that judgment and decree have become totally effaced, and they are of no avail. Secondly, it was subsequent to the dismissal of that Suit No. 12 of 1969, by the judgment Exh. 99, dated May 12, 1972 that the parties mutually agreed upon a new relationship being brought into existence and for that purpose, they entered into the agreement Exh. 129. It would be unthinkable to hold that the finding recorded by the trial court on Issue No. 7 in Suit no. 12 of 1969 would operate as res judicata when the appellants in this suit, based upon the agreement entered into between the parlies on september 20, 1972, contend that the respondents are the licensees. If subsequent to the judgment exh. 99, dated May 12, 1972 whereby the contention of sub-tenancy raised by respondent no. 2 was accepted by the finding on Issue No. 7 no new events had taken place, then perhaps, it could have been argued with some force that if the appellants contend contrary to the finding on issue No. 7 that contention will be barred by res judicata. But here, subsequent to the dismissal of Suit No. 12 of 1969, a new relationship has been brought into existence by the agreement exh. 129. The agreements that came to be entered into on September 20, 1972 have been acted upon. In compliance of those agreements, on september 22, 1972, Appeal No. 97/72 came to be withdrawn by the appellants by their purshis exh. 128, to which I have made a reference hereinabove. The amount that was settled as payable by the respondent to the appellants was paid under receipt Exh. 127, and as a part of the same settlement, some time later, on December 27, 1972, respondent No. 2 withdrew his Suit No. 253 of 1967 by the purshis Exh. 105. 128, to which I have made a reference hereinabove. The amount that was settled as payable by the respondent to the appellants was paid under receipt Exh. 127, and as a part of the same settlement, some time later, on December 27, 1972, respondent No. 2 withdrew his Suit No. 253 of 1967 by the purshis Exh. 105. Thus, after the judgment in Suit No. 12 of 1969 came to be delivered by the trial court, the whole complexion of the matter had been changed. The parties had settled their disputes. The case that was put up by the appellants in their purshis Exh. 128 while withdrawing their Appeal No. 97 of 1972 was accepted by the respondents as genuine and a new agreement Exh. 129 had been executed between the parties on September 20,1972. There were certainly new events, which rendered the judgment in Suit No. 12 of 1969 almost meaningless. That judgment cannot be said to be, in any manner, operating. Considering the matter slightly differently, that judgment cannot have any effect while the court is called upon to decide the contention based on the agreement which came to be executed subsequent to that judgment. Therefore, the first limb of contention about res judicata fails. ( 51 ) IT was then contended by the respondents that Haridas, the original owner of the property has filed Suit No. 1/69 in the Gandhidham court on December 21, 1967 against the appellants and respondent No. 2 on the ground that the appellants had unlawfully sub-let the shop of Haridas to respondent No. 2. As said above, that suit came to be transferred to the anjar Court and numbered as Suit No. 113 of 1973. In that suit, on one hand, the appellants contended that responndent No. 2 contended that he was a lawful sub-tenant who was protected under the provisions of the Rent Act for his sub- tenancy commenced prior to 1-5-1959. The other contention which was raised by Haridas in that suit was that the appellants were charging from respondent No. 2 amount in excess of the standard rent. Inter alia on these two main grounds, haridas claimed possession of the suit shop. In that suit, amongst others, the following Issues were framed:"issue No. 1 : is it proved that the defts. 1 to 3 have illegally sub-let the suit shop to the deft. Inter alia on these two main grounds, haridas claimed possession of the suit shop. In that suit, amongst others, the following Issues were framed:"issue No. 1 : is it proved that the defts. 1 to 3 have illegally sub-let the suit shop to the deft. No. 47issue No. 3a : does the plff. prove that defendants No. 1 to 3 charge the rent from the deft. No. 4 in excess of standard rent and permitted increases in respect of the suit premises, as would render them liable for eviction U/s. 13 (1) (J) of the Bombay rent Act ?issue No. 6 : is the notice legal and valid ?issue No. 8 : docs deft. No. 4 prove that he is statutory tenant in respect of the suit shop and is protected by the ordinance III of 1959 of Section 15 of the bombay Rent Act. ?" ( 52 ) THE trial court on Issue No. 6 in that case found that the notice terminating the tenancy was bad in law. On Issues No. 1 and 8, the trial court found that though defendant No. 4 was a sub-tenant inducted in the premises by Defendants no. 1 to 3, he was not an unlawful sub-tenant for he was inducted in the premises prior to the coming into force of Ordinance-III of 1959 and Section 15 of the Bombay Rent Act. Issue No. 3a was answered in the affirmative. It may be mentioned here that the present appellants were defendants No. 1 to 3 in that suit and the present respondent No. 2 was the defendant no. 4 in that suit. On the basis of the aforementioned findings, it was contended on behalf of the respondents that the present contention of the appellants that the respondents are the licensees, is barred by res judicata. This contention has found favour with the learned trial Judge. The contention was very much pressed into service by miss V. P. Shah, before me. In order to appreciate this contention, few further facts are required to be noticed. Suit No. 113 of 1973 (Original Number being Suit No. 1 of 1968) was filed by Haridas, the original owner against the present appellants and respondent No. 2 principally for a decree for possession of the premises. In order to appreciate this contention, few further facts are required to be noticed. Suit No. 113 of 1973 (Original Number being Suit No. 1 of 1968) was filed by Haridas, the original owner against the present appellants and respondent No. 2 principally for a decree for possession of the premises. The suit for possession was dismissed by the trial court, firstly, on the ground that the notice terminating the tenancy was bad, and secondly, that the sub-tenancy in favour of defendant No. 4 was not unlawful. Whatever, the ground on which the dismissal proceeded, the fact remains that the suit for possession was dismissed. No relief for possession was granted by the court in favour of Haridas, the original owner, against the present appellants or even agajnst defendant No. 4 (present respondent No. 2 ). No declaration about respondent no. 2 having become direct tenant of Haridas was also granted by the court in terms of section 14 of the Rent Act. Section 14 of the rent Act reads as under:"14. Where the interest of a tenant of any premises is determined for any reason, any sub- tenant to whom the premises or any part thereof have been lawfully sub-let (before the commencement of the Bombay Rents, Hotel and lodging House Rates Control (Amendment) ordinance, 1959) shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. "obviously therefore, on the above facts, the appellants had no right of appeal against the decree dismissing the suit of Haridas for possession of the premises, though of course, there was a finding against the appellants recorded in the judgement in as much as respondent No. 2 was held to be the sub-tenant. Still, however, it appears that the appellants attempted to file an appeal against the judgment and decree in Suit no. 113 of 1973. They approached the District court against the said judgment and decree by way of an appeal. That appeal was not filed within the period of limitation and therefore, alongwith the appeal, an application under section 5 of the Limitation Act was filed for getting the delay condoned. That application for condonation of delay was rejected by the District court. They approached the District court against the said judgment and decree by way of an appeal. That appeal was not filed within the period of limitation and therefore, alongwith the appeal, an application under section 5 of the Limitation Act was filed for getting the delay condoned. That application for condonation of delay was rejected by the District court. The appellants, therefore, approached this court by way of Revision by filing Civil Revision application No. 587 of 1977. That Civil Revision application was rejected at the admission stage by the following order passed by this Court :"as the alleged finding about relation between defendants Nos. 1, 2, 3 and 4 cannot operate as res judicata, the plaintiffs suit having been dismissed and there being no question of an appeal by Defendants, the apprehension of Mr. Shah is not well based. The Revision Application which is otherwise resting on finding of facts, is rejected. "the certified copy of the order of this Court as aforesaid is at Exh. 136 on the record of the case. ( 53 ) IT was contended by the respondents that the findings recorded by the trial court in Suit No. 113 of 1973 holding inter alia that respondent no. 2 was a sub-tenant would operate as res judicata to the appellants present contention, to the contrary. On the other hand, on behalf of the appellants it was contended that though they had attempted to file an appeal, that appeal was misconceived because they had no right of appeal and that being the position, in absence of any right of appeal in their favour challenging the judgment and decree passed in Suit No. 113 of 1973, the findings recorded in the judgment in that suit cannot operate as res judicata against them. That the appellants had unsuccessfully tried to file an appeal was not a matter which was sought to be pressed into service by the respondents. The respondents contended that as some findign on the issues between the appellants and the respondent which were raised in Suit No. 113 of 1973 were against the appellants and the respondents had a right of appeal and whether they filed an appeal or not, those findings would become res judicata in the present case. The respondents contended that as some findign on the issues between the appellants and the respondent which were raised in Suit No. 113 of 1973 were against the appellants and the respondents had a right of appeal and whether they filed an appeal or not, those findings would become res judicata in the present case. The real question on this point is whether the appellants had a right of appeal against the judgment and decree passed in Suit No. 113/73 whereby the suit of Haridas for possession was dismissed. As the facts clearly show, no relief for possession was granted in favour of Haridas against either the appellants or respondent No. 2. Could the appellants then have filed an appeal against the judgment and decree dismissing the suit for possession filed by Haridas ? That is the real question. The decisions on the point arc, in a way conflicting. In All Ahmed v. Amarnath, A. I. R. 1951 punjab p. 444, it was held as follows :"where a decree is absolutely in favour of a party but some issues arc found against him, he has no right of appeal against the findings becuase he is firstly not adversely affected thereby and secondly because such findings arc not embodied in and do not form part of the decree. Hence, where the plaintiffs suit for injunction is dismissed by the lower court, the defendant would have no right of appeal against the decree passed in his favour merely because he is dissatisfied with a finding in the judgment. Such a finding cannot be said to adversely affect the defendant inasmuch as it would not operate as resjudicata against the defendant in a subsequent suit because the finding must be taken to have been superseded by the decree and thus not having been heard and finally decided. "in P. Venkobacharlu v. S. Radabayamma and Others, A. I. R. 1924 Madras p. 858, it has been held that "though for an appeal to lie, it is not necessary that the finding should be actually embodied in the decree, yet where a suit is dismissed and the judgment contains some findings as between co-defendants which are not embodied in the decree nor implied therein, such findings do not amount to res judicata and are not appealable. " in M. Lalchayya v. S. Kottamma and Others, a. I. R. 1925 Madras, p. 264, it was held that"there is no right of appeal vouchsafed to a party against whom a suit has been dismissed, simply becuase the finding on a particular matter, in controversy has been against him. "the Full Bench of the Calcutta High Court in the case of The Commissioners for The Port of calcutta v. Bhairadinram Durgaprosas, A. I. R. 1961 Calcutta 2 p. 39, held that "where the decree is entirely in favour of the party, and the finding adverse to him recorded in the judgment docs not affect the decree, such a party has no right of appeal. " in Dhan Singh v. Jt. Director of Consolidation, u. P. Lucknow and Others, A. I. R. 1973 allahabad, p. 283, it was held that "where the previous suit was dismissed against all the defendants, a finding against one of the co-defendants would not operate as resjudicata in subsequent suit as the co-defendnat had no right of appeal in the said suit. " their Lordships of the Supreme Court, in the case of Smt. Ganga Bai v. Vijay Kumar and others, A. I. R. 1974 S. C. p. 1126 held that "the provisions of Sections 96,100, 104 (1), 105 read with Order 43, Rule I of the Code show that an appeal lies only as against a decree or an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. " in Corporation of Madras v. P. R. Ramachandriah and Others, A. I. R. 1977 Madras p. 25, the Division Bench of the Madras High Court held that" It is well settled that a party not aggrieved by a decree is not competent to appeal against the decree on the ground that an issue is found against him. " lastly, the latest judgment of the Supreme court in Ramesh Chandra v. Shiv Char an Dass and Others, A. I. R. 1991 S. C. p. 264 also rules that"one of the tests to ascertain if a finding operates as resjudicata, is if the party aggrieved could challenge it. " lastly, the latest judgment of the Supreme court in Ramesh Chandra v. Shiv Char an Dass and Others, A. I. R. 1991 S. C. p. 264 also rules that"one of the tests to ascertain if a finding operates as resjudicata, is if the party aggrieved could challenge it. "on the facts of that case, Their Lordships of the Supreme Court held that "since the dismissal of appeal or the appellate decree was not against defendants Nos. 2 and 3, they could not challenge it by way of appeal. " this last mentioned latest judgment of the supreme Court makes it clear beyond doubt that the test to ascertain whether a finding operates as res judicata is whether the party aggrieved could challenge it. If the party has no right of appeal against the decree, any finding adverse to him recorded in the judgment upon which the decree was passed, would not obviously operate as resjudicata in the subsequent proceeding. That, to me, seems to be the logical conclusion to be drawn from what their Lordships of the Supreme Court have enuciated in this last mentioned latest judgment in the case of Ramesh Chandra (supra ). ( 54 ) THE line of decisions referred to hereinabove clearly points to the proposition that the test whether a contention would be resjudicata is whether the party against whom thai contention was decided in the earlier proceeding has or had not a right of appeal against the decision in the earlier proceeding. If that party had a right of appeal against the decision in the earlier proceeding where the contention was found against him, then, if that party attemps to raise the same contention over again in the subsequent proceedings, it would be barred by resjudicata. If, however, that party had no right of appeal to challenge that decision in the earlier proceeding, on the ground that the ultimate decision was all in his favour, though the finding of a particular issue was against him, then in that event, no resjudicata would be established against him in the subsequent proceedings, where he tries to reagitate that very same contention. Having seen the one view of the matter, I will now refer to some judgments which have taken a contrary view. Having seen the one view of the matter, I will now refer to some judgments which have taken a contrary view. ( 55 ) IN Dwarka Das v. The Union of India and others, A. I. R. 1953 Punjab p. 120, the Division bench of the Punjab High Court, followed the earlier Privy Council judgment, where the following principles seem to have been enunciated :"in order to apply the rule of resjudicata as between the co-defendants, three conditions are requisite : (1) There must be a conflict of interest between the defendants concerned ; (2) It must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) The question between the defendants must have been finally decided. "relying upon the aforesaid principles, Miss v. P. Shah, L. A. for the respondents contended that in Suit No. 113 of 1973, there was a conflict of interest between the apppcllants on the one hand and respondent No. 2 on the other inas much as the former pleaded licence in favour of the later while the later claimed sub-tenancy, and it was necessary to resolve this conflict of interest between the two sets of defendants in order to give relief to plaintiff Haridas, and in fact the conflict was resolved and it was held that respondent No. 2 was a sub-tenant, albeit lawful. In the submission of Miss Shah, therefore, all the conditions for application of the rule of res judicata as between the co-defendants as have been enunciated by the Privy Council, as referred to in the case of dwarka Das (supra) arc present in the instant case, and therefore, it must be held that the present contention of the appellants that the respondents are the licensees, should be held to be barred by resjudicata, in view of the findings to the contrary recorded by the trial court in Suit No. 113 of 1973. Miss Shah ncxtly relied upon the decision in the case of Raval Prabhulal Bapalal v. Bai godavri w/o. Dhirajram Kripashanker and Another, a. I. R. 1963 Gujarat 183. In that judgment also the aforesaid three principles enunciated by Their Lordships of the Privy council, which came to be relied upon in the punjab Case just now referred to, have been followed. In that judgment also the aforesaid three principles enunciated by Their Lordships of the Privy council, which came to be relied upon in the punjab Case just now referred to, have been followed. ( 56 ) THEDECISION in the case of P. N. Kesavan and Another v. Lekshmy Amma Madhavi Amma and Ors. AIR 1968 Kerala p. 154, relied upon by miss Shah stands on a different fooling. There the official Receiver on one hand represented the insolvent in the sense that the insolvents estate vested on him, and on the other hand, he represented the entire body of creditors including the fourth respondent of that case. Therefore, the dismissal of the suit filed by the fourth respondent was not only against the said fourth respondent, but it was also against the entire body of creditors represented by the Offical Receiver. It was, therefore, held that though the suit filed by the fourth respondent of that case was dismissed by the District Court, the Official Receiver representing the entire body of creditors had a right to file an appeal, and if he did not file an appeal against the District Courts decree, in a subsequent suit to be filed by the Official Receiver, the dismissal of the suit against the fourth respondent will be resjudicala. In the present case, there is no semblance of what was available in the aforesaid Kerala decision. Therefore, that Kerala decision has no assistance to render to the submission of Miss shah that even when the suit is dismissed against all the defendants, some of the defendants against whom a finding might have been recorded, would have a right of appeal against the decree. ( 57 ) AS pointed out just now, the Kerala decision as reported in AIR 1968 Kerala, p. 154 is absolutely on different facts. ( 57 ) AS pointed out just now, the Kerala decision as reported in AIR 1968 Kerala, p. 154 is absolutely on different facts. However, the punjab judgment reported in AIR 1953 Punjab, p. 120, and the Gujarat judgment in AIR 1963, gujarat p. 183, both of which have followed the principle laid down by Their Lordships of the privy Council in Munni Bibi v. Tirlokinath, 58 indian Appeals, p. 158, do take the view that as between co-defendants, even if the suit by the plaintiff is dismissed, a finding in certain circumstances would be resjudicata, if there was a conflict of interest between the co-defendants, and that conflict was required to be resolved for granting relief, and was in fact resolved. To some extent, these judgments seem to lay down the proposition of law, which is contrary to what has been laid down in the first set of judgments referred to earlier. Having gone through the judgments of these two sets, I think the view expressed in the first set of judgments is more convincing, and is in accordance with the latest judgment of the Supreme Court in the case of ramesh Chandra (supra ). I would, therefore, prefer the view expressed in the former set of judgments. ( 58 ) ON the facts of the case before me, as the suit of Haridas for possession was dismissed against the appellants and respondents No. 2, there was no question of any right being there in favour of the appellants to challenge the decree in that suit, even though in the judgemnt, on which the decree was based, a finding was recorded that respondent No. 2 was a sub-tenant. It would be a different matter altogether that the appellants did attempt to file an appeal against that decree, albeit, unsuccessfully. They were late in filing the appeal and therefore, the application for condonation of delay was required to be filed. The delay was not condoned. They approached the High Court, and the High Court has also, while summarily rejecting the revision application, clearly expressed the view that the findings about the relations between defendants no. 1 to 3 and 4 cannot operate as resjudicata, and the plaintiffs suit having been dismissed, there was no question of an appeal by the defendants. They approached the High Court, and the High Court has also, while summarily rejecting the revision application, clearly expressed the view that the findings about the relations between defendants no. 1 to 3 and 4 cannot operate as resjudicata, and the plaintiffs suit having been dismissed, there was no question of an appeal by the defendants. Defendants No. 1, 2 and 3 of that suit are the appellants before me, and defendant No. 4 of that suit is respondent No. 2 before me. The finding about the inter se relationship between the appellants and respondent No. 2 was recorded in the judgment. This High Court, while summarily rejecting the Revision Application stated that that finding cannot operate as res judicata as the plaintiffs (Haridas) suit having been dismissed, there was no question of an appeal by the defendants (the present appellants ). Of course, these observations came to be made by this High Court while summarily rejecting the revision application. When those observations were made, the present respondents were not before this court. Still, however, these observations made by this court cannot be lightly brushed aside for they are in accordance with the law as laid down by the various judgments of the first set referred to hereinabove. Therefore, even on the observations of this court as contained in exh. 136, it has got to be said that the finding recorded in Suit No. 113 of 1973 to the effect that the present respondent No. 2 was a sub-tenant, would not operate as resjudicata in the present suit filed by the appellants, who had no right of appeal against the dismissal of the suit of Haridas for possession. ( 59 ) AS a result of the foregoing discussion I hold that the contention of the respondents that the appellants contention about licence is barred by resjudicata has no force whatsoever. ( 60 ) IN view of the foregoing discussion, the appeal should be allowed. Hence it is ordered that: (A) The respondents-defendants do hand over vacant and peaceful possession of the suit shop alongwith the running business in the name of m/s. Chawla Cafe and Milk Bar, which is being run therein, to the appellants-plaintiffs; and they also should hand over to the appellants-plaintiffs, all the items of movable properties as mentioned in the list attached to the agreement Exh. 129, or the value of those articles as mentioned in that list. That agreement Exh. 129 and the list annexed thereto are ordered to form part of this decree. (B) The respondents-defendants are also directed to pay to the appellants-plaintiffs, Rs. 4,100/- being the licence fee, upto the dale of the suit. (C) The appellants-plaintiffs are also entitled to mesne profits, and for that, the trial court is directed to hold necessary inquiry for determination of the mesne profits. (D) The respondents-defendants shall pay to the appellants-plaintiffs the the cost of the suit, and of this appeal. . ( 61 ) AT this juncture, Miss V. P. Shah, the learned advocate for the respondents prays for the stay of the operation of the aforesaid order, for the respondents would like to take remedy before the appropriate forum. On that request, it is ordered that the operation of the aforesaid order shall remain stayed for a period of FOUR weeks from the date, the respondents get the certified copy of the judgment and decree, provided they apply for the same on urgent payment, and the application is made within two days from now. .