JUDGMENT - A.A. CAZI, J.:---The suit is for (a) a declaration that the defendant is a trespasser in respect of the suit premises, (b) a mandatory order ordering the defendant to remove himself from the suit premises, (c) a decree for Rs. 9,800/- as mesne profits/compensation for the period from 1st March, 1973 to July 1975 at the rate of Rs. 350/- per month, and (d) future mesne profits. 2. The suit premises are the residential premises being Flat No. 34/C, Geeta Bhavan, 93, Warden Road, Bombay-26. It appears that the flat is situate in a building owned by a co-operative housing society, but for all our purposes the plaintiff may be considered as the owner of the suit premises. The defendant has been occupying the suit premises and using the same for the residence of himself and his family ever since 1st September, 1962. However, every eleven months the parties have been signing an agreement termed "Leave And Licence Agreement". The last of such agreements which is dated 1-11-1971 is at Exhibit `A-11' (copy is at Exhibit `A' to the plaint) and the 16 terms contained therein are as follows : "1. That the Licensor doth hereby agree to give and the Licensee doth hereby agree to the said furnished flat for residential purpose on leave and licence basis for a period of eleven months commencing from 1st November, 1971. 2. That the compensation fixed for such use and occupation of the furnished flat is Rs. 350/- (Rupees three hundred fifty only) per month. The said compensation shall be paid by the Licensee regularly every month in advance by the 5th of every month. 3. All existing rates, taxes and outgoings in connection of the flat are to be paid by the Licensor. 4. That the Licensee shall not do any act or thing which may harm or damage to the premises and shall take proper care of the same as he would take in case of his own property and belongings. 5. That the Licensee shall not do any act or thing which may harm or damage the property of the Licensor in any way whatsoever. 6. That the said Licensee will keep the said premises in clean, decent and sanitary condition. 7. That the Licensee shall use the premises licensed to him for bona fide residential purpose only. 8. 5. That the Licensee shall not do any act or thing which may harm or damage the property of the Licensor in any way whatsoever. 6. That the said Licensee will keep the said premises in clean, decent and sanitary condition. 7. That the Licensee shall use the premises licensed to him for bona fide residential purpose only. 8. That the Licensee agrees to keep the said premises in the same condition as it is given to him and any loss or damage to the property of the Licensor, the same shall be made good by the Licensee. 9. Subject to normal wear and tear the Licensee shall keep all furniture fixture and fittings in good order. In the event of any loss of the property of Licensor or damage to the same, the Licensee undertakes to replace or repair the same at his own expenses immediately such repairs or replacement become due. 10. The Licensor or his duly authorised agent shall have the right to visit the premises at all reasonable times and to see its safety. 11. That the Licensee on the execution of this agreement shall pay a deposit of Rs. 560/- (Rupees five hundred sixty only) to the Licensor which amount shall remain with the Licensor till the termination of this agreement and the same shall not carry any interest. It is further agreed between the parties that on the termination of this agreement, the Licensor shall return the said deposit after deducting any amount that remains unpaid by the Licensee, as per terms of this agreement. But if the Licensee vacates before the expiry of the period the deposit will be forfeited. 12. That the Licensee agrees to pay electric and water charges as per meter from the date of occupation till the date of leaving the premises and handing over them to the Licensor. 13. It is hereby clearly understood and agreed between the parties that nothing in these presents shall be construed to confer any legal rights of tenancy, sub-tenancy, lease, sub-lease etc., on the Licensee and that the Licensee can enjoy the use of the premises temporarily only at the pleasure and will of the Licensor, subject to the terms and conditions of this agreement. 14. 14. That the Licensee is not to make or permit to be made any additions, alterations in the said fixtures, of fittings or installations thereof without the previous written permission of the Licensor. 15. That the Licensee hereby agrees to indemnity the Licensor and keep her harmless for all claims, demands, damages, actions, cost and charges to which the Licensor may become subject of which she may have to pay by any reason of activity, negligence, commission or performance or non-observance of any terms and conditions of this Agreement or otherwise by the said Licensee or his servants, friends or relations. 16. It is further understood by the Licensee that the said flat No. 34, 4th floor, Geeta Bhavan, Warden Road, Bombay Block-C, agreed to be licensed, shall be occupied by the Licensee and his family as strictly personal residential house and no one else." According to the plaintiff the defendant was her licensee under these agreements and as the period of the last agreement Ex. A-11 expired on 30th September, 1972 the defendant has continued to occupy the suit premises wrongfully as a trespasser. 3. The defence of the defendant is as follows : The relationship between the plaintiff and the defendant is that of landlord and tenant and since the suit relates to the recovery of possession of the premises let out by the plaintiff to the defendant this Court would have no jurisdiction to entertain and try the suit. Alternatively the relationship between the plaintiff and the defendant is that of a licensor and licensee which was subsisting as on 1st February, 1973 and, therefore, also this Court would have no jurisdiction to entertain and try the suit. 4. The issues are as follows: (1) Does this Court have jurisdiction to try the present suit ? (2) Was the defendant a licensee of the plaintiff on 1st February, 1973 ? (3) Is the defendant entitled to the protection of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 ? (4) Is the plaintiff entitled to the declaration and mandatory injunction as prayed in prayers (a) and (b) of the plaint ? (5) Is the plaintiff entitled to claim a sum of Rs. 350/- per month from the defendant from 1st February, 1973 as and by way of compensation and/or damage ? (4) Is the plaintiff entitled to the declaration and mandatory injunction as prayed in prayers (a) and (b) of the plaint ? (5) Is the plaintiff entitled to claim a sum of Rs. 350/- per month from the defendant from 1st February, 1973 as and by way of compensation and/or damage ? My answers are - (1) This Court has no jurisdiction to grant the plaintiff's claim (2) It is held that the defendant was the plaintiff's tenant in respect of the suit premises, and hence, Issue No. 2 does not survive. If the defendant is not the tenant of the plaintiff of the suit premises then answer to Issue No. 2 will be in the affirmative. (3) The relations between the parties vis-a-vis the suit premises is governed by the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947. (4) No. (5) No. REASONS 5. I will first take up the question as to whether the defendant was the plaintiff's licensee in respect of the suit premises or whether he was the plaintiff's tenant in respect of the suit premises. The lease is defined in section 105 of the Transfer of Property Act, 1882 and that section reads as follows: "Section 105. A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent." Now, although all the elements necessary to constitute a lease appear to be present in the written agreements between the parties, it is argued by Mr. Merchant, the learned Counsel on behalf of the plaintiff that (i) exclusive possession of the premises was not given to the defendant and (ii) there was no intention to create a lease. For this purpose Mr. Merchant drew my attention to clauses 7, 9, 10, 13, 14 and 16 of the agreement. Merchant, the learned Counsel on behalf of the plaintiff that (i) exclusive possession of the premises was not given to the defendant and (ii) there was no intention to create a lease. For this purpose Mr. Merchant drew my attention to clauses 7, 9, 10, 13, 14 and 16 of the agreement. Under clause 7 of the agreement the defendant is required to use the premises "for bona fide residential purpose only." I do not see how this in any way comes in the way of the transaction amounting to a lease. Mr. Merchant argued that if exclusive possession had been granted to the defendant and if he had the right to use the premises then he should not be restricted in using the premises only for residential purpose and by such restriction the transaction ceased to be one of lease. I see no substance in this argument. The law regarding lease of immoveable property is mentioned in Chapter V of the Transfer of Property Act and the various provisions contained in that Chapter indicate that leases are made for various purposes including lease for commercial purpose, lease for manufacturing purpose and lease "for any other purpose". Clause (o) of section 108 of the Transfer of Property Act prohibits the lessee from using or permitting another to use "the property for the purpose other than that for which it was leased" indicating that the purpose may be specified in the lease agreement. Hence, Mr. Merchant's reliance on clause 7 of the agreement does not help the plaintiff's case at all. 6. Under clause 9 of the agreement the defendant is required to keep all furniture, fixture and fittings in good order. I do not see how this clause goes to show that the transaction is not one of lease. This clause is, in fact, based on clauses (m) and (o) of section 108 of the Transfer of Property Act. 7. Under clause 10 of the said agreement the plaintiff is given the right "to visit the premises at all reasonable times and to see its safety". Now, this is quite in keeping with clause (m) of section 108 of the Transfer of Property Act where the lessee is required "to allow the lessor and his agents, at all reasonable times during the terms, to enter upon the property and inspect the condition thereof....." 8. Now, this is quite in keeping with clause (m) of section 108 of the Transfer of Property Act where the lessee is required "to allow the lessor and his agents, at all reasonable times during the terms, to enter upon the property and inspect the condition thereof....." 8. Clause 13 of the said agreement reads as follows : "It is hereby clearly understood and agreed between the parties that nothing in these presents shall be construed to confer any legal rights of tenancy, sub-tenancy, lease, sub-lease, etc., on the Licensee and that the Licensee can enjoy the use of the premises temporarily only at the pleasure and will of the Licensor, subject to the terms and conditions of this agreement". Now, this speaks of how the parties should construe the legal rights that are granted under the agreement. It is not for the parties to give a construction different from what the law permits. It is only where the agreement is equivocal that regard may be had as to what the parties have stated as to how it should be construed or as to the label given by the parties to their agreement. 9. Clause 14 of the said agreement is regarding additions, alterations in the fixtures, fittings or installations. This may be permitted to the defendant only with the previous written permission of the plaintiff. Far from going against a lease this would support the defendant's case that this amount to a lease. 10. Clause 16 of the said agreement is again regarding the purpose for which the premises are to be used and I have already discussed that a lease may specify the particular purpose to which the property may be used. 11. Mr. Merchant heavily relied upon (Vasudeo Mirchumal Deviani and others v. Hindustan Chemical Works Ltd. and another)1, 1984 Maharashtra Law Journal page 503. Now, in that case this Court came to the conclusion that the transaction in question there was not a lease but a licence. It held so there because it found that exclusive possession of the premises had not been granted to the grantee. Now, in that case this Court came to the conclusion that the transaction in question there was not a lease but a licence. It held so there because it found that exclusive possession of the premises had not been granted to the grantee. Two clauses were referred to in the written agreement between the parties which provided (1) " not to change the lock on the main entrance door of the said flat without the consent in writing of the licensor" and (2) "the licensor shall throughout the period of the licence have full control over the said flat". It is from these two clauses that the Court came to the conclusion that exclusive possession of the premises in question there had not been given to the grantee and, therefore, the transaction did not amount to a lease. In our case such terms are not present. There is nothing in the agreement to show that exclusive possession of the premises had not been given to the defendant. The only terms on which reliance was placed on behalf of the plaintiff have been mentioned above and none of those support the plaintiff's case of the transaction not amounting to a lease. 12. Further, it must be noticed that the plaintiff and the defendant were strangers before the defendant was inducted into the premises. The plaintiff admitted that the only reason for giving the premises to the defendant was to obtain monthly monetary return. There was no sympathetic or such other consideration for inducting the defendant into the premises. Further, it was not for a short time that the defendant had been inducted into the premises. He was inducted into the premises from 1962 and has been there under renewed agreements for 10 years. All the terms of the agreement, read together in the circumstances of the case, indicate that the transaction was one of lease and not of licence. Mr. Parekh rightly relied on the decision in (M/s. Mohan Sons (Bombay) Private Ltd. v. Lady Sonoo Jamsetji Jeejeebhoy)2, 78 B.L.R. 195. I would reproduce a portion from that decision as follows : "A term certain would be appropriate to the grant of tenancy. Mr. Parekh rightly relied on the decision in (M/s. Mohan Sons (Bombay) Private Ltd. v. Lady Sonoo Jamsetji Jeejeebhoy)2, 78 B.L.R. 195. I would reproduce a portion from that decision as follows : "A term certain would be appropriate to the grant of tenancy. If a sum is agreed to be paid periodically by the occupier in consideration of the right to enter upon, use and enjoy the property, it will certainly be rent or payment in the nature of rent, though it might be described as licence fees. A repairing convenant would be inappropriate in a licence. A provision to keep the property in good and tenantable repair would be an indication in favour of tenancy rather than a licence. If the licensee agrees not to cut down trees, remove any soil, clay or sand, etc., from the land, if the occupier were a licensee, this provision would be unnecessary, for a licensee has no right or power to do all these things. This would be so, if there is a provision for not erecting a structure on the land. Where the grantee is permitted to enter the property to inspect the condition thereof and for all other reasonable purposes, this provision is, if not a decisive indication, at all events a very important indication to the effect that a tenancy as distinct from a licence, is the real subject-matter of the document. A provision to deliver up the premises at the end of the licence or the expression "deliver up" is more appropriate to a tenant with an interest in the land than to a person who has a mere contractual right to be on the land. The provision for re-entry is really inappropriate to the case of a licensee, for the conception of a re-entry is the resumption of possession by the landlord and the determination of the tenant. The provision to the effect that "nothing in this agreement shall be construed to create a tenancy" is a label affixed by the parties which must yield to the conclusion arrived at as to their relationship, determined by law, in the light of the other provisions of the document." 13. The provision to the effect that "nothing in this agreement shall be construed to create a tenancy" is a label affixed by the parties which must yield to the conclusion arrived at as to their relationship, determined by law, in the light of the other provisions of the document." 13. Having held that the defendant was the plaintiff's tenant in respect of the suit premises the other questions really do not arise for decision and the relations between the parties would be governed by the Rent Act and it is only the Court of Small Causes that would have jurisdiction for deciding the claim for possession in respect of the suit premises by the plaintiff against the defendant. However, I may also proceed to consider the relations between the parties on the assumption that the agreement between the parties brought about a licence and not a lease. It is urged by Mr. Merchant that the last of such licence agreement was for the period from 1st November, 1971 to 30th September, 1972 and as there was no written agreement made thereafter it indicated that there was no agreement between the parties to extend the licence beyond 30th September, 1972 and, therefore, the defendant was not the plaintiff's licensee as on 1st February, 1973. Now, on 1st November, 1972 a letter was written by the defendant to the plaintiff stating "enclosing hereto a cheque for Rupees Seven Hundred only towards the rent for the months of September and October 1972 and hope you will find the same in order. Kindly acknowledge receipt." The cheque number is also mentioned at the bottom of the letter. It is undisputed that payments have been received by the plaintiff from the defendant in respect of the suit premises for the months subsequent to September 1972. This letter also shows that payment for October 1972 was also received by the plaintiff. Again a letter was written by the defendant to the plaintiff on 2nd January, 1973 stating "enclosing hereto a cheque for Rupees Seven Hundred only towards the rent for the months of November and December 1972 and hope you will find the same in order. Kindly acknowledge receipt". At the bottom the cheque number is mentioned. Thus, this payment was also received by the plaintiff. Thereafter there are two letters which have a very important bearing. Kindly acknowledge receipt". At the bottom the cheque number is mentioned. Thus, this payment was also received by the plaintiff. Thereafter there are two letters which have a very important bearing. One of these letters was written by the defendant to the plaintiff and it is dated 9th March, 1973 and the other was written by the plaintiff to the defendant and that is dated 12th March, 1973 and is a reply by the plaintiff to the defendant's letter dated 9th March, 1973. In the letter dated 9th March, 1973 the defendant writes "enclosing hereto a cheque for Rupees Seven Hundred only towards the rent for the months of January and February 1973 and hope you will find the same in order. Kindly acknowledge receipt. "Again at the bottom of the letter the cheque number is mentioned. Now, the reply to this given by the plaintiff by her letter dated 12th March, 1973 states "Thanks for your letter dated 9th March, which was read by me just now. First of all I have written to you as well as explained to you personally many times that you are not my tenant so that you are sending rent to me. You are my licensee and you are paying licence fee to me. It is clearly written in the Agreement and you have signed it last time you promised not to write "Rent" again. I hope in future you will note that carefully. ************************************************* You also promised to pay Rs. 375/- from September, 1972, but you have failed to keep the promise. Our terms are that you have to pay Licence Fee how well you are keeping up with the terms, that you pay three months after the Licence fee is due. Even now when you have sent the cheque you did not send for the month of March". Clearly this indicates that the parties had impliedly by their conduct, if not by express written or oral agreement, continued their relationship of licensor and licensee in respect of the suit premises. I have, therefore, in the alternative, held that the defendant was the plaintiff's licensee in respect of the suit premises as on 1-2-1973. 14. In view of my findings as abovesaid the relationship between the parties would be governed by the Bombay Rent Act. I have therefore answered the issues accordingly. Hence, the plaintiff's suit is dismissed with costs. Suit dismissed. 14. In view of my findings as abovesaid the relationship between the parties would be governed by the Bombay Rent Act. I have therefore answered the issues accordingly. Hence, the plaintiff's suit is dismissed with costs. Suit dismissed. -----