JUDGMENT This is a suit mainly for possession of immovable property instituted primarily against the first defendant. 2. The rights of the parties herein flow from a written agreement dated 18th of July, 1970 made between Dewar's Garage and Esso Standard. Dewar’s Garage was the predecessor of the plaintiff and Esso Standard was the predecessor of the first defendant. There are no disputes in this regard and the plaintiff and the first defendant have not disputed before me that their rights flow from the said written agreement, whatever those rights might be. 3. The second defendant is a petrol dealer. The agreement of the second defendant with the first is also exhibited in this proceeding and the same is Exbt. D-2/1 dated 15th of September, 1983. 4. The second defendant himself states in his written statement in the first paragraph that there is no privity of contract between the plaintiff and the second defendant. As such it is quite clear that the original rights of the parties would have to be determined as between the plaintiff and the first defendant. 5. It is principally an interpretation of the terms of the aforesaid, 1970 agreement which has been the subject matter of the dispute in this suit. Accordingly, in my opinion, it is better to set out the entire terms thereof. The same are set out below : "MEMORANDUM OF AGREEMENT made this Eighteenth day of July, One thousand nine hundred and seventy Between DEWAR'S GARAGE (INDIA) PRIVATE LIMITED an existing Company within the meaning of the Companies Act, 1956 and having its Registered Office at 4, Council House Street, Calcutta (hereinafter referred to as "the LICENSER" which expression shall include its successors and assigns) of the Part and ESSO STANDARD EASTERN INC., a Corporation duly incorporated under the laws of the State Delaware, United State of America and having its Principal Office in the City of New York and carrying on business amongst other places in, India at 27B, Camac Street, Calcutta-16 (hereinafter referred to as “the LICENSEE” which expression shall include it successors and assigns) of the other part. WHERE AS : (1) The Licenser has been and is a monthly tenant under Mallika Investment Co. of 10, Old Post Office Street, Calcutta-1 in respect of the vacant land or ground comprised in premises No. 4D, Council House Street, Calcutta, more particularly described in the First Schedule hereunder written. WHERE AS : (1) The Licenser has been and is a monthly tenant under Mallika Investment Co. of 10, Old Post Office Street, Calcutta-1 in respect of the vacant land or ground comprised in premises No. 4D, Council House Street, Calcutta, more particularly described in the First Schedule hereunder written. (2) The Licenser hath with the consent and approval of its landlord erected and built certain structures on the said piece or parcel of vacant land or ground being premises No. 4D, Council House Street and after equipping with requisite plants and machineries has been maintaining and running a petrol Service Station for sale of Esso Petrol Products motor spares and components on the said premises No. 4D, Council House Street, Calcutta. (3) The Licenser has decided not to continue the said Petrol Service Station and as such it has been agreed between the Licenser and the Licensee that the License would run the Petrol Service Station as its Licensee on the terms and conditions hereinafter contained. (4) It has also been agreed between the Licenser and the Licensee that the Licenser would grant a sub-lease in respect of the said premises No. 4D, Council House Street, on which the said Petrol Service Station in situated if the Licenser is able to obtain a lease of the said premises from its landlords subject to the condition that the License will have the right to terminate the Sub-lease on giving three calendar months notice in writing and that the sub-lease shall be at least for a period of 10 years with three renewal options of ten years each and that the Licensee will have the right to grant license for the purpose of running the said Petrol Service Station. (5) It has also been agreed between the parties that the Licenser would endeavour to obtain a lease from its landlords on the terms which would not be inconsistent with the standard terms on which a sub-lease is obtained by the Licensee for the purpose of selling its products through the Petrol Service Station and including the terms hereinbefore mentioned. (6) A copy of the standard form of the lease usually obtained by the License is attached herewith. IT IS HEREBY AGREED by and between the parties hereto as follows : 1. (6) A copy of the standard form of the lease usually obtained by the License is attached herewith. IT IS HEREBY AGREED by and between the parties hereto as follows : 1. The Licenser hereby grants and gives to the Licensee and the Licensee accepts from the Licenser the leave and licence to use occupy enjoy run and work the said Petrol Service Station on the said premises No. 4D, Council House Street; Calcutta more particularly described in the First. Schedule hereunder written and delineated in the map or plan hereto annexed TOGETHER WITH the plant and machinery installed and/or fitted in the sheds and structures erected and built and/or standing on the said premises TOGETHER ALSO WITH the fixtures and fitting appertaining to be said business a list whereof is set out in the Second Schedule hereunder written. 2. The Licensee shall inconsideration of the leave and licence hereby granted and during the currency of such lease or licence pay to the Licenser as and by way of license fee the sum of Rs. 3,950/- (Rupees three thousand nine hundred and fifty) per month on or before the 15th day of the following month succeeding the month for which it is due and payable according to English Calendar. 3. The Licensee shall not be liable to pay and/or contribute any portion of the outgoing payable in respect of the said premises No. 4D, Council House Street. 4. The Licensee shall duly and punctually pay the electric bills consumed from the existing meters in the said premises No. 4D, Council House Street including the bills for telephone calls and charges and keep the Licenser indemnified against any loss or damage consequential to non-payment thereof. 5. The Licensee shall keep and maintain all the plants and machineries fitting and fixtures of any kind whatsoever specified in the Second Schedule hereunder written in proper running and useable condition, normal wear and tear excepted and shall not remove or displace do or cause any damage or loss or injury thereto or be more any of them except for repair. 6. The Licensee shall be entitled to bring in an install such further or other machineries and fittings as it may think fit for the purpose of running the said Petrol Service Station. 7. 6. The Licensee shall be entitled to bring in an install such further or other machineries and fittings as it may think fit for the purpose of running the said Petrol Service Station. 7. The Licensee shall at its own costs and expenses take out necessary license and shall not do or commit any act or deed which is contrary to or forbidden by the terms of the license or by any law, order or notification of Government or any lawful Authority in relation thereto. 8. The Licensee shall take out necessary insurance policies according to law or any order or notification by Government or any lawful authority governing the identical business. 9. In the event of any default or breach of the provisions herein on the pare of the Licensee, the Licenser shall be at liberty to withdraw and/or revoke the leave and licence hereby granted and in such event, the Licensee shall forthwith make over vacant and peaceful possession of the said premises including the plants and machinery after removal of machinery to be installed by it but without causing any damage or injury to the said premises No. 4D, Council House Street, Calcutta, or any portion thereof. 10. The Licensee shall be liable for all claims, demands, damages, actions, costs and charges by reason and/or due to any injury to the persons employed by it or to any property of the Licenser or neighbours or adjoining properties resulting from any act and deed done by the Licensee or its employees. 11. The Licensee shall be at liberty to carry on and/or continue the business of the Licenser at the said premises either in its own name or in the name of the Licenser provided that in the event of the Licensee carrying on the business in the name of the Licenser it shall indemnify and keep indemnified the Licenser against all claims and demands arising in respect thereof or for non-observance and/or non-performance of the terms and conditions of the requisite licensee or for any acts, deeds, matters and things done or performed by the Licensee or its employees. 12. 12. It is hereby expressly agreed upon and declared by and between the parties that these presents shall not be treated or used or dealt with or construed by the parties in any way as a tenancy as lease or as a document within the preview of the West Bengal Premises Tenancy Act or any modification or amendment thereof or to confer any relationship as landlord and tenant between the parties hereto. 13. The Leave and Licence hereby granted will stand terminated with the commencement of the sub-lease to be granted by the Licenser in favour of the Licensee after the Licenser obtains a lease from its landlords as hereinbefore stated. 14. The Licenser hereby convents with the Licensee that the Licenser would try to obtain a lease from its landlords in respect of the said premises No. 4D, Council House Street, Calcutta on such terms which would not be inconsistent with the terms on which the sub-lease has been agreed to be granted by the Licensee to the Licensee as hereinbefore stated. 15. The Licenser hereby further covenants with the Licensees- (a) That the Sub-Lease would be for a fixed period of 10 years with three renewal option of ten years each with option for termination by the Licensee during the continuance of the Sub-lease on giving three calendar months notice in writing ; (b) That the Licensee would have the right to grant license in respect of the said premises No. 4D, Council House Street, Calcutta, for the purpose of maintaining and running a Petrol Service Station as is being maintained and run by the Licenser ; (c) That the rent to be paid during the subsistence of the sub-lease will be Rs. 850/- per month ; (d) That the sub-lease shall also include the terms as set out in the standard form of the lease annexed hereto. 16. The Licensee hereby covenants with the Licenser that the Licensee would purchaser the equipments, fittings and fixtures as set out in the Second Schedule hereto at a price of Rs. 850/- per month ; (d) That the sub-lease shall also include the terms as set out in the standard form of the lease annexed hereto. 16. The Licensee hereby covenants with the Licenser that the Licensee would purchaser the equipments, fittings and fixtures as set out in the Second Schedule hereto at a price of Rs. 2,50,000/- (Rupees two lacs and fifty thousand) in case a sub-lease is granted by the Licenser in favour of the Licensee on the terms herein stated within a period of one year from the date hereof and the sale shall be effective simultaneously with the commencement of the sub-lease and thereafter the said plant, machinery and equipment shall become the property of the Licensee. 17. Notwithstanding anything herein before contained it is hereby agreed and declared by and between the parties hereto in case the sub-lease is granted within a period of one year on the terms herein stated then the licensee lee will be calculated at the rata of Rs. 1,850/- (Rupees one thousand eight hundred and fifty) per month in place of Rs. 3,950/- (Rupees three thousand nine hundred and fifty) as hereinbefore stated and such an event the Licenser would refund to the Licensee the excess amount paid by way of Licenee fee. It is also agreed that the Licensee will not be entitled to claim reduction in the licence fee and the Licenser will not be liable to make any refund if the sub-lease is granted after the period of one year. 18. It is hereby expressly agreed and declared between the parties that the sum of Rs. 23,700/- (Repel twenty three thousand seven hundred only) be paid by the Licensee to the Licenser on account of licensee fee in advance for the period of six months at the rate of Rs. 3,950/- (Rupees three thousand nine hundred and fifty) only per month in respect of the demised premises and that the said sum of Rs. 23,700/- (Rupees twenty three thousand seven hundred only) be adjusted and appropriated against the monthly licencee fee payable in respect of the demised premises in the manner hereinafter stipulated. During the continuance of the leave and licence hereby granted, the said sum of Rs. 23,700/- (Rupees twenty three thousand seven hundred only) be adjusted and appropriated against the monthly licencee fee payable in respect of the demised premises in the manner hereinafter stipulated. During the continuance of the leave and licence hereby granted, the said sum of Rs. 23,700/- (Rupees twenty three thousand seven hundred only) as paid by the Licensee to the Licensor on account of the licencce fee in advance, shall be held by the licensor and adjusted and appropriated by the Licensor per month against the monthly licencee fee payable by the licencee as aforesaid untill the same be so adjusted in whole and till then the licencee shall be entitled to deduction of the monthly licence fee of Rs. 3,950/- (Rupees three thousand nine hundred and fifty only) payable by the licencee to the licensor every month. AND WE WHEREAS the licensor has agreed to accept such adjustment and appropriation of the monthly licence fee in respect of the demised premises during the continuance of the terms hereby granted. 19. It is also agreed and declared by and between the parties hereto that the Licensee will have the right to grant leave and license to a third party for running Petrol Service Station during the continuance of this Agreement as well as during the subsistence of the Sub- lease. 20. It is hereby expressly understood and declared that the Licensee shall not assume any liability or responsibility for taking over the employment of the existing employees of the Dewar's Garage belonging to the Licenser. 21. Notwithstanding anything hereinbefore contained it is hereby agreed that the Licensee shall have the right to terminate this Agreement at any time after the expiry of one year from 18th July, 1970, the effective date of this agreement by giving three months notice in writing. THE FIRST SCHEDULE ABOVE REFERRED TO : All that piece and parcel of land comprising No. 4D, Council House Street, Calcutta; bounded on the West By Council House Street, South by Premises No. 3, Council House Street North and East by premises No. 4A, Council House Street with plan of the premises annexed hereto : THE SECOND SCHEDULE ABOVE REFERRED TO : (1) Building with Sales Room, Toilet, Store Room, Extenders Canopy & Fixtures, (2) Lubbay, (3) 4 Nos. 3½ Ton Single Post Hoist, (4) 1 No. 5 H.P. Inoersoll and Air Compressor, (5) 1 No. 1. 3½ Ton Single Post Hoist, (4) 1 No. 5 H.P. Inoersoll and Air Compressor, (5) 1 No. 1. 5 H.P. Can Washer, (6) 1 No. Protable Chaseis Lubrication, (7) 2 Nos. Wall type Air Dispenses with plan of the building and equipment annexed hereto. IN WITNESS WHEREOF the parties hereto have executed these presents the day and year first above written.” 7. Simply put, the case of the plaintiff is that the above agreement, was an agreement in the nature of grant of lease and licence and the same had been duly revoked. The first defendant has accordingly no further right to be upon the land of the plaintiff i.e., premises No. 4D, Council House Street, Calcutta. The case of the first defendant, on the other hand is that upon a true construction of the said agreement, and upon an application of the principles of law relevant in that regard, the said agreement should in reality be construed as an agreement for lease as between the plaintiff and the first defendant. If that constructed is accepted, with the monthly rents paid, whether named as licence fees or otherwise, the same would convert the first defendant into a monthly tenant under the plaintiff and in that case by reason of the provisions contained in the West Bengal Tenancy Act, 1956, the suit would be bound to fail. 8. The first point for construction, therefore is whether the said agreement is, so to speak, a lease or a licence. 9. The law regarding the determination of such a point as this has now been long settled by a series of authorities of the highest Court, Both Mr. Kapoor for the plaintiff, and Mr. Chakrabarty for the first defendant cited the relevant Supreme Court decisions. The cases are those of (1) Associated Hotels of India Ltd. v. R.N. Kapoor reported in AIR 1959 SC page 1262, (2) B.M. Lall v. Dunlop Rubber India Company reported in AIR 1968 Supreme Court, page 175, the case of (3) Rama Murthy Subudhi v. Gopinath reported in AIR 1968 Supreme Court, page 919, the case of (4) Board of Revenue v. A.M. Ansari reported in AIR 1976 Supreme Court, page 1813 and the case of (5) Sridhar v. Sri Jagganath Temple reported in AIR 1976 Supreme Court, page 1860. In the way I respectfully read the dicta of the Supreme Court in these above cases, the following principles of law emerge therefrom. 1. That it is irrelevant how the parties described themselves in the instrument. A person cannot become a lessee merely if the parties to the contract described him as a lessee, nor can he be relegated to the position of a mere licensee by reason only of such a description in the contract. 2. The principal point for determination of the relationship between the parties is the point of determining the intention of the parties when they entered into the contract. Such intention would determine whether the parties create a lease or if they merely create a permissive licence. The intention of the parties is to be gathered from the express terms of the agreements, the objective sought to be achieved by the parties, and the entire surrounding circumstances of each different particular case. 3. A point of paramount importance second only to the point of the intention of parties is the grant of exclusive possession to the grantee. In case a person is put into the exclusive possession of immoveable property, then prima facie he is to be considered as a lessee of the land and it would be for the grantor to disprove the relationship of lessor-lessee. 4. If an interest in land is intended to be created, then the intention is to grant a lease; if the intention is merely to permit something to be done upon the land without creating an interest therein, then the intention is not to create a lease, but to grant a permissive licence to enter and act upon the land. 10. If we apply the above principles to the facts of the present case the first point that stands out is that ESSO was let into exclusive possession of 4D, Council House Street along with the petrol selling Equipment lying there. Though Mr. Pran Kumar Banerjee is the only witness who gave evidence form the box and though he came on behalf of the plaintiff, yet there remains no doubt that the business of petrol dealer and the business of servicing cars as was carried on at 4D, Council House Street were passed on along with exclusive possession by Dewar's to ESSO. Pran Kumar Banerjee is the only witness who gave evidence form the box and though he came on behalf of the plaintiff, yet there remains no doubt that the business of petrol dealer and the business of servicing cars as was carried on at 4D, Council House Street were passed on along with exclusive possession by Dewar's to ESSO. It is unnecessary to go into the evidence in that regard but it is enough to say that the possession of all the rooms and all the equipment on the land and all the keys to all the locks was manifestly made aver after the execution of the said agreement of 1970. Accordingly, it remains to see whether there was any such clear intention amongst the parties as could, in spite of the aforesaid grant of exclusive possession, be said to create amongst them a relationship only of a licensor and licensee. 11. In my opinion such intention is quite manifest. First of all, clause 12 stares me in the face. Parties may not contract out of a statute but for showing their intention not to create a tenancy it is difficult to imagine an express clause clearer than clause 12 of the agreement. 12. The second point in regard to that is, the agreement clarifies that a lease or a sub-lease would be granted in favour of ESSO in case the plaintiff or its predecessor succeeded in obtaining a lease itself from their lessors, one Mallika Investment. This is clear inter alia from the fourth recital contained in the said agreement as well as clauses 14 and 15 contained in the body of the agreement itself. Now, it is settled law that a lessee can grant a sub-lease without obtaining any permission from the landlord notwithstanding any provisions contained in the West Bengal Premises Tenancy Act, 1956. The only result would be that by grant of such sub-lease the lessee would render itself liable to an action for eviction by the landlord under the said Act. In normal circumstances it is not expected that a lessor will axe recklessly at its own feet, and in spite of long prevalence of the tenancy Act in West Bengal, will grant a sub lease to anybody it chooses, without waiting for any consent from the landlord. In normal circumstances it is not expected that a lessor will axe recklessly at its own feet, and in spite of long prevalence of the tenancy Act in West Bengal, will grant a sub lease to anybody it chooses, without waiting for any consent from the landlord. In the instant case, apart from this ordinary-imputation of intention consistent with normal commercial or business approach, there remains the expression in the agreement itself that the plaintiff would grant a sub-lease only if it obtained a lease with permission therefore from its own landlord. If the agreement itself were a sub-lease then no question would arise for either obtaining such a permission from Mallika Investment or delaying the grant of a sub-lease or, to push the matter logically further, grant a second sub-lease if one sub-lease is already existing. This point persuades me to hold, as an important aspect of the matter, that the parties agreed to create a mare licence and not a lease. 13. It has also been explained in the above Supreme Court decisions that an interest created in any land would convert the agreement into an agreement for lease. In deciding the intentions of the parties, it is therefore important, to find out as to whether the parties intended to create or pass or grant an interest in the land itself. 14. Section 52 of the Indian Easement Act, 1882 roads as follows : "where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immoveable property of the-grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." 15. Though the aforesaid Act has never applied in terms to Bengal yet the principles as contained in the said Act have all along applied here. It is clear from the aforesaid section that a licence is thoroughly consistent with a permission to do something in or upon immoveable property. The mere doing of something in or upon immoveable property therefore is not enough to term an agreement as an agreement passing an interest in immoveable property. Following this line of argument Mr. It is clear from the aforesaid section that a licence is thoroughly consistent with a permission to do something in or upon immoveable property. The mere doing of something in or upon immoveable property therefore is not enough to term an agreement as an agreement passing an interest in immoveable property. Following this line of argument Mr. Kapoor relied upon two cases in this regard and these are cases of (6) Uttam Chand v. S.M. Lalwant reported in AIR 1965 SC 716 and the case of (7) Alliance Jute Mills Ltd. in 82 CWN 1055 where the Supreme Court decision was relied on and followed. The Supreme Court case concerned a grant in respect of Mill and Machinery of a Dal Mill. The grant was construed in the light of the Madhya Pradesh Accommodation Control Act and it was found upon a consideration of the entire circumstances of the case that what was granted was not an interest in the land, but an interest in the business of running the dal mill. Accordingly, the conclusion was that it was not a "building" which was the subject matter of the grant but that the true subject matter of the grant was the mill and machinery of the dal mill and the same formed the primary objective in the intention of the parties. 16. In the case of Alliance Jute Mills the question arose similarly in the matter of a Jute Mill and the question was whether the grant comprised of "premises" within the meaning of West Bengal Premises Tenancy Act, 1956. Again the conclusion reached by Justice Sabyasachi Mukherjee, when His Lordship was sitting at Calcutta, was that it was not the premises that was intended to be passed on, but that only the licence to run the business with the machinery on the land was intended to be granted. 17. In the evidence of Pran Kumar Banerjee it was said that the entire machinery as well as business was passed on for use to ESSO. See, for example, answers to questions 15, 17, 102 and 145. It is also mentioned in the agreement in the third recital that the agreement was being entered into upon the decision of the plaintiff not to continue the said-petrol service station. See, for example, answers to questions 15, 17, 102 and 145. It is also mentioned in the agreement in the third recital that the agreement was being entered into upon the decision of the plaintiff not to continue the said-petrol service station. Furthermore, in the 19th clause of the laid agreement it was agreed that the first defendant (or its predecessor) would be entitled to grant leave and licence to a third party for running the petrol Service Station. It is nobody’s case that the premises have been used for any other purpose than the purpose of running a petrol service station and for servicing cars. I shall later mention about a disputed use to which the plaintiff alleges the first defendant put the land licensed, namely the use for parking cars at night. 18. In view of the above it is an inescapable conclusion, both according to the terms of the agreement itself and the use to which the land and machinery thereon have been put, that the parties primarily intended to pass the business on, in the agreement of 1970. It was a licence with the primary objective of the licensor ceasing to do business on its own and permitting the licensee to do business in its stead, either on its own or by grant of another subsequent licence to a petrol dealer. In case a sub-lease were-ultimately executed, then and in that event, subsequent terms or intentions might have ripened into some other clause, but as the clauses now stand, it is impossible to read therein any intention but an intention to grant a licence for the primary purpose of running a business on a land. It is not possible to discern an intention of passing any interest in the land itself as the primary objective or even a secondary objective of the agreement. 19. Mr. Chakrabarty appearing for the first defendant referred to various clauses in the Deed and said that on a true construction thereof, an intention to grant a lease is quite discernible. I deal with Mr. Chakrabarty's different points in the subsequent paragraphs succeeding immediately next. 20. Mr. Chakrabarty’s first point was that whatever the agreement might be it would not be a mere licence. It is significant that Mr. I deal with Mr. Chakrabarty's different points in the subsequent paragraphs succeeding immediately next. 20. Mr. Chakrabarty’s first point was that whatever the agreement might be it would not be a mere licence. It is significant that Mr. Chakrabarty left his point at that, and did not proceed to specify further as to what the agreement was in fact, if it was not a mere licence. If it came in some area in between a mere licence and a clear lease it was for the first defendant to specify as to what exactly the same was. From the agreement itself it is not possible, as I have said, to discern a grant of land interest of any type; as such, the conclusion would be that if the agreement is not a lease, on a true construction of the intention of the parties, it automatically relegates itself to the status of a mere licence, not coupled with any grant or interest in property. 21. Mr. Chakrabarty heavily relied upon the exclusive possession being granted on his clients and I have already held that is so, though I have further held that according to the various Supreme Court decisions exclusive possession is not an end of the matter and that the ultimate test is the test of ascertainment of the intention of the parties. 22. Mr. Chakrabarty next said that the idea of creating an interest in property was very much uppermost in the minds of the parties as, throughout the agreement, they were talking of a possible future sub-lease. It may well be that the parties had a general idea of an interest being ultimately created in the land to be so achieved by them in future in the final commercial settlement of the matter. But that idea is not the intention which has been pronounced by the Supreme Court to be crucial. The agreeing relevant intention is in presented, the commercial idea is in future. It is true that the idea of the parties was ultimately to grant and obtain a regular sub-lease. The existence of such an idea immediately shows that the same was still to be achieved and had not been achieved already by reason of the 1970 agreement itself. The agreeing relevant intention is in presented, the commercial idea is in future. It is true that the idea of the parties was ultimately to grant and obtain a regular sub-lease. The existence of such an idea immediately shows that the same was still to be achieved and had not been achieved already by reason of the 1970 agreement itself. This very same question I have examined earlier in the judgment in relation to a lessee not normally being willing to weaken its possession at against its landlord by granting a sub-lease without the landlord’s consent, notwithstanding the provision of the West Bengal Premises Tenancy Act, 1956. 23. It is important to note that it was not merely the execution of a formal document of sub-lease that was being postponed by the parties. If that were so, the agreement to lease might itself be construed as a lease notwithstanding the postponement of the formal execution of the deed. Here, the parties were advisedly postponing the whole question of grant of the sub-lease agreement therefor, document therefor and all the rest, because they know of the absence of safe rights in that regard at the time when they entered into the licensing agreement. 24. Mr. Chakrabarty next relied upon the agreement to sell the fittings at a specified price in case a sub-lease could be granted in favour of the 1st defendant within a year. This is clause 16 of the agreement. Mr. Chakrabarty argued that this showed an intention of the parties to create an interest in land. Section 60 of the Easements Act is as follows : "Licence when revocable - A license may be revoked by granter, unless- (a) it is coupled with a transfer of property and such transfer is in force, (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution." 25. The common law recognized in 1882, and more recognizes now, transfer of all types of property in land, not necessarily limited to a sale, mortgage or a lease. 26. It would be seen from the above section that even a licence in respect of an immoveable property may become irrevocable if the same is coupled with some transfer of property therein. 26. It would be seen from the above section that even a licence in respect of an immoveable property may become irrevocable if the same is coupled with some transfer of property therein. In case the petrol selling machinery and other machinery had actually been sold, or even partly sold by the plaintiff to the first defendant, it would be possible to argue that the 1970 agreement was at least an irrevocable licence in respect therefor. 27. However, no such sale actually took place. The first defendant or its predecessor for all practical purposes remained a person in the position of a bailee or hirer of the moveable machinery and the chattels on the land. The law of our land does not recognise the passing of property limited by a time interest in chattels only, as it does recognise the passing of property limited by a time interest in immoveable property in the shape of leases. 28. We only loosely talk of leasing a car or leasing a ship, even. The car is not leased, but hired. Property therein remains unsplit in the owner. Even a charter party is only a contract of affrightment (for the whole ship) the owner of the ship remains the owner. A Charter party by demise, though so called, is only parting with the whole possession and control of the ship. 29. As such, the property even in the chattels and other machinery on the land all along remained fully with the plaintiff. Under these circumstances the agreement to sell the machinery in case of execution of a sub-lease further entrenches the case of the plaintiff that no irrevocable licence is to be construed in favour of the defendant unless the plaintiff came to be in a position where it could grant both a sub-lease with regard to the land as well as sell off the machinery at the same time. 30. Mr. Chakrabarty next contended that the right to bring fittings and fixtures granted to the first defendant, and the right to carry on business in the name of Dewar's or some other name, were both indicative of the passing of interest in land. With the greatest of respect I am unable to agree. 30. Mr. Chakrabarty next contended that the right to bring fittings and fixtures granted to the first defendant, and the right to carry on business in the name of Dewar's or some other name, were both indicative of the passing of interest in land. With the greatest of respect I am unable to agree. In my opinion both these factors point to an intention to permit the running of the business itself by the first defendant in place of the plaintiff, and thus rather negative the intention to pass an interest in land, and rather fortify the view that the intention of the parties was to grant something not in relation to the land but in relation to the activities that were to be carried on upon the land. 31. The next question that arises is, even if the grant was a mere grant of a licence whether the same has been appropriately revoked. The letters of revocation are exhibits in the suit and are part of Exhibit-B. The principal letter in this regard is the letter of 11th January, 1985. The termination by this letter and by the letter of February, 1985, if valid, snapped the relationship of licensor and licensee in 1985 itself, at the latest on the first of the month of May, 1985 as mentioned in the said letter and the plaint. Thus, it is the relationship of the parties in 1985 and prior to the date of filing of the suit which was 19.7.85, that falls for consideration here. 32. One point must be disposed of finally at this stage before proceeding any further. It is not disputed by the plaintiff that though in 1985 they had no permission to grant a sub-lease from their landlords Mallika Investment yet by reason of a compromise decree of 1988 in Matter No. 2720 of 1987 whereby ejectment suit No. 1152 of 1982 was transferred from the City Civil Court to Calcutta an agreement by way of a compromise decree was entered into by and between the said Mallika Investment and the plaintiff herein whereunder a lease was agreed to be granted by the said Mallika Investment to Delta International. The proposed terms of the grant formed an annexure to the terms of settlement. 33. When these terms of settlement were attempted to be put in as an exhibit in this suit by Mr. The proposed terms of the grant formed an annexure to the terms of settlement. 33. When these terms of settlement were attempted to be put in as an exhibit in this suit by Mr. Kapoor in the shape of a true copy thereof, he found no help either from Mr. Chakrabarty, or from Mr. Mitra who appeared for the second defendant. The records of this Court in relation to the aforesaid matter were thus given production of, and I have looked into same, upon the general jurisdiction to look into any records of any proceedings in this Court, when the same is found necessary or desirable during the course of any other proceedings continuing in this Court. This I take to be a part of the jurisdiction of any Court of record which determines it won rules of procedure. 34. Looking at the aforesaid terms, it seems on a first reading (which is all that there need be) that though Mallika Investment itself did not have much more than eight years of an unexpired term in their turn yet they have agreed to grant the plaintiff a long term lease. If that long term lease had been granted to Deita International or its predecessors close upon the year 1970, it might well have been argued that they or their predecessors would be compelled to grant a sub-lease to the first defendant or its predecessor in accordance with the agreement to grant a future sub-lease. But the terms were agreed upon only in 1988. Three years had already elapsed then after service of the notice of revocation of licence which, as mentioned earlier, is a part of Exhibit-B. 35. It is no doubt a general principle of the law of equity that if a person agrees to make a grand which he has no power to make at the time of agreement, then and in that event, he might under appropriate circumstances be bound to honour his commitment and make the grant if he later acquires a sufficient interest which gives him the power and ability to make such an effective grant. Mr. Mitra appearing for the second defendant relied in this respect upon the principle of feeding the estoppel and the provisions of Section 43 of the Transfer of Property Act. Mr. Mitra appearing for the second defendant relied in this respect upon the principle of feeding the estoppel and the provisions of Section 43 of the Transfer of Property Act. The said section is set out below :- "Transfer by unauthorised person who subsequently acquires interest in property transferred-where a person fraudulently or erroneously represents that he is authorized to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option." 36. It would be seen from a reading of the section itself that unless the contract of transfer subsists at the time the grant is called for, the Section, even in its restricted terms, would have no application. In our case there was no fraud or error and the contract for licence or the contract for grant of sub-lease could not subsist if the letter of revocation was appropriately served. Thus it is a matter of complete irrelevance as to what additional rights the plaintiff obtained by reason of the compromise decree of 1988. In this suit, if the notice of revocation of licence is pronounced upon to be bad, the plaintiff cannot get a decree for eviction. In that event it would remain for the defendants to enforce the agreement of 1970 and in the process of such enforcement they might had the 1988 compromise to be extremely helpful. 37. That, however, is not any part of the subject matter of the present suit. If on the other hand the revoking notice is held to be good and valid, the legal relationship as between the plaintiff and the defendant No. 1 and automatically the defendant No. 2, would then and therefrom became the relationship existing as between the owner and the trespasser, or the relationship existing as between an owner and a person claiming through a trespasser. The subsequent enlargement of the rights of the plaintiff would thus have no bearing upon the notice of revocation dated 11th January, 1985. 38. The point, therefore, is as to how a licence of the nature under review is to be revoked. The subsequent enlargement of the rights of the plaintiff would thus have no bearing upon the notice of revocation dated 11th January, 1985. 38. The point, therefore, is as to how a licence of the nature under review is to be revoked. As mentioned in relation to Section 60 of the Easement Act above a licence may be revoked by the grantor unless it is irrevocable by reason of any particular circumstances. There is no such special circumstance that remained valid in the year 1985 that is, nearly 15 years after the original grant of the licence. All time climates by the parties as appearing in the agreement of 1970 have become by then thoroughly unworkable and out-dated. The price estimates of the parties in the agreement have also become totally out dated. The idea of a possible subsequent grant of a sub-lease and the idea of sale of machinery in that regard within a year after the 1970 agreement ran out of all reasonable hopes of finalisation. After such an expiry of all reasonable time two suit were filed, the first being the suit of 1982 in the City Civil Court by Mallika Investment and the second is this suit. It can be nobody’s serious contention that even though in 1982 a suit for eviction was filed by Mallika Investment the parties continued to hope for a grant of a sub-lease as was envisaged in 1970. Under these circumstances, in my opinion the said agreement of 1970 was revocable at will, or at best after a reasonable lapse of time since the entering into of that agreement, and that such reasonable time had definitely elapsed by 1985 when the notice of revocation was written and served. 39. The plaintiff has also contended that the said notice of revocation is also good because the first defendant or its dealer committed breaches of the agreement by :- (i) permitting parking of cars at night even though the same was not envisaged in the agreement ; (ii) not producing any insurance agreements though an insurance was agreed upon in Clause-8 of the agreement to be taken out by the licensee, and (iii) by not keeping machinery regarding the Petrol dealing station in good repair as the licensee was bound to do. 40. The evidence in this regard has many points of unsatisfactoriness. 40. The evidence in this regard has many points of unsatisfactoriness. First of all it was unsatisfactory that only the plaintiff gave evidence. The first defendant straightway said through Mr. Chakrabarty that no witness was being called by them. The second defendant took no such straightforward stand. An adjournment was prayed for on the ground of illness of S.S. Ganeriwala though there was no affidavit in that regard, and I did not permit any giving of evidence in that regard by way of submission from the bar. If S.S. Ganeriwala had alone been proved to be carrying on the business without any help, from employees, then and in that event, his absence from the box might have been relevant. The point is that none came from the side of the second defendant to give any evidence and yet this was sought to be-coupled with a reservation that on the factual aspect of the matter the defendant No. 2 has not apparently had a reasonable chance of adducing evidence or even giving instruction. Without taking the matter any further I might straightway say that the impression that I gathered was that the second defendant was avoiding the court. It is quite understandable, because in my opinion, the second defendant was not the primary party as he could claim, if at all, under the first defendant; And accordingly, if the position of the first defendant became that of a trespasser, so did the position of the second defendant become that of a trespasser too. 41. The second way in which the evidence was unsatisfactory regarding the breaches was that the whole thing seemed to depend upon the oral evidence of Pran Krishna Banerjee. There, were no, very many contemporaneous complaints about the breaches. Mr. Banerjee produced a photograph which he said he had obtained from one-Barua who was the photographer and who had now would up his business, and was untraceable. The photograph may be very good evidence of Banerjee obtaining the same from Barua but the photograph can by no means be evidence of the parking of cars sough to be photographed therein. That fact would have to be proved by a person who saw the parking of those can. As I have said, there was no person to say either this way of the other excepting Banerjee himself. That fact would have to be proved by a person who saw the parking of those can. As I have said, there was no person to say either this way of the other excepting Banerjee himself. The same comments apply both to the questions of Insurance and up-keep of machinery. This, however, has to be added that in case any insurance was taken out, then such policies could be produced notwithstanding any illness of S.S. Ganeriwala, and this is a part of the records of the proceedings that no such insurance policies were produced. 42. In my opinion, the licence being revocable at will or at least revocable after a lapse of reasonable time, and thus in 1985, the suit could be disposed of without coming to any-definite conclusion in this case the score of the breaches-complained of. But it is improper that I should receive the evidence, both oral and documentary, refuse adjournment when evidence is sought to be called for later on the part of defendant, and yet not enter my findings. My decision, therefore, is simply this that the evidence of Banerjee is completely credible and reliable and that the old man who appeared to be past 80 tried his best to help the Court to come to a proper conclusion, speaking for two days from the chair behind the witness box. He was not telling any lie whatsoever in regard to these breaches. I hold that he had seen the car parking at night, (Qq. 165, 166, 197, 198). I hold that no insurance policies had been taken out and none had been produced before Banerjee. I also hold that there wan complaint about the machinery of the petrol pump not being in a proper shape, but the exact nature of such dis-repair has not been sufficiently proved by Banerjee. It should be mentioned that an incident of-breaking an asbestos roof-sheet for sinking a tube-well was compromised, and thus could not be an outstanding breach. On this basis, also the revocation of licence was proper and in terms of the agreement for licence, there being breach of clauses 1 and 8. 43. Another point of fundamental importance remains to be stated. The first defendant claimed itself to be a-lessee and deposited rent with the Rent Controller. On this basis, also the revocation of licence was proper and in terms of the agreement for licence, there being breach of clauses 1 and 8. 43. Another point of fundamental importance remains to be stated. The first defendant claimed itself to be a-lessee and deposited rent with the Rent Controller. If the agreement was only an agreement for licence, then to my mind, this is a fundamental breach of the terms of the licence. Section 111(g)(2) of the Transfer of Property Act mentions that a lease of immovable property determines in case the lessee renounces his character as such by setting up a little in a third person or by claiming a title in himself. The section-brands the setting up of such an adverse title as a breach of the contract of lease and the breach is so grave as to bring about a termination of the lease of property itself. In the instant case I have held that no lease is in issue. However, to my mind, the principle of the grantee setting up either in a third party or in himself a title greater than what was granted still remains the same fundamental matter of an important breech of an essential term of the agreement. 44. What was granted was a mere licence. It was permissible for the licensee to occupy in terms of the licence. It was not permissible for the licensee either to say that he was a licensee of any third party or to say that he himself had a lessee's title. I am aware that the setting up of this title of a lessee is not identical to a lessee setting up the title of ownership as against the lessor. It is not a question of identity, but a question of application of the principles of the breach of contract. Even if a grant is in respect of some permission only to do a thing, it is revocable upon the setting up of a greater title than is consistent with the terms of the grant. It is not in dispute that the first defendant sought to deposit monies with the Rent Controller. It is not in dispute that the Rent Controller has no jurisdiction to accept licence fees. It is not in dispute that the first defendant sought to deposit monies with the Rent Controller. It is not in dispute that the Rent Controller has no jurisdiction to accept licence fees. The licensee, the first defendant, therefore, broke the terms of the grant of the licence by depositing monies with the Rent Controller, and thus rendered itself liable to revocation of the licence. The suit itself, even without any notice of revocation, would be valid on this ground of essential breach by setting up of greater title in the licensee itself. 45. Before I leave this topic of revocation of licence it is necessary to mention two more points. The first point is that though the premises are mentioned as demised premises in Clause 18 of the agreement yet the same is not conclusive of the matter as labeling by parties is not conclusive of determination of the relationship as amongst them. The second point is that the agreement reserved a right to terminate it on the part of the licensee at any time after the expiry at one year. In a lease such right to terminate on the part of one party automatically implies by operation of law a corresponding right to terminate on the part of the other party also. This is settled law both in England and in India. I have held that even without this clause the agreement was revocable at will, it being a revocable licence. The law of implying a corresponding right to terminate in case of lease should also be applied in my opinion, to cases of licence. If the same is applied, then such a corresponding, reciprocal right would accrue in favour of the plaintiff to terminate the agreement at three months notice after the expiry of one year from 18th April, 1970. I hold that such a right also so accrued, I am purposely not entering into greater details in this matter as parties did not argue this point at all. 46. The position, therefore, is that after service of the aforesaid revocation notice, from 1st May, 1985 the defendants become trespassers upon the land. They should accordingly be directed to deliver peaceful possession thereof along with all the machinery and fixtures as they had taken these in the beginning. 46. The position, therefore, is that after service of the aforesaid revocation notice, from 1st May, 1985 the defendants become trespassers upon the land. They should accordingly be directed to deliver peaceful possession thereof along with all the machinery and fixtures as they had taken these in the beginning. By reason of their wrongful occupation of the premises the plaintiff has become entitled to claim mesne profits which might well be in excess of the agreed licence fee. In my opinion, the excess claim in that regard if any, should from the subject matter of a final decree upon a return by a Commissioner to be appointed for ascertaining the rate of mesne profits. 47. The licence fee was Rs. 3950/- per month and it was not paid from June ‘80 (Qq. 79-82). Some amount has been withdrawn from the Rent Controller "with permission and without prejudice"; the defendant No. 1 deposited arrears in Court also (Qq. 186, 187). The plaintiff shall be entitled to withdraw without prejudice the deposits before the rent controller and in this Court entirely, and shall give credit therefor protanto to the judgment debtors herein. 48. There is no question of limitation as the right to claim Rs. 3950/- per month was all along admitted, even by deposit challans, only the ground for the claim being disputed. 49. There shall be decrees in terms of claims (a), (b) and (g) of the plaint. The defendants shall also return all the fixtures, fittings and accessories mentioned in Schedule 'C' to the plaint. There shall also be a decree in terms of claim (i) of the plaint as against the first defendant; upon the said sum there shall be interim and further interest at the respective rates of 9% per annum and 6% per annum. There shall be a decree for Rs. 3950/- per month as against both the defendants from 1.5.1985 untill delivery of possession as decreed above. There shall be a preliminary decree appointing Mr. Dipak Deb, Barrister, as the Commissioner for enquiring into the excess rate of mesne profits, if any above Rs. 3950/- per month, for the period commencing May 1985 in respect of the property in suit. 3950/- per month as against both the defendants from 1.5.1985 untill delivery of possession as decreed above. There shall be a preliminary decree appointing Mr. Dipak Deb, Barrister, as the Commissioner for enquiring into the excess rate of mesne profits, if any above Rs. 3950/- per month, for the period commencing May 1985 in respect of the property in suit. The plaintiff shall be entitled to apply for a final decree against both the defendants upon the report of the Learned Commissioner being prepared and forwarded to Court, the same to be done within six months hereof. The Learned Commissioner shall be paid an initial remuneration of 200 G.Ms by the plaintiff in the first instance, and the further remuneration shall be determined at the time of confirmation of report. The plaintiff shall be entitled to the cost of this suit assessed at Rs. 20,000/- and to the costs of proceedings before the Commissioner to be assessed at the time of passing of the final decree. 50. It is clarified that the portion finally decreeing the suit may be put into execution forthwith notwithstanding the pendency of the other part of the suit relating to the ascertainments of further mesne profits, if any. It is needless to mention that the sixteen (16) issues raised in the suit should be taken as answered in favour of the plaintiff, in accordance with the reasons given above. I do not consider it to be a useful expenditure of time to set out the issue and set out the answered against each of them. Stay of operation of the decree is prayed for on the part of the first defendant but the same is refused. All parties, the Learned Commissioner and the departments are to act on a signed copy of the minuted portion of this judgment and decree.