DR. M. K. SHARMA. J. ( 1 ) THE main issue that falls for consideration in this appeal is whether the appellantis a lessee or a licensee which is to be arrived at on the basis of the interpretationand construction of the agreement between the appellant/defendant and therespondent/plaintiff and marked Ex. PW2/1 and on the basis of surroundingcircumstances. The trial court held that the appellant is a licensee which was affirmedby the appellate court as against which the present appeal has been preferred. ( 2 ) THE respondent/plaintiff is the owner of shop No. 5, Line No. C, Gaushala marg,kishan Ganj, Delhi. The appellant/defendant took the aforesaid shop from the plaintiffas a licensee vide license deed dated 11. 6. 1980 at the rate of Rs. 50. 00per month forthe purpose of selling milk and milk products for the benefit of workers and theirfamilies residing in the DCM colony. The said license was for 2 years and wasrevokable even prior to that without assigning any reason. The said license wasrevoked by the respondent/plaintiff by a notice dated 12. 8. 1981. As the appellantdefendant failed to deliver possession of the said shop even after revocation of thelicense a suit was instituted in the court of Subordinate Judge, Delhi seeking for adecree for possession and for recovery of Rs. 100. 00 as license fee and Rs. 500. 00asdamages. The appellant filed a written statement raising a preliminary objection thatthe plaintiff was not the owner of the property in question. It was also alleged that theappellant was not a licensee but is a lessee and a tenant there being relationship oflandlord and tenant. On the pleadings of the parties six issues were framed in the suit. During the trial the parties led their evidence both oral and documentary and onclosure of the same arguments of the counsel appearing for the parties were heardby the Subordinate Judge and by his judgment and decree dated 19. 5. 1989 adecree for possession was granted by the Subordinate Judge in favour of therespondent alongwith a decree for payment of Rs. 600. 00 with costs and also forpayment of damages Rs. 250. 00per month. Being aggrieved by the said judgment anappeal was preferred before the Additional District Judge, who byjudgment dated5. 6. 1999 dismissed the appeal. 5. 1989 adecree for possession was granted by the Subordinate Judge in favour of therespondent alongwith a decree for payment of Rs. 600. 00 with costs and also forpayment of damages Rs. 250. 00per month. Being aggrieved by the said judgment anappeal was preferred before the Additional District Judge, who byjudgment dated5. 6. 1999 dismissed the appeal. Being aggrieved by the same the present appealhas been preferred in this court by the appellant, on which I have heard the learnedcounsel appearing for the parties. ( 3 ) MR. Sabharwal appearing for the appellant submitted that the agreement betweenthe parties which is proved as Ex. PW2/1 ex facie indicates that the parties intendedto create a tenancy and therefore, the civil court would have no jurisdiction to try thesuit for possession as its jurisdiction would be barred by Section 50 of Delhi Rentcontrol Act. He also submitted that on a proper interpretation and construction of thesaid document as also the attending circumstances it is proved and established thatthe parties intended to creat a tenancy and not a license and therefore, the conclusionarrived at by the courts below are illegal and void. In support of his contention thelearned counsel appearing for the appellant relied upon the decisions of the Supremecourt in B. M. Lall and others Vs. M/s. Dunlop Rubber Company (India) Limitedand another, reported in AIR 1968 SC 175 ; Smt. Rajbit Kaur and Another Vs. M/s. Chokesiri and Co. reported JT 1988 (3) SC 593; M/s. Permanand Gulabchand andco. Vs. Mooligi Visanji, reported in AIR 1990 Ker 190 and M/s. Quality Cutpieces and etc. Vs. M/s. M. Laxmi and Co. , reported in AIR 1986 Bom 359 . ( 4 ) LEARNED counsel appearing for the respondent however, submitted that on aproper and true interpretation of the aforesaid document it is proved and establishedthat what was intended to be created was a mere license and not a lease andtherefore, the conclusions arrived at by both the courts below are legal and justified. ( 5 ) THE question, therefore, to be decided in the present appeal is whether theagreement Ex. PW-2/1 dated 11. 6. 1980 was one of lease or license. The said deedis produced and proved during the trial as Ex. Pw-2/1. ( 5 ) THE question, therefore, to be decided in the present appeal is whether theagreement Ex. PW-2/1 dated 11. 6. 1980 was one of lease or license. The said deedis produced and proved during the trial as Ex. Pw-2/1. The relevant recitals and theclauses of the said deed are extracted below in order to appreciate the contentionsof the counsel for the parties and also to arrive at ajust decision in the appeal: "this DEED OF LICENCE made at Delhi this 11th day of June, 1980, betweenthe Delhi Cloth and General Mills Co. Limited,. . . . . . . . . . (hereinafter referredas Company of the one part) and Shri Megh Raj S/o Shri Ram Pal Singh,goushala Marg, Delhi (hereinafter referred as Licensee of the other part)witnesseth as follows:that the company is the owner of DCM shop No. 5. Line No. C, Municipal No. 8059, Ward No. 16e, Goushala Marg, Delhi and the Company hereby agreesto give on licence the said shop to the licensee for carrying on the businessof Milk in shop No. 5, Line No. C, Municipal No. 8659,ward No. 16 E on termsand conditions as given below:1) The shop will be run only for the sale of Milk and Milk Products viz. ,butter, Ghee, Cream etc. , for the benefit of the workers and their familiesresiding in the DCM Housing Colonies. 4) The licensee shall not part with the physical possession of the premisesor otherwise sublet or mortgage the said shop or any part thereof. 5) The licensee will not personally run the business so long he continues tobe on the Company s role. However, he is allowed to run the business withthe help of his representatives/employees. ( 6 ) THAT this licence is neither heritable nor assignable and the licensee agrees notto part with its possession or otherwise assign, sublet mortgage etc. the said shop orany part thereof. ( 7 ) THIS licence is initially for a period of 2 years and can be renewed on sameterms and conditions by the Company at its option after expiry of two years in whichcase it will not be deemed necessary to execute any fresh deed of licence. the said shop orany part thereof. ( 7 ) THIS licence is initially for a period of 2 years and can be renewed on sameterms and conditions by the Company at its option after expiry of two years in whichcase it will not be deemed necessary to execute any fresh deed of licence. 8) Notwithstanding clause (2) above this licence is revocable at the will ofthe company without assigning any reason thereof whatsoever, and on suchrevocation of this licence the licensee agrees to hand over possession of thesaid shop in the same condition as he took from the company on licence (excepting reasonable wear and tear ). 9) These presents do not and shall not be deemed to create any relationshipof Landlord and tenant between the parties to his agreement. 10) The Company agrees to charge Rs. 50. 00 per month as licence fee atpresent for the use of the said shop, but it reserves to itself the right tocharge such enhanced fee as it may determine at a later stage, solely at thediscretion of the Company. 11a) The licensee further agrees that he shall not use the shop for anypurpose other than that specified earlier in Clause No. 1. In case of change oftrade without Company s written permission, this licence will automaticallystand terminated and the licensee shall be liable to vacate the shop forthwith. 14. This licence shall stand terminated on breach of any of its conditions bythe licensee, in which case the licensee shall vacate the shop and handoverits vacant possession to the company. 6. The trial court and the appellate court on interpretation of the aforesaidclauses and the other attending circumstances and the evidence on recordcame to the conclusion that the aforesaid agreement was in fact a licenseand not a lease. It was also held that the aforesaid agreement did not createany interest in the property in favour of the appellant. The expression lease has been definded under Section 105 of the Transferof Property Act to mean -"transfer of a right to enjoy such property, made for a certain time express orimplied, or in perpetuity, in consideration of a price paid or promised, or ofmoney, a share of crops, service or any other thing of value, to be renderedperiodically or on specified occasions to the transferor by the transferee, whoaccepts the transfer on such terms. "section 52 of the Indian Easement Act defines the expression licence as:-"a right to do or continue to do, in or upon the immovable property of thegrantor, something which would, in the absence of such right, be unlawful,and such right does not amount to an easement or an interest in theproperty. "( 7 ) IN B. M. Lal s case (supra) a similar question came up for consideration and inthe said decision the distinction between a lease and a license was succinctlybrought out by their Lordships of the Supreme Court. It was held that the lease is atransfer of a right to enjoy the premises, whereas the license is a privilege to dosomething on the premises which otherwise would be unlawful. It was also held that ifthe agreement is in writing, it is a question of construction of the agreement havingregard to its terms and where its language is ambiguous, having regard to its object,and the circumstances under which it was executed whether the rights of the occupierare those of a lessee or a licensee. The Supreme Court further held that thetransaction is a lease, if it grants an interest in the land, and it is a license if it gives apersonal privilege with no interest in the land. It was held that the question is not ofwords but of substance and the label which the parties choose to put upon thetransaction, though relevant is not decisive. It was also held that the test of exclusivepossession is not conclusive, though it is a very important indication in favour oftenancy. ( 8 ) IN Rajbir Kaur s case (supra) the Supreme Court after analysing the principleslaid down by the English and Indian Courts, held that one of the twin principal tests bywhich a lease is distinguishable from the relationship created under a licence is theelement of the right to exclusive possession involving the transfer of an interest in theproperty, the other being the rent stipulated for the grant. Making the point clear it was observed thus-in the last analysis the question whether a transaction is a lease of a license turns on the operative intention of the parties and that there is no single,simple litmus-test to distinguish one from the other",it was also held that- "in deciding whether a grant amounts to a lease or only a licence, regardmust be had more to the substance than the form of the transaction. It isdetermined by the law and not by the label the parties choose to put on it. Togive exclusive possession, there need not be express words to that effect;it issufficient if the nature of the acts done by the grantee show that he has andwas intended to have the right of exclusive possession. The fact that theagreement contains a clause that no tenancy is to be created will not, of itself,preclude the instrument from creating a lease", ( 9 ) IN M. N. Clubwala Vs. Fida Hussain Saheb; reported in AIR 1965 SC 610 thesupreme Court has held thus- whether an agreement creates between the partiesthe relationship of landlord and tenant or merely that of a licensor and licensee, thedecisive consideration is the intention of the parties. Its intention has to be ascertainedon a consideration of the relevant provisions in the agreement. The aforesaid passagequotes in Rajbir Kaur s case would also show that apart from the provisions of theagreement subsequent conduct of the parties can also be relied upon", ( 10 ) IN a decision of this court in R. S. A. No. 62/1986 between Shri Kedari Singh Vs. Delhi Cloth and General Mills Co. Ltd. decided on 18. 10. 1996 this court laid downthe marked distinction between a lease and license holding that the distinguishingfeatures are- (1) To ascertain whether a document creates a license or a lease, thesubstance of the document must be preferred to the form; (2) the real test is theintention of the parties whether they intended to create a lease or license: (3) if thedocument creates an interest in the property, it is a lease, but, if it only permitsanother to make use of the property, of which the legal possession continues with theowner, it is a license: and (4) if under the document a party gets exclusive possessionof the property prima facie, he is considered to be a tenant, but circumstances maybe established which negatives the intention to create a lease. ( 11 ) ONE of the arguments of the respondent before the Courts below was that theaforesaid privilege of granting a license was given to the appellant because he was aservant of the respondent company. A similar question as to whether a personalprivilege granted to a servant to occupy the accommodation of the employer for thegreater convenience for his work came before the Supreme Court in the case ofb. A similar question as to whether a personalprivilege granted to a servant to occupy the accommodation of the employer for thegreater convenience for his work came before the Supreme Court in the case ofb. M. Lal and another s. M/s. Dunlop Rubber Co. (India) Ltd. (supra), It was heldin the said case by the court that such a personal privilege granted to an employee isnothing but a license. It is only when he gets interest in the land, separate and distinctfrom his contract of service, this alone could be a lease. In the said case it was furtherheld that since personal privilege and enjoyment of employer s house did not createan interest in the land, therefore, it was held to be a license. ( 12 ) IN the present case the deed is described as a license deed but the saidnomenclature as has been held by the Supreme Court, may be relevant but what isrelevant is the nature of the allotment for which we have to consider the other relevantclauses which have been extracted above. Clause (1 ) thereof categorically providesthat the shop would be run only for the sale of milk products namely- for butter, ghee,cream etc. for the benefit of the workers and their families residing in the DCMcolony. Clause (6) thereof also categorically provides that license is neither heritablenor assignable and the licensee agrees not to part with or otherwise assign, sublet,mortgage etc, the said shop or any part thereof. Clause (5) provides that the licenseewould not personally run the business so long as he continues to be on the Company srolls but he shall run the business with the held of his representative or his employees. The license was also revokable at the will of the company without assigning anyreason thereof and on such revocation the possession of the shop was required to behanded over in the same condition as it was taken from the Company on license. Theexpress intention of the parties therefore, was that the shop would be run only for saleof a particular product and the aforesaid sale to be carried out from the said shopwas to cater to the needs of a particular group of people namely - the workers andtheir families residing within the DCM housing colony. Theexpress intention of the parties therefore, was that the shop would be run only for saleof a particular product and the aforesaid sale to be carried out from the said shopwas to cater to the needs of a particular group of people namely - the workers andtheir families residing within the DCM housing colony. It was also one of the expressconditions that the license would not be heritable or assignable and on expiry of theperiod of license i. e. a period of 2 years and on expiry of the renewed period, if any,possession was to be handed over to the respondent. It was also made clear in thedeed that the appellant would not use the shop for any other purpose than for thepurpose of selling the milk and milk products from the said shop. Similar clausescame up for consideration in a Full Bench decision of this court i. e. in DCM Limitedand another s. Lt, Governor, Delhi and others, FAO (Os) No. 217/1990 decidedon 1. 10. 1993 wherein the court considered the terms of the deed and construed it tobe a license. ( 13 ) THE aforesaid clause, therefore, would indicate that the aforesaid shop wasallotted to the appellant as a personal privilege of working with the respondent. Hewas allowed to sell milk and milk products from the aforesaid shop meant only for aparticular class of people and none else. Exclusive possession of the shop inquestion was not intended to be parted with, for the possession of the shop inquestion was given to him for a particular period which again was not made heritableor assignable. The parties, therefore,intended to create a license and not a leaseand therefore, the courts below were justified in giving a concurrent finding of fact onthe said aspect. ( 14 ) I find no merit in this appeal. The appeal stands dismissed without any costs.