Judgment : Plaintiff in O.S.Nos.1378 of 1992 and 2832 of 1992 on the file of Principal District Munsifs Court, Trichy is the appellant in both the appeals. 2. In O.S.No.1378 of 1992, plaintiff seeks for a decree of permanent prohibitory injunction restraining defendant, its men, agents and servants from in any manner interfering with plaintiffs peaceful possession and enjoyment of the suit property wherein plaintiff is preparing and vending Prasadhams except by due process of law and for costs of the suit. 3. It is stated in the plaint that plaintiff became lessee of shop and Madapalli in the year 1967 and eversince he is in occupation of the same. According to him, suit property is leased out for preparing prasadhams which are to be placed before deity as neivedhyam and sold to worshippers. If worshippers want to prepare special prasadhams, plaintiff used to prepare the same and after placing the same before deity, given to the worshippers. Plaintiff is preparing Prasadhams in Madapalli and vending the same in the shop for the last 25 years. For the occupation of shop and Madapalli, plaintiff is paying rent at Rs.660 per year. Subsequently, it was raised and on the date of plaint, the rent was Rs.1,200 per month. Plaintiff has been in exclusive possession of the premises and he used to lock the premises after business hours and always keeping the keys with him. Transaction between plaintiff and defendant was that of landlord and tenant. According to him, every month, defendant is receiving rent for his occupation. It is said that at some point of time, there was a move to lease out the shop in public auction and resolution was also passed by Board of Trustees, but subsequently, the same was not implemented and plaintiff is continuing in occupation of the premises. 4. Reason for filing the suit was that an advertisement was made that the right to vending prasadhams will be given in public auction and by this process, temple authorities intended forcibly vacate plaintiff. According to plaintiff, defendant cannot take law into its hands and forcibly dispossess plaintiff. According to plaintiff, he is tenant of madapalli and vending shop and suit was therefore laid for the reliefs stated above. 5. According to plaintiff, defendant cannot take law into its hands and forcibly dispossess plaintiff. According to plaintiff, he is tenant of madapalli and vending shop and suit was therefore laid for the reliefs stated above. 5. In the detailed written statement, filed by defendant, it was contended that the right of plaintiff is only to vend prasadhams and no property was given to plaintiff and his right is only that of licensee. The neivedhyam will have to be prepared in the madapalli, which is part of the temple and it is only for that purpose, plaintiff has been allowed to use madapalli and neivedyams also will have to be sold only within the temple premises for which a place has been allotted. There was no intention on the part of defendant to give any immovable properties on lease and plaintiff has no possession over any portion of the same. It therefore prayed for dismissal of the suit. 6. O.S.No.2832 of 1992 was also filed by very same plaintiff. After filing O.S.No.1378 of 1992, plaintiff obtained ex parte order of injunction. It is seen that after hearing parties, order of injunction was also confirmed. Thereafter, defendant attempted to sell prasadam by preparing itself and sell the same in the temple premises. Subsequent suit was therefore laid to prohibit defendant that they shall not sell Prasadhams when plaintiff got exclusive right to sell the same. 7. In the suit also written statement was filed by defendant contending that the right of plaintiff has already been expired and his claim is only that of licensee and he has no right to prevent defendant from dealing with prasadhams. They prayed for dismissal of the suit. 8. Trial court by judgment dated 28. 1996 dismissed the suit in O.S.No.1378 of 1992. But as per judgment dated 27. 1996, trial court held that plaintiff is entitled to succeed in O.S.No.2832 of 1992. In O.S.No.2832 of 1992 trial court held that till disposal of O.S.No.1378 of 1992, plaintiff is entitled to injunction. 9. Both these judgments were taken in appeal and both the appeals were heard together. By judgment dated 7. 1999, both the suits of plaintiff were dismissed. 1996, trial court held that plaintiff is entitled to succeed in O.S.No.2832 of 1992. In O.S.No.2832 of 1992 trial court held that till disposal of O.S.No.1378 of 1992, plaintiff is entitled to injunction. 9. Both these judgments were taken in appeal and both the appeals were heard together. By judgment dated 7. 1999, both the suits of plaintiff were dismissed. The said judgment of the lower appellate court is assailed in these second appeals on the following substantial questions of law raised in the memorandum of appeal: .• “(A) Whether the courts below are right in dismissing the suit when the relief sought for is the assistance of the court to protect unlawful dispossession at the instance of the defendant, except otherwise by due processe • (B) Whether the courts below are right in holding the appellant is in occupation as licensee, when it is admitted that he is in effective control of the immovable property and should not the courts below decree the suit without subjecting the present proceeding to the result of O.S.No.1378 of 1992 on the file of the D.M.C., Tiruchirapallie .• (C) Whether the courts below are right in its failure to appreciate Exs.A-1 to A-8, A-11 and A-12, wherein it is clearly stated that the appellants possession is as a lesseee .• (D) Whether the courts below are right in ignoring the admission of D.W.1 and whether its order is not perverse, particularly when it misconstrues and overlooks the evidence on recorde 10. Since caveat was entered by respondent, I heard the second appeals at the admission stage itself and parties also produced documents as typed set of papers relied on by them. 11. According to plaintiff, he is a tenant of the madapalli and shop room eversince 1967 and he is a lessee, and his possession is not liable to be disturbed except under due process of law. His further case is that if the case of defendant that licence is terminated, his possession thereafter will be that of trespasser and in that event also, defendant cannot take law into their hands and dispossess them. In either way, he is entitled to continue in possession of madapalli and shop room. 12. His further case is that if the case of defendant that licence is terminated, his possession thereafter will be that of trespasser and in that event also, defendant cannot take law into their hands and dispossess them. In either way, he is entitled to continue in possession of madapalli and shop room. 12. As against that contention, learned counsel for respondent contended that the transaction between plaintiff and defendant is only for preparing and selling prasadhams and the same has nothing to do with the immovable property and no immovable property was given to plaintiff. For convenience and also to honour temple custom and manners, plaintiff was allowed to make use of madapalli for preparing prasadhams and sell the same in the shop room. Even if he uses the madapalli and shop room, that is only for the purpose of preparing and selling prasadhams and no exclusive possession is given to plaintiff on any premises. It is also contended that plaintiff is not entitled to open madapalli or shop room unless temple is opened. He has to close the madapalli and shop room when the temple is closed. Madapalli is part of temple and no lease could be granted of temple premises. 13. The transaction between parties is whether that of lease or licence is to be decided. If it is a lease, plaintiff must be given immovable property to enjoy the same for consideration, which is called rent. If it is the case of licence, legal possession continues with licensor and plaintiff is only occupying the same along with licensor with an obligation to prepare and sell prasadhams. In that case, there is no question of transfer of immovable property, which is most essential for creating a lease. 14. How to determine whether the transaction is lease or licence was considered in a recent decision of the Honourable Supreme Court reported in Delta International Ltd. v. Shyam Sundar Ganeriwalla , (1999)4 S.C.C. 545 . In that case, their Lordships taken into consideration almost all the previous decisions of Honourable Supreme Court. In para.9 of the judgment, their Lordships said that the court has to gather and find out that true ‘intention of parties’ as to whether document creates lease or licence; the dominant intention of the parties is to be gathered from the terms of the document irrespective of the labels that the parties may put upon it. In para.9 of the judgment, their Lordships said that the court has to gather and find out that true ‘intention of parties’ as to whether document creates lease or licence; the dominant intention of the parties is to be gathered from the terms of the document irrespective of the labels that the parties may put upon it. Thereafter, their Lordships considered all the earlier decisions which reads thus: “9. …we would first refer to the tests laid down by this Court in the case of Associated Hotels of India Ltd. v. R.N.Kapoor Associated Hotels of India Ltd. v. R.N.Kapoor Associated Hotels of India Ltd. v. R.N.Kapoor , A.I.R. 1959 S.C. 1262 which are relied upon in subsequent decisions. In a minority judgment rendered by Subba Rao, J. the court held that there is a clear distinction between a lease and a licence; the dividing line is clear, though sometimes it becomes very think or even blurred and observed that for such a determination, the following propositions may be taken as well established: “(1) to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; .(2) the real test is the intention of the parties - whether they intended to create a lease or a licence; .(3) if the document creates an interest in the property, it is a lease; but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is licence; and .(4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant’ but circumstances may be established which negative the intention to create a lease.” 10. Before laying down the aforesaid proposition, the court held as under: “At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. Before laying down the aforesaid proposition, the court held as under: “At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington , (1952)1 K.B. 290 wherein Lord Denning reviewing the case-law on the subject summarizes the result of his discussion thus at p.155: The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.” The Court of Appeal again in Cobb v. Lane , (1952)1 All E.R. 1199 (C.A.) considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p.1201, Somervell, L.J., stated: ‘…the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties.‘ Denning, L.J., said must to the same effect at p.1202: “The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the lande” 11. At this stage, it would be worth while to quote some more instructive discussions from the case of Cobb v. Lane rendered by three learned Judges in their judgments given separately: Somervell, L.J. observed: “Certainly under the old cases (and I doubt if this has been affected by the modern authorities), if all one finds is that somebody has been in occupation for an indefinite period with no special evidence of how he got there or any arrangement being made when he went into occupation, it may be that the court will find a tenancy at will. I am assuming that there is no document, or clear evidence as to terms. I am assuming that there is no document, or clear evidence as to terms. The modern cases establish that, if there is evidence of the circumstances in which the person claiming to be a tenant at will went into occupation, those circumstances must be considered in deciding what the intention of the parties was.” [Italics supplied] The learned Judge further observed: “No doubt, in former days, except for the question of the statute, the distinction between a tenancy, whether at will or for a period, and a licence was not so important as it has become since the Rent Restrictions Acts came into operation. In many cases under those Acts it has a special importance. That fact has led to an examination of the distincting, and the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties”. [Italics supplied] Denning, L.J., further observed to the same effect as under: “Under the old cases there would have been some colour for saying that the brother was a tenant at will, but the old cases can no longer be relied on. Owing to the impact of the Rent Restrictions Acts, the courts have had to define more precisely the difference between a tenant and a licensee. … The question in all these cases is one of intention. Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the lande” Delivering a concurring judgment, Romer, L.J. further considered the facts and observed: “She was not a tenant at will, and, unless she was, she could not create the tenancy on which the defendant relies. In the absence of a sufficient title or interest in her to carve out or to create a similar tenancy in the defendant, his claim, as I say, fails in limine.” [Italics supplied] 12. Further, in his judgment, Lord Denning, J. referred to an earlier decision in the case of Errington v. Errington , (1952)1 K.B. 290 wherein the court held that the test of exclusive possession is by no means decisive. Further, in his judgment, Lord Denning, J. referred to an earlier decision in the case of Errington v. Errington , (1952)1 K.B. 290 wherein the court held that the test of exclusive possession is by no means decisive. For determining what was the intention of the parties the court relied upon the following observations from the decision in the case of Booker v. Palmer , (1942)2 All E.R. 674, (C.A.) wherein Lord Greene, M.R. held: “To suggest there is an intention there to create a relationship of landlord and tenant appears to me to be quite impossible. There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind.” [Italics supplied] 13. Along with other cases, the aforesaid case was referred to and relied upon in the case of Rajbir Kaur v. S.Chokesiri and Co. Rajbir Kaur v. S.Chokesiri and Co. Rajbir Kaur v. S.Chokesiri and Co. , (1989)1 S.C.C. 19 wherein this Court considered and held that ultimately the question whether a transaction is a lease or a licence “turns on the operative intention of the parties and there is no single, simple litmus test to distinguish one from the other.” 14. The relevant discussion in para.22 is as under (S.C.C. p.31) “22. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of ‘lease’ in Sec.105 of the Transfer of Property Act, 1882, envisages the transfer of a right to enjoy the property on the other hand the definition of a ‘licence’ under Sec.52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise, amounts to an easement or involves a transfer of an interest in the property which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. These two rights, viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive possession, the idea of licence is not necessarily ruled out. English law contemplates, what are called ‘Possessory Licences’ which confer a right of exclusive possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has not power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence ‘turns on the operative intention of the parties’ and that there is no single, simple litmus test to distinguish one from the other. The ‘solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties.” [Italics supplied] 15. Dealing with the contention that the intention of the partes is to be determined upon a proper construction of the deed entered into between the parties, and that alone is a decisive matter, the court dealt with the said contention in para 32 and observed as under: (S.C.C. p. 34) “Indeed learned counsel placed strong reliance on the following observations by this Court in M.N.Clubwala v. Fida Hussain Saheb M.N.Clubwala v. Fida Hussain Saheb M.N.Clubwala v. Fida Hussain Saheb , A.I.R. 1965 S.C. 610: “Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement.” [Italics supplied] The proposition of Dr.Chitale as to the conclusiveness of what emanates from the construction of the documents has, in this case, its own limitations. The import, significance and conclusiveness of such documents making, or evidencing, the grants fall to be examined in two distinct contexts. The import, significance and conclusiveness of such documents making, or evidencing, the grants fall to be examined in two distinct contexts. The dispute may arise between the very parties to the written instrument, where on the construction of the deed one party contends that the transaction is a ‘licence’ and the other that it is a ‘lease’. The intention to be gathered from the document read as a whole has quite obviously, a direct bearing. But in case where, as here the landlord alleges that the tenant has sub-let the premises and where the tenant, in support of his own defence sets up the plea of a mere licensee and relies upon a deed entered into, inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed. At best, it is a piece of evidence. the weight to be accorded to which will necessarily depend upon all the other circumstances of the case. The tenant and the sub-tenant, who jointly set up a plea of licence against the landlord may choose to camouflage the truth and substance of the transaction behind a facade of a self-serving behind a facade of a self-serving and conveniently drafted instrument.” [Italics supplied] 16. Learned counsel for the respondent had also relied upon the decision of this Court in the case of Sohan Lal Naraindas v. Laxmidas Raghunath Gadit Sohan Lal Naraindas v. Laxmidas Raghunath Gadit Sohan Lal Naraindas v. Laxmidas Raghunath Gadit , (1971)1 S.C.C. 276 at 279 wherein the court has observed as under: (S.C.C. pp.279-280, paras 6 & 9) “6. An attempt was deliberately made to camouflage the true nature of the agreement, by reciting in several clauses that the agreement was for lease and licence and it emphasised the pretence, it was also recited that the defendant was not to have any right as tenant or sub-tenant in respect of the loft.” * * * * * * * 9. Intentionof the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidenced of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence. Intentionof the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidenced of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject-matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession though not decisive, is of significance.” [Italics supplied] From the aforesaid discussion what emerges is: .• (1) Tofind out whether the document creates a lease or a licence the real test is to find out “the intention of the parties”; keeping in mind that in cases where exclusive possession is given, the line between a lease and a licence is very thin. .• (2) The intention of the parties is to be gathered from the document itself. Mainly, the intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that the document is a camouflage. If the terms of the document evidencing agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. .• (3) In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would be the most relevant circumstances to arrive at the conclusion that the intention or the parties was to create a lease. [Italics supplied] .• (4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. [Italics supplied] .• (4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. But in cases where the landlord alleges that the tenant has sub-let the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed entered into, inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed; the tenant and the sub-tenant may jointly set up the plea of a licence against the landlord which is a camouflage; in such cases, the mask is to be removed or the veil is to be lifted and the true intention behind a facade of a self-serving conveniently drafted instrument is to be gathered from all the relevant circumstances. Same would be the position where the owner of the premises and the person in need of the premises executes a deed labelling it as a licence deed to avoid the operation of rent legislation. .• (5) Prima facie, in the absence of a sufficient title or interest to carve out or to create a similar tenancy by the sitting tenant in favour of a third person, the person in possession to whom the possession is handed over cannot claim that the sub-tenancy was created in his favour; because a person having no right cannot confer any title of tenancy or sub-tenancy. A tenant protected under statutory provisions with regard to occupation of the premises having no right to sub-let or transfer the premises, cannot confer any better title. But, this question is not required to be finally determined in this matter. .• (6) Further lease or licence is a matter of contract between the parties. Sec.107 of the Transfer of Property Act, 1882 inter alia provides that leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. Sec.107 of the Transfer of Property Act, 1882 inter alia provides that leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. This contract between the parties is to be interpreted or construed on the well-laid principles of construction of contractual terms, viz., for the purpose of construction of contracts, the intention of the parties is the meaning of the words they have used and there can be no intention independent of that meaning; when the terms of the contract are vague or having double intendment, one which is lawful should be preferred; and the construction may be put on the instrument perfectly consistent with his doing only what he had a right to do. “ 15. On the basis of above decisions we have to consider whether the transaction between parties amount to lease or licencee 16. It is admitted by appellant himself that his right is to prepare and sell prasadhams and he obtained that right on the basis of auction. The right conferred on him is to prepare and sell prasadhams only. It is that right he has taken in auction in the year 1967 and subsequently renewed from time to time. Even in the year 1990, he obtained that right by auction. It is true that he has been dealing with that right for the last 25 years. Madapalli is always attached to the temple and used as kitchen for temple use only. Prasadhams is to be prepared only in madapalli and at the fixed time same is offered to the deity. After it is offered to deity, same is sold to the Worshippers for consideration which is also fixed depending on the quantity. Plaintiff was not entitled to prepare neivedhyam in any other place and anything prepared outside the madapalli also could not be sold in the temple premises. When plaintiff was given a right to prepare neivedhyam there is an obligation on the part of temple authorities to permit him to use madapalli also. If that is the part of obligation, the transaction is not with immovable property but part of preparing neivedhyam to the deity. It may also be noted that no rent is realised for the use of madapalli or the shop. If that is the part of obligation, the transaction is not with immovable property but part of preparing neivedhyam to the deity. It may also be noted that no rent is realised for the use of madapalli or the shop. For creating lease, there must be payment of rent and transfer of immovable property. Both are absent in the case. It is also admitted by plaintiff that he cannot open madapalli though he retains the key, unless temple is also opened. It is also admitted by him that he cannot continue to retain it opened after the temple closes. If it is a lease he has got right to enjoy the premises. If the right to use is restricted, an inference can be drawn from that, that is a licence and not lease. 17. In the various agreements executed by him also he has only said as right to prepare food and sell neivedhyam. There is no mention of madapalli or shop anywhere in the agreement executed between parties. From the above fact, it is only clear that the intention of parties is to give madapalli for preparing and selling neivedyams and plaintiff is allowed to use temple premises and madapalli only for that purpose. 18. Learned counsel for appellant submitted that in the various receipts Exs.A-1 to A-8, it is stated as rent. Rent is paid only if there is lease and an inference of lease will have to be taken. I do not find any merit in the said submission. 19. In H.S.Rikhy v. New Delhi Municipality H.S.Rikhy v. New Delhi Municipality H.S.Rikhy v. New Delhi Municipality , A.I.R. 1962 S.C. 554 their Lordships considered the question what is meant by ‘rent’ and whether the use of the word ‘rent’ in many receipts will create lease. In para.6 of the judgment it is held thus: ”It was also contended that it was admitted by the respondent that rent was received and receipts for rent were granted by its agents. The use of the word ‘rent’ is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the generic sense, without importing the legal significance aforesaid, of compensation for use and occupation. The use of the word ‘rent’ is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the generic sense, without importing the legal significance aforesaid, of compensation for use and occupation. ‘Rent’ in the legal sense can only be reserved on a ‘demise of immovable property. Reference may be made in this connection to paragraphs 1193 and 1194 of Halsburys laws of England (Third Edition, Vo.23) at pages 536-537. Hence the use of the term ‘rent’ cannot preclude the landlord from pleading that there was no relationship of landlord and tenant. The question must, therefore, depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the tenant. “ [Italics supplied] 20. Similarly in State of Punjab v. British India Corporation , A.I.R. 1963 S.C. 1459 it is said that the word rent in its wider sense means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. 21. In Suhas Yeshwant Chopde v. Sachhidanand D.Purekar Suhas Yeshwant Chopde v. Sachhidanand D.Purekar Suhas Yeshwant Chopde v. Sachhidanand D.Purekar , (1995)5 S.C.C. 721 also this question was considered. In para.6, it was held thus: ”It will thus be noticed that the substance of the agreement was that it was an agreement of sale of the flat and Rs.40,000o to be paid as security deposit. There was no provision that in the event of the sale transaction not going through or not fructifying, the respondent would continue as a tenant. It is true that the document used the word “monthly rent of Rs.1,000” but it is now well settled by several decisions of this Court that mere use of the word “rent” is not decisive of the relationship between the parties…“ 22. From the above decisions it is clear that mere use of the word ‘rent’ in various receipts will not create lease if the parties have no intention to create lease. The amount which plaintiff is liable to pay to the temple was paid every month for which a receipt is issued. From the above decisions it is clear that mere use of the word ‘rent’ in various receipts will not create lease if the parties have no intention to create lease. The amount which plaintiff is liable to pay to the temple was paid every month for which a receipt is issued. Though it is true that the word ‘rent’ is used in those receipts when there is no transfer of immovable property, there cannot be lease and mere use of the word, ‘rent’ cannot change the nature of the transaction. 23. Finding of the courts below that there is no lease created in favour of plaintiff is therefore confirmed. It is held that for the purpose of preparing and selling of neivedhyam, plaintiff was allowed to use madapalli and shop as part of the obligation for preparing and selling food. 24. Alternatively learned counsel for appellant submitted that if the case of licence is accepted, the same has come to an end in 1992 and when plaintiff has not vacated the premises his possession becomes that of trespasser. In such cases, defendant is not entitled to take law into their own hands and dispossess plaintiff. Further argument is that by notifying auction defendant is intending to give right to prepare neivedyams and sell prasadhams to third parties who is likely to disturbe the possession of plaintiff. In that event plaintiff will be entitled to injunction. Much stress was laid by learned counsel on the decision reported in East India Hotels Ltd. v. Syndicate Bank , (1992)2 S.C.C. (Supp.) 29 counsel placed much reliance in the following passage in the decision in para.28, which reads thus: ”It would be apparent from the definition that the permission by one person to another or a body of persons to do or continue to do upon an immovable property of the grantor is an authority or power to do one or series of acts, without which it is illegal or unlawful. The legal possession is always with the licensor and it does not create any interest or an estate in the licensee. A licensee is a person, who is neither a servant nor a “rank trespasser”, but had come into possession with an authority. A rank trespasser is one who does not stand in any contractual relationship with the owner of the premises. A licensee is a person, who is neither a servant nor a “rank trespasser”, but had come into possession with an authority. A rank trespasser is one who does not stand in any contractual relationship with the owner of the premises. A trespasser is also one who lawfully enters into but unlawfully remains in possession of the property without the consent or acquiescence of the owner. If one goes into possession of the property of another with invitation or permission for instance to a shop or cinema theatre, or marriage hall to celebrate a marriage his initial entry is lawful but if he refuses to leave that place and unlawfully squats on it, he becomes a trespasser of a transient origin with no vestige of right. The initial entry into possession is obviously for short duration with a specified purpose. But if he enters upon the land under a contract and uses the land or premises and does continuous business therein for well over a long period peaceful and uninterruptedly and continues to do same even after the expiry of termination of licence the important question arises whether he is a rank trespasser without any protection of law.“ 25. I do not find that the above contention of learned counsel could be accepted. I have already held that in the transaction between the parties there is no transfer of immovable property and plaintiff was only given the right to use a portion of madapalli and shop in one of the praharam of the temple. Possession always continued with temple. His occupation or user of madapalli and shop was with permission and the same cannot be immediately converted as trespasser. Even in the present plaint, plaintiff is not claiming his right as trespasser. He claims his right only on the basis of his right to continue possession from 1967 i.e., right to prepare and sell prasadhams. If that was the initial right that was given and if that right continues even on the date of suit, he cannot claim to be in exclusive possession and prevent defendant from exercising its right over the same. 26. In Prabirendra Nath v. Narendra Nath , A.I.R. 1958 Cal. 179 the question came for consideration was whether after termination of licence, the owner can file suit for mandatory injunction against licensee directing him to vacate the premises and not one for recovery. 26. In Prabirendra Nath v. Narendra Nath , A.I.R. 1958 Cal. 179 the question came for consideration was whether after termination of licence, the owner can file suit for mandatory injunction against licensee directing him to vacate the premises and not one for recovery. Lordships held that the suit need not be one for recovery and suit for mandatory injunction is maintainable. 27. In Milka Singh v. Diana , A.I.R. 1964 J. and K. 99 the question raised before High Court was whether plaintiff was to file a suit for recovery of possession which is more efficacious remedy provided under Sec.41 of Specific Relief Act (Sec.56 of the earlier Specific Relief Act). The question arose was whether court fee paid in plaint is correct or not. In that case, learned Judges held that there is vast difference between the words ‘occupation’ and ‘possession’. It is held therein thus, ”…In my opinion before deciding the question as to under which clause the present suit would fall it will be necessary to determine the real status of a licensee. It is well settled that a licensee has no interest in the land and his possession is purely permissive. As early as 1673 Vaughan, C.J. in Thomas v. Sorrell , 1673 Vaugh 330 described the status of a licensee thus: “A dispensation or license properly passeth no interest nor alters or transfer property in anything, but only makes an action lawful, which without it had been unlawful.” In Halsburys Laws of England, Volume 23, IIIrd Edition, p.429, it is clearly mentioned that a mere license does not create any estate or interest in the property to which it relates; it only makes an act lawful which without it would be unlawful. Thus the status of a licensee is essentially different from that of a trespasser or a tenant. In fact, the possession of a licensee is not a juridical possession but only on occupation with the permission of the licensor. While the actual occupation remains with the licensee, the control or possession of the property is with the licensor through his licensee. This appears to us to be the real legal status of a licensee. This being the position, question is whether after termination of the license a licensee cannot be said to be a trespasser so as to drive the licenser to bring a suit for possession by evicting the licensee. This appears to us to be the real legal status of a licensee. This being the position, question is whether after termination of the license a licensee cannot be said to be a trespasser so as to drive the licenser to bring a suit for possession by evicting the licensee. In Winter Garden Theatre (London) Ltd. v. Millennium Productions, Ltd. Winter Garden Theatre (London) Ltd. v. Millennium Productions, Ltd. Winter Garden Theatre (London) Ltd. v. Millennium Productions, Ltd. , (1947)2 All E.R. 331 Viscount Simon, while discussing the status of a licensee quoted the observations of Vaughan, C.J. in 1673 Vaugh 330 and observed as follows: “The effect of a licence by A to permit B to enter upon As land or to use his premises for some purpose is, in effect, an authority which prevents B from being regarded as a trespasser when he avails himself of the license.” From these observations, it is clear that by accepting the status of a licensee a person cannot be treated as a trespasser as long as his occupation of the premises remains. Even if the licence is terminated he cannot be treated as a trespasser simpliciter unless he has left the premises and reoccupied it later on. The reason for this seems to us to be very simple. There is always an element of animus possidendi in the possession of trespasser which is completely absent in the possession of a licensee. After the termination of the license while the licensee may continue to occupy the premises, the possession of the property would be deemed to be in the licensor through the licensee. In these circumstances, therefore, it cannot be said that the moment the license is terminated, the licensees possession becomes that of a trespasser.“ 28. A Division Bench of Kerala High Court in the decision reported in Aspinwal & Co. Ltd. v. Soudamini Amma Aspinwal & Co. Ltd. v. Soudamini Amma Aspinwal & Co. Ltd. v. Soudamini Amma , 1974 K.L.T. 681 followed the above decision. 29. A Division Bench of Kerala High Court in the decision reported in Aspinwal & Co. Ltd. v. Soudamini Amma Aspinwal & Co. Ltd. v. Soudamini Amma Aspinwal & Co. Ltd. v. Soudamini Amma , 1974 K.L.T. 681 followed the above decision. 29. In Munshi Ram v. Delhi Administration , A.I.R. 1968 S.C. 702 in para.14, it is held thus: ”It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The person in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner though not in actual possession at the time to remove the obstruction even by using necessary force. “ 30. The said decision came for consideration in the decision reported in Puran Singh v. State of Punjab , A.I.R. 1975 S.C. 1674. After extracting the passage extracted above, their Lordships held thus: ”…It was against this context that the observations referred to above mere made. This Court clearly pointed out that where a trespasser was in settled possession of the land he is not entitled to be evicted except in due course of law and he is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him. The only condition laid down by this Court was that the possession of the trespasser must be settled possession. The only condition laid down by this Court was that the possession of the trespasser must be settled possession. The court explained that the settled possession must be extended over a sufficiently long period and acquiesced in by the true owner. This particular expression has persuaded the High Court to hold that since the possession of the appellants party in this case was only a month old it cannot be deemed to be a settled possession. We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the words ‘settled possession’ nor is it a ritualistic formula which can be confined in a strait-jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. Thus in our opinion the nature of possession in such cases which may entitled a trespasser to exercise the right of private defence of property and person should contain the following attributes; .(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; .(ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner.“ 31. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner.“ 31. The above decision of Honourable Supreme Court was followed by a learned Judge of Delhi High Court in the decision reported in M/s.G.M.Modi H. & R. Centre Medical Science v. Shankar Singh M/s.G.M.Modi H. & R. Centre Medical Science v. Shankar Singh M/s.G.M.Modi H. & R. Centre Medical Science v. Shankar Singh , A.I.R. 1996 Del. 1 and thereafter Lordship held that the person in occupation are not entitled to get injunction. Even if we admit the case of appellant that immediately after licence is revoked, he becomes trespasser, even then, he has to prove that he is entitled to get injunction under Sec.38 of Specific Relief Act. There must be an obligation to protect his possession and he must be entitled to legal right to have his occupation protected. 32. In Mahadeo Savlaram Shelke & Ors. v. The Puna Municipal Corporation and another Mahadeo Savlaram Shelke & Ors. v. The Puna Municipal Corporation and another Mahadeo Savlaram Shelke & Ors. v. The Puna Municipal Corporation and another , J.T. (1995)2 S.C. 504 held that trespasser is not entitled to get injunction against real owner. In para.9 of the judgment, learned Judges held that the possession being unlawful, they cannot seek injunction for evicting rightful owner. 33. The above decision was followed by a Bench of Delhi High Court in the decision reported in D.T.T.D.C. v. D.R.Mehara and Sons D.T.T.D.C. v. D.R.Mehara and Sons D.T.T.D.C. v. D.R.Mehara and Sons , A.I.R. 1996 Del. 351 a judgment rendered by Justice M.Jagannadha Rao, (as he then was), In that case it is held thus, ”A person who himself asks the owner to enter into a ‘Licence’ and enters into such an agreement cannot, after expiry thereof and express request of the owner to vacate, seek the helping hand of the court for a temporary injunction against the owner and the licencee cannot contend that till he is entitled for an injunction. When the licence has expired and the licencee himself requests the licensor to grant a short period to vacate from the premises and the licensor had been given a large number of notices to vacate and where the licensor has even shown alternative premises which the licence could have occupied, temporary injunction could not be granted in favour of the licencee. It is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. This principle is laid down in Sec.6 of the Specific Relief Act, 1963. However, it is settled law that a trespasser cannot seek injunction against the true owner. Assuming a trespasser ousted can seek restoration of possession under Sec.6 of the Specific Relief Act, can the trespasser seek injunction against the true ownere This question does not entirely depend upon Sec.6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunctions. Injunction is an equitable relief and the court must see whether a person who is a trespasser can seek the helping hand of the court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to court with clean hands. When he does these things there will no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the court to protect his illegal possession. There is no anomaly. The plea of multiplicity of proceedings is also not sustainable.” 34. It is clear from the above decisions that the character and possession of trespasser and that of licensee is different. There must be an animus on the part of the licensee i.e., plaintiff in this case, to hold the property otherwise as licensee or adverse to the character of licensee. Merely because a licence is revoked or terminated, his possession cannot immediately become that of trespasser, so long as plaintiff is not having animus to hold the property as trespasser. There must be an animus on the part of the licensee i.e., plaintiff in this case, to hold the property otherwise as licensee or adverse to the character of licensee. Merely because a licence is revoked or terminated, his possession cannot immediately become that of trespasser, so long as plaintiff is not having animus to hold the property as trespasser. As I said earlier, even now plaintiff claims right under earlier document and reiterate his right only to hold on property on the basis of that right, he does not want him to treat as trespasser, is clear from the very averments of the plaint. It is also clear from the decision of , A.I.R. 1964 J. & K. 99, that plaintiff wants to treat his as trespasser unless he left the premises and reoccupy it later or at least he must express his intention to hold on property as trespasser. That animus is absent in this case. Naturally plaintiff cannot claim to be ‘a person with settled possession’ and therefore not entitled to get possession as prayed for. Immediately after termination of licence, suit itself was filed by plaintiff and sought for injunction restraining defendant from dispossessing him from the property. Defendant has not acquiesced to the conduct or present claim of plaintiff in any way. 35. On the basis of the above decisions and on going by the facts of the case, I hold that plaintiff is not entitled to any relief. Both ‘the courts below have rightly held that plaintiff is not entitled to get injunction as against respondent. 36. Learned counsel for appellant submitted that after filing these appeals, though attempt was made to auction the right the same could not materialise in view of lack of bidders and plaintiff has also moved authorities to consider his case. I make it clear that this decision will not bar parties in entering into any other arrangement. In this case, I am only concerned whether plaintiff is entitled to injunction on the facts pleaded and proved. 37. In the result, both the second appeals are dismissed, however without any order as to costs. Consequently, C.M.P.Nos.16029 and 16607 of 1999 are also dismissed.