JUDGMENT S.K. Gangele, J. 1. This is the defendant's second appeal against the Judgment and Decree dated 29-5-1987 passed by the Additional District Judge. Neemuch to the Court of District Judge Mandsaur in Civil Regular Appeal No. 70-A of 1981 reversing the judgment and decree dated 30-9-1980 passed by Civil Judge Class I, Neemuch, in Civil Suit No. 1-A of 1977. 2. The appeal was admitted for hearing on 20-1-1988 on following substantial questions of law :- (1) Whether, in the facts and circumstances of the case the lower Court was right in holding that the appellant is in occupation of the premises in suit as a licensee and not as a sub-tenant? (2) Whether, in the facts and circumstances of the case, the suit for eviction of a sub-tenant, whose tenancy is in contravention of the M.P. Accommodation Control Act, 1961 is maintainable? (3) Whether, in the facts and circumstances of the case, the plaintiffs are entitled to evict the defendant, when he has attorned to the paramount owner and has been paying rent to the temple authorities? 3. During the pendency of the appeal, the appellant has been died and his legal representatives have been brought on record, Meerabai, the plaintiff, has also been died and her legal representatives have been brought on record. For the sake of convenience in the judgment parties will be referred as in the original suit. Plaintiffs, widow of Bansilal, his sons and daughter, filed a suit for ejectment and permanent injunction. Subsequently, vide amendment, they also sought relief of possession and mesne profits. The plaintiffs pleaded that the plaintiff No. 1 is the second wife of Bansilal and the plaintiffs Nos. 2 and 5 are sons and daughter. Husband of the Plaintiff No. 1 got a shop on rent of the ownership of the Respondent No. 2, a temple, on 1-8-1964 on a yearly rent of Rs, 72/-. Thereafter, he made some Pakka constructions. Subsequently, in the north of the shop, Bansilal in the year of 1987 got certain Municipal land on lease and installed some tin sheds. On 27-1-1971, Bansilal got permission from the Municipal Council to install a flour mill (Aatta Chakki) in the shop. On 5-2-1971 he deposited license fees and because he was busy in other work, he appointed the defendant No. 1 as his servant. It was agreed that the defendant No. 1 would pay Rs. On 27-1-1971, Bansilal got permission from the Municipal Council to install a flour mill (Aatta Chakki) in the shop. On 5-2-1971 he deposited license fees and because he was busy in other work, he appointed the defendant No. 1 as his servant. It was agreed that the defendant No. 1 would pay Rs. 6/- per day to Bansilal, he would deposit electricity bill and bear other expenses of the flour mill and keep rest of the amount with him. The aforesaid arrangement had been continued up to 11-1-1974 when Bansilal died and after his death up to 30-10-1976 the defendant paid the amount of Rs. 6/- per day to the representative of the plaintiffs, Shri Krishanchandra. Thereafter, he stopped the payment of amount and a report to the police was lodged and thereafter the plaintiffs filed the present suit. 4. The defendant No. 1 denied the claim of the plaintiffs. He also challenged the locus of the plaintiffs to file the suit. He further pleaded that the shop was given by Mr. Bansilal to him as a sub-tenant on a monthly rent of Rs. 180/- and he installed the flour mill after purchasing the same from another person. After the death of Bansilal, he entered into a lease of tenancy with the defendant No. 2, owner of the shop, and he was paying rent to the Defendant No. 2, hence the plaintiffs are not entitled to get any relief. 5. The learned trial Court has held that the flour mill was of the ownership of Bansilal and he had given it on sub-lease the suit shop and the flour mill to the defendant No. 1 on monthly rent of Rs. 180/-. The plaintiffs Nos. 2 to 5 are entitled to institute the suit proceedings and as per the provisions of section 12 of the M. P. Accommodation Control Act sub-tenancy cannot be created without permission of the landlord hence the plaintiffs are not entitled to get any relief and dismissed the suit. 6. Being aggrieved against the aforesaid judgment the plaintiffs filed appeal. The learned Appellate Court re-appreciated the evidence and held that Defendant No. 1/Appellant was a licensee of the deceased Bansilal and the plaintiffs are entitled to receive possession of the shop and measne profits and decreed the suit. 7. 6. Being aggrieved against the aforesaid judgment the plaintiffs filed appeal. The learned Appellate Court re-appreciated the evidence and held that Defendant No. 1/Appellant was a licensee of the deceased Bansilal and the plaintiffs are entitled to receive possession of the shop and measne profits and decreed the suit. 7. The learned Senior Counsel for the appellants submitted that findings of the Appeal Court that the appellants defendant was a licensee are against the law and, in fact, the defendant No. 1 was a tenant and the suit is not maintainable and the defendant cannot be evicted by the plaintiffs because he has attorned to the paramount owner and has been paying the rent to it. In support of his contention the learned Senior Advocate relied on the judgments of the Hon'ble Apex Court reported in AIR 1959 SC1262, AIR 1987 SC 2192 and the judgment of this Court reported in 1983 MPRCJ 187 and 1987 MPRCJ 150. Contrary to this the learned counsel for the Respondents has submitted that the judgment and decree passed by the lower appeal Court is as per law and the defendant No. 1 was a licensee and the plaintiffs are entitled to get possession of the suit shop. In support of his contention he relied on the judgment of Hon'ble the Apex Court reported in AIR 2002 SC 569 . 8. In the opinion of this Court in deciding the controversy between the parties it is important to decide that whether the defendant No. 1 was a licensee of the deceased Bansilal or a sub-tenant. It is an admitted fact that the disputed shop was rented out by the defendant No. 2, a temple, in favour of Bansilal in the year of 1964 on a monthly rent of Rs. 72/-. He installed a flour mill in portion of the house after purchasing the same and he also got permission for installation from the Municipal Council. Order of granting permission dated 5-2-1971 has been filed as Ex.P/11, along with map. It was registered under the Shops and Establishment Act in the name of Bansilal. Copy of the registration has been filed as Ex.P/8. Copies of the receipts of electricity payment have been filed from Ex.P/57 toEx.P/111. These are in the name of Bansilal and Badrilal. Copy of the F.I.R has also been filed as Ex.D/1. It was registered under the Shops and Establishment Act in the name of Bansilal. Copy of the registration has been filed as Ex.P/8. Copies of the receipts of electricity payment have been filed from Ex.P/57 toEx.P/111. These are in the name of Bansilal and Badrilal. Copy of the F.I.R has also been filed as Ex.D/1. The aforesaid F.I.R. was lodged by Krishna Chandra Narela mentioning that the Defendant No. 1 was serving in the flour mill and thereafter he himself got possession of the flour mill as a owner. Copy of the notice issued by the Inspector, Shops and Establishment, to Bansilal has been filed as Annexure Ex.P/115 and Ex.P/114 is the notice dated 6-4-1973 sent by the Labour Court to appear Bansilal on 21-4-1973. From all the above documentary evidence it is clear that the flour mill was in the name of Bansilal and he installed the mill. Register which was maintained by Bansilal has also been filed as Ex.P/117. In the aforesaid register day to day account has been maintained, it has been made clear in it that the defendant No. 1 had been paying Rs. 61- per day to Bansilal. 9. In his evidence P.W.I, Krishan Chandra, stated that Bansilal was his uncle and he got the suit shop on the monthly rent of Rs. 6/- and he installed a flour mill. The defendant No. 1 was a servant in the Mill and he had been paying Rs. 67- per day to Bansilal. Same thing has been stated by Badrilal, who has been examined as P.W.2. He is also the nephew of Bansilal and he had been looking after the flour mill, after the death of Bansilal. Another witness is Mohammad, P.W.4, who is neighbor of Bansilal, he deposed that Bansilal used to receive Rs. 67- per day from the defendant No. 1 and after his death his brother Murli looked after the shop. Another witness Surajmal (P. W. 6) deposed that he had sold the flour mill to Bansilal on 19-1-1991 in a consideration of Rs. 1951/- 10. Defendant Mohammad Hanif examined himself as D.W.I and deposed that the shop was rented out to him by Bansilal on the monthly rent of Rs. 180/-. He admitted in his cross-examination that the electric connection of the shop was in the name of Bansilal and he had taken sanction for installation of flour mill from the Municipal Council. 1951/- 10. Defendant Mohammad Hanif examined himself as D.W.I and deposed that the shop was rented out to him by Bansilal on the monthly rent of Rs. 180/-. He admitted in his cross-examination that the electric connection of the shop was in the name of Bansilal and he had taken sanction for installation of flour mill from the Municipal Council. In para 46 of his deposition he has admitted that earlier he had been running the flour mill of Bansilal and had been paying Rs. 180/- per month as rent. He deposed that there was no written agreement nor any rent receipt has been given to him by Bansilal. 11. From the above oral and documentary evidence it is clear that the flour mill was in name of Bansilal and earlier the defendant No. 1 was running the flour mill. The fact of sub-letting by Bansilal cannot be believed in view of the oral and documentary evidence because no written agreement or tenancy has been filed by the defendant No. 1. He himself admitted that no rent receipt has been given to him by Bansilal. He further admitted that he had been paying rent of Rs. 180/- per month to Bansilal i.e. Rs. 6/- per day. Contrary to this there is ample evidence documentary as well as oral that the defendant No. 1 had been paying Rs. 6/- per day to Bansilal and alter his death to other family members and he was looking after the flour mill business. Subsequently, he installed his new flour mill but there is no evidence that the shop was rented out or leased out to the defendant No. 1 by Bansilal or the plaintiffs. 12. There is a distinction between the 'lease' and 'license'. Subsequently, he installed his new flour mill but there is no evidence that the shop was rented out or leased out to the defendant No. 1 by Bansilal or the plaintiffs. 12. There is a distinction between the 'lease' and 'license'. Section 105 of the Transfer of Property Act defines a lease of immovable property as transfer of right to enjoy of such property made for a certain time in consideration for a price paid or promised and section 52 of the Indian Easement Act defines a license which is as under:- 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 immovable 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 license. Apart from this the definition given in the Easement Act, the classic definition of licence was pronounced by C.J. Vaughan in the seventeenth century in Thomas v. Sorrell, (1673) Vaughan 351 where the Lordship has held as under :- A dispensation or license properly passed no interest nor alters" or transfers property in any thing, but only makes an action "lawful, which without it had been unlawful" Subsequently Lord Green M.R. in Booker v. Palmer reported in (1942) 2 AU.E.R. 674 has held as under with regard to license :- There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. It seems to me this is a clear example of application of that rule. The Lord Denning in Cobb v. Lane reported in 1952 1 ALL ER 1199 as held as under:- 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 land. The Lord Denning in Cobb v. Lane reported in 1952 1 ALL ER 1199 as held as under:- 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 land. After discussing in detail the Hon'ble Subba Rao J. in Associated Hotels of India Ltd. v. R.N. Kapoor reported in AIR 1959 SC 1262 laid down the following proposition :-- (1) To ascertain whether a document creates a license 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 license; (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 a license; 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. The same principle has been further followed by the Hon'ble Apex Court in the case of Khalil Ahmed Bashir Ahmed v. Tufehussein Samashbhai Sarangpurwala reported in AIR 1988 SC 184 : If an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use land without exclusive possession was alone granted, a license was the legal result. The above principle has been further been reiterated by the Hon'ble Apex Court in the case of Chandy Varghese and Others v. K. Abdul Khader and Others reported in (2003) 11 SCC 328 :- Lease" is "a transfer of interest in land" whereas "license" is a right granted to another person over immovable property to do or continue to do some act which would in the absence of such right be unlawful and which does not amount to easement nor creates any interest in the property. Thereafter in the case of C.M. Beena and Another v. P.N. Ramachandra Raoreported in (2004) 3 SCC 595 :- Generally speaking, the difference between a "lease" and "license" is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a license being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in particular manner and but for the permission so given the occupation would have been unlawful. 13. From the above principle of law and facts of the case it is clear that the defendant No. 1 was the licensee of the husband of the plaintiff No. 1. 14. With regard to right of licensee the Hon'ble Supreme Court in the case of Corporation of Calicut v. K. Sreenivashan reported in (2002) 5 SCC 361 has held as under:- A licensee does not acquire any interest in the property by virtue of grant of license in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his favour by way of license he continues to exercise that right so long the authority has not been determined for any reason whatsoever, meaning thereby so long the period of license has not expired or the same has not determined on the grounds permissible under the contract or law. Occupation of the licensee is permissive by virtue of the grant of license in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/or he is not evicted from its occupation either in accordance with law or otherwise. 15. 15. Next question with regard to attornment of tenancy right by the defendant No. 1 in favour of paramount owner i.e. the defendant No. 2 and right of the plaintiffs to get possession of the suit premises, the principle has already been considered elaborately by the Hon'ble S.C. in the case of Synco Industries v. State Bank of Bikaner and Jaipur and Others reported in AIR 2002 SC 568 after considering the judgment of Hon'ble the Supreme Court in the case of D. Satyanarayana v. P. Jagdish, AIR 1987 SC 2192 on which the learned counsel for the appellant has relied on and the judgment of this Court reported in 1977 MPU 335 : 1946 NU 602 : AIR 1947 Nag 188 held as under :- Under section 108, Clause (q) of the Transfer of Property Act in the absence of contract or local usage to the contrary, it is an obligation of the tenant to put his lessor into possession of the property on the termination of the lease. Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant shall during the continuance of the tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a trade to such immovable property. The estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title holder. Eviction by paramount title holder is a good defence bringing to an end of the obligation of the tenant to put the lessor in possession of the property under section 108(q) of the Transfer of Property Act. The burden of proving eviction by title paramount lies on the party who sets up such defence. Eviction by paramount title holder is a good defence bringing to an end of the obligation of the tenant to put the lessor in possession of the property under section 108(q) of the Transfer of Property Act. The burden of proving eviction by title paramount lies on the party who sets up such defence. To constitute eviction title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied (i) the party evicting must have a good and present title to the property (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent Court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly. Or in other words the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. 16. From the above discussion of evidence documentary and oral and also the principle of law I hold that the defendant was in occupation of the suit premises as a licensee and there is no question to decide the point that whether the tenancy of the defendant was in contravention of the M.P. Accommodation Control Act, 1961. In the above premises I further hold that the plaintiffs are entitled to evict the defendant-appellant and I answer the substantial question of law accordingly. 17. In the result I do not find any substance in the appeal, it is hereby dismissed with cost. Counsel fee as per schedule, if certified.