Judgment : Heard Mr. Lotlikar, learned Senior Counsel for the appellant and Mr. Dessai, learned Counsel for the respondent. 2. By this Second Appeal, the appellant takes exception to judgment and decree dated 23/06/2004 passed by Additional District Judge, South Goa, Margao in Regular Civil Appeal No.156/2003 by which the appeal preferred by the respondent against the judgment and decree dated 02/12/2003 passed by Civil Judge, Junior Division, Margao in Regular Civil Suit No.140/2001/C has been reversed. 3. The appellant is the defendant and the respondent is the plaintiff. 4. The parties shall hereinafter be referred to as per their status before the trial Court. 5. The original plaintiff filed the above suit for eviction of the defendant from the shop existing in the property 'Rimtolembata' situated at Acquem Alto, on the ground floor which according to the plaintiff, was given on leave and licence basis to the defendant in terms of agreement styled as Leave and Licence agreement dated 26/12/1984 for monthly fees of Rs.350/- and subject to terms and conditions mentioned therein. The Agreements dated 26/12/1984 and 01/01/1986 were entered into between plaintiff and defendant and after his death, all the subsequent agreements were entered into by the respondent herein who is the plaintiff in the above suit. Thereafter, following agreements were executed between the plaintiff and the defendant: (i) Agreement of Leave and Licence dated 01/04/1987 (ii) Agreement of Leave and Licence dated 03/02/1989 (iii) Agreement of Leave and Licence dated 03/02/1990 (iv) Agreement of Leave and Licence dated 23/02/1991 (v) Agreement of Leave and Licence dated 19/02/1992 (vi) Agreement of Leave and Licence dated 08/01/1993 (vii) Agreement of Leave and Licence dated 06/01/1994 (viii) Agreement of Leave and Licence dated 21/10/1994 (ix) Agreement of Leave and Licence dated 04/10/1995 (x) Agreement of Leave and Licence dated 28/08/1996 (xi) Agreement of Leave and Licence dated 01/08/1997 (xii) Agreement of Leave and Licence dated 09/07/1998 (xiii) Agreement of Leave and Licence dated 01/06/1999 (xiv) Agreement of Leave and Licence dated 01/05/2000 6. According to the plaintiff, after expiry of period mentioned in the agreement dated 01/05/2000, the defendant was bound to vacate the suit shop and hand over the possession thereof to the plaintiff. According to the plaintiff, after expiry of period mentioned in the agreement dated 01/05/2000, the defendant was bound to vacate the suit shop and hand over the possession thereof to the plaintiff. Thereafter, the plaintiff issued notice dated 16/03/2001 to the defendant calling upon him to stop selling kerosene which according to the plaintiff the defendant was not entitled to do and further calling upon him to vacate the suit premises on or before 31/03/2001. 7. The defendant replied to the notice stating that the defendant was lessee and as such, he was not bound to vacate the suit premises. 8. The plaintiff filed the above suit seeking declaration that the occupation of the defendant of the suit premises was unauthorised with effect from 01/04/2001 and to pay compensation and also sought mandatory injunction. The suit was contested by the defendant, inter alia, contending that he was a tenant in respect of the suit premises and that the relationship between the plaintiff and the defendant was that of Lessor and Lessee. 9. The trial Court framed the following issues: “(i) Whether the plaintiff proves that the licence granted to the defendant by virtue of agreement dated 01/05/2000, expired on 31/03/2001, making the occupation of defendant of suit premises an unauthorised occupation? (ii) Whether the plaintiff proves that the defendant is bound to compensate the plaintiff for unauthorized occupation at the rate of Rs.3,000/- per month? (iii) Whether the plaintiff proves that he is entitled for vacant possession of suit premises? (iv) Whether the defendant proves that the agreement dated 1.5.2000 is not an agreement of Leave and Licence but is lease agreement? (v) Whether the defendant proves that this Court has no jurisdiction to entertain and try this suit? (vi) What relief? What order?” 10. In the above suit, the plaintiff examined his duly constituted attorney Shri Narayan Tari whereas the defendant stepped in the box and examined two more witnesses namely DW2- Manguesh Asolkar and DW3- Arjun Azgaonkar. 11. Learned trial Court, upon appreciation of the evidence led by the parties, answered the issues no.1 to 3 in the negative and issues no.4 and 5 in the affirmative and consequently, dismissed the suit. Aggrieved by the judgment and decree passed by learned trial Court, the plaintiff filed an appeal to the District Court, South Goa, which was made over to Additional District Court. Aggrieved by the judgment and decree passed by learned trial Court, the plaintiff filed an appeal to the District Court, South Goa, which was made over to Additional District Court. The lower appellate Court framed the following points for determination: “(i) Whether the appellant has proved that the respondent is a Licensee of the suit shop? (ii) Has the learned Civil Judge, erred in dismissing the suit? (iii) Whether the appellant proves that he is entitled for compensation at the rate of Rs.3,000/- from the date of filing of the suit till the respondent vacates the suit premises? (iv) What relief ? What order?” 12. By judgment and decree dated 23/06/2004 passed in Regular Civil Appeal No.156/2003, the lower appellate Court reversed the decree holding that the defendant was licencee and consequently, partly decreed the suit and directed the defendant to hand over the possession of the suit shop. Aggrieved by the judgment and decree passed by the lower appellate Court, the defendant has filed the present second appeal. 13. After hearing learned Counsel for the parties, Second Appeal was admitted on the following substantial question of law: “Whether on true and correct interpretation of the agreement dated 26/12/1984 and the subsequent renewals thereof, what was created in favour of the appellant, was a lease in respect of the suit shop and not a mere licence?” 14. Mr. Lotlikar, learned Senior Counsel for the appellant submitted that although clauses in all the agreements entered into between the parties were almost identical, for the purpose of finding out whether the relationship between the parties was that of Lessor or Lessee or Lincensor or Licencee the same has to be decided on the basis of last agreement having regard to the earlier agreements and other attending circumstances. According to Mr. Lotlikar, the following substantial question of law arises in the present appeal : “Whether the agreement dated 01/05/2000 executed between the parties creates relationship of lease or licence between the parties?” 15. Mr. Lotlikar further submitted that for the purpose of answering the above question, the Court has to consider the earlier agreements entered into between the parties as well as the other attending circumstances. Mr. Mr. Lotlikar further submitted that for the purpose of answering the above question, the Court has to consider the earlier agreements entered into between the parties as well as the other attending circumstances. Mr. Lotlikar, therefore, submitted that it would be proper if the substantial question of law is reformulated in the above terms and since the lower appellate Court has proceeded to frame points for determination on the basis of the said agreement, as has been done by the trial Court, but has gone on the basis of all the agreements entered into between the parties, it would be appropriate to reformulate the substantial questions of law and dispose of the appeal. Mr. Lotlikar made submissions on merits which I do not deem necessary to refer in view of the final order which I propose to pass. 16. Mr. Dessai, learned Counsel appearing for the respondent though controverted the submission made by Mr. Lotlikar that all the clauses in the earlier agreements were almost identical, fairly conceded that the substantial question of law as submitted by Mr. Lotlikar, has to be reformulated in the present appeal and the matter has to be decided on the same substantial question of law and not on the substantial question of law as formulated at the time of admission. Mr. Dessai, learned Counsel appearing for the respondent made submissions on merits which also I do not propose to refer in view of the final order which I propose to pass. 17. I have carefully considered the submissions made by learned Counsel for the parties and perused the record. 18. Learned trial Court had rightly framed issue no. 4 as to whether the defendant proves that the agreement dated 01/05/2000 is not agreement of leave and licence, but lease agreement. However, upon perusal of the judgment of the lower appellate Court, it is evident that the lower appellate Court has not formulated any point for determination in relation to agreement dated 01/05/2000 which is crucial for deciding the relationship between the parties, after taking into consideration earlier agreements. Perusal of the judgment of the lower appellate Court further discloses that the lower appellate Court has proceeded to find out whether the defendant was licencee or tenant on the basis of all the earlier agreements entered into between the parties. In my view, the submission made by Mr. Perusal of the judgment of the lower appellate Court further discloses that the lower appellate Court has proceeded to find out whether the defendant was licencee or tenant on the basis of all the earlier agreements entered into between the parties. In my view, the submission made by Mr. Lotlikar that the lower appellate Court ought to have formulated the point for determination in relation to agreement dated 01/05/2000 and thereafter proceeded to find out the nature of the relationship between the parties, deserves to be accepted. Consequently, the substantial question of law formulated by this Court also deserves to be reformulated as in terms submitted by Mr. Lotlikar. Accordingly, the substantial question of law is reformulated in the following terms: “Whether the agreement dated 01/05/2000 executed between the parties creates relationship of lease or licence between the parties?” 19. Since the lower appellate Court has proceeded to dispose of the matter after taking into consideration all the agreements and not primarily the agreement dated 01/05/2000, in my opinion, it would be appropriate to set aside the judgment and order passed by the lower appellate Court and remand the matter for fresh decision after framing appropriate point for determination in terms of Order XLI, Rule 31 of C.P.C. I, therefore, do not deem it appropriate to deal with the submissions made by learned Counsel for the parties on merits and deem it appropriate to quash and set aside the impugned judgment and decree and remand the matter to the lower appellate Court for fresh decision. The lower appellate Court shall frame points for determination arising in the matter in the light of the observations made above and proceed to dispose of the appeal after giving an opportunity of being heard to the parties in accordance with law. Needless to mention that all the contentions of the parties on merits are kept open. 20. In the result, therefore, the impugned judgment and decree passed by the lower appellate Court is quashed and set aside and the matter remanded to lower appellate Court for fresh decision in the light of the observations made above. 21. Needless to mention that all the contentions of the parties on merits are kept open. 20. In the result, therefore, the impugned judgment and decree passed by the lower appellate Court is quashed and set aside and the matter remanded to lower appellate Court for fresh decision in the light of the observations made above. 21. The parties shall appear before the lower appellate Court on 30/01/2013 at 10.00 a.m. Considering that the appeal filed before the lower appellate Court is of the year 2003, the lower appellate Court to dispose of the appeal expeditiously and in any case on or before 30/05/2013, in accordance with law. 22. The appeal stands accordingly disposed of. No order as to costs.