JUDGMENT 1. The appellant/plaintiff, a licensee of a shop allotted to him by the Municipal Council, Udaipur, has filed the present second appeal under Section 100 of CPC, 1908, having concurrently lost the legal battle before the courts below, assailing the judgment and decree dated 04.01.1999 passed by learned Addl. District Judge No.1, Udaipur, in Civil Appeal No.32/1998-Gopal Lal Vs. Municipal Council, Udaipur, whereby the learned first appellate court has dismissed the appeal while affirming the judgment and decree dated 20.05.1998 passed by learned Addl. Civil Judge (Jr. Division) No.1, Udaipur, in Civil Original Suit No.160/1995-Gopal Lal Vs. Municipal Council, Udaipur, whereby the suit filed by the appellant/plaintiff for injunction against the defendant, Municipal 2 of 13 Council, Udaipur not to increase the rent of Rs.210/-per month for the suit Shop No.10 situated at Chetak Circle, Udaipur (a prominent and busy business place of Udaipur) was dismissed. 2. The appellant/plaintiff, Gopal Lal, had filed a suit seeking injunction against the defendant/respondent Municipal Council, Udaipur, not to increase the rent of Rs.210/-per month for the suit shop, which was given on licence to the appellant/plaintiff on 21.1.1977 @ Rs.210/-per month. A Circular dated 10.08.1983 came to be issued by the State Government in exercise of powers under Section 138 of the Rajasthan Municipalities Act, 1959, authorizing the Municipal Council to charge a fees for such licence or permission a higher fees, as may be fixed by the State Government and the State Government notified for a 10% increase in licence fees for every year. 3. The contention raised by the learned counsel for the appellant/plaintiff before the courts below, where the plaintiff/appellant lost the legal battle, was that it was a case of 'lease' and not' licence' and, therefore, in view of Full Bench decision of this Court in the case of State of Rajathan Vs. Municipal Council, Hanumangarh & Ors. reported in 2003 (2) RLW Raj. 833, the Municipal Council, Udaipur had no right to increase the rent @ 10% per annum. These contentions were refuted by the defendant and the suit was rejected by both the courts below. 4. Municipal Council, Hanumangarh & Ors. reported in 2003 (2) RLW Raj. 833, the Municipal Council, Udaipur had no right to increase the rent @ 10% per annum. These contentions were refuted by the defendant and the suit was rejected by both the courts below. 4. While admitting the present second appeal of the plaintiff, vide order dated 18.03.1999, a coordinate bench of this Court, framed the following substantial questions of law and an interim relief was also granted by the coordinate bench restraining the respondent Municipal Council, Udaipur, to recover the enhanced licence fee, which are quoted herein below: 1. Whether the defendant respondent was entitled to unilaterally increase the rent of the premises let out to the appellant? 2. Whether the learned first appellate court after setting aside the finding of licensee rightly held the appellant to be a lessee and if the plaintiff is held to be a lessee, no rent can be enhanced against the mandatory provisions envisaged under Sec.105 of the Transfer of Property Act? 3. Whether Section 105 of the Transfer of Property Act envisages an agreement between lessor and lessee relating to consideration? 5. The findings of the learned trial court dismissing the suit of the plaintiff/appellant for injunction vide judgment and decree dated 20.05.1998 are quoted herein below for ready reference: - ^^tgka rd 10 izfr’kr izfrekg fdjk;k c<+k, tkus dk iz’u gS bl laca/k esa bdjkjukek esa ‘krZ gksuk crk;k x;k gSA oknh us bl rF; ls vU;Fkk dksbZ rF; fl) djkus gsrq bdjkjukek is’k ugh fd;k gSA fygktk bdjkjukek dh ‘krksZ ds vuqlkj Hkh bl laca/k esa oknh dksbZ vuqrks”k izkIr djus ds vf/kdkjh ugh gS rudh uEcj ,d o nks blh foospu ds vuqlkj fo:) oknh cgd izfroknh r; dh tkrh gSA vuqrks”k oknh rudh uEcj ,d o nks vius i{k es fl) dj ikus esa vlQy jgk gSA vr% okn oknh ckcr fu”ks/kkKk [kkfjt fd, tkus ;ksX; gSA vkns’k vr% okn oknh ckcr LFkkbZ ,oa vkns’kkRed fu”ks/kkKk fo:) izfroknh [kkfjt fd;k tkrk gSA izdj.k dh ifjfLFkfr;ksa dks ns[krs gq, i{kdkj [kpkZ viuk&viuk ogu djsaxsA rnuqlkj fMØh ipkZ rS;kj fd;k tkosA lgh@& vfrfjDr flfoy U;k;k/kh’k ¼d-[ka-½ ,oa U;kf;d eftLVsªV izFke oxZ Ø-l-1 mn;iqj ‘kgj ¼nf{k.k½ mn;iqj^^ 6. The findings of the learned first appellate court below upholding the judgment of learned trial court are also quoted herein below for ready reference: ^^tgka rd 10 izfr’kr fdjk;k c<+k;s tkus dk iz’u gS] gkykafd dksbZ bdjkjukek izLrqr ugha fd;k x;k gS fdUrq orZeku esa gj phtks dh c<+rh gqbZ egaxkbZ dks n`f”Vxr j[krs gq,s izfroknh us oknxzLr nqdku dk ‘kqYd 210@&:i;s dk 10 izfr’kr twu 83 ls c<+kdj oknh dks tek djkus dk tks uksfVl fn;k gS] mls xyr ugha dgk tk ldrkA orZeku esa gj phtksa dh dherks esa csrgk’kk o`f) gqbZ gSA oknh ds ikl tks izfroknh dh nqdku gS og nqdku iDdh gS ,oa mn;iqj ‘kgj ds psrd ldZy tSls egRoiwZ.k ,oa O;Lrre LFkku ij gS vRk% izfroknh us tks 10 izfr’kr fdjk;k c<+k;k gS] mls c<+kus dk vf/kdkj gS vkSj c<+k ldrh gS vkSj vkxs Hkh c<+k ldsxh] fdUrq vkxs ;g c<+ksrjh nksuks i{kks dh lgefr ls ,oa fof/k vuqlkj gksxhA rnuqlkj fook|d la[;k 1 o 2 blh izdkj ls fofuf’pr fd;s tkrs gSA mi;qDr foospu ds ifj.kkeLo:i vihy lkjghu gksus ls [kkfjt ;ksX; gSA vkns’k vihykFkhZ&oknh }kjk izLrqr vihy [kkfjt dh tkrh gSA fook|d la[;k 1 o 2 esa fn;s x;s fofu’p; ds vuqlkj gq,s la’kks/ku ds vfrfjDr fo}ku vfrfjDr flfoy U;k;k/kh’k ¼d-[k-½ Øe&1 nf{k.k] mn;iqj }kjk ikfjr fu.kZ; o fMØh dh iqf”V dh tkrh gSA [kpkZ i{kdkjku viuk viuk ogu djsaxsaA fu.kZ;kuqlkj fMØh&ipkZ rS;kj fd;k tkosA lgh@& ¼lqJh m”kk vxzoky ¼xxZ½ vij ftyk U;k;k/kh’k de la-1] mn;iqj ¼jkt-½^^ 7. Mr. Salil Trivedi, learned counsel appearing on behalf of appellant/plaintiff heavily relied upon the Full Bench decision of this Court in the case of State of Rajasthan Vs. Municipal Council, Hanumangarh (supra) and urged that the very same Circular/Notification dated 10.08.1983 was interpreted by Full Bench and it was held to be the case of 'lease' and even though the document in question in the present case as produced by the respondent Municipal Council, Udaipur under the directions of this Court, use the words ^^vuqKk&i=^^ (Licence), in effect, the tenor of said document is that of a 'lease' and, therefore, in view of Full Bench decision of this Court, no enhanced rent/lease charges can be demanded from the plaintiff/appellant. 8. On the other hand, Mr. 8. On the other hand, Mr. Anurag Shukla, learned counsel for the respondent/defendant, Municipal Council, Udaipur urged that the Agreement between the parties in question produced before this Court clearly shows that it was a case of 'licence' only and not of 6 of 13 lease' and, therefore, the Notification dated 10.08.1983 clearly applied to the facts of the present case and the Full Bench decision of this Court cited by the learned counsel for the plaintiff/appellant is distinguishable as the agreement in that case before the Full Bench was ^^fdjk;kukek^^ i.e. 'lease-deed'. He further submitted that two terms have definitely different connotations in law and, therefore, the present case is covered by the said Notification dated 10.08.1983 and the present second of plaintiff appeal is devoid of any merit. 9. I have heard the learned counsel for the parties at some length and perused the record and the judgment cited at the Bar. 10. 9. I have heard the learned counsel for the parties at some length and perused the record and the judgment cited at the Bar. 10. The document in the present case, giving the licence of Shop No.10 to the plaintiff/appellant containing following terms, is also quoted herein below for ready reference: ^^bdjkjukek psVd ldZV iqjku ukFk}kjk cl LVs.M ds ikl ifj”kn dh iDdh nqdkus cuh gqbZ gS mlesa nqdku ua-10 dks Jh xksiky yky firk gtkjh yky th lqFkkj mez 30 o”kZ ds uke 210@& :Œ nks LkkS nl :I;k izfr ekgokj ls vuqKk ‘kqYd ij ,yksV dh xbZ gS Jh xksiky yky ‘kekZ firk gtkjh yky th lqFkku dks vkxs py ds vuqKk/kkjh ds uke ls lEcksf/kr fd;k tkosxkA eS vuqKk/kkjh fuEu ‘krksZ dh ikyuk djus dk ck/; jgwaxk% 1- nqdku ,yksV gsrq 1000@& ,d gtkj :i;k crkSj tekur jkf’k ¼m/kjr½ fMiksftV dj jlhn la[;k 20140 fnaukd 22-1-77 tek gqos gS os uxj ifj”kn mn;iqj ds dks”k esa tek jgsaxs ftldk dksbZ C;kt ns; ugha gksxkA 2- vuqKk/kkjh dks gj ekg izFke lIrkg es vxkÅ vuqKk ‘kqYd 210@& :Œ nks lkS nl :i;k tek djkuk gksxk vxj mDr le; ij ;g vuqKk ‘kqYd tek ugh gqvk rks mlds ckn 18 izfr’kr okf”kZd ls foyEc ‘kqYd ifj”kn }kjk olwy fd;k tkosxk tks vuqKk/kkjh dks nsuk gksxk vkSj cjkcj 3 ekg rd ‘kqYd tek ugha gksxk rks ifj”kn }kjk vuqKk fujLr dh tk ldsxsa ,oa ifj”kn nqdku ls vuqKk/kkjh dk lkeku oxSjk gVk ldsxh] ftlls vuqKk/kkjh fdlh Hkh izdkj Hkh vkifr ugh djsxk vkSj ifj”kn ds dgus ij lkeku ugha gVk;k rks nqdku ij j[kk lc lkeku vius dCts es ys ysxkA 3- mDRk bdjkjukek 11 ekg ds fy;s ,xzhesUV fy[kk gqvk ekuk tkosxk vkxs fjU;wvy ds fy;s vuqKk/kkjh dks ,d ekg iwoZ izkFkZuk&i= izLrqr djuk gksxk ftl ij ifj”kn }kjk fopkj fd;k tkdj gh mfpr le>us ij vkxs ds fy;s fjU;wvy fd;k tkosxkA nqdku ftl voLFkk es yh gS mlh voLFkk esa lkSiwaxk vkSj fdl izdkj dk rksM+] QksM+ ugh djsxk u uqdlku igqpkosxkA 4- ikuh o fctyh dk ehVj vxj vuqKk/kkjh yxkuk pkgs rks Lo;a ds [kpsZ ls yxk;sxk vkSj mlds fcyks dk Hkqxrku Hkh vuqKk/kkjh dks gh djuk gksxkA 5- nqdku vuqKk/kkjh fdlh Hkh gkyr esa fdlh vU; ds gLrkUrfjr ugh dj ldsxk vkSj ugh fdlh dks fdjk;s ij ns ldsxkA ,slk djus ij vuqKk/kkjh ds vuqKk/kkjh ds vuqKk jnn ¼dsUly½ dj nqdku dks [kkyh djkus dk ifj”kn dks iw.kZ vf/kdkj gksxkA 6- vuqKk/kkjh }kjk mDr nqdku esa fdlh izdkj dk fuekZ.k dk;Z uxj ifj”kn] mn;iqj dh vuqefr izkfIr fd;s fcuk ugha djk ldsxkA fdlh Hkh izdkj dk mDr nqdku esa fuekZ.k dk iqu% fuekZ.k ds fy;s ifj”kn }kjk Lohd`fr nsus ds ckn gh vuqKk/kkjh dk;Z djk ldsxk vFkok ugh vuqKk/kkjh fdlh Hkh dkj.k esa nqdku jnn gksus ij vFkok jnn dh tkus ij ,slk fuekZ.k ifj”kn }kjk gVk fn;k tkosxk vFkok ifj”kn pkgs rks ;g ifj”kn dk gks tkosxk ftldk fdlh Hkh izdkj dk eqvkotk Hkqxrku ugha fd;k tkosxkA 7- vuqKk/kkjh us tekur Jh Hkaojyky Hkkj}kt firk Jh rqylkjke th lqFkku Hkfê;kuh pksgêk lqFkkjksa dh ?kkVh mez 30 o”kZ fuoklh] mn;iqj okMZ ua-4 dk tekur fnyk nh gS ;g tekur ifj”kn ds fgr es jgsxhA 8- fd uxj ifj”kn }kjk bl nqdku ds ckjs esa mDr ‘kjk;rks ds vykok le; le; ij vkSj Hkh vkns’k funsZ’k fn;s tkosaxs mldh Hkh vuqKk/kkjh }kjk ikyuk dh tkosxhA 9- fd vuqKk/kkjh fdlh ‘krZ dh ikyuk ugh djus ij o oSls Hkh ifj”kn dh bPNkuqlkj vuqKk jnn ¼dsUly½ dh tk ldsxh vkSj vuqKk/kkjh dks mld nqdku ls gVk fn;k tkosxk rFkk ifj”kn dh tks cdk;k jkf’k gksxh oks olwy dh tkosxhA 10- fd uxj ifj”kn tc pkgs vuqKk vof/k ds chp esa vuqKk jnn¼dsUly½ dj ldsxk mldh nqdku ij j[kk lkeku gVk nsxh vFkok vius dCts es ys ysxkA 11- nqdku esa fdlh izdkj dk dksbZ ,slk /kU/kk ugh djsxk ftlls vke turk dks rdyhQ ;k vkifRk gksA 12- vuqKk/kkjh ds gd esa fdlh LoRo dk gLrkUrj.k ugh gS vkSj ugh ekuk tkosxkA 13- vuqKk/kkjh us 630@& :i;k tek djk jlhn laŒ20149 fnuakd 22-1-77 izkIr dj yh gS rhu ekg dk vxkM ‘kqYd tek djk;k gSA izR;sd ekg dh rkjh[k rd ekgokjh tek djkÅaxkA 14- eS vuqKk/kkjh xksiky yky firk Jh gtkjh yky th ‘kekZ ;g vuqKk uxj ifj”kn mn;iqj ls mijksDr ‘krksZ ds lkFk izkIr dh gS eSa vuqKk dh ‘krksZ ds ikyu ds fy, ck/; gwa vkSj izekf.kdj.k esa mlds fy;s gLrk{kj dj nsrk gwaA lgh@& xksiky ‘kekZ gLrk{kj vuqKk/kkjh mDr bdjkjukesa ds vuqlkj fnuakd 22-1-1977 ls nqdku ua-10 ,yksV dh xbZ ftldh vuqKk ‘kqYd 630@& :Œ N% lkS rhl :i;k rk-22-1-1977 ls rk-29-4-1977 rd jlhn ua- 20149 fnukad 22-1-77 ij tek gqvk gS rFkk nqdku dk vuqKk/kkjh dh rgr dh gSA lk{kh jes’k gLrk{kj xksiky ‘kekZ lk{kh rqylhjke^^ 11. From a bare perusal of the said document it is clear that it isacaseof 'license' and not of 'lease'. Merely because, the licence fees is calculated on monthly basis and the same is realized from the licensee, it does not convert the said document into a 'lease-deed'. The said licence fees of Rs.210/-per month is liable to be realized in case of delay with 18% interest also vide Clause (2). The respondent has also right to cancel said licence without assigning any reasons as per Clause (9) of the said deed. Clause(12) specifically prohibits transfer of any sort of interest to the licensee. Thus, no attributes of 'lease' are available in the present case and, therefore, the contention of the learned counsel for the appellant/plaintiff, are devoid of any substance. 12. The facts of the case before the Full Bench of this Court were clearly distinguishable and the document before the Full Bench was a ^^fdjk;kukek^^ (Lease-Deed), which is quite distinct and different from the licence-deed as involved in the present case and that is why on the last occasion on 07.01.2016 also, after hearing some arguments of learned counsel for the parties, the Court passed the following order on 07.01.2016 calling upon the Municipal Council, Udaipur, to produce the Agreement between the parties on record and that is why the aforesaid document has been produced before this Court. 13. The Full Bench of this Court in the case of State of Rajasthan Vs. Municipal Council, Hanumangarh (supra) held as under: - “6. Applying these tests to the facts of the case particularly the document Ex.1, the substance of the document is to be seen. The agreement is styled as a 'kirayanama' i.e., lease-deed. The possession of the shops was given to the allottees i.e., the Council has parted with the possession of the shops completely. The deed contains clauses that the allottees will not part with possession of the shops nor sub-let them. This shows that the Council had completely divested itself of the possession of the shops and the same stood vested in favour of the allottees. A further condition was imposed that the premises could be used only as shops. Thus the document creates an interest in the property in favour of the allottees. This shows that the Council had completely divested itself of the possession of the shops and the same stood vested in favour of the allottees. A further condition was imposed that the premises could be used only as shops. Thus the document creates an interest in the property in favour of the allottees. As against this, a licence is a mere privilege to carry out some activity at the premises the lawful possession whereof remains with the owner. Till the vendors like the petitioners in the writ petitions were selling their vegetables on the foot path they were mere licensees. However, on construction of the pucca shops they were required to make a fixed monthly payment and possession of the shops was completely left within their control. It is recorded in the document itself that the allottees had received possession of the shops from the Council. It is further stated in the agreement that the allottees will maintain the shops in goods condition and will not cause any damage to the shops. It is also stated in the agreement that the allottees will not carry out any material construction in the shops and they will vacate the shops on one month's notice and if the allottee does not deliver possession of the shop on the expiry of one month notice period he will pay rent at a penal rate. At various places in the agreement the amount payable by the allottee for the shops to the Council has been described as rent. In our view, it is clear from a perusal of the agreement Ex.1 that it is a lease-deed and not a licence-deed. Thus, we agree with the learned Single Judge that the basic document in this case is a lease-deed. xxx 11. The present is a case of lease. The impugned notification being without jurisdiction, cannot provide source of power to the appellant to revise the rent and the impugned action is wholly without jurisdiction. 12. Having held that this is a case of lease it follows that the revision of rent has to be in law, if it so permits. We agree with the learned Single Judge that the State Government or the appellant can revise the rent in accordance with law; but, the impugned revision of rent based on the circular dated 10.8.1983 cannot be upheld. We agree with the learned Single Judge that the State Government or the appellant can revise the rent in accordance with law; but, the impugned revision of rent based on the circular dated 10.8.1983 cannot be upheld. The decision of the appellant revising the rent of the shops in question was, therefore, rightly quashed by the learned Single Judge. We agree with the view taken by the learned Single Judge. These appeals are, therefore, dismissed. 13. We hold that the notification dated 10.8,1983 issued by the State Government does not confer jurisdiction on the Council to increase rent at the rate of 10 per cent every year and the said enhancement is unlawful. The reference is answered accordingly.” 14. Upon a closer scrutiny of the aforesaid judgment and facts of the present case, it is clear that the said judgment of Full Bench is not applicable to the facts of the present case, which is a case of 'licence' only for the shop given to the appellant/plaintiff and he appears to have filed the the suit to avoid the payment of increased licence fees @ Rs.210/-per month with 10% increase every year when the said Notification dated 10.08.1983 was sought to be applied for demanding the increased licence fees from him. The suit was apparently misconceived and, therefore, was rightly rejected by the learned court below. 15. Thus, this Courts finds no substance in the arguments of the learned counsel for the appellant/plaintiff (licensee) and the present second appeal of plaintiff against concurrent decrees of both the courts below rejecting his suit for injunction, deserves to be dismissed, the same is accordingly dismissed while answering the 13 of 13 substantial questions of law, framed above, in favour of defendant/respondent, Municipal Council, Udaipur, and against the plaintiff/appellant with cost of Rs.10,000/-which will be paid by the plaintiff to Municipal Council, Udaipur, within a period of three months from today. 16. The increased licence fees of Rs.210/-+ 10% increase every year in terms of Notification dated 10.08.1983 and the arrears of the same will be paid within six months by the appellant/plaintiff, otherwise, it will bear interest @ 9% per annum from the date of it falling due till the date of actual payment. The increased licensee fees per month shall be payable by the appellant/plaintiff from the date of this judgment from March, 2016. The increased licensee fees per month shall be payable by the appellant/plaintiff from the date of this judgment from March, 2016. A copy of this judgment be sent to the concerned parties and the courts below forthwith.