JUDGMENT : Rajani Dubey, J. 1. The present writ petition has been preferred by the petitioner seeking following reliefs:- “10.1 That, this Hon'ble Court may kindly be pleased to call for entire records of the case, from the respondent authorities. 10.2 That, this Hon'ble Court may kindly be pleased to set-aside the order dated 01.12.2022 passed by respondent no. 1 in Appeal Case No. 20-A/2022 between "Smt. Bharti Devi Sajwani & others Vs. Onkar Prasad Sajwani" (Annexure-P/1), is in the interest of justice. 10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.” 2. Facts of the case, as projected by the petitioner, in brief are that the petitioner is the owner of the house constructed upon the khasra No.35/1 admeasuring area 0.15 acre situated at Village Jarhabhatha, P.H.No.38, Tahsil & District Bilaspur (C.G.). The brother of the petitioner namely Kripaldas was residing in the First Floor of the said house as tenant from month of January 1995 and rent has been agreed between the parties to the tune of Rs.1,000/- per month. After the death of the brother of the petitioner, respondent no.3 to 5 denied the title of the petitioner and also stopped to make payment of rent. The petitioner requested to the respondent no.3 to 5 for handing over the possession of the suit house, but they refused and assaulted the the petitioner, therefore on 11.06.2020 petitioner sent legal notice to the respondent no. 3 to 5. The respondent no. 3 to 5 replied the said legal notice on 09.07.2020, wherein they stated that they are the owner of the suit house and refused to hand over the vacant possession to the petitioner. Thereafter petitioner preferred suit before respondent no.2 against the respondent no.3 to 5 for recovery of the possession and arrears of the rent. The respondent no. 3 to 5 denied the plaint averment in written statement and they categorically stated that they are the owner of the suit house. By way of the order dated 07.03.2022 respondent no. 2 allowed the plaint and directed to the respondent no. The respondent no. 3 to 5 denied the plaint averment in written statement and they categorically stated that they are the owner of the suit house. By way of the order dated 07.03.2022 respondent no. 2 allowed the plaint and directed to the respondent no. 3 to 5 to hand over the vacant possession of the suit house to the petitioner within 01 months from the date of the order and further directed to pay arrears of the rent from month of January 2018 upto possession @ Rs. 10,000/- per month. Being aggrieved by the order dated 07.03.2022, respondent no. 3 to 5 preferred the appeal before respondent no.1, which has been allowed and the order passed by the respondent no.2 has been reversed. Hence this petition has been filed by the petitioner. 3. Learned counsel for the petitioner submits that the impugned order passed by the respondent authorities is bad, illegal and contrary to the settled principles of law. The respondent no.1 wrongly concluded that the petitioner has failed to establish the relationship with respondent no. 3 to 5 as landlord and tenant. The respondent no.1 wrongly concluded that the dispute in respect of the title has been involved between the parties. The respondent no.1 wrongly discarded the statement of the witnesses. The respondent no.3 to 5 admitted that they are the tenant of the petitioner in the cross examination of PW-2 Onkar Prasad Sajwani and DW-4 Gurumukh Das Motwani. The respondent no.1 wrongly disbelieved the sale deed dated 26.10.1981 (Ex-P/16) as well as the the material available on record. Therefore, the writ petition deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of Gangabai vs Chhabu Bai, reported in (1982) 1 SCC 4 , A. Abdul Rashid Khan (Dead) and others vs P.A.K.A. Shahul Hamid and others, reported in (2000) 10 SCC 636 and S. Saktivel (Dead) by LRs vs M. Venugopal Pillai and others, reported in (2000) 7 SCC 104 . 4. Learned State counsel supports the impugned order/judgment. 5. Learned counsel for the respondent Nos.3 to 5 strongly opposes the submission made by the petitioner’s counsel and submits that the petitioner and the respondents are the relatives and there is no landlord and tenant relationship between the parties. 4. Learned State counsel supports the impugned order/judgment. 5. Learned counsel for the respondent Nos.3 to 5 strongly opposes the submission made by the petitioner’s counsel and submits that the petitioner and the respondents are the relatives and there is no landlord and tenant relationship between the parties. The learned Tribunal rightly found that there is no landlord and tenant relationship between the parties and rightly allowed the appeal of the private respondents and set aside the order passed by the learned Rent Control Authority. The petitioner did not prove this fact that the respondents are tenants of petitioner, as such this petition is without any merit and deserves to be dismissed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of Associated Hotels of India Ltd vs R. N. Kapoor, reported in (1960) 1 SCR 368 , D. S. Parvathamma vs A. Srinivasan, reported in (2003) 4 SCC 705 , Dr. Sandeep Sharma and others vs M/s Sai Chhaya Autolink (P) Ltd., reported in 2012 SCC Online MP 2124, the judgment rendered by the M.P. High Court in the matter of M. Amusement (P) Ltd. Vs State of M.P., reported in 2011 (4) MPLJ 311 and the judgment rendered by this Court in the matter of Rammurty Agrawal vs Santosh Agrawal, passed in WPC No.4363/2022, decided on 28.06.2024. 6. Heard learned counsel for the parties and perused the material available on record. 7. It is an admitted position in this case that the petitioner Onkar Prasad Sajwani and respondent No.3 Bharti Devi’s husband and respondent Nos.4 & 5’s father late Kripal Das Sajwani were real brothers. It is also not disputed that the petitioner and the respondent Nos.3 to 5 are residing in the same house. The petitioner filed application before the Rent Control Authority for eviction on this ground that his brother Kripal Das Sajwani was his tenant from January, 1995 and the rate of rent was Rs.1000/-per month and after the death of Kripal Das, the rent was Rs.10,000/- per month, but since January, 2018, no rent was paid by the respondent Nos.3 to 5 and the petitioner was in bonafide need of disputed house for his son. The learned Rent Control Authority, Bilaspur allowed the application of the petitioner on 07.03.2022 and directed the respondent Nos.3 to 5 to vacate the suit premises within one month and also directed to pay rent as Rs.10,000/- per month since January, 2018 till eviction. Against this order, the respondent Nos.3 to 5 filed appeal before the learned Rent Control Tribunal and by impugned order dated 01.12.2022, the learned Tribunal allowed the appeal of the respondents on this ground that the petitioner failed to establish the relationship between him and the respondent Nos.3 to 5 as landlord and tenant and set aside the order of the Rent Control Authority dated 07.03.2022. 8. Learned counsel for the petitioner has argued that as per the sale deed (Ex-P/16), Kripal Das had sold the disputed property to the petitioner Onkar Prasad on 26.10.1981 as such the petitioner is the owner of the disputed property and the relatives of both the parties as well as the witnesses of petitioner have proved this fact that the respondents are living in the suit house as his tenant and the respondents have no title in the suit premises. Ex-P/13 is the revenue record, which shows that the name of the petitioner is recorded as owner and the learned Tribunal did not appreciate this fact that the petitioner is the sole owner of the disputed property and wrongly allowed the appeal of the respondents. 9. As per respondents, they denied the relationship of landlord and tenant between the parties and they claimed their right on disputed property on this ground that this property was jointly purchased by Onkar Prasad and Kripal Das and Ex-P/16 sale deed was executed by Kripal Das in favour of the petitioner only for some finance purpose and it is clear from the sale deed that the petitioner wanted to obtain some loan from finance company i.e. Grih Nirman Samiti so this sale deed was executed by Kripal Das in favour of the petitioner but both the brothers are the joint owners of this property and it is clear from admission of the petitioner that they are business partners and they jointly entered into the suit house and house borrowing ceremony was jointly celebrated by the both the brothers and they are not the tenant of the petitioner. 10. 10. Section 2 (5) and 2 (14) of the Rent Control Act, 2011 provides as under:- “Section 2(5) - "Landlord" means a person who for the time being is receiving or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the accommodations were let to a tenant; Section 2(14) "Tenant" means- (i) the person by whom or on whose account or behalf rent is, or but for, a contract express or implied, would be payable for any accommodation to his landlord including the person who is continuing its possession after the termination of his tenancy otherwise than by an order or decree for eviction passed under the provisions of this Act; and (ii) in the event of death of the person referred to in sub-clause (i)- (a) in case of accommodation let out for residential purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily residing with him in such accommodation as member of his family up to his death; (b) in case of accommodation let out for commercial or business purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily carrying on business with him in such accommodation as member of his family up to his death.” 11. The Hon’ble Apex Court in the matter of R. N. Kapoor (supra) held in para 28 as under:- “28. There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under s. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is there-' fore a transfer of an interest in land. The interest, transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. A lease is there-' fore a transfer of an interest in land. The interest, transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas s. 52 of the Indian Easements Act defines a licence thus : "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 immoveable 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 licence." Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose'. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest n the property. There is, therefore, cleat distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infalliable 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, 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, 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.. 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 much 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 land ?" The following propositions may, therefore, 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 a 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. Judged by the said tests, it is not possible to hold that the document is one of licence. Certainly it does not confer only a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellants. The covenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. The solitary circumstance that the rooms let out in the present case are situated in a building wherein a hotel is run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document- writer hardly conceals the real intent. I, therefore, hold that under the document there was transfer of a right to enjoy the two rooms, and, therefore, it created a tenancy in favour of the respondent.” 12. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the document- writer hardly conceals the real intent. I, therefore, hold that under the document there was transfer of a right to enjoy the two rooms, and, therefore, it created a tenancy in favour of the respondent.” 12. This Court in Rammurty Agrawal (supra) held in para 9 as under:- “9. As the time was already granted him to file reply and as the petitioner is the maternal uncle (Mama) of the sole respondent and looking to their age and further admitted fact that there is no document to show that the petitioner was the tenant of the sole respondent and it is also an admitted case of the sole respondent as it transpires from the record.” 13. In light of the above, it is clear that the petitioner has failed to prove this fact that Kripal Das or his legal heirs ever paid any rent to him and the learned Tribunal also after appreciating the oral and documentary evidence available on record found that the petitioner has failed to prove this fact that there is any landlord and tenant relationship between the parties and accordingly allowed the appeal of the respondent Nos.3 to 5. Thus, the finding recorded by the learned Tribunal is according to the facts and circumstances of the case as well as the provisions of the Rent Control Act and the guidelines of the Hon’ble Apex Court. 14. The writ accordingly.