The second appeal and the civil revision petition arise out of a suit in ejectment filed by the respondent before the Second Assistant Judge, City Civil Court, Madras. The defendant in the suit, who is the appllent in the second appeal, and the petitioner in Civil revision petition, in defence, claimed the benefits conferred on a tenant of land under the Madras City Tenants Protection Act III of 1922 and by I.A 855 of 1961, applied under S. 9. of the Act for purchase of the plaintiff's right in the suit land. The decree in ejectment granted and dismissal of the application under tie Act by the trial court were confirmed on appeal by the Additional Judge, City Civil Court, Madras. The second appeal is directed against the decree in the suit and the civil revision petition is from the order of dismissal of the appeal against the trial court's order in I.A No. 855 of 1961.

There is no dispute about the title of the plaintiff to the suit plot No. 6 Dr. Nair Road, Thyagarayanagar in the city, stated to measure about six grounds. The suit land abuts Jagadambal Street on one side and Dr. Nair Road on another. It was the plaintiff's ease that, when the watchman of the property vecated the hut on the land in 1951, she permitted the defendant to occupy the hut free of rent on the understanding that it should be vacated whenever the plaintiff required. The plaint averred that, in 1959, when the plaintiff called upon the defendant to vacate the hut so that she could put up a construction on the property, the defendant failed to vacate the same and proceeded to put up farther hats. There have been exchange of notices between the parties preceding the suit. The plaintiff's case is that the defendant is a licensee without any interest in the land. The defendant pleads that she is not a licensee, but a tenant of the land and that she put up the superstructure. Her case is that she bee'ame a tenant of the land about 15 years previously, that is, in 1945 or 1946, on a monthly rent of Rs. 3, that the rent was raised to Rs 5 per month in 1958 and then to Rs. 6 in 1959, and that the rent was deducted from the price of milk which was supplied by the defendant to the plaintiff. There is evidence that the defendant has built a shall cattle yard on the land and that she is a milk vendor. That the defendant has been supplying milk to the plaintiff, is admitted by P.W 1, nephew of the plaintiff. The documentary evidence consists of notices that passed between the parties the payment of licence fee by the defendant in 1955—57 to the Corporation of Madras and vouchers for retain of money orders sent as ground rent by the defendant to the plaintiff in the beginning of 1961. The Second Assistant Judge, from the attendant circumstances referred to by him, inferred that the defendant was not a tenant but licencee of the plaintiff, and that she was not entitled to the benefits under the City Tenants Protection Act. The Second Assistant Judge having regard to the evidence and a conviction of the defendant in 1947 for keeping cattle in Dhadikachalam Chettl Road, rejected the defendant's caw that she entered in the salt land in 1945 on 1946. He would find that the defendant did not occupy the suit land prior to 1951, and he accepted the case put forward by the plaintiff, that the defendant must have occupied a hut on the land in 1951.

Alternatively the second Assistant Judge held that as the rent had been raised in 1958 and 1959, subsequent to 1955, a fresh tenancy had been created after the amendment of the City Tenants Protection Act in 1955. As the amended Act applied only to tenancies subsisting on the date of the amendment even assuming that the defendant was a tenant under the Act when the amended Act came into force, it was held that he was not entitled to any relief under the Act, as there was termination of the original tenancy and creation of a fresh tenancy when the rent was varied. On appeal, the learned Additional Judge, City Civil Court, would hold that the defendant was a lessee of the plaintiff, and that what was leased to the plaintiff was a vacant site in 1951. He would hold that the superstructure standing on the land belonged to the defendant. However, he agreed with the learned Second Assistant Judge that, as there was an increase in the rate of rent, a new tenancy came into being, and the defendant lost the benefits of the City Tenants Protection Act.

Having heard learned counsel on both sides, I am rot satisfied that there has been a proper approach in the appellate court with reference to either of the points that called for consideration. To take up the first question whether the defendant was a licensee or lessee, the difference between a lease and licence is quite often subtle and the precise character of the relationship between the owner and occupier has to be determined having a conspectus of the entire case and circumstances obtaining at time of the entry and the conduct of the parties. Certain guiding principles are to be found in the decisions and they have te be borne in mind in solving the problem. Also what commenced as license may latter become tenancy and the converse is also possible. Beth the parties in the case appear to have exaggerated their respective cases, very likely apprehensive of what the legal position might turn out te be. The defendant in this ease would state that she had been on the land from 1945—46. The plaintiff pleaded that the defendant came on the land in 1951 and occupied a hut on the premises, vacated by her watchman, while the, trial court accepted the plaintiff's case in its entirety, the appellate Court, having regard to the contents of the notice Ex. B.1 would hold that the defendant did not occupy any hut belonging te the plaintiff, bat that the defendant took the vacant site in the year 1951. The Appellate Court would find that the defendant was a lessee, having regard to Ex. B.I The reasoning is that it was very unlikely that the defendant was allowed to occupy the suit property free of rent, though it was remarked that there was nothing improbable in the supply of milk by the defendant to the plaintiff. The learned Additional Judge seems te have been of the view that, once there is a payment of rent, the relationship is that of lessor and lessee. But it will be presently seen that the payment of rent far occupation call it rent or any other name is not an unfailing test.

The learned Additional Judge has posed the question for consideration on this aspect of the case thus:—

“Whether the defendant was a licensee in respect of the hut marked A in the plaint plan or whether the defendant was a lessee in respect of the site and whether he constructed the huts A, B and C.

Here the learned Additional Judge' ignores that, even if what had ben occupied by the defendant under the plaintiff was land only it does not necessarily follow that the relationship was that or lessor and lessee. The plaintiff could have permitted the defendant to use the land and hand it over to her when ever she required the same, without intending to confer on the defendant an interest in the land and make her a tenant. We are not concerned with the attitude adopted by the defendant subsequently. Even a licencee may be permittd to put up temporary constructions, like the hats in this case.

Learned counsel for the plaintiff contends that here is a case where valuable building sites have been acquired by the plaintiff for construction purposes, and that it is extremely unlikely that she would create an interest in the property in the defendant and permit her to put up structures thereon as a tenant, which would interfere with her constructing built dings on the property as and when tie desired. Learned counsel submits that, having regard to the facts and circumstances of the case, one should not readily impute to the plaintiff an Intenation to create a tenancy. The argument is that, as there is no document evidencing the precise relationship between the parties and the decisive consideration as to the nature of the relationship is the intention of the parties, the intention has to be ascertained on a consideration of all the attendant circumstances and they negative an intention to create a lease, in this regard, counsel would urge that admittedly no rent was paid in cash by the defendant, that the defendant was supplying milk to the plaintiff, and that the defendant's case is merely that a sum of Rs. 3, later on Rs. 5 or Rs. 6 was being adjusted against the cost of milk supplied by her to the plaintiff. It is submitted that, having regard to the relationship between the parties, the plaintiff who had no immediate use of the land would have only permitted its user by the defendant as a licencee without conferring any interest on her, as that would assure to the plaintiff a person to watch the property from trespass by others, apart from creating an obligation with reference to the supply of milk. Per contra, counsel for the defendant would argue that, when there has been exclusive occupation by the defendant of the land putting up structures thereon the presumption should be in favour of tenancy and not of licence. Learned Additional Judge for his conclusion seems to lay some stress on the fact that Ex, B. 1 required the surrender of possession of the vacant site free of the superstructures within 15 days of the receipt of the notice. I may at once state that the mere fact that a notice has been issued to the occupant to vacate within a given period will not by itself make the relationship as that of lessor and lessee, if in fact it is not so. It may also be noted that the notice does not terminate the occupation with the and of a calendar month.

In M.N Clubwala v. Fida Hussain Sahib A.I.R 1965 S.C 610, 614, the Supreme Court enunciates certain guiding principles thus: “While it is true that the essence of lieeace is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence. In England it has been held that a contractual licence may be revocable or irrevocale according to the express or implied terms of the contract between the parties. It has farther been held that if the licencee under a revocable licence has brought property onto the land, he is entitled, to notice of revocation and to a reasonable time for removing his property, and in which to make arrangements to carry oa his business elsewhere (See Halsbury's Laws of England, 3rd Edn. Vol. 23, page 431). Thus the mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would net indicate that the transaction was a lease”.

In the same ease it is said:—

“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. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties”. I may refer also to another recent decision of the Supreme Court in B.M Lall v. Dunlop Rubber Co, A.I.R 1968 S.C 175,. It is sufficient to set out the headnote of the decision in the A.I.R report which succinctly gives the principles necessary for consideration here:

“A lease is the transfer of a right to enjoy the premises, whereas a licence is a privilege to do something en the permises which otherwise would be unlawful. If the agreement is in writing, it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licensee. The transaction is a lease if it grants an interest in the land; it is a licence if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties choose to put upon the transaction though relevant, is not decisive. The test of exclusive possession is not conclusive, though it is a very important indication in favour of tenancy. If a servant is given a personal privilege to stay in a house for the greater convenience of the work and it is treated as part and parcel of his remuneration, then he is licencee, even though the value of the house is quantified in money, bat if he is given an interest in the land, separate and distirct from his contract of service, at a sum properly to be regarded as a rent, then he is a tenant and none the lees a tenant because he is also a servant”.

Reference may also he made to Associated Hotels of India Ltd. v. R.N Kapur where Subba Rao, J., (as he then was) observed that, if under a document a party ge's exclusive possession of the property, prima fecie he is considered to be a tenant, but that circumstances may be established which negative the intention to create a lease. Having regard to these decisions, counsel for the plaintiff submits that the relationship between the parties in this case is that of licensor and licence. It is submitted that the plaintiff, evidently envisaging the convenience that weald enure to her by the defendant her milk vendor occupying the land, permitted the occupation of the land by the defendant and nothing more. Learned counsel points out that the extent of the land involved is large-about six grounds-that the plot has been fenced with barbed wire, and that the defenneant is admittedly enjoying only a small portion. Learned counsel contends that, when under Ex. 8. 2, the defendant was informed that she would be held liable for the barbed wire fencing found missing in various places, the reply of the defendant was that she had nothing to do with the missing barbed wire used for fencing in the plot. The suggestion is that the defendant had no exclusive occupation of the plot in question. Even the admited deduction from the price of the milk supplied as consideration for the occupation it is pointed out is negligible. Coming to the question of rent, neither in Ex. B-1 nor in Ex. B. 2, notices issued by the plaintiff, was any claim for the rent made. When replying to Ex. B-1, by Ex. A-1, the defendant, though she claims to be a tenant for over 15 years, does not say that she had been paying any rentnot even that the rent was being adjusted towards the cost of milk supplied by her to the plaintiff. In this notice Ex. A. 1, the defendant claim's to be using the land constructing a small superstructure thereon for residential purposes and also a small cattle yard for tying her cattle. The notice Bx. A.1 was given by counsel on 21st June 1960 in response to Ex. B-1. by the plaintiff dated 9th March 1960 after a lapse of three months. Ex. B.1 dated 10th October 1960 evoked the reply Ex. A.2 dated 10 December 1960 from the defendant's counsel. In Ex. A.2 it is stated that the defendant had been paying a rent of Rs. 6 pes month for a portion of the land, over which the defendant has constructed the superstructure for her residence and also a cattle yard. She has pleaded in her written statement that after the plaintiff stopped purchasing milk towards the and of 1960, she sent the rent by money orders. These money orders are manifestly after disputes has arisen between the parties and the defendant had set up her right under the City Tenants Protection Act. These money orders have not been delivered to the plaintiff ard one finds in these money orders, for the first time, an attempt to get an acknowledgment from the plaintiff that the amounts were sent for ground rent. These mosey orders being reeent have to be ignored, as of no evidentiary value in the circumstances. We do not have clear evidence as to the manner of payment of rent, subsequent to the notice Ex. B. 1 issued by the plaintiff. There appears to have been some personal talks between the parties, as brought out in the notices and evidence. Payment ard acceptarce of rent is certainly of great weight, if established; but as stated already it is not decisive of a tenancy, where it can be other wise explained. A person's milk supplier may be accommodated, if she is suffering for want of proper accommcdaticn for herself and the cattle. The owner by providing accommodation to the milk supplier would assure to herself better service. Accomodation may be provided or permission granted to occupy land as a personal privilege. As said already in these matters, one has to strive to find the true relationship by getting at the intention of the parties. The following rule enunciated by Green M.R. in Booker v. Palmer is better borne in mind when ascertaining the true intention.

“There is one golden rule which is of very general application, namely, that the law does cot impute intention to ester into legal relationship where the circumstances and the conduct ot the parties negative any intention of the kind”.

It seems to me that neither of the parties, when they adduced evidence in this case, nor the courts below have kept before themselves the principles above set out from the decided cases in coming to their conclusion as to the true relationship between the plaintiff and the defendant in the matter of latter's occupation of the plaintiff's land. Also neither the plaintiff nor the defendant should be penalised for over stating their case and putting exaggerated versions. If the court can find the true and real relationship between the parties, notwithstanding some ornamentation, some exaggeration and some trappings in the cases of the parties, the court should give relief according to the rights found.

I shall next take up for consideration the other point, on which the courts below have concurred—creation of a new tenancy between the parties once in 1958 and again in 1959 with the rising of rent from Rs. 3 to Rs. 5 in 1958 and from Rs. 5 to Rs. 6 in 1959. This question arises, if it is found that the relationship between the plaintiff and defendant, when the defendant occupied the land in 1951, was that of landlord ana tenant. Then on the amendment of the City Tenants Protection Act by Act 19 of 1955 in September 1955, the defendant became a tenant entitled to the benefit of the Act but the protection afforded by the Act is limited to tanancies of land created before the amendment. If there has been a fresh tenancy in 1958 or 1959 the Act would not be applicable to the subsequent tenancy. This principle, the courts below applied to this case holding that the variation ot the rent resulted in the creation of new tenancies, but it is not every alteration of rent be it by agreement between the parties that necessarily brings about a fresh tenancy. This question has been considered by me recently somewhat in Extenso in V. Natesa Naicker v. P. Arumugha Naicker where I pointed out that no new tenancy necessarily follows an increase in rent. The circumstances of a case may be such that an increase in the rent by itself brings about a sew tenancy. The question is one of an inference from the facts and circumstances of the particular case, the court having to infer whether the parties intended, by the new term as to the rent, to put an and to the old tenancy and create a new tenancy.

In my view, both the questions involved in this case require fresh determination in the light of the principles indicated above. The cases have therefore to be remanded back to the lower appellate eourt for fresh disposal, in the light of the observations made in this judgment. If the parties desire to adduce fresh evidence, this remand order does not preclude them from doing so. In the result the second appeal and the civil revision petition are allowed. The decree and judgment in AS. 32 of 1963 and the order in C.M.A 43 of 1963 on the file cf the Additional Judge, City Civil Court, Madras, are set aside and the cases are remanded hack to the Additional Judge for fresh disposal. The court fee paid in the Memorandum of second appeal will be refunded. The parties will bear their respective costs in this court. No leave in the second appeal.

V.C.S