Deoki Nandan, J.
1. The plaintiff-appellants in this Second Appeal claim that a pond bearing Khasra no. 1553/2 situate in Mohalla Surajkund of the city of Varanasi. was originally the sole property of the defendant. Maharao Raja Saheb Bundi State, Rajasthan. on which the plaintiff, ancestors and the plaintiff had been in possession as pattedars since the settlement of 1291 F. However, in denial of the plaintiff's right, the defendant gave a Patta for pisciculture in the said pond to one Bedi on the 2nd Dec. 1946. After obtaining the Patta. Bedi tried to dispossess the plaintiff, but was unsuccessful. We thereupon initialed a proceeding under Section 145. Cr. P. C. In respect of the pond, which was attached. but after inquiry. it was released in the plaintiff's favour and its possession was restored to the plaintiff on the 14th Dec. 1947. Bedi thereupon instituted a suit, which was decreed by the trial Court, but was dismissed on appeal by the plaintiff. Bedi filed a second appeal in this Court. That was dismissed on the Ist Dec. 1959. The plaint goes on to state that it is apparent from the aforesaid fact that Bedi could not get possession of the pond under the Patta executed by the defendant rather the plaintiff continued in possession, and, in this manner, the plaintiff has continued in adverse possession for over 20 years in denial of the defendant's rights over the pond in suit and has prescribed full ownership thereof. No suit was filed by the defendant for possession against the plaintiff. The defendant's rights over the pond have been lost on the enforcement of the Urban Areas Zamindari Abolition and Land Reforms Act. 1956, and he has now no right of ownership, or of any kind whatsoever, in the pond. It was also pleaded in the alternative that in case the court found that the possession of the plaintiff was not adverse against the defendant, he continued as a tenant by holding over after the expiry of the Patta in his favour, and, under the terms of the Patta. he is a permanent licensee and not liable to ejectment from the pond. By an amendment of the plaint. It was pleaded that Pattas were granted to the plaintiff's ancestors from time to time and the last such document was Ext. A-5 for the period 15th July, 1941 to the 14th July, 1944. Since the relationship of lessor and lessee had already come into existence under earlier document, it was not necessary to get Ext. A-5 registered, and even if it was necessary to have it registered, the plaintiff and his ancestors had continued to be lessees and the document (Ext. A-5) is admissible for collateral purposes of determining the nature of their possession. It was further pleaded that the right of fishing was a licence coupled with a grant and profit a prendre. The relief claimed was a perpetual injunction restraining the defendant from interfering with the plaintiff's possession over the pond in suit.
2. The defendant claimed to be the owner in possession of the pond in suis and also having given the right of pisciculture to Bedi in the year 1946, but denied the plaintiff's claim. It was pleaded that the pond was being given for pisciculture to different persons from time to time and was given to the plaintiff also on one or two occasions and he had executed a Qabuliat in favour of the defendant, which way duly registered on the 16th July, 1938 for permission to carry pisciculture during the period 15th July, 1938 to 14th July, 1941. It was always a condition of those documents that the defendant could without notice, revoke the permission and to make a new settlement of the pond with any other persons, and the plaintiff or persons like him were also bound to leave the pond forthwith on being ordered to do so by the defendant or his officers. It was then pleaded that whenever anyone was permitted to carry on pisciculture in the pond, he executed a Qabuliat for the same. About Bedi, it was pleaded that he never carried on any pisciculture in the pond, and the defendant was not aware of any litigation between Bedi and the plaintiff. Lastly, it was pleaded that the plaintiff is not in possession of the pond, and the defendant was in its continuous possession. Section 34 of the Specific Relief Act was also pleaded as a bar to the suit, apart from other technical pleas. A large number of issues were raised at the trial. The trial Court dismissed the suit. The lower appellate court has confirmed the trial Court's decree.
3. The only questions, which survive and have been pressed in this Second Appeal, are whether the plaintiff is the lessee Or permanent licensee of the pond in suit and continues to be in possession of the same. The plea of acquisition of ownership by adverse possession, which was raised at the trial, has not been pressed before me, and rightly so, for it is indisputable that the plaintiff entered upon the pond for purposes of pisciculture either as a lessee or licensee, and having continued in possession as such, he is estopped, by Section 116 of the Indian Evidence Act. from denying the title of his landlord or licensor during the continuance of the tenancy or possession under the licence.
4. The first Qabuliat, in point of time, referred to by the defendant is the one dated the 16th July, 1938 for the period 14th July, 1938 to 14th July, 1941. It was a registered document and its certified copy has been filed by the defendant himself vide-Ext. A-1, There is another registered document filed by the defendant himself vide-Ext. A-4. It is also dated the 16th July, 1936 and under that document, one Vishwanath son of Ram Das relinquished all his rights in the pond, which he had taken under a Qabuliat for the period Ist Sept. 1935 to 31st July 1938. A third document (Ext. A-5)' has been filed by the defendant. That is unregistered and purports to be a Qabuliat executed by Namo Narain son of Angnu in respect of the pond for the period of three years from the 15th July. 1941 to the 14th July. 1944.
5. The primary question is whether the document (Ext. A-1) is a lease or a licence. It is executed by the defendant's general agent, on the one hand, and by the plaintiff on the other. It is duly registered. It lets out the pond in suit for pisciculture for the period of three years from the 15th July, 1938 to the 14th July, 1941 on payment of Rs. 250/- per year. The conditions are; First, that the year will begin on the 15th July, 1938, and end on the 14th July, 1939 and thereafter commence on the 15th July and end on the 14th July following: second, that the amount of Rs. 125/- shall be paid every six months in advance to the agent of the defendant and that the first six monthly instalment had already been paid and towards the second instalment a sum of Rs. 125/- will be paid before the 31st Dec. 1938, and in case of default in payment of any six monthly instalment, the agent of the defendant would be entitled to cancel the document without any notice and to settle the pond in any manner he likes with another person in which case the plaintiff or his legal representatives will have no right to take any benefit or fish from the pond, or to have any connection with it, and the defendant will not be entitled to any compensation: thirdly, that if the plaintiff did not pay the six monthly instalment, the Theka will be deemed rescinded and if, on settlement with another person, there was any deficiency in the amount of Rs. 250/- per year, the plaintiff and his legal representatives will be responsible to make it good; fourth, that the plaintiff will not be entitled to take any one as a partner in pisciculture in the pond or to sublet it: fifth, that the plaintiff will always keep the pond clean and not to pollute its water or banks, and to protect the pond in every way and if there was any objection or case by the Municipal Board, the plaintiff will be responsible for the expenses and compensation for the same: sixth, that the plaintiff will not erect any hut or house or building on the banks or the land appurtenant to the pond, or claim any right of ownership: seventh that if any officers of the Government or of the defendant came for fishing, the plaintiff will not interfere with their right of fishing in the pond: eighth, that whenever Diwan Sahib of the defendant State or any officers of his State would demand fish, the plaintiff would supply the same without any objection; ninth that in case the defendant would need the pond during the term or if his officers will so order, the plaintiff or his legal representatives will at once vacate the pond with the fish therein without any compensation and the plaintiff or his legal representatives will have no objection: tenth, that if the plaintiff commits any breach of the said terms or did any thing in breach of the rights or cause any injury to the defendant, the defendant or his officers will have the right to recover the expenses and damages, by proceeding in court, from the plaintiff and to eject him or his legal representatives from the pond; eleventh, that the first six monthly instalment of Rs. 125/- had been paid in advance and the subsequent instalments will be paid in advance every six months and in case of default or breach of the terms of the Qabuliat the plaintiff would be liable to damages and eiectment from the pond: and twelth. that the Qabuliat for three years was being executed voluntarily after fully understanding its terms.
6. Under the Agra Tenancy Act, 1926, which was in force in the year 1938, when the said Qabuliat was executed, land was defined by clause (21 of Section 3 to mean 'land which is let or held for agricultural purposes or as grove land or for pasture,' and 'it includes land covered by water used, for the purpose of growing Singhara or other similar produce, but does not include land for the time occupied by dwelling houses or manufactories or appurtenant thereto.' Under the U. P. Tenancy Act. 1939, the definition was almost identical except for the defference that in the last clause the word 'buildings' was substituted for the words 'dwelling houses or manufactories' and the words 'other than buildings which are improvements,' were added at the end after the words 'appurtenant thereto.' Land covered by water is surely immoveable property and a pond could, without any violence to the language, be deemed to be included within the expression 'land', but the definition of land contained in the Agra Tenancy Act 1926, or the U. P. Tenancy Act. 1936 had a definite purpose, the purpose being regulation of letting, use and occupation of land as defined therein. The object of these enactments was to regulate the letting, use and occupation of land for agricultrual purposes. Use of land for pisciculture was not regarded as use of land for an agricultual purpose either by the Agra Tenancy Act. 1926 or by the U. P. Tenancy Act. 1939. The result was that letting out use or occupation of a pond for pisciculture was not regulated, by either of these two enactments. The present position under the U. P. Zamindari Abolition and Land Reforms Act, is however, different, inasmuch as land let out or occupied for purposes of pisciculture is land within the meaning of that Act and its letting, use or occupation is thus controlled by that Act. The U. P. Zamindari Abolition and Land Reforms Act did not probably apply to the pond in suit, inasmuch as it is situate in the city of Varanasi nor did the enforcement of the U. P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, seems to have had any impact on the pond in suit, inasmuch as it has not been shown to me that it was demarcated as an agricultural area under that Act. The result is that the letting of the pond in suit falls to be decided under the provisions of the Transfer of Property Act and the Indian Easements Act. uninhibited by the law governing the letting, use or occupation of land for agricultural purposes.
7. A lease is defined by Section 105 ol the Transfer of Property Act in the following terms :--
'A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions, to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.'
8. The manner in which a lease may be made is defined by Section 107 (as it stood before its amendment by U. P. Act No. 57 of 1976) as follows :--
'A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one each such instrument shall be executed by both the lessor and the lessee:-- Provided that the State Government may, from time to time, by notification in the official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases may be made by unregistered instrument or by oral agreement without delivery of possession.'
9. It can admit of no doubt that the pond is immovable property. What was given by the instrument (Ext. A-1) dated the 16th July. 1938 by the defendant to the plaintiff was the right of pisciculture in the pond for three years for the consideration of Rs. 250/- per annum to be rendered in two six monthly instalments of Rs. 125/-. so long as the transaction subsisted no one else could use the pond for pisciculture. But tor the instrument, the defendant, or any one with his permission or licence, could use the pond for whatever purpose he liked, may be for growing Singhara or for pisciculture. But so long as the transaction evidenced by the instrument (Ext. A-1) subsisted, even the defendant had precluded himself from doing any of these things: all that he was entitled to was to claim some fish out of the pond whenever he so pleased. It appears to me that it could be said, on the terms of the instrument, that the right to enjoy the pond for purposes of pisciculture was transferred by the defendant to the plaintiff. All the other requirements of a lease, namely, the specification of the period, for which the transfer was made and the amount of the rent reserved were duly specified The requirements of Section 107 were also fully satisfied. The lease was made by registered instrument and was signed both by the defendant and the plaintiff.
10. A licence is, by Section 52 of the Indian Easements Act, 1882. defined in the following terms :--
'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 licence.'
11. If it had been a case of a mem licence, it was neither necessary nor appropriate to execute all that lengthy document with all those terms as are contained in Ext. A-1, nor was it necessary to have it registered. It would have been sufficient for the defendant to have given the plaintiff a slip so that the defendant could go upon the pond and rear and take fish therefrom or condition that he would for that permission pay Rs. 250/-, in two six monthly instalments of Rs. 125/- every year so long as he continues to do so. It was not necessary in that case to reserve for the defendant and his officers, or for the Government officers, the right to take fish from the pond. It was not necessary to provide that the Qabuliat would be forfeited on non-payment of rent or on breach of any condition, and that the plaintiff would be liable to ejectment without any right to compensation. All such clauses are normal in a lease but unknown in the case of a licence, inasmuch as a licence is revocable at the will of the grantor, because there is no transfer of any interest in the property, which distinguishes a lease from a licence, according to the said definition, unless of course the licence is coupled with a transfer of properly and such transfer is in force which makes the licence irrevocable under Section 60 of the Transfer of Property Act.
12. I am of the view that the instrument (Ext. A-1) was a lease and the plaintiff could not be evicted from the pond by the defendant otherwise than by due process of law, on the termination of the lease, whether by efflux of time limited thereby, or in case it was renewed by holding over, after terminating it by notice under Section 100 of the Transfer of Property Act. A few cases were cited before me which lay down the distinction between a lease and licence. The most authoritative of these is the decision of the Supreme Court in Lakshi Ram v. Vidyut Cable: 1970 All WR (HC) 136). The Supreme Court quoted from its earlier decision in Associated Hotels of India Ltd. v. R.N. Kapoor (1960) 1 SCR 368 : (AIR 1959 SC 1262) and said (at p. 1269) :--
'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.'
13. In Revenue Board v. A.M Ansari, AIR 1976 SC 1813, the Supreme Court referred to the definitions of immovable property in the General Clauses Act, the Transfer of Property Act and the Registration Act and that of lease and licence contained in the Transfer of Property Act and the Indian Easements Act. respectively, and ruled as followed fat p. 1816) :--
'A close study of the above definitions shows that it is the creation of an interest in immovable property or a right to possess it that, distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease. As to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case. For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not to its form.'
14. It then referred to its earlier decision in the case of Associated Hotels of India Ltd. v. R.N. Kapoor (1960) 1 SCR 368: (AIR 1959 SC 1262) (supra) and also quoted and relied upon the very same passage which was quoted and relied upon in Lakhi Ram's case. It is not necessary to refer to or cite other cases in view of the said authorities of the Supreme Court. The intention of the parties must have been to create a lease, for if that were not so, they would not have taken all that trouble and incurred all that expense on the execution of a registered instrument. The deed of surrender (Ext. A-4) executed by Vishwa-nath supports the inference and it was only on the surrender of the pond by Vishwanath on the 16th July. 1938 that it was leased out to the plaintiff.
15. On the finding that the instrument (Ext, A-1) is a lease, and that the plaintiff could be deemed to have entered into possession of the pond in suit under that lease on payment of a rent of Rs 250/- per year, the further question, which arises, is whether the plaintiff has continued in possession or has been dispossesed. It is undisputed that the defendant's attempt to let out the oond to Bedi failed inasmuch as Bedi could not get possession over the pond. Thrre are. however two documents which show that the pond was supposed to have been given to Namo Narain for the period 15th July, 1941 to the 14th July. 1944. vide Ext. A-5 and ever thereafter, vide Ext. 36. which is a receipt for payment of rent for the period up to the 14th July. 1946 but Namo Narain appears to have been the plaintiff's father, and sc far as the plaintiff is concerned, it could make no practical difference to him whether the rent was accepted in his name or in his father's name by the defendant. It might be added that Ext. A-5. is an unregistered paper and executed only by Namo Narain. It could not affect the plaintiff's right under the lease (Ext. A-1). One cannot help observing that the defendant was a ruling prince being his Highness the Maharao of Bundi. and the plaintiff a mere fisherman.
16. In view of the failure of Bedi, who was a protege of the defendant, to obtain possession over the pond as against the plaintiff, the irresistible conclusion is that the plaintiff has continued to be in possession all these years and since his possession was sought to be disturbed by the defendant otherwise than in accordance with law he was entitled to the injunction claimed. But injunction is a discretionary relief. The plaintiff does not appear to have paid any rent after the 14th July. 1946, and when this aspect of the matter was put across to the learned counsel for the plaintiff-appellant, he expressed his willings, after taking instructions to pay the entire rent for the period of 37 years from the 15th July. 1946 to the 14th July. 1983 at the rate of Rs. 250/- per year as a condition for the issue of the injunction restraining the defendant from interfering with the plaintiff's right to enjoy and possess the pond in suit as the lessee for purposes of pisciculture on the terms contained in the instrument of lease dated the 16th July, 1938 (Ext. A-l).
17. In the result, the appeal succeeds and is allowed with costs. The judgment and decree under appeal are set aside. The plaintiffs suit is decreed with costs throughout in the following terms, viz., the plaintiff now represented by his heirs and legal representatives shall pay the sum of Rs. 250/- to the defendant by depositing the same in the trial court within three months from today. On such deposit being made the plaintiff find after him his legal representatives, namely the plaintiff-appellants shall be deemed to nave continued to be the lessees by holding over from year to year commencing on the 15th July and ending on the 14th July following of the pond in suit for purposes, of pisciculture on payment of an annual rent of Rs. 250/- in two half yearly instalments of Rs. 125/- and on the other terms contained in the registered instrument of lease dated the 16th July, 1938, of which there are two certified copies on the record vide Ext. A-1 and Ext. 39 and the defendant shall be perpetually restrained by a decree of injunction from interfering with the plaintiff-appellants right to enjoy and possess the said pond as such lessees, or to evict them except in accordance with and by the due process of law. The plaintiff-appellants shall be entitled to their costs throughout.