ivil Appeal No 2941 of 1982
From the Judgment and Order dated 26282 of the Punjab Haryana High Court in LPA No 1120 of 1981
PA Choudhary Mrs K Sarada Devi and B Kanta Rao for the Appellants
CM Nayyar for the Respondents
The following Order of the Court was delivered ORDER This appeal by special leave is directed against the decision of the 682 High Court of Punjab  Haryana which dismissed the writ petition of the appellant and sustained the order of his compulsory retirement In March 1949 the appellant entered into service as a clerk in the Police Department
When he was working in the office of Inspector General of Police he appeared for selection to the posts of Excise Sub Inspector in the Excise Department of the State
He was selected and appointed as Excise Sub Inspector He continued in the post for a number of years
In October 1963 he was repatriated to his parent department But it was not a simple repatriation
The post of Excise Sub Inspector was in the higher scale than his original post in the Police Department So he was reverted and sent back to his parent department
The appellant challenged the reversion and repatriation in OS No 126 of 1965 before the Court of Subordinate Judge 1st Class Patiala
He sought for a declaration that the order of reversion was illegal and void
It was an infringement of his legal right to continue as Sub Inspector in the Excise Department The learned Subordinate Judge accepted his claim and decreed the suit
He made some perti nent observation
The plaintiff continued to hold the post beyond the prescribed period of probation and his services were not dispensed with at the end of two years and he was not reverted
The plaintiff in fact continued to hold the post for more than 6 years after the maximum period of probation had expired
Consequently the rule laid down in and on the basis there of it is held that the plaintiff must be taken to have so continued in a substantive capacity
On this conclusion that the plain tiff was in October 1963 holding his post substantively that termination of his service necessarily amounted to punishment and must be deemed to be removal from service which of course was not permissible without a proper enquiry
The conclusion must therefore be that the termination of the plaintiff s serv ices was illegal
 It is thus clear from the above observation that the Court expressed the view that the appellant was holding a substantive post in the Excise Department
After completing his probationary period he was holding the post of Sub Inspector in a substantive capacity
So his reversion and repatriation amounted to penalty which was illegal since made without proper enquiry
683 Since repatriation of the appellant was set aside by the Civil Court the appellant was allowed to continue without interruption in the Excise Department itself
On October 1 1975 the Excise Commissioner made an order compulsorily retiring him from service
The order was made under Rule 31a and b of the Punjab Civil Services Premature Retirement Rules 1975
The appellant challenged the valid ity of that order before the High Court mainly on the ground that the Excise Commissioner was not competent to make that order since he belonged to Police Department
He claimed that his lien in the Police Department was not removed and therefore the Inspector General of Police was alone compe tent to deal with him
In support of the contention he placed reliance on the decision of this Court in TC Sharma vs Prithvi Singh  Ors  The High Court however distinguished that decision and dismissed the writ petition
It was held that the appellant had not gone to the Excise Department on deputation from the Police Department but he held a fresh appointment as an Excise Sub Inspector
Counsel for the appellant placed strong reliance on rule 314 of the Punjab Civil Services Rules Vol
I Part I and also on the decision in TC Sharma case
He urged that the appellant was no doubt holding a substantive post in the Excise Department but he had not acquired a lien against that post since he was not confirmed in that post
It was claimed that the lien in the parent department ought to have been suspended so that it could ensure to his benefit as and when he wanted to return back to his parent department
The contention in other words proceeded on the premise that the lien against original post in the Police Department could not vanish even though the appellant was holding a substantive post in the Excise Department
We do not think that the contention urged for the appel lant as to Rule 314 could be accepted
Rule 314 provides that a competent authority shall suspend the lien of a Government servent when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne
It seems to us that this rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post
Indeed the rule is for the benefit of a Government servant who intends to return back to his parent department
That was also the view expressed in TC Sharma case
But then the appellant never wanted to return back to his parent department
He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post
He has thus denied himself of the benefit or  that rule
684 The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed he acquired no lien cannot also be accepted
Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed
Generally when a person with a lien against a post is ap pointed substantively to another post he acquires a lien against the latter post
Then the lien against his previous post automatically disappears
The principle being that no Government servant can have simultaneously two liens against two posts in two different cadres
It is a well accepted principle of service jurisprudence
In the instant case the civil court has already ruled that the appellant had a right to continue in his substan tive appointment as Excise Sub Inspector
He secured that declaration when the Excise Department repatriated him to his parent department
After obtaining that decree from a court of competent jurisdiction he could not turn round and say that he still retained lien against his post in the parent department
The lien in his parent department must be held to have been cancelled consequent on the decree of the Civil Court
Therefore the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service
The appeal therefore fails and is dismissed in the circumstances of the case we make no order as to costs
Before parting with the case we may however add a word more
It was stated that in view of pendency of the proceed ings in this Court and in the High Court the pension due to the appellant has not been finalised
We therefore direct the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months if not already paid
GN Appeal dismissed


Summary:
The respondent landlord inducted the appellant into the suit premises pursuant to an agreement
The agreement was described as agreement of leave and licence the parties as licensor and licensee and the rent as compensation for use and occupation and it was provided that the appellant i shall pay monthly rent regularly on or before the 5th day of each consecutive month ii shall not sub let under let or part with possession nor shall keep the premises vacant for more than three months without the consent of the licensor iii that on the expiry of the deed it shah be renewable at the will of the licensee
Several years after the expiry of the above agreement the respondent instituted a civil suit for a decree of eviction of the appellant on the ground that the appellant was in occupation as a licensee and has illegally refused to vacate
Rejecting the plea of the appellant that he was a month to month tenant protected by the provisions of the Goa Daman and Diu Buildings Lease Rent and Eviction Control Act 1968 and that the suit was barred by section 56 the Trial Court passed a decree for eviction which was confirmed in appeal by the District Judge
The second appeal filed by the appellant was also dismissed by the High Court holding that it was concluded by concurrent findings of fact
Hence this appeal
Allowing the appeal and setting aside the decree of the Courts below 627 HELD 1
The findings of the Courts below were not those of fact so as to be binding on the High Court under section 100 of the Civil Procedure Code
The case has to be decided on the nature of possession of the appellant which is de pendent on a correct interpretation of the document
628G 2
It is well settled that the main purpose of enacting the Rent statutes is to protect the tenant from the exploi tation of the landlord who being in the dominating position is capable of dictating his terms at the inception of the tenancy and the Rent Acts must receive that interpretation which may advance the object and suppress the mischief
By adopting a different approach the Rent laws are likely to be defeated altogether
630H 631A 3
For ascertaining whether a document creates a licence or lease the substance of the document must be preferred to the form
The real test is the intention of the parties whether they intended to create a lease or licence
If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property of which the legal possession continues with the owner it is a licence
The test of exclusive possession is not irrelevant but at the same time it is not conclusive
If the party in whose favour the document is executed gets exclusive possession of the property prima facie he must he considered to he a tenant although this factor by itself will not be decisive
629A B C 630B C Associated Hotels of India Ltd vs RN Kapoor   Sohanlal Naraindas vs Laxmidas Raghunath  applied
Shell Mex and BP Ltd vs Manchester Garages Ltd  explained 4
In the instant case the terms of the deed are not consistent with the respondent s case of licence and indi cate that an interest in the property was created in favour of the appellant in pursuance of which he was put in posses sion with a right of renewal The surrounding circumstances are also consistent with the deed being one of lease
The notice to vacate the premises was served on the appellant after several years of expiry of the agreement
There was no relationship or friendship between the parties which would have induced the respondent to allow the appellant to occupy the building
Realisation of rent was the sole considera tion
The description of the parties as licensor and 628 licensee or the rent as compensation does not carry too much weight
The agreement was in reality a document of lease and the appellant has been enjoying the exclusive possession in the capacity of month to month tenant
The suit filed by the respondent was therefore not maintainable
629F 631 B C D E