P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.-In this case eleven issues were framed by consent of the parties and their advocates. Issue No. 1 was taken up as a preliminary issue. I heard the arguments of both the sides and passed my order on the same on 25th September 1951. I held on this issue against the defendant and now I have to give my judgment on the remaining ten issues. For the purposes of this judgment my order on issue No. 1 which cites the facts of this case, will have to be persued. The other defences set up will be clear from the following ten issue: "(2) Does the agreement entered into by the parties amount to a valid contract binding on the parties ? What is the effect of minority of the plaintiff on the contract in suit ? "(3) What is the nature of relationship between the plaintiff and defendants: is it that of landlord and tenant or of Licensor and Licensee ? (4) Was the defendant entitled to cancel the contract ? (5) Was the plaintiff bound to vacate the premises occupied by him, after notice served on him by the defendants ? Is the plaintiff's occupation of the premises at present lawful ? (6) Are the notices by the defendants to the plaintiff to vacate the said premises illegal, invalid and inoperative in law (7) Have the defendants committed trespass in respect of the premises in dispute ? (8) Did the defendants act lawfully and within their rights in locking up the premises in suit ? (9) Has any cause of action occurred in favour of th plaintiff against the defendants ? (10) To what relief, if any, is the plaintiff entitled ? (11) General, including question of costs. My findings thereon are as follows Issue No. 2.-It is a valid contract. Issue No. 3.-Landlord and tenant ; it was a lease and not license. Issue No. 4.-Yes. Issue No. 5.-Plaintiffs occupation is lawful. Issue No. 6.-The notices are of no consequence. Issue No. 7.-Yes. Issue No. 8.-No. Issue No. 9.-Yes. Issues Nos. 10 and 11.-As follows. Issue No. 2.-There is no doubt that the contract is in the name of the minor, but it is entered into through his father who is the natural guardian. It was argued by the learned Advocate for the defendant that the minor being incompetent to contract, there was no valid contract in this case. Since the contract was entered into by the father on behalf of and for the benefit of the minor it is a valid contract according to me. In Great American Insurance CO. A v. Madanlall (A I R 1935 Born. 353) it was held that the contract entered into on behalf of the minor and for his benefit was a valid contract and that the minor was entitled to sue on the same. In Zaibunnessa Begum v. Mrs. Danghar (A I R 1936 Mad. 564) it was held that the principles enacted for minor's benefit should not be used against him. Under the Muhammadan Law it is within the powers of a father, a guardian of his minor son to grant a lease of the minor's property, if it be for the minor's benefit. It is clear therefore in this case that there was a valid contract entered into between the defendants on the one hand and the minor through his father on the other. Finding accordingly. Issue No. 3.-The defendants' own witness Sabirali (Exh. 7) has admitted that the restaurant in question used to be in the full and exclusive possession of the plaintiff. Defendants' other witness Kassim Haji Ismail (Exh. 9) has also admitted that the plaintiffs had been in charge of the restaurant since 1947. On these facts clearly the transac tion in question is a lease and not a license. We have got an important ruling bearing on this question and it is in Sherif Dadu Miayaji v. Emperor (A I R 1930 Bom. 165). It has been held there that the main test for deciding whether a person is a licensee of the property or a lessee is that of exclusive possession. If the effect of the agreement is to give exclusive e possession to the holder, though subject to certain reserva tions, then it is a lease. If the agreement is merely for the use of property in a certain way and on certain terms whiles it remains in the possession and control of the owner, it is a license. To give exclusive possession, there need not be express words to that effect ; it is sufficient if the nature of the acts to be done by the grantee require that he should have exclusive possession. This is a very important state ment of law and in this case their Lordships relied upon Indian Hotel Co. v. Phiroz Soraji (A I R 1923 Bom. 228) and Gleenwood Lumber Co. v. Philips (1904 A C 405) the English ruling Joel v. International Circus and Christmas Fair (124 L T 459) also takes the same view and the whole case is discussed therein in all its aspects. In 1904 Peerage Cases 405 (P C) Lord Davey made out a distinc tion between a lease and a license. In that case the instrument in question conferred only a license to cut timber and carry it away and did not give the party any right of occupation or interest in the land itself. His Lordship observed "If the effect of an instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations, or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself." It is clear on the facts of this case therefore that the transaction here was a lease and not a license. The plaintiff was in full and exclusive possession of the premises even according to the defendants' own evidence. Finding accordingly. Issue No. 4.

The authority of the defendants to cancel the contract can never be disputed, but the question here was, whether they could cancel it in the manner they have done. They had no power to arbitrarily put their locks on the locks of the plaintiff, and shut him out from the possession and occupation of the premises which he had in accordance with a valid contract. Besides they shall have to apply to their mind to the provisions of the Rent Restric tion Act. Issue No. 5.

It is apparent that the plaintiff was not bound to vacate the premises occupied by him after the notice of the kind, served on him by the defendants. His occupation in the suit premises was lawful. Finding accordingly. Issue No. 6.

The notices issued by the defendants to the plaintiff were on account of these facts of no consequence at all. Issues Nos 7 & 8.-The plaintiffs were lawfully in posses sion of the premises in suit and therefore the defendants by locking up the premises in the manner they have done, have ostensibly committed a trespass. In this behalf due notice must be taken of the provisions of section 9 of the Specific Relief Act. The defendant could evict the plaintiff only by proper process of law. Issue No. 9.

The plaintiff has a clear cause of action in view of the facts of the case. Issues Nos. 10 & 11.-In view of my decree the plaintiff's suit with costs. Z. A. S./A. H. Suit decreed