AJIT KUMAR NAYAK J. – 2. The case of the plaintiff/respondent, in short, was that he was a
monthly tenant in respect of entire premises No. 19, Gopal Chandra Chatterjee Road at a monthly
rental of Rs. 70/- under Taraknath De and his brothers. On being approached by the defendant, in
need of accommodation in September, 1979, the plaintiff/respondent allowed the defendant/appellant
to live in one room of the suit premises for a period of four months from September 1979. On
compassionate ground as a licensee, without any licence fee or consideration whatsoever, and on his
refusal to vacate it after the expiry of the said period of four months, the respondent revoked his
licence and brought this suit.
3. The defendant contested the suit by filing a written statement. His defence, in short, was that he
was a tenant or for the matter of that, a sub-tenant under the plaintiff who was a tenant at a monthly
rental of Rs. 20/- payable according to English calendar month and not a licensee at all. It was alleged
that the father of the defendant was also a tenant in the suit premises and that the plaintiff accepted the
defendant as a tenant in respect of the said room only after taking a sum of Rs. 2,000/- as advance
subject to adjustment against the rent payable by the defendant/appellant. It was alleged that as
because the defendant/appellant demanded rent receipt the plaintiff started harassment and also
demanded higher rate of rent which the appellant refused to pay.
4. The trial Court, on a consideration of the materials on record, held that the defendant was a
licensee under the plaintiff and decreed the suit. Being aggrieved the defendant/appellant preferred an
appeal before the lower appellate Court and the judgment and decree of the trial Courts were also
affirmed by such Court. Defendant/appellant has thereafter preferred this second appeal on, among
other grounds, that finding of both the Courts below is manifestly unjust and illegal as both the Courts
below mis-directed themselves in not taking into account important evidence bearing on the disputed
issue and that the same is also perverse.
5. Judgment of the lower appellate Court has been assailed before this Court on several grounds.
Firstly, it has been urged that both the Courts below misplaced the onus of initially proving that the
burden lies on the plaintiff to show prima facie that the defendant was a licensee. Secondly, it has
been urged that both the Courts below mis-directed themselves by not taking into account very
important and material evidence bearing on the status of the defendant as to whether he was a licensee
or a tenant and thereby came to a wrong finding regarding the status of the defendant. Thirdly, it has
been urged that such finding regarding the status of the defendent/appellant as a licensee is unjust also
as the “essential ingredients” necessary for finding of such fact have not been found by both the
Courts below.
6. As against this, Mr. Bhattacharyya, appearing on behalf of the plaintiff/respondent, contended
that findings of both the courts below regarding the status of the defendant as a licensee is a
concurrent finding of fact and should not be ordinarily interfered with in this second appeal, as the
scope of this appeal in terms of the provisions of Section 100 of the Code of Civil Procedure, is to be
confined only to substantial question of law. It is, therefore, urged that as because the defendantappellant has been found by both the courts below to be a licensee, the same should not be ordinarily
interfered with by this Court as it does not involve substantial question of law.
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7. Before we enter into the merits of this case on the questions as addressed by the learned
Advocates of both sides, let us look into the admitted facts of this case. Undisputably, the plaintiff
was a tenant in respect of the entire suit premises, i.e., 19, Gopal Chandra Chatterjee Road, at a
monthly rental of Rs. 70/-. It is also an undisputed fact that the defendant/appellant is actualy
occupying a room of such premises having the facility of a kitchen together with the further facility of
joint user of toilet of such premises. Undisputedly also, the status of the plaintiff/respondent was that
of a tenant at the time the defendant was allegedly inducted as a licensee in September, 1979. It is
further undisputed that the plaintiff/respondent became the owner of this premises by virtue of his
purchase by a registered deed dated 22nd April, 1985, from the previous landlord. So the fact remains,
that the plaintiff/respondent was still a tenant and not the owner of the suit premises at the time the
suit was instituted in the year 1981.
8. Be it stated here at the very outset that in a case of concurrent findings of fact by both the
courts below, the scope of interference by the High Court is very limited and the High Court should
not interfere with the concurrent findings of facts of the Courts below on the ground of perversity
unless the court concerned misdirected itself in coming to its finding on the question of fact. Such
concurrent finding of fact, however, as observed by the Supreme Court can be interfered with only
where it is manifestly unjust or where the essential ingredients for such a finding of fact have not been
found by the Courts below. It is true, in an ejectment suit a finding on the question whether the
defendant is a tenant or a licensee, the finding of the lower appellate Court on a consideration of the
evidence is a finding of fact. Reference may be made in this connection to the decision of the
Supreme Court reported in AIR 1963 SC 361. However, it has also been observed by the Supreme
Court in another decision reported in AIR 1989 SC 1141 that the question whether there is a tenancy
or sub-tenancy or licence or parting with possession in any particular case, must depend upon the
quality of occupation given to the licensee or the transferee. Of course, in the case referred to, dispute
arose regarding the occupation of a holder to display his holding and as such the vital question in that
case was whether occupation itself will amount to a question of tenancy or that of a licence. Mere
occupation is not sufficient to infer either sub-tenancy or parting with the possession. Facts of the
instant case are somewhat different from the one referred to, as because parting of possession in
favour of the defendant/appellant is an undisputed fact, though it is claimed on behalf of the
plaintiff/respondent that the respondent was in actual legal possession of the suit property. In other
words it is sought to be urged and emphasised that the possession of the defendant/appellant was not
exclusive possession in this case. It is, therefore, urged that although the defendant/appellant was
permitted to occupy a room, it was the possession of a licensee.
9. In view of the contentions of the learned Advocate for the defendant/appelant, it will be
necessary to see as to whether the possession which was given to the defendant/appellant was that of a
licensee or that of a tenant. Further, in view of the points raised by the learned Advocate for the
defendant/appellant, the entire relevant evidence on record is to be considered to see that the Courts
below considered all such important evidence having direct bearing on the disputed issue. If, on such
examination we find that the courts below made such a mistake, then in that case this Court is fully
authorised to set aside such finding. To make it clear once again, it is true that High Court, while
hearing second appeal under Sec. 100, C. P. Code, has not the jurisdiction to examine the evidence
and reverse or reject the conclusion reached by the first appellate Court. But we should also bear in
mind that it has the power to interfere with such finding, when the lower appellate Court made a
mistake of the nature as stated, and can decide the issue, treating such finding as unwarranted and then
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it can be looked into as a substantial question of law. If any authority is needed on this point even
after the amendment of 1976, we may refer to the decision reported in Dilbagrai Punjabi v. Sharad
Chandra [AIR 1988 SC 1858] and also the decision of the Supreme Court reported in Bhairab
Chandra Nandan v. Ranadhir Chandra Dutta [AIR 1988 SC 396].
10. In the case of this nature where the plaintiff alleges that the defendant/appellant is a licensee
and where the defendant/appellant asserts that he is a tenant, the initial onus is upon the
plaintiff/landlord to prove that the defendant was inducted as a licensee. The question of onus,
however, loses its importance once the parties enter into the evidence. Once the plaintiff/respondent
tenders evidence showing that the defendant was inducted as a licensee, onus shifted upon the
defendant to show that his status is that of a tenant and not a licensee as claimed by him.
11. On a perusal of the judgments of both the courts below, unfortunately we find that both the
Courts below, misplaced the onus on the defendant/ appellant to prove his case that he was a tenant
and not a licensee. Admittedly, there is no document of lease or agreement of tenancy between the
parties. Sub-letting has not been defined in the Rent Act or in other words, in the Premises Tenancy
Act. There is no paper showing payment of rent by the defendant/appellant to the plaintiff in respect
of the suit room. Nor there is any paper whatsoever showing payment of a sum of Rs. 2,000/- by the
defendant/appellant either as advance or as security money. But at the same time, there is also no
good evidence adduced on the part of the plaintiff/respondent showing that the defendant/appellant
was inducted as a licensee in September, 1979. Admittedly, nobody was present at the time of such
induction of the defendant/appellant as a licensee. Barring the uncorroborated testimony of the
plaintiff/respondent there is no evidence whatsoever of induction of the defendant/appellant as a
licensee for a period of four months in the disputed room of the suit premises. A proper scrutiny of the
evidence on record in this case would be necessary in view of the manner of approach made by both
the courts below with regard to the evidence to determine the status of the defendant/appellant. We
find from the admitted evidence of the plaintiff/respondent (P.W.1) that he did not know the father of
the defendant. There is no evidence that the parties are related to each other or that they had any
previous acquintance. Plaintiff’s case in this regard is short and simple that he allowed the
defendant/appellant to stay in, though for a specific period as the defendant/appellant was in need of
such accommodation. It seems unlikely when the parties are not related to each other or there is not
even any acquintance with each other, one party would go to the extent of accommodating the other
by way of granting gratuitous licence to have exclusive possession of the particular premises without
any consideration whatsoever. This is against normal human conduct or experience, unless of course
the plaintiff/respondent can show it otherwise. It is true that the plaintiff/respondent has led evidence,
both oral and documentary, to show that the defendant/appellant came into the premises only in
September, 1979 and not before that as it is the case of the defendant/ appellant. We have already seen
that it is the specific defence case that his father was there in that house for a long time and that after
demise of his father in 1970, he was accepted as a tenant at a monthly rental of Rs. 20/- and further on
a payment of Rs. 2,000/- as advance. So, the vital question for determination of the status of the
defendant/appellant would be whether he was there in the suit premises since before the alleged
induction in September, 1979. If we find positive evidence on record that he was there since before
that time, it would demolish the case of the plaintiff/respondent that the defendant was inducted as a
licensee only in September, 1979 and not before.
12. The trial Court started with this question on an analysis of the evidence led by the defendant
and that too from a wrong angle; or in other words, he mis-directed himself in assessing the oral
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evidence led by the defendant/appellant on an assumption that no case of prior occupation before
1979, either by the defendant or by his father was made out in the written statement. We have already
seen that the defendant made a specific case that his father Bhupati Chatterjee was occupying the suit
premises as a tenant and after his death the defendant continued to occupy the same. Both the Courts
below considered the same as a case not made out in the pleading itself. All the four witnesses
examined by the defendant including the defendant/appellant himself were disbelieved and their
evidence brushed aside on this sweeping assumption that no such case is made out in the written
statement, though there is such a case in the written statement, itself. According to the trial Court,
Tarapada Banerjee and Arun Sarkar were the witnesses who saw payment of rent to the
plaintiff/respondent by the defendant. The trial Court observed that none of these two witnesses was
examined by the defendant although they were alive. As a matter of fact Arun Sarkar was examined
by the defendant as D. W. 3 who was private tutor in the family of Bhupati Chatterjee, father of the
defendant/appellant in the same house 20/25 years ago, and he stated that he saw payment of rent by
the father of the defendant to the plaintiff/respondent. D. Ws. examined by the defendant are also the
neighbours living in close proximity to the disputed premises and as such they are expected to know
and to be acquainted with the inmates of that house and to witness any payment of rent or otherwise
or the relationship between the parties in dispute. On a careful perusal of the judgment of the trial
Court it will appear that he placed no reliance upon the testimony of the witnesses examined by the
defendant or the credibility of such witnesses in the context of their making statement that the
defendant’s father was also there in the suit premises and the court below assumed it to be a case not
made out in the written statement itself. In other words, he disbelieved the testimony of such
witnesses, as if the same was contrary to the case made out in the written statement.
13. I have gone through the written statement very carefully to find that there is actually such a
case in the written statement. Both the courts below made this apparent error in not looking properly
into the written statement and, therefore, mis-directed themselves in assessing the oral evidence
adduced by the parties. Therefore, it can be said that both the Courts below, while recording their
finding regarding the status of the defendant/appellant, acted on an assumption not supported by
evidence and failed to consider the oral and also the documentary evidence in coming to such finding.
14. Coming to the evidence of the witnesses examined by the plaintiff, we have already seen that
the plaintiff admitted that he did not know the father of the defendant/appellant and he could not say if
the defendant’s father was the tenant in the suit premises. He did not enquire admittedly about the
antecedents of the defendant when he was inducting him as a licensee. Admittedly, the defendant was
given not only a room, but also a kitchen and the facility to use the toilet and the common tap water.
Thereby, exclusive possession of the portion of the suit premises was given to the defendant. There is
nothing to show that the plaintiff/landlord retained legal possession of the same in the sense allowing
the defendant/tenant to occupy it only as a licensee or an invitee for a period of four months. The
other witness (P.W.2) was examined by the plaintiff to prove that the defendant/appellant was a tenant
in their house, i.e., in the house of P.W. 2, since before his occupation of the suit premises as a
licensee. In other words, P.W. 2 was examined to prove that the defendant/appellant was living as a
tenant in their house, and, was therefore, living elsewhere than in the suit premises before September,
1979. If there is convincing evidence on record to show that really the defendant was living
elsewhere, then in that case the defendant will have no case as a tenant in the suit premises. On a
scrutiny of the evidence of P.W. 2. we find that he is completely an interested witness and admitted to
have come to the dock at the request of the plaintiff, as his father’s friend and thereby brought the rent
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counterfoils which he was requested so to do. He did not know the defendant’s father or where he
lived. P.W. 2 cannot say when the defendant was inducted as a tenant in their house in 5, Sashibhusan
Basak Lane. He cannot say in his evidence how old he was when the defendant was inducted as a
tenant in their house, although he says he used to collect rent when the defendant was inducted as a
tenant.
15. P.W. 3 is apparently an interested witnesses as admittedly he is a friend of the
plaintiff/respondent. It is true, he was once a tenant in this house, but he left it long ago and purchased
a house site and built a house in the name of his wife away from this place, although he claims that he
shifted from this house in 1966. As a matter of fact we find that he purchased the house site in which,
he says, he built a house long before.
16. Next, turning to the documentary evidence on record, the plaintiff has placed much reliance
on the rent counterfoils produced by P.W. 2. Genuineness of such rent counterfoils and also the
factum of such alleged tenancy right in the said house, have been challenged on behalf of the
defendant/appellant. We have already seen that P.W. 2. as the son of the friend of the
plaintiff/respondent was requested to bring those rent counterfoils and he admittedly produced the
same on such request. Allegedly, such rent counterfoils, at least two of the rent counterfoils are said to
bear the initial of the defendant/appellant showing payment of rent when he was supposed to be
occupying the said premises. The trial Curt compared the said initials with the admitted signature of
the defendant put in the deposition sheet. The defendant has already categorically denied that either he
was a tenant in the said premises or that he ever paid rent to the father of the P.W. 2. or that the rent
counterfoils (Exts. 7 and 7 (a)) bear his initial or signature. I am at a loss to understand as to how the
trial Court could come to the conclusion that the signatures are identical or of the same person. A
casual look at the initials contained in Exts. 7 and 7 (a) will show that they are completely distinct and
different from those admitted signatures and the disputed one is extremely hazardous as has been held
by this Court as well as by the Supreme Court. It is with utmost caution that such comparison is to be
made and a finding is to be arried at on that basis. In the context of unreliable nature/of the oral
evidence P.W. 2, it will be all the more risky to rely upon such rent counterfoils containing suspicious
initials, far less proving convincingly that the defendant/appellant was a tenant in that building,
namely, 5, Sashibhushan Basak Lane before September, 1979. It is true, the plaintiff has produced the
certified copy of the death certificate showing that in 1970 the defendant’s father Bhupati Chatterjee’s
address, as given therein, is other than the disputed premises. But such noting of address as appearing
in the death certificate has been said to be incorrect one by the defendant (D.W. 2) in his evidence. No
doubt, this entry in the death certificate goes to show that the defendant’s father was at least living in
a different place at the time of his death. But there is overwhelming evidence on record to show that
the defendant was living with his family in the suit premises even long before his induction as
licensee in 1979. The trial Court has placed no reliance on the documentary evidence adduced by the
defendant showing his residential address in the suit premises. Even, if we disbelieve the other
documents, (Exts. B series) the postal receipts, (Ext. C series), postcards (Ext. D), inland letter (Ext.
E), the transfer certificate, cannot be lighly brushed aside in the manner as the trial Court has done
and dittoed by the court of appeal below. There will be no manner of doubt that at least some of these
were addressed to the defendant or his mother before 1979 showing thereby that they were living in
this house before the alleged induction as a licensee by the plaintiff. Postal marks clearly show the
years before 1979 and even in spite of the alleged interpolations the name of the defendant and the
address are discernible. So also the original school leaving certificate by the defendant (Ext. E)
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showing that his address as long back as 1965 was given in this disputed premises and showing
thereby that the defendant/appellant was living in this house since before 1979. All these speaks
volumes of that the defendant/appellant was occupying such premises with the members of his family
since before 1979. This can only be done not as a licensee, but in the capacity other than that as a
licensee. If this prior occupation of the defendant is believed, it fits with the case of the defendant that
no rent receipt was granted to him because the plaintiff/respondent was himself a tenant and that he
would be liable to eviction for creating sub-tenancy. This is the specific case of the defendant and is
borne out as such by the facts and circumstances of the case.
17. As already stated, the first court of appeal, also approached the whole case from a wrong
angle misdirecting itself as that of the trial Court, in a way prejudicial to the interest of the
defendant/appellant. In short, the appellate Court’s judgment is also based on surmise and conjectures,
as that of the trial Court. He simply brushed aside the documentary evidence adduced by the
defendant/appellant as suspicious in nature and placed no reliance on the same without carefully
examining the same and trying to arrive at a finding based on his independent judgment and
reasoning. He simply dittoed and endorsed the finding of the trial Court that such documents were
created for the purpose of this suit, without trying to weigh and assess the evidentiary value of the
same. In that view of the matter, I am constrained to observe that the court of appeal below failed
altogether to comply with the statutory provisions of Order 41, Rule 31 of the Code of Civil
Procedure. The judgment of the appellate Court should not be the mere endorsement of the findings of
the trial Court, not containing the reasons for the decisions arrived at by him independently of that of
the trial Court.
18. So, in view of what has been discussed above, it is clear from the volume of oral and
documentary evidence on record that the defendant/appellant was there in the suit premises by the
plaintiff/respondent in September, 1979. When this fact is established convincingly, it fits in with the
case of the defendant/appellant that he was there obviously in the capacity not attributed to him by the
plaintiff/respondent. In other words, this fits in with the case of the defendant/appellant that he was
there as a tenant and that this fact was not given a stamp of legality or authority as because the
plaintiff/respondent’s status was that of a tenant. No sub-tenancy was sought to be created,
presumably to avert a suit for eviction to be filed by the landlord against the tenant. I find, therefore,
that the plaintiff has failed singularly to prove his case of induction of defendant/appellant as license
and the finding of the lower appellate Court based on that of the trial Court should be set aside as
stated above.
19. The result is, the appeal is allowed. The judgment and decree of the court of appeal below are
set aside and the plaintiff’s suit is dismissed.
