N.C. Sil, J. - (1.) THIS appeal is directed against the judgment and decree dated 18.7.1993 and 19.7.1993 respectively passed by Sri A.K. Sadhu, learned Additional District Judge, 8th Court, Alipore. 24 Parganas (South) in Title Appeal No. 119 of 1992 affirming the Judgment and decree dated 29.9.1991 and 18.11.1991 passed by Sri S. Mukherjee. learned Assistant District Judge, 2nd Court, Alipore, 24 Parganas (South) in connection with Title Suit No. 65 of 1985. It appears from the record of the lower courts that the suit was for ejectment on revocation of licence and for mesne profit on the ground of default in payment of licence fees and reasonable requirements. The learned trial Judge decreed the suit which was affirmed by the learned lower appellate court.
(2.) THE substantial questions of law formulated for the determination in the present appeal is as below: Whether the findings of the courts below that the defendant -appellant is a licensee and not the tenant under the West Bengal Premises Tenancy Act is rather perverse.
(3.) MR . Sudhis Dasgupta, learned Advocate appearing with Mr. J.R. Chatterjee, learned Advocate for the defendant/appellant has pointed out to me that the tenancy of the defendant was created by a deed. Mr. Dasgupta has drawn my attention to exhibit (1) and the language used therein and tries to impress upon me that from language used in Ext. 1 it appears that as if it is a case of tenancy. It is pointed out by him that the exclusive physical possession of the suit premises was parted in favour of the defendant and that is one of the tests to determine the question whether it is a case of licence or tenancy. From the conditions imposed in the instrument (Ext. 1) Mr. Dasgupta submits, the provisions of Sec. 108(o) of the Transfer of Property Act are apparent and from part 14 of the said document (Ext. 1) the provisions of clause (m) of Sec. 108 of the Transfer of Property Act are coming to the surface. It is further argued by Mr. Dasgupta that paragraph 16 of the said document contains the provisions of ouster of tenancy right and there is also a renewal clause of the tenancy contained in paragraph 22. Mr. Dasgupta has drawn my attention to the provisions of Sec. 105 of the Transfer of Property Act which contains the definition of the term "lease". Mr. Dasgupta has cited a number of case laws which I shall discuss at the appropriate point of time. Mr. Ashimesh Goswami, learned Advocate appearing along with Mr. D. Roy, learned Advocate and Miss Rajyasri Das, learned Advocate for the respondent argues before me that there is absolutely no substantial question of law for the determination in the present appeal and the concurrent findings of the courts below are, in fact, on facts which cannot be interfered with in the present Second appeal. Mr. Goswami argues before me that the instant document (Ext. 1) is not a registered one and for that purpose he has taken me through the provisions of Sec. 107 of the Transfer of Property Act and tries to impress upon me that in order to create a lease by an instrument, it is required under Sec. 107 of the Transfer of Property Act that such deed must be a registered instrument. And that not being so. Mr. Goswami goes on arguing, the deed in question, (Ext. 1) is of a licence and not of lease. Mr. Goswami has then pointed out that here the defendant was introduced by the sister's husband of the plaintiff. Mr. Goswami has drawn my attention to the paragraph 3 of Ext. 1 and submits that the intention of the parties has been disclosed there. It is also argued by him that in the instant case the control of the suit premises was retained by the guarantor/ plaintiff and as such it cannot be the case of lease. Mr. Goswami has also cited a number of case laws which will come in my discussion later on.;