Salil Kumar Dutta, J. - (1.) This is an appeal by the plaintiff against the judgment of the City Civil Court, Calcutta dismissing his suit. The allegations made in the plaint are as follows : The defendant inducted Messrs. Industrial Transport Service, of which the plaintiff is the proprietor, since August, 1961 as a tenant in respect of one room on the ground floor of premises No. 7, Tara Chand Dutta Street (also known 7A, Tara Chand Dutta Street) Calcutta at a monthly rent of Rs. 55/- according to English calendar month and since then the plaintiff had been in exclusive possession of the tenanted premises. At the time of induction, the plaintiff also paid to the defendant a sum of Rs. 700/- as Selami. Since February, 1964 the defendant had been threatening to increase the rent of the suit premises which the plaintiff refused to oblige and the defendant took various measures to oust the plaintiff from the tenancy. The defendant refused to accept the rent for the month of April, 1964 when tendered by the plaintiff according to law and thereafter the plaintiff deposited rent with the Rent Controller, Calcutta month by month as the proprietor of the said Industrial Transport Service. Several criminal cases started between the parties but the defendant failed to dispossess the plaintiff and with the mala fide motive brought a case under section 41 of the Presidency Small Cause Court Act for recovery of possession of the suit premises being S.C.C. Suit No. 1862 of 1965. The summons of the suit were suppressed and the defendant fraudulently obtained an ex parte decree in the said suit. The plaintiff thereafter filed an applications under Order 9, Rule 13 of the Civil Procedure Code and the decree was set aside on 8.2.66. The case was made by the defendant in the above suit by setting up a story that the plaintiff was a licencee under the defendant and the licence was revoked. The plaintiff averred that the case of licence was untrue as he was a tenant as the proprietor of Industrial Transport Service under the defendant. Accordingly the suit was instituted on 23rd March, 1966 by the plaintiff praying for a decree of permanent injunction restraining the defendant from proceeding further with S.C.C. Suit No. 1862 of 1965 which was stayed in the meantime and also for a declaration that the plaintiff's firm under the name and style of Industrial Transport Service was a tenant in respect of of the suit premises.
(2.) The suit was contested by the defendant who filed written statement denying all material allegations in the plaint. The defendant denied that the plaintiff had any tenancy under him in respect of the suit premises as alleged or that he accepted any amount as Selami. It was further stated that there was no occasion for receiving or refusing rent from the plaintiff in the circumstances stated above. It was further stated that the plaintiff brought criminal case being Case No. 126/64 against the defendant's brother and son in the Court of Presidency Magistrate, Calcutta under sections 448 and 380 which ended in acquittal of the accused persons. In that criminal case the plaintiff filed forged rent receipt and a proceeding under section 476 of Criminal Procedure Code was started against the plaintiff. It has been stated before me that the said criminal case led to a sessions trial under sections 467 and 471 India Penal Code which ultimately ended in the acquittal of the plaintiff. The defendant further stated that the plaintiff was not in exclusive possession of the room and the articles of the defendant including the compressor machine oil drums, furniture etc. were all along kept in that room and the defendant's servant also slept there. It was reiterated that the plaintiff was the licencee and the suit in the Small Causes Court was filed after revocation of the licence as required under the law. For all these reasons it was submitted that the plaintiff was not entitled to any relief under the Act.
(3.) On the above pleadings the trial court framed the following issues:- (1) Is the plaintiff a tenant or a licencee ? (2) Has the defendant ever inducted the plaintiff as a tenant in respect of one room in the ground floor of the Premises No. 7, Tara Chand Dutta Street (7A, Tara Chand Dutta Street) ? (3) Is the plaintiff entitled to any declaration, parmanent injuction and compensation as prayed for ? During the trial the plaintiff examined several witnesses and plaintiff's witness Nos. 1, 2, 3, 4, 5, 6 and 8 are more or less formal witnesses who proved several documents filed by the plaintiff. The plaintiff wanted to establish through this evidence that he was a transport contractor with his office at the suit premises and had business with several parties, had corporation licence as a transport contractor since about 1963-64. Some documents also have been produced to show that the plaintiff was required to take out a licence as required under section 3 of the Motor Transport Works Act. Further there is correspondence in connection with the proposal for putting in a telephone line in the suit premises in the name of the plaintiff's business. A money order receipt was produced showing tender of money order for the month of April, 1964 which was returned to the plaintiff at the said address with the endorsement "left". Several other postal acknowledgement receipts have been filed which show the address of the plaintiff at the suit premises. The plaintiff also filed rent challans showing deposit of rent from June, 1964 to June, 1966 although some of the challans it appears were not marked exhibits obviously through inadvertence. P.W. 7 was a Durwan of the trust estate which owned the suit premises and his evidence was that he had seen the plaintiff living in the suit premises which is a garage for 7/8 years and the plaintiff as also others used to sit in the garage though the witness could not who kept the key of the garage. It was further stated by this witness that he had never seen the plaintiff or his son using the air compressor machine. The plaintiff himself is witness No. 9 and he gave evidence about supporting the allegations made by him in the plaint, and, also proved the documents other than those mentioned above. The plaintiff however said that he had no lorry or vehicle and he secured order for carriage of goods by lorry and also secured necessary lorry and purchased petrol as was required. He also stated that he was a road transport contractor and not a dalal.;