- (1.) The Respondent seeks to eject the Appellants from a plot of land at No. 5, Nimtolla Ghat Street. The Appellants claim to be thika tenants of the land under the Respondent and they contend that the suit ought to be dismissed because (a) the Respondent did not plead nor prove any ground of eviction under the Act and (b) the trial Court had no jurisdiction to entertain a suit for eviction of the thika tenant.
(2.) In order to be a thika tenant the claimant must satisfy the conditions of Section 2(5) of the Calcutta Thika Tenancy Act, 1949, and must be a person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose. Now the Appellants pleaded in para. 3 of their written statement that one Ashutosh Sengupta was in possession of the land as a tenant under one Sajan Kumar Ghosh, that on August 19, 1948, they came into possession of the land on payment of Rs. 200 to Ashutosh Sengupta, that in or about March, 1949, there was an arrangement by which they agreed to pay rent for the land to Sajan Kumar Ghosh who in his turn would make out the receipt in the name of Ashutosh Sengupta, that in the premises they became thika tenants of the land and started construction on it for the purpose of carrying on their business, that thereafter the Respondent started various criminal and civil proceedings against Appellant Noranglal, Sajan Kumar Ghosh and Ashutosh Sengupta, that ultimately the Appellants were compelled to enter into the agreement dated July 25, 1949, and that they are thika tenants of the land under the Plaintiff and are entitled to the protection of the Act, Now there is no distinct pleading in the written statement that the Appellants erected any structure on the land. On this state of the pleadings, the parties joined issue and the trial commenced. The Respondent called his brother one Kedarnath Saraf as a witness on his behalf. In cross-examination the Appellants' counsel suggested to this witness that the Appellants constructed structures on the land after obtaining possession of it from the Respondent. Now this suggestion is at variance with the case made in the written statement that the Appellants started construction on the land between March and July, 1949. The witness denied that the Appellants had erected any structure and his evidence was that the Respondent had erected a gumti or a temporary structure on the land where a person could sit and carry on business. We see no reason to disbelieve this witness. In the absence of a distinct allegation in the written statement that the Appellants had erected structures on the land, we do not blame the Respondent for not calling himself as a witness and for not adducing better evidence to prove that the Appellants had not erected any structures on the land. The structures were not regarded as substantial or worthy of any mention in the agreements of July 25, 1949, or of December 3, 1955. The first Appellant Chiranjilal was examined as a witness on behalf of the Appellants, and he said (Q. 21-24) that the Appellants got possession of an open plot of land from the Respondent, and thereafter erected structures and established an office on it. This witness did not venture to support the case made in the written statement that the Appellants started construction after March, 1949, as to the events before and after it. In cross-examination (Q. 52-54) he added that there was an office room 12' x 12' made with wooden planks and another structure with corrugated tins, and that the Respondent did not erect these structures. Now this case of erection of an office room with wooden planks and another structure with corrugated tins was not made in the written statement nor put to the Respondent's witness in cross-examination. The Appellants did not disclose or tender any book of account or voucher to prove that they incurred any expenses for these constructions. We are unable to accept the testimony of Chiranjilal. We think that he is not a truthful witness. He signed and verified the written statement wherein he denied that the Respondent carried on commission agency business under the name and style of N.K. Saraf and Co., or any other name at No. 5, Nimtolla Ghat Street or any other place, whereas in cross-examination (Q. 61-62) he was compelled to admit that the Respondent carried on business under the name and style of N.K. Saraf and Co. Exhibit 1 is a municipal trade licence for the year 1958-59 issued to Messrs. N.K. Saraf and Co. (proprietor N.K. Saraf) residing or carrying on business at 6, Jadulal Mullick Road and exercising the calling of commission agent in miscellaneous goods. In para. 3 of the written statement which was verified as true to his knowledge the witness had stated that the Respondent had started various criminal and civil proceedings against Appellant Noranjlal, but in cross-examination (Q. 51) he tried to say that he did not remember any criminal proceedings between the Appellants and the Respondent. In all these circumstances we reject the evidence of Chiranjilal, we hold that the Appellants have failed to establish that they erected any structures on the land, and on this ground alone we must hold that the Appellants have failed to establish that they were thika tenants of the land under the Plaintiff. We think that the structures on the land were erected by the Respondent and not by the Appellants.
(3.) We think also that the case that the Appellants were thika tenants of the Plaintiff must be rejected on another ground. In order to be a thika tenant under the Respondent, the Appellants must establish that they hold the land under the Respondent and are or but for a special contract would be liable to pay rent for the land to him. To satisfy the test of Section 2(5) of the Calcutta Thika Tenancy Act, 1949, they must be tenants of the land under the Respondent. The Act seeks to make better provisions relating to the law of landlord and tenant in respect of thika tenancies in Calcutta. The preamble to the Act as also the word "holds" in Section 2(5) indicate that the person claiming to be a thika tenant must establish that he is a tenant. Now a bare licensee or a person using the land under a licence from the owner has no interest in the land and cannot claim to be a thika tenant. Section 2(5) of the Calcutta Thika Tenancy Act, 1949, corresponds to Section 3(17) of the Bengal Tenancy Act under which it was well settled that, "There can be no tenancy unless a right to the land has been given to the grantee", see Jatindra Mohan Lahiri v. Abdul Aziz Meah,1920 AIR(Cal) 733 The distinction between a lease and a license is well known. A lease is a transfer of right to enjoy the land, whereas a license is a privilege to do something on the land which, otherwise, would have been unlawful. The question whether a transaction amounts to a tenancy or a license is a question of the intention of the parties. If the agreement is in writing, we must look to the intention as expressed in the document. The point must then be decided on a consideration of the contents of the document with the assistance of such extrinsic evidence as may be admissible. The most important, and often the decisive test, is whether the document gave exclusive possession to the grantee, see H.E. Wijesuriya v. Attorney-General for Ceylon, 1950 AC 493. The grant of a right to use land without a right of exclusive occupation takes effect as a licence but if the effect of the instrument is to give exclusive possession, it will normally take effect as a lease, see Addiscombe Garden Estates Ltd. v. Crabbe, 1957 3 AllER 563, unless the document read as a whole shows an intention to a grant a possessory licence short of a lease, see Isaac v. Hotel De Paris Ltd., 1960 1 AllER 348, Murray, Bull and Co. Ltd. v. Murray, 1953 1 QB 211. The question is not of words but of substance, see Glenwood Lumber Coy v. Phillips, 1904 AC 405, O.C. Ganguly v. Kamalpat Singh Dugar,1946 51 CalWN 203, and the label which the parties choose to put on the transaction, though material, is not decisive. The operative words of the agreement may create a tenancy, even if it is framed as a license to use the club-house and tennis Court on a periodical payment called Court-fee, see Addiscombe Garden Estates Ltd. v. Crabbe, 1957 3 AllER 563 or as a contract of employment of the grantor as commission agent for a fixed commission payable periodically, (Messrs. Vallabhdas Champshi and Co. v. Messrs. Berry and Co. and Messrs. Meghraj Mohanlal) Unreported decision of Sen, T. dated 10.12.53 in Civil Rule Nos. 3018 and 3019 of 1952 or as a contract of employment of the grantee with the stipulation that nothing in it shall be construed to create a tenancy, see Facchini v. Bryson,1952 1 TLR 1386. To give exclusive possession it is not necessary to use express words to that effect, it is sufficient that the nature of act to be done by the grantee requires that he should have exclusive possession, see Mohipal Singh v. Lalji Singh, 1912 17 CalWN 166;