(1) THIS Second Appeal has been preferred against the judgment dated 25. 2. 2005, as passed by the learned Additional District Judge, 2nd Fast track Court, Alipore in Title Appeal No. 134 of 2004.

(2) CASE of the appellants is that one Dr. Goutam Narayan Aditya, the husband of Smt. Anjana Aditya, the defendant/respondent, was a licensee in respect of the suit premises under the original plaintiff Gopal Mukherjee. Said Gopal Mukherjee was the absolute owner of premises No. 30a, Arya samity Road, P. S. Behala. The original defendant-Dr. Goutam Narayan Aditya, being in need of accommodation, approached the said original plaintiff Gopal mukherjee in the month of September, 1993 to occupy the suit premises as a licensee for a period of three years. The original plaintiffs/landlord agreed to such proposal and an agreement Of leave and license was entered in between the parties on 1. 10. 1993. It was agreed that the license was granted for a period of three years on terms and conditions stated therein and at the time of such induction, the original defendant-Dr. Goutam Narayan Aditya assured the original plaintiff that he would purchase a house within a short time and vacate the premises. Relying on such request, the original plaintiff granted leave and license to the said defendant and on the expiry of the period, as stipulated in the said agreement, said original defendant delivered possession of the said flat to the said Gopal Mukherjee. But as Dr. Goutam narayan Aditya, the defendant, failed to secure alternative accommodation, so on his request, the plaintiff-Gopal Mukherjee agreed to allow him to occupy the said flat as a licensee from 1st October, 1996 for a further period of three years ending on 30. 9. 1999. At that time, on execution of Used of license, Dr. Aditya assured that he would vacate the premises as per terms stated in the said agreement.

(3) AS after the expiry of the period, Dr. Aditya did not vacate the premises in question and as the plaintiff was in need of accommodation, so he asked Dr. Aditya to vacate the suit flat. But Dr. Aditya, in contravention of the said agreement, raised a false claim of tenancy. Since the premises in question was not vacated as per terms of the said agreement, the plaintiff-Gopal Mukherjee issued a lawyers letter dated 3. 9. 1999 asking the defendant dr. Aditya when he would deliver vacant possession of the flat in question. In spite of receipt of the said notice, said Dr. Aditya did not vacate the suit flat. Under such circumstances, the plaintiff-Gopal Mukherjee filed the suit for evicting the defendant/licensee from the suit premises.

(4) INITIALLY, the suit was decreed ex-parte. But the wife of Dr. Aditya filed a petition

under Order IX Rule 13 of the Code of Civil Procedure and on such prayer the ex-parte decree was set aside and Smt. Anjana Aditya, the wife of Dr. Aditya, was allowed to contest the suit by filing written statement. In the written statement she claimed that the suit was not maintainable and the allegations, as made in the plaint, were all denied on material points. According to this defendant Anjana Aditya, her husband was inducted in the suit flat as a tenant. Said Dr. Aditya never possessed the suit premises as a licensee for three years, as claimed by the plaintiff. According to her, the agreement of license, as submitted by the original plaintiff/landlord was nothing but a camouflage and same was executed at the instance of the original plaintiff only to avoid the rigour of tenancy law. According to her, neither her husband Dr. Aditya nor she or her daughters were known to the plaintiff from before prior to their induction in the suit premises. It is the specific case of the defendant that Dr. Aditya did not occupy the suit premises as a licensee. According to her, Dr. Aditya and subsequently she and her daughters are tenants in respect of the suit premises. It has been claimed by Anjana Aditya that the whereabouts of the original defendant was