In a suit for eviction of a licensee, the plaintiff is only required to prove ownership and induction of the defendant into the suit property. The burden of proving tenancy right lies on the defendant, and failure to produce documentary evidence, such as a rent receipt, or to take steps under Section 25 of the West Bengal Premises Tenancy Act, 1956, in case of refusal to issue or non-issue of rent receipt, may lead to an inference that the defendant was not a tenant.

Sengupta, J.

1. THE appeal being No. 228 of 2006 has been filed by one Hari Prasad Saraf who was the plaintiff in Title Suit No. 1620 of 1999, the Appeal No. 230 has been filed by one Gopal Prasad Saraf who was the plaintiff in Title Suit No. 619 of 1999, however, the Appeal No. 229 of 2006 was preferred by both the aforesaid respondents in Title Suit No. 1062 of 1999 filed by the appellant herein. First two suits in connection with the aforesaid appeals were filed by Hari and Gopal, who are the brothers, for eviction of the plaintiff in the Title Suit being No. 1062 of 1999 and appellant in the Appeal No. 229 of 2006 who prayed for decree of declaration that he was a tenant.

2. THE learned Trial judge analogously heard all the three suits as stated above and by common judgment and order dismissed the suits filed by the appellant who asked for declaratory relief, and the decree was passed in favour of both the aforesaid respondents for eviction.

Before the learned trial judge both Gopal and Hari filed their respective suits asking for a decree for recovery of possession of Flat Nos. 10/C situates at Premises No. 2, H. Sarani, Kolkata so far as Gopal is concerned and Flat No. 10/D of the same premises so far as Hari is concerned, on the ground that appellant was a licensee, and he failed and neglected to vacate and quit the said two flats on revocation of licence. The appellant on the other hand in his declaratory suit claimed that he was a monthly tenant in respect of the said two flats which are actually one unit.

3. THOUGH the respective parties filed their respective written statements separately as against, mutual plaints however, the issue was one and identical:- Whether the appellant was a monthly tenant or mere licensee occupying the said two flats?

4. THE learned Trial Judge though framed several issues in three suits; however, the controversy in substance in all the three suits is as mentioned above.

In the analogous hearing both the respondents examined one witness, namely, their constituted attorney and the appellant examined himself.

5. IT appears that the appellant specifically stated that there has been oral tenancy and in spite of request no rent receipt was issued and the tenancy continued even after service of alleged notice of eviction on the ground of mere licence. IT would appear from the facts and circumstances of the case that it was a pure case of tenancy not mere licence.

6. THE learned Trial Judge, however, did not accept the plea of tenancy and as well as evidences of both oral and documentary, adduced in support thereof by the appellant.

The learned Counsel Mr. S.N. Mitra appearing for the appellant submits, while narrating the facts and the written notes of argument that since there is no evidence recording terms of agreement of tenancy, such terms have to be found and to be determined from conduct of the parties established by substantial evidences.

7. THE appellant in his evidence has proved oral agreement of creation of tenancy since December, 1998. Since then he had been uninterruptedly occupying the said two flats along with the members of the family, and had regularly paid rent to the respondents, who however, refused to grant any receipt. This oral testimony of the appellant was not cross- examined. His legal submission is that if a witness is not cross-examined on a point it would be deemed that his point is admitted by the parties who fail to cross-examination. On this legal submission, he has drawn support of the two decision, one of this Court reported in AIR 1982 Calcutta and another one of Supreme Court reported in (2003)1 SCC 240.

8. NONE of the respondents has come forward to contradict oral testimony of creation of oral tenancy. Under this circumstances, he submits that adverse inference has to be drawn against the respondents under Section 114 illustration (g) of the Indian Evidence Act, 1872. On this point of law he has cited following decisions :-

I. AIR 1927 Privy Council,