The main legal point established in the judgment is the significance of exclusive possession, intention of the parties, and the language used in the agreement in determining the jural relationship between the parties.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The present second appeal arises out of a suit filed by the appellant for declaration of his tenancy right and other consequential reliefs. In the said suit, the respondent filed a counter-claim, apart from controverting the allegations made in the plaint in his written statement, thereby seeking eviction of the plaintiff/appellant from the suit premises on the ground that the appellant was a licensee, which relationship has since been terminated by the plaintiff.

2. Both the courts below, that is, the Trial Court and the First appellate Court, passed concurrent judgments and decrees, thereby dismissing the plaintiff's suit and allowing the counter-claim for eviction against the appellant.

3. The present second appeal has been heard on two substantial questions of law, as formulated by a Division Bench of this Court vide order dated October 14, 2015. The said substantial questions of law are as follows:

4. Whether both the learned courts below erred substantially in law in the matter of interpretation of the agreement of induction by not taking into consideration the basic principle that it is not open to the parties to contract out of the Rent act if the ingredients of the deal clearly indicate a tenancy rather than a licence?

5. Whether both the learned courts below erred substantially in law by not holding that it is not open to the owner of a premises to contend that he did not intend to create a tenancy when he was giving the exclusive possession for residential purpose to a person not related to him, with monthly rent and service charges and excluding the right to sublet in the written agreement between the parties?

6. The learned Senior advocate appearing for the plaintiff/appellant argues that the jural relationship existing between the parties is that of a landlord and tenant, not licensor and licensee. The defendant/respondent, it is contended, failed to establish that there was any relation between the parties to justify as to why residential rights were given to the plaintiff, a third person, to reside with the plaintiff's family. Under normal circumstances, unless any clear relationship is established between the parties, the onus is on the person seeking eviction to establish the reason why a stranger to the family would be permitted to reside at a premise with such stranger's family, thereby invading the privacy of the owner and his family. In the absence of any proof of such relationship or explanation being furnished by the defendant, it is argued that a presumption of tenancy arises. Such presumption was not rebutted by the defendant/respondent.

7. It is next contended by the appellant that even after the contractual relation between the parties expired, the respondent continued to accept rental charges from the appellant by describing the same as 'licence fees'. However, such nomenclature in the receipts cannot falsify the fact that the appellant was permitted to stay on with his family exclusively in the suit premises, which is a second indicator of tenancy. The exclusive possession, ipso facto, is sufficient to draw inference of such tenancy.

8. Thirdly, an amount of Rs.50,000/- accepted by the defendant/respondent as security deposit was never refunded by the defendant/respondent. The said fact, it is submitted, also creates a presumption of tenancy, as opposed to licence.

9. The learned Senior advocate appearing for the appellant further argues that mere nomenclature in the agreement executed between the parties as 'licensor' and 'licensee' and use of the expression 'licence fee', by themselves, are not sacrosanct to determine the jural relationship between the parties. In view of the clear conduct of the parties, and exclusive possession of the appellant with his family, the conduct of the parties was sufficient to establish tenancy.

10. The learned Senior advocate next argues that parties to an agreement cannot contract out of a statute. In the present case, since the part