IMPORTANT POINT
The substance of the agreement, the intention of the parties, and the nature of the rights granted are crucial in determining whether an agreement creates a lease or a license.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied with the judgment and decree dated 23rd August, 2011 passed by learned Additional District Judge, 9th court Alipore, in Title Appeal No. 150 of 2009, present second appeal has been preferred. By the impugned judgment learned court below set aside the judgment and decree dated 31st March 2009 passed by learned Civil Judge (Junior Division), 2nd Court, Alipore, in Title Suit no. 19 of 2002.

2. Plaintiffs/Respondents herein instituted aforesaid Title Suit no 19 of 2002 contending that the suit premises originally owned by one Satyandra Chandra Gupta, who during his lifetime bequeathed the property in favour of the plaintiffs. After taking probate of the will, plaintiffs became absolute owner of the property. Original defendant was known to the plaintiff, who approached the plaintiff in the month of April 1987 for temporary accommodation in the suit property comprising of two bedrooms, one drawing cum dining room one kitchen and two bathrooms cum privy and considering his difficulties the plaintiff allowed the original defendant to reside in the suit property on payment of licence fee of Rs.2000/-per mensem which was subsequently enhanced to Rs. 4000/-. Plaintiffs’ further case is said licence for accommodation was purely on temporary basis initially for eleven months and thereafter licence was extended from time to time till 31.03.1999. The defendant has not paid any amount from April 1999 and left for his native place at Rajasthan. Thereafter plaintiff discovered that the said defendant put one Mahendra Kumar Surana in his place in the suit property. The plaintiff thereafter issued notice upon defendant through their advocate on 05.03.2001, thereby revoking the licence and as the defendant failed to quit and vacate the suit premises, the plaintiff was compelled to file the aforesaid suit for eviction.

3. The defendant on the other hand appeared in the suit and filed written statement denying all material allegations levelled against him in the plaint. According to defence case, he was inducted initially by the plaintiff as a tenant at a monthly rent of Rs, 1000/-and subsequently the rent was enhanced to Rs. 2,500/-per month. The defendant never defaulted in paying rent. By that time the defendant felt ill and his daughter and his son-in-law started residing with him. The defendant specifically denied that he was inducted as a licensee. On the contrary defendant contended that in spite of payment of rent to the plaintiff, the plaintiff never bothered to issue rent receipt to him. Accordingly defendant prayed for dismissal of the suit. On the basis of the pleading, the Trial Judge has framed following issues:

1. Whether the suit is maintainable in its present form and prayer?

2. Whether the plaintiffs have any cause of action to file the suit?

3. In what capacity the defendant is residing in the suit property?

4. If the defendant is a licensee, then whether such licence was renewed by the plaintiff?

5. Whether the plaintiff is entitled to get any decree as prayed for?

6. To what other relief, the plaintiff is entitled to get.

4. Trial Court heard the said suit on the aforesaid issues and by a judgment and decree dated 31.03.2009, was pleased to dismiss the said Title Suit being no. 19 of 2002 against the plaintiff/respondent, on the ground that original licensee had already left the suit flat after putting some third person in possession of the suit flat, so passing decree of eviction of licensee against defendant/licensee would be infructuous in the eye of law.

5. Being aggrieved by the said judgment and decree the plaintiff preferred appeal being aforesaid Title Appeal no 150 of 2009, which was heard by learned Additional District Judge 9th court, Alipore. Learned First Appellate Court was pleased to allow the Appeal in favour of the Plaintiff/Responded herein and set aside the Judgment and decree passed by learned Trial Judge. Being aggrieved by and dissatisfied with