( 1 ) THE appellant plaintiff who lost in trial court does not dispute the finding of the trial court that he has failed to establish relationship of licensor and licensee. However it is contended that the trial Court has found that an interest in the premises is created and that the defendant in its written statement has admitted that its possession is unlawful and therefore decree for eviction should be passed in favour of the plaintiff. This contention is raised although there is no such case in the pleadings of the plaintiff; no such issue is raised and that there is no such evidence also. On the contrary the plaintiff has positively asserted in his evidence that the defendant was not his tenant.

( 2 ) AFTER having a brief resume of the facts the contentions raised by the appellant plaintiff may be examined.

( 3 ) THE appellant plaintiff filed a Civil Suit No. 2728 of 1970 in the City Civil Court Ahmedabad against the defendant firm alleging that he himself was a tenant of the property belonging to Katpitia Mahajan Ahmedabad that the defendant is a grain merchant and that he allowed the defendant to use a part of this premises on the basis of the arrangement that the defendant should pay commission at the rate of 25 paise per bag sold by the defendant. It was alleged that the defendant was not entitled to keep his bags of foodgrains against the wishes of the plaintiff. Though the defendant was orally informed not to keep his goods in the premises he did not pay head to the same and on the contrary filed Small Cause Suit No. 490 of 1970 in the Court of Small Causes Ahmedabad. On these and other allegations the plaintiff prayed that the defendant be restrained from placing his goods in the suit premises and be ordered to render accounts of the goods sold by the defendant so that the amount of commission at the rate of 25 paise per bag sold be recovered from him. Alternatively the plaintiff prayed that in case the possession of the defendant is proved over the premises the defendant be ordered to be evicted and the possession thereof be given to the plaintiff.

( 4 ) THE suit was resisted by the defendant firm on facts as well as on law points. It was inter alia contended that the real nature of the relationship between the parties was that of a landlord and a tenant and that the defendant was in possession of the premises as of right as a tenant.

( 5 ) THE trial court after recording evidence and after hearing the parties came to the conclusion that the plaintiff has not been able to establish that the defendant was in possession of the premises by his permission. The trial court came to the conclusion that the relationship of licensor and licensee between the parties as contended by the plaintiff was not proved. The trial court also came to the conclusion that the arrangement for payment of so called commission was not in fact commission but was as a matter of fact rent. The trial Court came to the conclusion that the defendant had got exclusive possession of the suit premises and therefore there was an interest created by the plaintiff in favour of the defendant. The trial Court by its judgment and order dated 6/08/1976 ordered to dismiss the suit.

( 6 ) IN the present appeal the plaintiff has not challenged the finding arrived at by the trial court to the effect that the plaintiff has not been able to prove the relationship of licensor and licensee. However it is contended that the possession of the defendant is unlawful even as a tenant and therefore the defendant should be ordered to be evicted and decree for possession should be passed in favour of the plaintiff. This contention is sought to be based on certain averments in the written statement filed by the defendant and on the basis of the finding arrived at by the trial court. The plaintiff relies upon the following averments in paragraph 10 of the written statement filed by the defendant :- from the aforesaid averments made in the written statement i