1. This appeal is by the plaintiff and it arises out of a suit for declaration that the plaintiff is a subtenant under the defendant in respect of one shop room on the ground floor of premises No. 123 Chittaranjan Avenue, Calcutta. The plaintiff's case in short is that he has been a sub-tenant under the defendant in respect of the disputed shop room from before the commencement of the W. B. Premises Tenancy Act, 19-56 (hereinafter referred to as the Act). The tenancy is alleged to be held at a daily rent of Rs. 4. After the Act came into force, the plaintiff served a notice under Section 16(2) of the Act upon the superior landlord Bhimraj Periwal Charitable Trust. The plaintiff then started a proceeding, being case No. 1038-A of 1956 under Section 16 (3). The Rent Controller held that the plaintiff was a sub-tenant. The defendant filed an application for review of the said order, whereupon the Rent Controller dismissed the plaintiff's application under Section 16 (3) of the Act. The plaintiff moved this Court under Article 227 of the Constitution and obtained a Rule. But the Rule was ultimately discharged on the ground that an appeal lay before the Court of Small Causes, Calcutta. The plaintiff thereupon preferred an appeal to the Court of Small Causes along with a petition under Section 5 of the Limitation Act for condonation of delay in filingthe appeal. That application was rejected. The plaintiff thereafter started another proceeding, being Case No. 309-B of 1963 against the defendant before the Rent Controller for fixation of fair rent. The application was resisted by the defendant who claimed that the plaintiff was a licensee. The Rent Controller held that the plaintiff was a sub-tenant and fixed the rent. The defendant preferred an appeal before the Court of Small Causes and the plaintiff also filed a cross-objection, contending that the rent fixed by the Rent Controller was too high. The appeal was allowed and the cross-objection was dismissed. The plaintiff filed a revisional application to this Court against the said order. In the meantime, the defendant filed a petition under Section 41 of the Presidency Small Cause Courts Act and it was registered as Suit No. 2449 of 1963. The plaintiff contested the said suit and the suit was dismissed. Thereupon the defendant moved this Court and the application under Section 41 was allowed. It is alleged by the plaintiff that on July 23, 1966 he came to know for the first time that the revisional application which was filed by him and on which Civil Rule Nos. 1557 and 1558 of 1956 were issued were discharged as not pressed. The plaintiff further alleged that he never instructed his lawyer not to proceed with the said Rules. In these circumstances, the plaintiff filed the instant suit out of which this appeal arises for declaration of his tenancy right.
2. The suit was contested by the defendant and his defence was that the plaintiff was never a sub-tenant under him. According to the defendant he took lease of the disputed shop room from the superior landlord in 1944. On account of his illness in 1953 the defendant had to go away to his native place in the Punjab and at that time he asked the plaintiff to look after the shop on condition that the plaintiff would pay Rs. 4 to the defendant per day, excluding holidays and days on which the shop would remain closed. The defendant thus claimed that the plaintiff was a mere licensee.
3. Several issues were framed in the suit of which one was whether the suit was barred by res judicata in view of the earlier decisions in course of various proceedings between the parties. This issue was answered by the trial court in the negative and in this court the learned Advocate for the appellant did not advance any argument on this issue. On the other issue whether the plaintiff was a sub-tenant or a licensee, the trial court found that the plaintiff was a licensee. The trial court accordingly dismissed the suit. Against this decision the plaintiff has come up in appeal.
4. Mr. Mitra, learned Advocate for the appellant, has argued in the first place that the rent which was being deposited by the plaintiff with the Rent Controller having been withdrawn by the defendant, the defendant is estopped from challenging that the plaintiff is a sub-tenant under him. He has contended that the plaintiff deposited rent with the Rent Controller in accordance with the provisions of Section 21 of the Act and the defendant having withdrawn the same, it was no longer open to the defendant to say that the plaintiff was not a tenant under him. He has argued that in a case like this Section 23 of the Act is of no assistance to the defendant. The contention of Mr. Maitra is that as soon as the defendant withdraws the rent deposited with the Rent Controller, he accepts the position that the Act applies, and if the Act applies, the plaintiff is a tenant under the defendant. In our view this contention of Mr. Maitra does not stand scrutiny. The plaintiff might have deposited the rent alleging that he was a sub-tenant and it might have been in compliance with Section 21 of the Act also. Section 23 of the Act specifically provides that rent deposited under Section 21, if withdrawn, shall not operate as an admission against the person withdrawing it of the correctness of the particulars mentioned in the application for deposit of the rent. The expression used in Section 23 is 'shall not operate as an admission against the person withdrawing it.' It does not say that it shall not operate as an admission against the landlord withdrawing it. Therefore the person withdrawing it may very well be a person other than the landlord. The first contention advanced by Mr. Mitra is accordingly overruled.
5. The next argument of Mr. Mitra is that the plaintiff was in exclusive possession of the shop room. He contends that even according to the defendant's own case the plaintiff was asked to run the shop. So the plaintiff was in exclusive possession. That being so, Mr. Mitra argued, the trial court ought to have held that the plaintiff was a tenant. Hehas relied in support of this contention, on the decision in Secy. of State v. Bhupalchandra Ray, reported in ILR 57 Cal 655 : (AIR 1930 Cal 739) and also another decision of the Bombay High Court in Sherif Dadumiyaji v. Emperor reported in 126 Ind Cas 872 : (AIR 1930 Bom 165). No doubt it has been held in these two cases that exclusive possession is one of the conditions which has to be taken into consideration in deciding whether it is a lease or licence. But this is not the only consideration. The entire surrounding circumstances and the intention of the parties have also got to be taken into consideration. In Mrs. M. N. Club-wala v. Fida Hussain Saheb reported in : 6SCR642 the Supreme Court has observed that (at p. 614):
'whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties.' The trial court has considered the various documents which were exhibited in the case on behalf of the defendant and considering the circumstances of the case the trial court has taken the view that it was a case of licence and not of a lease. This view taken by the trial court appears to us to be quite correct as would appear from the discussion to be made hereinafter,
6. The last point urged by Mr. Mitra is that the disputed shop room is admittedly shop room No. 7 on the ground floor of premises No. 123. Chittaranjan Avenue. But the documents which have been exhibited on behalf of the defendant and which have been relied upon by the trial court do not mention that those are in respect of shop room No. 7. But those documents merely give the address as 123, Chittaranjan Avenue. From this fact Mr. Mitra wanted to contend that these documents might very well relate to some other shop room in premises No. 123, Chittaranjan Avenue. In fact, Mr. Mitra contended, that in view of the defendant's own evidence in cross-examination that there is one shoproom on the ground floor in the said premises which stands in the name of his brother Nathu Singh, it is quite likely that these documents are in respect of the said shop. It will appear, however, that Ext. E which is a bill showing purchase of certain articles is dated Oct. 10, 1948. There the number of the shop room has been mentioned. Similarly. Ext. E-2 which is another bill dated March 10, 1951 mentions the number of the shop room. The documents which have been filed by the defendant in support of his case mostly relate to licences, receipts for payment, proceedings for violation of the municipal law and such other things. In these documents, it cannot be expected, that the number of the shop room will be mentioned. Different numbers of the different shop rooms situated in premises No. 123, Chittaranjan Avenue have been allotted by the landlord for his own convenience. The Corporation of Calcutta is not concerned with the number of the shop room. It is concerned only with the fact that it is a shop room situated in premises No. 123, Chittaranjan Avenue. Therefore, the omission in these documents to mention the number of the shop room is of very little consequence. Exts. F to F (7) are trade licences granted by the Corporation of Calcutta to the defendant. Ext. G series are the permission granted to the defendant for putting up screen or sunshade in the disputed shop room. Ext. B series show that proceedings were started against the defendant for not depositing the fees to the Calcutta Corporation for removal of the trade refuse. It is in evidence that the defendant paid the fine in those cases. Ext. D series show that the defendant was prosecuted for running the shop without licence. Similarly, Ext. E series show that the fine was paid by the defendant. There are also a number of other documents showing that it is the defendant who has been doing everything in so far as obtaining permission and licences from the municipal authority is concerned. It does not stand to reason that the plaintiff who is a sub-tenant from the year 1950 will not take any step to have his name recorded in the Corporation of Calcutta if he was running the business as a sublessee. The plaintiff has not been able to produce any rent receipt in respect of payment of rent. It is also interesting to notice that the plaintiff in his evidence states that since 1954 he has been depositing rent with the Rent Controller as litigation between the parties started. But it will appear from the materials on record that the litigation started between the parties in 1956 after the Act 'came into force. There was no occasion, therefore, for the plaintiff to deposit rent with the Rent Controller in 1954. All these facts and circumstances were taken into consideration by the trial court and we fully agree with the conclusion arrived at by the trial Court.
7. For the reasons mentioned above, this appeal fails and it is accordingly dismissed with costs.