JUDGMENT 1. THIS litigation is all over a northeastern room inside of a four-roomed flat on the fourth floor of 44, Ezra Street, Calcutta, also known as 44/45 Ezra Street and shortened hereafter into "44". 2. THE plaintiff Girdharlal Govindji, hereinafter referred to as Girdharlal, who is the tenant of the flat just mentioned, seeks to recover possession of the aforesaid room on a twofold ground-one being an alternative to the other. First: late in 1954 or early in 1955, the defendant Pravin Chandra Ochhavlal, (shortened hereafter into Ochhavlal ). who was living with his father and other members of the family in a two-roomed flat on the same floor of the same house: "44", was granted leave and license without any license foe to occupy the room in controversy occasionally. The plaint by its third paragraph does not go as far as that specifying the year. But Girdharlal's evidence does, [see, for example, question no. 27 and his answer thereto. ] By notices, first verbally early in June 1962 and thereafter in writing on September 14, 1962, Girdharlal revoked the said leave and license. The latter one called upon Ochhavlal to vacate the disputed room on the expiry of October 1962. Second: should the decision be that there was a tenancy instead of a licence, even that stood determined by the notice dated September 14, 1962 paragraph 11 of the plaint. More, Girdharlal reasonably requires the room for his own occupation. Recovery of possession of the room in controversy is grounded so. There is still another mentionable relief Girdharlal prays the Court for: a decree for mesne profits at the rate of Rs. 2 a day from November 1, 1962, "until recovery of possession". 3. THIS then is an outline of the suit by Girdharlal instituted on December 3, 1962. 4. OCHHAVLAL resists the suit on more pleas than one. First: this Court lacks jurisdiction to try it. Second: a licensee never, he has been a subtenant since July or August 1952 as respects the room in controversy on a rent of rs. 45 a month under Girdharlal who, not accommodation-hungry then, was eager to, and had in fact, sublet it as above, exclusive of electric charges. His written statement by its third paragraph does not go so far as that specifying the month and year of the commencement of the sub-tenancy. But his evidence does. 45 a month under Girdharlal who, not accommodation-hungry then, was eager to, and had in fact, sublet it as above, exclusive of electric charges. His written statement by its third paragraph does not go so far as that specifying the month and year of the commencement of the sub-tenancy. But his evidence does. [see, for example, questions numbering 6, 7, 8 and 13 along with his answers thereto. ] Third: Girdharlal reasonably requiring the room in dispute for his own occupation is denied Fourth: is denied too the due determination of the tenancy by the notice of September 14, 1962. In view of the pleadings, the issues struck at the trial are-1. Has this Court jurisdiction to try the suit? 2. Has the defendant been in occupation of the room in controversy here by leave and licence as set out in paragraph 3 of the plaint 3. Has the defendant been a subtenant as respects the aforesaid room under the plaintiff as set out in paragraph 3 of the written statement 4. Was the tenancy, if any, duly determined as averred in paragraph 11 of the plaint 5. Does the plaintiff reasonably require the room in controversy here for his own occupation 6. What reliefs, if any, is the plaintiff entitled to? 5. OPENING over and issues settled, naturally I called upon Dr. Das and mr. Tibrewal, counsel for Girdharlal and Ochhavlal respectively, to address me on the first issue first, even before evidence was called. So I did, because if I had ultimately found this Court's want of jurisdiction to decide the suit, i would have ordered the plaint to be returned for presentation to the City civil Court under section 14 of the City civil Court Act, 21 of 1953, (hereinafter referred to as "the Act"), without entering into evidence. Indeed, to go for the whole of the evidence and then to say: I return the plaint for presentation to the City Civil Court, as I lack jurisdiction to try the suit, would in no whit have benefited the parties, and what is worse, would have mulcted them in an unnecessary expenditure of money for heavy costs. After having heard Dr. Das and Mr. Tibrewal on the first issue, I intimated my decision in favour of this Court's jurisdiction, and said that I would give reasons therefore, when I would be delivering my judgment. After having heard Dr. Das and Mr. Tibrewal on the first issue, I intimated my decision in favour of this Court's jurisdiction, and said that I would give reasons therefore, when I would be delivering my judgment. To do that I now proceed. 6. GOING by the plaint reviewed above, the suit in hand admits of a clear dichotomy. Recovery of possession of the room in controversy is sought after eviction of Ochhavlal as a licensee upon revocation of his licence. This is one part of the suit. The other is the same ultimate relief : recovery of possession as above, but after eviction of Ochhavlal as a tenant, should the finding be that what is discernible upon evidence is a tenancy, and not a mere licence. Regarded as a suit for recovery of possession of the disputed room at "44" by ejecting a licensee which Ochhavlal is said to be, what calls attention is the averment in the plaint, the thirteenth paragraph of which bears : "13. The suit and the property in suit will exceed Rs. 10,000 in value; so this Hon'ble Court and not the City Civil Court has jurisdiction to entertain this suit"; No less prayer no. 2 which runs : "2. Decree for mesne profits at the rate of Rs. 2/- per day on and from the 1st November, 1962, until recovery of possession." By virtue of subsection (2) of section 5 of the Act, subject to certain exceptions which do not bulk large here, the City Civil Court shall have, and the High Court shall not have, jurisdiction to try suits of a civil nature not exceeding rupees ten thousand in value. The suit I am seized of is a suit of civil nature. On the face of the pleadings, its value exceeds Rs. 10,000. Therefore, this Court has, and the City Civil Court has not, jurisdiction to try the suit. 7. THAT a decision on jurisdiction has to be rested upon the allegations in the plaint which are assumed to be true is now well-held. Indeed, the value for the purposes of jurisdiction is ordinarily to be determined, on the basis of the claim made, not on the decision upon that claim. Dominion of. India v. Jagadish Prosad Pannalal and another., (1) 84 C. L. J. 175, a Bench decision of this Court, on the Appellate Side, Dr. Indeed, the value for the purposes of jurisdiction is ordinarily to be determined, on the basis of the claim made, not on the decision upon that claim. Dominion of. India v. Jagadish Prosad Pannalal and another., (1) 84 C. L. J. 175, a Bench decision of this Court, on the Appellate Side, Dr. Das cites, is a case in point. The question of territorial jurisdiction having cropped up there, Harries, C. J. observed at page 1. 80 of the report, Chakravartti, J. (as his Lordship then, was) agreeing : "The question of jurisdiction must be decided upon the allegations in the pleadings and it must be decided, before the case begins, whether or not there is jurisdiction. If on the face of the pleadings, the Court has jurisdiction, it matters not that later the suit as against the person who carried on business or resided within the jurisdiction is dismissed" I do no more. Upon the allegations in the plaint I decide that the instant suit of a civil nature exceeds Rs. 10,000 in. value and that this Court has therefore jurisdiction to try it. 8. MR. Tibrewal sees inflation in the valuation put in the plaint. I do not. Mesne profits claimed at Rs. 2 a day can, in safety, be regarded as a good test to go by. If it errs, it errs not on the side of excess, but on a low side instead, I need no valuer to convince me of what is so obvious that one in wrongful possession of a room the like of which is in controversy here might with even less than ordinary diligence have received much more than Rs. 2 a day there from in 1962 (when the suit was instituted) or thereabouts. And what a room Measuring 161/2 ft. by 10 ft, It is on the fourth floor of "44" which has an area of 16 cottahs ; the covered area on which stands the six-storeyed building is 11 cottahs. Situate almost at the crossing of Canning Street and Ezra Street, each floor has some 40 rooms. The ground-story Is used for shops. The next three floors are used mostly for office and the two floors above that for residential purposes, as it subsequently transpires from the evidence of none else than Ochhavlal's witness, Jaintilal Gandhi, a trustee-landlord of "44". in answer to my questions 14 and 62-70. The ground-story Is used for shops. The next three floors are used mostly for office and the two floors above that for residential purposes, as it subsequently transpires from the evidence of none else than Ochhavlal's witness, Jaintilal Gandhi, a trustee-landlord of "44". in answer to my questions 14 and 62-70. The hub of trade and commerce is therefore right hero. This only confirms my earlier view of no need of a valuer. So, oven taking such a low figure as the standard, the annual value of the room will come to Rs. 2 multiplied by 365, that is to say, Rs, 720, and the market value fifteen times as much, if not twenty times which means at least (Rs. 720 multiplied by 15) Rs. 10,800, ousting the jurisdiction of the City Civil Court and coming within the jurisdiction of this Court. It will perhaps be of some interest to notice what emerges if the Court-fees Act, 7 of 1870, be taken into reckoning, even though this Court in exercise of its ordinary original civil jurisdiction just the one I am exercising now has little to do with that fiscal statute. So long as the Special Bench decision in Sisir Kumar Dutta and others v. Susil Kumar Dutta (2) announced on June 29, 1960, 65 C. W. N. 1, held the field, the valuation of a suit for ejectment of a licensee, upon revocation or termination of his licence, for the purposes of court-fees and jurisdiction, had to be made under section 7 (v) of the Court-fees Act, that is to say, on advalorem basis. But with the coming into force of the Court-fees (West Bengal Amendment) Act, 18 of 1963, on May 3, 1963 the position is: in a suit for recovery of possession of immovable property from a licensee, upon revocation or termination of his licence, where no licence fee is payable by the licensee, (as here), the court-fee shall be computed according to the amount at which the relief sought is valued in the plaint subject to the provisions of section 8c pro viding for an inquiry by the Court to determine the correct valuation: vide section 7va. (b) (ii ). (b) (ii ). Thus, if this suit, as it stands now, had been filed in the City Civil Court (governed by the Court-fees Act and also the Suits Valuation Act, 7 of 1887), on December 3, 1962, the day it was filed here, it would have been caught by the advalorem rule laid down by the Special Bench decision and the City Civil Court could not have had jurisdiction to try it exceeding Rs. 10,000 in value, because of section 5 (2) of the: Act. If it had been instituted there on. or after May 3, 1963, the valuation put; in the plaint (exceeding Rs. 10,000) would have been the decisive factor because of section 7va (b) (ii) of the Court-fees Act, thereby negating the jurisdiction of that Court. No doubt the City Civil Court could have held an inquiry under section 8c to deter mine the correct valuation. But it would have been a useless labour, the yardstick of even fifteen times the nett profits for the year preceding the institution of the suit being the mesne profits of a very modest sum of Rs. 2 a day and carrying the valuation to Rs. 10,800, as noticed. Thus, from whatever way the matter be looked at, the conclusion reached is the same: this Court has, and the City Civil Court has not, jurisdiction to try the instant suit, in so far as it is one for recovery of possession of the disputed room after ejecting Ochhavlal said to be a licensee, upon revocation of his licence. 9. IT is not difficult to visualise that a plaintiff preferring the City Civil court to this Court would have put in a value much lower than Rs. 10,000, not only to get a forum of his choice, but also to pay the minimum of court fees on advalorem basis. But this is another matter. What the matter before me is that the suing party, as Girdharlal is, has valued in the plaint the subject of his suit in a manner which cannot be touched. Apart from the assumption that it is true, appearances are very much in favour of its being true in reality. 10. SO far then about the suit founded upon revocation of the licence. Apart from the assumption that it is true, appearances are very much in favour of its being true in reality. 10. SO far then about the suit founded upon revocation of the licence. Regarded as a suit resting on determination of Ochhavlal's tenancy, the conclusion come to in favour of this Court's jurisdiction is not shaken by one jot or one title, nothing to say of the general principle that the Court having jurisdiction to try a bigger matter can try along with it a smaller matter which by itself would have conferred on it no jurisdiction. Governed as such a tenancy will be by the West Bengal Premises Tenancy Act, 12 of 1956, the Second Schedule to the Act (City Civil Court Act), as amended by the City Civil Court and the West Bengal Premises Tenancy (Amendment) Act, 27 of 1957, and itself amending the solitary schedule to the West Bengal Premises Tenancy Act, rules the matter. In so far as it is material here, the aforesaid schedule bears; " (i) Where the value of the suit or the value of the premises of which recovery of possession is claimed does not exceed ten thousand rupees to the City Civil court ; (ii) Where the value of the suit exceeds ten thousand rupees to the High Court at Calcutta " read with section 20 of the West Bengal Premises Tenancy Act, it codifies the law on jurisdiction of the City Civil Court and this Court for trial of suits of this nature. Thus, the value of the premises recovery of possession of which is claimed (here the disputed room at "44") is the value for the purposes of jurisdiction. Since its value exceeds Rs. 10,000-I have stated why-the City Civil Court cannot have jurisdiction to try it. In clause (ii) quoted above, only the expression-the value of the suit-appears ; not the other expression the value of the premises of which recovery of possession is claimed which is in clause (i) in addition to-the value of the suit. But that seems to be of the least materiality. For one thing, the moment it is found (as is found here) that the value of the premises of which recovery of possession is claim exceeds Rs. 10,000, the City Civil Court ceases to have jurisdiction; vide clause (i) above. For another, the value of the subject of the suit exceeding Rs. For one thing, the moment it is found (as is found here) that the value of the premises of which recovery of possession is claim exceeds Rs. 10,000, the City Civil Court ceases to have jurisdiction; vide clause (i) above. For another, the value of the subject of the suit exceeding Rs. 10,000, (as here), the value of the suit exceeds Rs, 10,000 too, thereby bringing it within the jurisdiction, of this Court: vide clause (ii) above. There is thus no escape from the conclusion that this Court has, and the City Civil Court has not, jurisdiction to try the instant suit In vain does Mr. Tibrewal refer to the rent of the disputed room at 44' being Rs. 45 a month (as his case is) and twelve times such rent coming to Rs. 540, Equally vain is the reference to the total rent of Girdharlal's four-roomed flat at Rs. 140 a month (q. no. 14 to him) and the proportionate rent for the disputed room coming to even less than Rs. 45 a month. In submitting so, Mr. Tibrewal has obviously at the back of his mind section 7 xi (cc) of the Court-fees Act which provides that in a suit between landlord and tenant, for recovery of immovable property from a tenant including a tenant holding over after the determination of a tenancy, the amount of fee payable under the Court-fees Act shall foe computed according to the amount of the rent of immovable property to which the suit refers, payable for the year next before the date of present nig the plaint. But this fiscal statute is not for the High Court in exercise of its ordinary original jurisdiction in which the present suit has been tried and is about to be decided, See section 4 of the Court-fees Act. This is one consideration. There are still two others. One, section 7 xi (cc) prescribes the notional valuation for the levy of Court-fees ; whereas the valuation I have to go by for the purpose of jurisdiction is the market or actual value of the premises (here the room in controversy at "44") of which Girdharlal claims recovery of possession: vide the schedule to the West Bengal Premises Tenancy Act. And that value exceeds Rs. 10,000, no matter that the rent for a year preceding the institution of the suit comes to Rs. 540 or less. And that value exceeds Rs. 10,000, no matter that the rent for a year preceding the institution of the suit comes to Rs. 540 or less. Two, under section 8 of the Suits Valuation Act, the notional value of a suit under section 7 xi (cc) of the Court-fees Act "as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same". In other words, twelve times the monthly rent preceding the institution of the suit shall be the value for the purposes of court-fees and jurisdiction both. Such a consideration, however, can hardly avail Mr. Tibrewal. On a matter as this, dovetailed as the Suits Valuation Act is with the Court fees Act, the suit in hand cannot be touched by either. What it is touched by is the schedule to the West Bengal Premises Tenancy Act to which one has to come full circle back. The burden of this schedule has been noticed and may be reiterated. The value of the room in controversy at "44" exceeds Rs. 10,000. Therefore, under clause (i) reproduced in paragraph 14 ante, the City Civil Court lacks jurisdiction to try this suit. The value of the said room (which is the subject-matter of this litigation) exceeding Rs. 10,000, the value of the suit necessarily exceeds rs. 10,000 as well. Therefore, under clause (ii) reproduced in paragraph 14 ante, this Court has jurisdiction to try it. No notional value shows: its head here. 11. TRUE it is, as Mr. Tibrewal submits, girdharlal's right in the room in controversy at 44' is no more than a tenant's right. So what ? Even to such a one it is open to say: 'here is Ochhavlal who is in wrongful possession of the disputed room and might have with ordinary diligence received there from Rs. 2 a day'. That is what he says when he claims mesne profits of Rs. 2 a day. Even a modest sum as that raises the value of the room to more than Rs. 10,000. 12. THE last contention of Mr. Tibrewal on valuation is that the view I am taking will practically denude the City Civil Court of a vast deal of litigation of this type. It will. But the Act by its fifth section fixes the maximum limit of the pecuniary jurisdiction of that Court to Rs. 10,000. 12. THE last contention of Mr. Tibrewal on valuation is that the view I am taking will practically denude the City Civil Court of a vast deal of litigation of this type. It will. But the Act by its fifth section fixes the maximum limit of the pecuniary jurisdiction of that Court to Rs. 10,000 in suits and proceedings of a civil nature. And it is a notorious fact (of which I take judicial notice) that even a cottah of land in 'ancient' Calcutta with an area of nine square miles, the limits of that Court's territorial jurisdiction, sells at Rs. 40,000 and more. So, what Mr. Tibrewal makes a point of is inherent in the Act itself. And it is not for me to rise above the law the Act lays down. It is for the lawmaker to amend the law if it things fit in its wisdom. What goes before exhausts my reasons for having found the first issue in favour of Girdharlal. 13. NOW to the merits of the litigation. Girdharlal examines himself and none else. Ochhavlal first examines jaintilal Gandhi whose father owned "44" up to "sometime in 1956" when it became a trust property. But even during his father's ownership, he used to look after "44". Sec. qq. 15 to Jaintilal. Thereafter he examines his brother Liladhar Doshi and himself. This is all the oral evidence led at and during the trial. In the recorded evidence, Ochhavlal is variously spelt and also referred to as Provin Chandra. Though spellings vary along with name the man is the same : the defendant before me, 14. THE second issue raises the question of licence ; the third of sub-tenancy. The facts these two issues traverse run into one another. So they are taken up together. The relationship between Girdharlal and the family of Ochhavlal was cordial. Girdharlal claims to have known Ochliavlal's father, who was also Ochhavlal, since 1940 when the senior Ochhavlal used to work in Messrs. Joseph Pir Mohammed and Co. where Girdharlal paid periodic visits for business in yarn as a broker. These two Gujrati families were on good terms with one another even in 1950-51 and much beyond when they were living on the same floor at "44"-Girdharlal in a four-roomed flat and Ochhavlal in a two-roomed flat. [qq. 1-9 and 28 for example, to Girdharlal]. where Girdharlal paid periodic visits for business in yarn as a broker. These two Gujrati families were on good terms with one another even in 1950-51 and much beyond when they were living on the same floor at "44"-Girdharlal in a four-roomed flat and Ochhavlal in a two-roomed flat. [qq. 1-9 and 28 for example, to Girdharlal]. Ochhavlal who carries on business in that name : Joseph Pir Mohammed and Co. just mentioned, also admits of a cordial relationship between, the two families, but only after his having come "into this building", that is, "44", and "not before that" (qq. 1 and 70 ). And he came into the building's two-roomed flat on the fourth floor even before 1952, as Jaintilal says (q. 11), or to be exact, from 1948, as Ochhavlal says (q. 93 ). But Girdharlal started living at "44" since 1950-51 and elevated himself to the status of a tenant only in 1952, say, between January and March (qq. 34, 106 and 107 ). Thus, even according to Ochhavlal, the cordial relationship was there from 1950-51 or thereabouts. The averment in paragraph 11 of his written statement also refers to "the cordial relationship between the parties. But Ochhavlal speaks much, too much when he says that the cordiality continues to this day, Girdharlal's suit I am adjudicating now proves that it does not, Ochhavlal, however, is not to be daunted thereby : "Suit is a separate thing; he (Girdharlal) has filed this suit, but we do not have a quarrel. We talk with each other up till now. " [See qq. 71 and 72 to Ochhavlal]. I notice reckless glibness in such evidence of Ochhavlal and disbelieve him when he goes to that length. But I see no difficulty in finding as a fact (which I do) that, in 1950-51 and beyond, cordial relationship prevailed between the two families of Girdharlal and Ochhavlal. Apart from the combined evidence of both and the admission in the written statement, it looks so natural too that two Gujrati families sharing the same floor of "44" in Calcutta, far away from their home, should ordinarily feel the spell and the softening influence of mutual affection and esteem. 15. SUCH a finding, however, without more, may cut both ways. 15. SUCH a finding, however, without more, may cut both ways. If camaraderie can foster leave and licence without payment, as it very well may and as is Girdharlal's case, no less can it foster a hidden sub-tenancy, other things being there, without any receipt in token of payment of rent, as is Ochhavlal's case. That way, therefore, no firm conclusion can be reached on the status of Ochhavlal-that of a licensee or a subtenant. So, other materials I have had put before me have got to be looked into. 16. GIRDHARLAL times the commencement of the licence late in 1954 or early in 1955 and that too at the entreaty of Ochhavlal's father, the senior ochhavlal (qq. 27-29, 38 and 39 ). His is the only evidence on the point. But that matters little. No particular number of witnesses shall in any case be required, as section 134 of the Evidence Act, 1 of 1872, prescribes, for the proof of any fact. So, the evidence has to be weighed and not counted. A feeling of brotherhood coupling with good relationship prevailed between Girdharlal and the senior Ochhavlal. They were friends. Living in the same building and on the same floor, there was what has been called "saluting acquaintance" with all other members of the family. [see qq. 221-223 to Girdharlal in cross-examination]. When such was the intimacy, it will be idle to expect witnesses to a friend, with a four-roomed flat, accommodating a friend, with a two-roomed flat on the same floor, in one room of his four roomed flat. So lack of witnesses other than Girdharlal himself does not oppress me. Under section 120 of the Evidence Act, he is as much a competent witness as any other. Girdharlal, a party, being alone the witness, is not, therefore, the question. The question is can his evidence be accepted after it has been weighed ? I reserve my answer till I consider all the matters before me. Ochhavlal times the commencement of the sub-tenancy of the room in controversy as "nearly July or August" 1952 on a rent of Rs. 45 a month (qq. 5-8, 11, 13 and 15 ). He has a witness in support of this evidence. I reserve my answer till I consider all the matters before me. Ochhavlal times the commencement of the sub-tenancy of the room in controversy as "nearly July or August" 1952 on a rent of Rs. 45 a month (qq. 5-8, 11, 13 and 15 ). He has a witness in support of this evidence. That witness is Jaintilal Gandhi, now one of the trustee-landlords of "44", but in 1952, no more than a son of the owner whose interest he was looking after, as he says. What such a one deposes to about the origin of the sub-tenancy appears to be an interesting study. One day in 1952, Ochhavlal called him to his (Ochhavlal's) room. There he found Girdharlal, Ochhavlal and other members of his family. He heard a discussion going on. And he was asked if! he had any objection to Girdharlal "giving up one of the rooms" to Gchhavlal. He replied, he had no objection, but he himself would not subtest the particular room to Ochhavlal on the basis of a separate tenancy and thereby change the original tenancy, because it was a four-roomed flat. Girdharlal, he says, gave out that he would only charge the proportionate rent for the particular room. There after, sometime in 1952, Ochhavlal got into the said room, the room in controversy, and started living there (qq. 2-25 and 13-24 ). 17. THE proportionate rent Ochhavlal speaks of for the disputed room will amount to Rs. 35 a month, the rent for the whole of the four-roomed flat being Rs. 140 a month (q. 8 to Jaintilal and q. 14 to Girdharlal ). But let that not be made much of. Because, all the rooms are not of the same size. The room in controversy Jaintilal puts as 16 1/2 ft. by 10 ft. (q. 14 ). Of the three other rooms, one measures 16 1/2 ft. by 101/2 ft. and two 10 ft. by 101/2 ft. each, as Girdharlal estimates it (q. 73 ). What is apt to be made at least a little of is that in such an important sitting graced by none else than the landlord's son and the de facto manager, as Jaintilal poses himself to be, the exact amount of rent is not settled. It is left to be worked out by the arithmetical rule of proportion. 18. What is apt to be made at least a little of is that in such an important sitting graced by none else than the landlord's son and the de facto manager, as Jaintilal poses himself to be, the exact amount of rent is not settled. It is left to be worked out by the arithmetical rule of proportion. 18. THEN, Jaintilal appears to be a rare type amongst the landlords in that area of Canning Street and Ezra Street, or for the matter of that in any area, who would allow Girdharlal, his tenant of the first degree, to split up his tenancy in favour of Ochhavlal, but would not make Ochhavlal his direct tenant, though it would have been so advantageous to him in the shape of higher rent. Averse to money, it is not his practice to charge higher rent. He does not take higher rent ever. But he is one who has been litigating and litigating in this Court (qq. 57, 50-53 and 29 ). It may be nice to hear such tall talk. But it is difficult even for credulity to swallow all this, Jaintilal and Ochhavlal hail from the same village in Gujrat, and what is more, Ochhavlal is related to his mother "as maternal uncle or something like that"-the words Jaintilal starts his cross-examination with (q. 25 ). Towards the end, he rests content saying that Ochhavlal is related to his mother's side both the Ochhavlals, father and son (q. 60 ). That must be so, The father being related, the son's relationship must be there as a matter of course. Thus, it looks apparent that however much Jaintilal may deny it, he has pledged his oath before me to help Ochhavlal, his relation, though his class-mate he might not he (qq. 58-61 ). But he might have helped him. a lot better if he had been good enough to make Ochhavlal his direct tenant, with or without higher rent, in 1952. 19. THEN, why such a show about subletting by Girdharlal to Ochhavlal by ushering the landlord's son and getting together in a conference ? It was then 1952. The 1950 Act, as that temporary Act, 17 of 1950 is called, was then in force. Girdharlal, a tenant of the first degree, was not subletting the whole or a major portion of his four roomed flat. It was then 1952. The 1950 Act, as that temporary Act, 17 of 1950 is called, was then in force. Girdharlal, a tenant of the first degree, was not subletting the whole or a major portion of his four roomed flat. He was subletting only one room out of four and that too without the use of the privy, the bath and the rest. Such subletting the 1950 Act did not taboo, as section 14 of the Premises Tenancy Act, 12 of 1956, does. That, indeed, is manifest from clause (c) of the first proviso to section 12 of the 1950 Act. So, the subletting Ochhavlal speaks of and Girdharlal was eager to go in for, as Ochhavlal says, could have been there as a matter of course, relationship between the parties having been what it was, both according to Girdharlal and Ochhavlal, though Liladhar would belittle it as "not so intimate, not so cordial, as usual with other tenants" (q. 64 ). No landlord nor Ms son was required to consent to it or to bless it. Girdharlal emphatically denies that he had ever approached jaintilal to split the tenancy of his four-roomed flat. It was not necessary. Never did he go to Jaintilal (qq. 209-215 ). I accept this denial. Indeed, upon the whole of the evidence, it appears to me that Jaintilal, an obliging relation and one who has tasted litigation, several of which he has now in this Court (q. 29), has been got hold of to depose to a sitting in 1952 with a view to bolstering a case of Girdharlal's tenancy having been split up, though, for all I see, nothing like it did and could happen, 20. GOOD feelings between the lessor and the lessee being there and other things being there too, as hinted in paragraph 22 ante, such as, to keep the sublease in hiding from the head lessor, payment arid acceptance of rent may go on without being evidenced by receipts. But, here there was little to hide. Girdharlal could have nothing to lose, even if he had declared from the housetop that he was subletting one room out of four and the rest. The landlord could do him no harm, within the bounds of law as he was. Ejectment of his subtenant Ochhavlal ? But, here there was little to hide. Girdharlal could have nothing to lose, even if he had declared from the housetop that he was subletting one room out of four and the rest. The landlord could do him no harm, within the bounds of law as he was. Ejectment of his subtenant Ochhavlal ? Reasonable requirement of the room, so sublet, for his own occupation-the very ground he takes for his alternative claim before me would have been available to him always, receipts not withstanding. So, the averment in the 11th paragraph of Ochhavlal's written statement: - "The defendant states that in view of the cordial relationship between the parties the plaintiff never issued and the defendant never demanded from the plaintiff receipts for the rents paid by the defendant." Draws largely on my belief ; all the more so, when Ochhavlal in his sworn testimony contradicts his own averment just reproduced and says that Girdharlal expressed his inability to grant him receipts which he had demanded for the first two payments made by him : one as an advance of Rs. 45 and the other as rent (Rs. 45) for the month from which the sub-tenancy ran. Why ? Because, Girdharlal would have "some income-tax troubles" (qq. 55-66 ). Nothing like it was put to Girdharlal. Ochhavlal's averment that, because of cordial relationship, Girdharlal never issued, and he never demanded, receipts for the rents paid by him, is, therefore, weakened. At least once he demanded receipts as he himself admits. The question of in come-tax is not pleaded in the written statement. What is pleaded there is cordial relationship only. It is not stated either in Ochhavlal's solicitor's letter of September 20, 1962, answering Girdharlal's solicitor's letter of September 14 previous-both the letters being marked exhibit A collectively. And what the letter of September 20, 1952, says is that Ochhavlal at the request of Girdharlal "has been regularly paying the said rent (Rs. 45) for the said room (the room in controversy) in cash without any receipt in good faith". Nothing is there to show that he had demanded receipts for the first two) payments and that Girdharlal obsessed with his income-tax troubles did not grant any. It, therefore, looks like an after-thought. More, what mentionable difference would Rs. 45 a month make to the income-tax of Girdharlal who, as Mr. Nothing is there to show that he had demanded receipts for the first two) payments and that Girdharlal obsessed with his income-tax troubles did not grant any. It, therefore, looks like an after-thought. More, what mentionable difference would Rs. 45 a month make to the income-tax of Girdharlal who, as Mr. Tibrewal elicits from him in cross-examination, was having an approximate income of Rs. 800 to Rs. 1,000 a month during January to March 1952 (q. 113) ? Thus, neither cordiality nor evasion of income-tax, if that, of a paltry amount explains the absence of receipts for payments claimed to have been made by Ochhavlal on account of rent month after month for years on end from July or August, 1952. The true explanation appears to be that no rent receipts are there, because no sub tenancy has been there ever. That is confirmed all the more by certain other considerations I proceed to notice. 21. WITHIN six months from March, 311, 1956-the date of the commencement of the Premises Tenancy Act, 12 of 1956-under section 16 (2) thereof, it was incumbent upon Girdharlal, the tenant, and Ochhavlal, the subtenant, to give notice to the landlord of this subletting in accordance with rule 4 of the West Bengal Premises Tenancy Rules, 1956. Conscious of that, Ochhavlal pleads in the llth paragraph of his written statement: "the defendant duly gave notice of his sub tenancy to the landlord. " but where is that? Ochhavlal does not say a word about it. It is not produced before me either, though Ochhavlal has an obliging landlord to espouse his cause. I, therefore, take it that no notice was given of this sub tenancy. And I presume that no notice was given in spite of section 16 (2), because there was no sub tenancy. I do not put it any the higher. Certainly, I do not say that non-issue of notice under section 16 (2) means non-existence of a sub tenancy. Take a case where a "pre-1956 Act" sub-tenancy is a hard reality proved to demonstration by the admissions of the tenant and the subtenant and a long series of rent receipts as well. Still, section 16 (2) is not availed of and no statutory notice is given there under, whatever be the reason-obtuse-headedness or ignorance of the parties. Even so, the sub tenancy will be there. Still, section 16 (2) is not availed of and no statutory notice is given there under, whatever be the reason-obtuse-headedness or ignorance of the parties. Even so, the sub tenancy will be there. Non-issue of notice under section 16 (2) will not surely wipe it out. But infraction there of section 16 (2) will be visited by a condign punishment under section 30 (5), That will also lead to the cancellation of the privilege conferred on the subtenant by section 13 (2) when the head-lessor brings an action in ejectment against the tenant of the first degree, as Mr. Tibrewal rightly contends. This being the position, in the facts and circumstances obtaining here, all I hold is that non-issue of notice under section 16 (2) taken into consideration with what I see before me here, gives rise to the presumption that there has been no sub tenancy. I hold no more. 22. THEN, the best Ochhavlal can do to convince me about payment of rent is to produce an accounting book, ext. 1, written mostly by his wife and a little, the first three pages, by him. Of two such books he had made over to his solicitor (q. 180), I see in evidence only. To look into it is to reject it. Going by the translation made by Mr. Jitendra M. Sheth, an advocate of the Bombay High Court-a translation which is supported by his affidavit the entries record payment of rent to Girdharlal (variously referred to as Girdharlal Govindji, Girdhar Kaka, Girdharbhai, Girdhar, Gi, Gi-kaka, auntie (?), Girdharbhai through auntie) from April-May 1960 up to April, 1962 with certain obvious breaks which need not be noticed. The previous accounting books have all gone to the paper-picker who collects and deals in waste-paper. About the accounting book or books subsequent to April, 1963, little is said. Nothing, I imagine could have been easier for the husband or the wife or both than to jot down certain entries crediting payments to Girdharlal on account of rents. It is difficult to produce anything worse with a view to sustaining what is unsustainable. I reject the accounting book and disbelieve the evidence of Ochhavlal in support thereof. The suggestion made to him (q. 133) that it was manufactured for the purpose of the suit has the merit of probability in it. It is difficult to produce anything worse with a view to sustaining what is unsustainable. I reject the accounting book and disbelieve the evidence of Ochhavlal in support thereof. The suggestion made to him (q. 133) that it was manufactured for the purpose of the suit has the merit of probability in it. The result, therefore, is that I have nothing before me on which I can find as a fact that Ochhavlal had paid rent ever to Girdharlal whose denial, as reproduced below, rings true : q. 40. Did they pay anything to you ? Nothing; not even a pie this evidence is challenged in cross examination only in the manner following, as painted out by Mr. Tibrewal. Q. 189. You agreed with Pravin chandra's father to allow that room to be occupied by them, by the defendant's family members, on rent of Rs. 45 per month and that was towards the end of 1952 ? No. Absolutely wrong. The challenge does not go further than that. And it is not much of a challenge either. Worse, the case Ochhavlal asks me to accept: that month after month for years together he had paid Rs. 45 cash down as rent, is not even put to Girdharlal, as Dr. Das rightly contends. 23. ANOTHER significant fact emerges upon evidence. In or about July August 1962, Ochhavlal shifted to 20/1, Ray Street in South Calcutta. "44" is in Central Calcutta. Why did he shift so and to what extent? Girdharlal says: Ochhavlal promised to vacate the room in controversy in June or July. And though he had left, his brother Liladhar continued to live there (qq. 250, 80 etc. ). Ochhavlal says : his wife was down with a great pain in her abdomen and he had therefore to shift to Ray Street temporarily, "for a change of air", as Liladhar puts it in answer to question no. 92. But Ochhavlal's children, school-going all, remained in the room in controversy tended by Liladhar (qq. 77-79 ). Girdharlal dismisses the story about Ochhavlal's wife's illness as "an absurd statement" (q. 251 ). What good will "the change of air" from Ezra Street to Ray Street do to the abdominal pain of Ochhavlal's wife appears to be beyond my comprehension too. And the fun of the matter is that Ochhavlal took the Ray Street house in his name. That tenancy is still there. What good will "the change of air" from Ezra Street to Ray Street do to the abdominal pain of Ochhavlal's wife appears to be beyond my comprehension too. And the fun of the matter is that Ochhavlal took the Ray Street house in his name. That tenancy is still there. But it has been changed, as Ochhavlal says, in the name of his brother Liladhar who, however, suffers from amnesia and maintains, in spite of that handicap, that the tenancy of Ray Street has been in his name throughout. [see qq. 81-84 to Ochhavlal and qq. 82-95 to Liladhar]. Ochhavlal stayed in the Ray Street house for about 5 or 6 months (q. 80 ). Upon such evidence it looks so probable that even Ochhavlal felt, he had keen staying at "44" as a licensee far too long and decency demanded of him that he should find a new home. Later, however, some sort of an evil propensity got the better of him and his desire to do the right thing proved unequal to his greed for retaining possession of "44" in an important business centre of the city. 24. GOOD feelings, cordial relationship, friendship-of which I have heard so much-were no doubt there. But, in spite of all that, Ochhavlal did demand receipts for the first two payments he had made. His demand was not met. Dr. Das, therefore, argues that Ochhavlal should have initiated procedings under section 25 of the 1956 Act and that, because he had not done so, non-existence of the sub-tenancy might be taken for granted. Could I believe Ochavlal, section 25 would not have stood between him and the sub tenancy he claims. Section 25 does not provide that if a tenant does not take advantage thereof, non-existence of his tenancy shall follow. In the ultimate analysis, it is a question of presumption and no more. And whether a presumption arises or not is a question of fact. Could Ochhavlal be believed, though his demand for receipts was refused in the very beginning, the sub tenancy ran smoothly enough for years without receipts till March 31, 1956, when the 1956 Act came into force. Thus, if on the evidence of Ochhavlal or on other evidence a finding could be made of his sub tenancy, the failure on his part to take recourse to section 25 could not have disturbed that finding. Thus, if on the evidence of Ochhavlal or on other evidence a finding could be made of his sub tenancy, the failure on his part to take recourse to section 25 could not have disturbed that finding. Since, however, I cannot bring myself to believe Ochhavlal or to accept other evidence on his sub tenancy, this point need not be pursued further. Mr. Tibrewal refers to the averment in paragraphs 3 and 5 of the plaint where it is pleaded inter alia that Ochhavlal used to occupy the room in controversy and stayed there occasionally and that of the two keys of the said room, one used to remain with Oehhavlal and another with Girdharlal Girdharlal's oral evidence is to that end too bespeaking of joint possession. [see qq. 35, 190-194 etc., for examples]. If that is so, why this pother by a solicitor's notice followed by a suit, asks Mr. Tibrewal Throw away, right on the verandah, the odds and ends stored by Ochhavlal in the room in controversy and lock it from within. That will give Girdharlal what he has been fighting for. Girdharlal could have done that, as he says in answer to question no, 237, but he did not do so out of friendship, It is hardly necessary for me to pronounce my opinion on the high standard of decorum such an answer evinces. Suffice it to say that Girdharlal's evidence given earlier (q. 63): "they (Ochhavlal and his people) have locked up the room from inside by trickery " should not be lost sight of. Once that is remembered, the original leave and licence allowing joint possession of the room in controversy as averred in the plaint and deposed to by Girdharlal and the subsequent exclusive possession thereof by Ochhavlal (which I find as a fact) do not militate against each other. I reject Ochhavlal's evidence that he has been in exclusive occupation from the very beginning. 25. MR. Tibrewal sees in such a licence an unbelievable charity and gets from Ghirdharlal that he has not ever helped Ochhavlal financially (q. 220 ). I see little in it unworthy of credence. Even ever since house famine has been upon us, if a neighbour having a little accommodation to spare spares that much for his neighbour, both hailing from Gujarat and fending for them selves in a far off and congested city like Calcutta. I see little in it unworthy of credence. Even ever since house famine has been upon us, if a neighbour having a little accommodation to spare spares that much for his neighbour, both hailing from Gujarat and fending for them selves in a far off and congested city like Calcutta. I shall be very slow to call it unbelievable. I shall only deplore, as I do upon evidence, Ochhavlal having taken an ell, once Girdharlal had given him an inch, and holding on to it in an unbecoming manner. 26. LACK of an account book of gidharlal does not trouble me as it troubles Mr. Tibrewal. What entry will such a book contain for a licence without a licence fee? I believe Girdharlal when he says that he used to bear the expenses for consumption of electricity in the room in controversy his meter having measured the consumption (qq. 46-47)That is so consistent with joint possession of the room at the inception of the leave and licence. And how much could such expenses have come to Hardly a rupee each month, as Girdharlal says in answer to question no. 219, Originally, Girdharlal had no meter. Only the landlord had one when the expenses for consumption of electricity were added up to the rent bill. Later, he got a sub-meter. Still later, some three or four years ago, he had a separate meter of his own (qq. 216-218 ). Even if Oehhavlal had got the electric connection from his meter in his office room on the second floor as averred in the 6th paragraph of the plaint, by that he could not convert his licence into a sub tenancy. 27. IT is now time to answer the question I have posed in paragraph 23 ante. And I answer it thus : weighed, girdharlal's evidence can safely be accepted. Ochhavlal was his licensee, not a subtenant. 28. I therefore, answer issues 2 and 3 as under : issue No. 2 yes. Issue No. 3 no. Were it possible for me to find a sub tenancy in favour of Ochhavlal, I would have accepted Mr. Tibrewal's contention that the notice of September 14, 1962, does not say anything about the contractual tenancy having been put an end to and cannot, therefore, be said to have determined the tenancy. Its burden is licence and licence only. Going by the notice, no lease is there. Tibrewal's contention that the notice of September 14, 1962, does not say anything about the contractual tenancy having been put an end to and cannot, therefore, be said to have determined the tenancy. Its burden is licence and licence only. Going by the notice, no lease is there. And no lease being there, no question of termination of the lease expiring with the end of the month of the tenancy can be there too. Nothing that Dr. Das contends can convince me the other way about. Singularly unattractive is his reference to Harihar Banerji's case (3) 45 LA. 222, where the notices to quit were served upon the tenants describing them as such and describing the tenancy too. But the area of the tenancy was erroneously stated to be 6 cottahs instead of 2 odd big has it comprised. That could not have misled the tenants who, of all persons, knew the area they were tenants of. So. the notices were construed in a manner that they did not perish but flourished. The notice before me is not addressed to a tenant. Had it been addressed so, I would have done all I could not to find faults in it and thereby render it effective. It is addressed to a licensee. To construe that as a notice to a tenant will be to convert black into white, and not merely to ignore a black spot here and there. So, if required, I would have found the 4th issue in favour of Ochhavlal. 29. ON the 5th issue, to which I now turn, could I have found Ochhavlal's sub-tenancy, upon the whole of the evidence, I would have had little difficulty in finding that girdharlal does reasonably require the premises (room in controversy) for his own occupation. To put it at its lowest, his family consists of himself aged 60, his wife aged 52, his two sons aged 20 and 10 respectively and an unmarried daughter aged 13 or 14-permanent members all. Even they between themselves require the four rooms, there being no separate kitchen. On top of that, his mother aged 80 is there. Are there too his two married daughters aged 32 and 24 respectively. Surely, the daughters will come and stay with their parents from time to time; no less an aged mother with her son. Even they between themselves require the four rooms, there being no separate kitchen. On top of that, his mother aged 80 is there. Are there too his two married daughters aged 32 and 24 respectively. Surely, the daughters will come and stay with their parents from time to time; no less an aged mother with her son. Therefore, that Girdharlal reasonably requires all the four rooms in his four-roomed flat looks patent. No more need be said on an issue which does not arise in view of the findings come to on issues 2 and 3, no less on issue no. 4. 30. THE last issue now reached is the general one on reliefs Girdharlal is entitled to. In the alternative cast in which the plaint is made, Mr. Tibrewal sees two reliefs mutually destructive and destroying thereby the suit itself. I do not see anything of the kind. Ochhavlal's possession of the disputed room is common in either cast. But, as what? That is the question. I find his possession as the possession of a mere licensee. And there the matter should rest. Annada Kumari Debi v. Durga Mohan Chuckerbutty, (4) 20 C. W. N. 31, Mr. Tibrewal dies, cannot help matters forward for him. There a disqualified proprietor sued against was neither described as a ward of Court nor represented by the Manager under the Court of Wards as a guardian. And it was held that the suit as framed was not maintainable. At the same time, the plaintiff was allowed an opportunity to amend the plaint by properly describing the defendant in accordance with the provisions of section 51 of the Court of Wards Act, 9 of 1879. So, if I could have agreed with Mr. Tibrewal that the two alternative reliefs claimed are mutually destructive, as also destructive of the suit itself, it would have been open to me to allow an amendment even now. Nothing can, therefore, hinge on that. Girdharlal is entitled to the reliefs he prays the Court for. This issue is found accordingly. In the result, there must be judgment for the plaintiff in terms of prayers 1, 2 and 6 in the plaint. 31. OPERATION of the decree be stayed for two months from today.