Judgement JUDGMENT:- This appeal by the plaintiff is directed against the judgment and decree passed by Subordinate Judge No.1, Silchar, in Title Suit No.25 of 1963. The plaintiff Ahmed Hussain is the Receiver appointed by the Calcutta High Court in respect of the Estate of Khan Bahadur Hafiz Md. Hussain in a suit before that Court by an order dated September 9, 1960. 2. The Present suit is for declaration of lease-hold right of the Estate of Khan Bahadur Hafiz Md. Hussain, aforesaid, over the lands described in the first schedule and full title over the houses described in Schedule 2 and also for delivery of khas possession of the land and houses in Schedules No.1 and 2, to the plaint, after eviction of the principal defendants on removal of their unauthorised structures on the suit land. The plaintiff has also claimed Rs.300/- as the value of the property described in Schedule 3 to the plaint and also Rs.7,200/- as mesne profit for wrongful possession of the land in suit. 2. The plaintiffs case is that late Khan Bahadur Hazi Hafiz Mahammad (who will be hereinafter called Hafiz Mohammad for the sake of brevity), had lease-hold right as a tenant of the land in suit under defendant No.15, Radha Madhab Deity. Hafiz Mahammad died leaving behind considerable property in undivided India and after his death disputes arose among his successors and title suit No.1096/41 was instituted in the High Court of Calcutta which appointed Receivers and kept the properties under their management. Plaintiff Ahmed Hussain is the present Receiver. Immediately after his appointment as Receiver in 1960, Ahmed Hussain came to Silchar to look after the management of the properties of the Estate in September, 1961, and came to know that defendant No.1 was in unauthorised occupation of the land of Schedule 1 of the plaint in collusion with the other defendants. It is alleged by the plaintiff that the properties of the aforesaid Estate were left in charge of one Abdul Waheb Bepari, a businessman of Silchar as a care-taker. Abdul Waheb sold out the properties in suit without any authority to defendant No.2 Abdul Jalil, who in turn, sold the properties to the defendant No.1, Khan Sahib Gabju Mea Choudhury. It is alleged by the plaintiff that the properties of the aforesaid Estate were left in charge of one Abdul Waheb Bepari, a businessman of Silchar as a care-taker. Abdul Waheb sold out the properties in suit without any authority to defendant No.2 Abdul Jalil, who in turn, sold the properties to the defendant No.1, Khan Sahib Gabju Mea Choudhury. After his wrongful possession the defendant No.1 has dismantled one of the houses in part and removed the C.I. sheets fencing around the compound of the Schedule 1 land and himself was constructing a big building on the suit land without any permission from the plaintiff, and in spite of protest, he completed the construction The plaintiff came to know from the Shebait of defendant No.15 that defendant No.1 paid rents for the years 1365 to 1368 B.S. for the suit land as well as the other lands and obtained receipts. The payments of these rents were without any authority and made with an ulterior motive. It is further averred that there is no relationship of landlord and tenant between defendant No.1 and the plaintiffs Estate and that defendant No.1 is a trespasser. Hence the present suit. 4. Only defendant No.1 has filed a written statement and contested the suit. He admits that the property in suit belongs to defendant No.15 and that Hafiz Mahammad had a lease-hold right in respect of the suit land under defendant No.15. He avers that Hafiz Mahammad constructed 2 godowns, one guddighar, one kitchen, one latrine etc. on the suit land and possessed the same through tenants. After his death litigations started in the High Court of Calcutta which appointed Receivers to look after and manage properties left by Hafiz Mahammad. Accordingly, it is further alleged "the Receiver settled the aforesaid houses in the vacant suit land with Abdul Waheb Bepari as Bharatia in respect of the houses as tenant (Dar-Jotedar) in respect of the vacant land on en annual consolidated rent of Rs.220/-. The said Abdul Weheb Bepari taking settlement of the houses as Bharatia and vacant land as tenant (Dar-Jotedar) at an annual consolidated rent, entered into possession. This consolidated rent of Rs.220/- was subsequently raised to Rupees 325". The said Abdul Weheb Bepari taking settlement of the houses as Bharatia and vacant land as tenant (Dar-Jotedar) at an annual consolidated rent, entered into possession. This consolidated rent of Rs.220/- was subsequently raised to Rupees 325". Abdul Waheb Bepari, it is further averred, during his occupation as tenant, constructed a shed on the tenanted vacant land after obtaining permission from the Silchar Municipality and rented out the same to one Walli Mia on monthly basis. On November 5, 1957 Abdul Waheb sold the houses constructed by him and the tenancy right over the vacant land and his right of tenancy and possession in respect of the houses of Hafiz Mahammad to Abdul Jalil by registered deed of sale for a sum of Rs.3,000/-; Abdul Jalil (defendant No.2) in turn, sold his rights in respect of the land and the houses to defendant No.1 who got mutation of his name in the Municipal records in place of Abdul Waheb Bepari and paid taxes to the Municipality. It is further alleged that under the direction of Hafiz Mahammad Estate, Abdul Waheb Bepari used to pay his rent of Rs.220/- (later enhanced to Rs.325/-) to Defendant No.15. The said amount was the rent for the entire Estate of Hafiz Mahammad. The Defendant has been paying the said rent to defendant No.15 with the full knowledge and consent of the Estate. From time to time defendant No.1 did repair works to the existing houses and incurred an expenditure of Rs.1,075.75 in repairing works and also paid Rs.858 as municipal taxes for the holding. In 1955, it is further alleged, plaintiff Ahmed Hussain with some of his relatives came to Silchar and approved the payment of rent to defendant No.15 and of the taxes to the Municipality. It is further alleged that the plaintiff assured defendant No.1 that he would enjoy the same right and privileges and status as those enjoyed by Abdul Waheb Bepari in respect of the suit property. Defendant No.1 constructed a big pucca building at a cost of Rs.25,000/- with the consent and lull knowledge of the Receiver. Pro forma defendant No.15 has realised rents from defendant No.1 in respect of the entire Estate from 1365 to 1367 B.S. under the instructions of "the Receiver and the plaintiff". Defendant No.1 constructed a big pucca building at a cost of Rs.25,000/- with the consent and lull knowledge of the Receiver. Pro forma defendant No.15 has realised rents from defendant No.1 in respect of the entire Estate from 1365 to 1367 B.S. under the instructions of "the Receiver and the plaintiff". When rents for 1358 B.S. was sent to Pro forma defendant No.15, it was refused by him on the ground that the term of the lease had already expired. Defendant No.1 further asserts that he is not in wrongful possession of the suit land and as such he is not liable for mesne profit as claimed. 5. The learned Assistant District Judge framed as many as 13 issues of which issue Nos.3 to 7 were unnecessary and not pressed before him. The other issues are as follows:- "1. Is there any cause of action against the answering defendant? 2. Is the suit maintainable in the present form and manner? 8. Is the suit maintainable without notice of ejectment? 9. Did Abdul Waheb Bepari possess the vacant suit land as tenant under the plaintiffs estate end as Bharatia in respect of the houses of the estate over the suit land? 10. Has the answering defendant been inducted into the suit properties by Abdul Waheb Bepari and is the answering defendant in lawful possession by derivative right from the previous tenant, Abdul Waheb, and does the relationship of landlord and tenant exist between the parties or is the defendant in wrongful possession as alleged in the plaint? 11. Is the plaintiff entitled to khas possession without legally determining the tenancy right of the defendant? 12. Is the plaintiff entitled to mesne profit and if so what is the amount? 13. To what relief, if any, is the plaintiff entitled?" 6. The learned Sub-Judge answered issue No.1 in favour of the plaintiff and he dealt with issues Nos.2, 8, 9 and 10 together. The learned Sub-Judge after trial held that defendant No.1 was a tenant in respect of the suit property and therefore the suit was not maintainable in the present form and the defendant No.1 could not be evicted without any ejectment notice and dismissed the suit for eviction but declared plaintiffs tenancy right under defendant No.15. 7. The only point involved in this case is whether defendant No.1 is a tenant in respect of the suit land. 7. The only point involved in this case is whether defendant No.1 is a tenant in respect of the suit land. Admittedly Abdul Waheb sold the land by registered deed to defendant No.2, Abdul Jalil, who in turn sold the land by registered deed to defendant No.1 Gabru Mea Choudhury. Mr. S.K. Ghose, learned counsel for defendant No.1, respondent submits that once it is established that Abdul Waheb was a tenant, defendant No.1 would be a "tenant" as defined under Section 3(g) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (Assam Act XII of 1955) and there-fore he cannot be evicted without a notice under Section 11 of the aforesaid Act. Alternatively, Mr. Ghose submits, in any case, the defendant has been recognised by the plaintiff as a tenant directly under him in respect of the suit properties and therefore he cannot be evicted without a notice of ejectment and he is also entitled to other benefit under Assam Act XII of 1955. The moot point therefore is whether any tenancy was created in favour of Abdul Waheb by the Receiver. In para. 15(b) of the written statement it was averred that "the Receiver" settled the houses and the vacant land with Abdul Weheb. Admittedly the present Receiver is the plaintiff Ahmed Hussain, who was appointed by the Calcutta High Court by an order dated September 9, 1960 proved as Ext.3 in the suit, and by that very order. Syed Ahmed Ali Khan had been discharged as Receiver. From the evidence of P.W.2, Arjon Ali, it appears that before Ahmed Ali Khan one Abjol Ali was the Receiver. The plaintiff Ahmed Hussain having been appointed Receiver in September, 1960, and Abdul Waheb having claimed tenancy since before 1957, the tenancy if any in his favour, must have been created by Ahmed Ali Khan or Abjol Ali and not by Ahmed Hussain. In the written statement he has not stated as to which Receiver granted the tenancy. 7-A. Let us now see if the tenancy was created by any of the earlier Receivers. Defendant No.1 relies on Exts.G, H, A series 9 series, J. series, Ext.C and oral evidence in support of his claim of tenancy. Ext.G is a letter to defendant No.1 from "S.A.A. Khan" the signatory, alleged to be the Receiver, Syed Ahmed Ali Khan. The letter is dated 7th December, 1957. Defendant No.1 relies on Exts.G, H, A series 9 series, J. series, Ext.C and oral evidence in support of his claim of tenancy. Ext.G is a letter to defendant No.1 from "S.A.A. Khan" the signatory, alleged to be the Receiver, Syed Ahmed Ali Khan. The letter is dated 7th December, 1957. The relevant portion of the letter is as follows:- "Your telegram dated 24th November, 1957 and letter dated 25th November, 1957 to hand. You are treated as a trespasser and you are hereby asked to give up possession to my authorised agent who will be proceeding there very soon. If you fail to deliver possession to my said agent legal steps will be taken against you to eject you from the said godown. Yours faithfully, Sd/- S.A.A. Khan." It is submitted by defendant No.1 that this document proves an admission of the tenancy by the Receiver S.A.A. Khan in favour of Abdul Waheb Bepari, The defendant No.1 has not proved the telegram dated 24th November, 1957 and the letter dated 25th November. 1957 referred to in Ext.G. Ext.G is too vague to constitute any admission of any tenancy. It does not refer to any definite tenancy - whether the tenancy is in respect of house or land or both or to the situation of the demised property, if any. An admission must be clear, unambiguous and conclusive. Admittedly there is no document of the lease created in favour of Abdul Waheb. It has been held by the Supreme Court in the case of - Chikkam Koteswar Rao v. Chikkam Subbarao reported in AIR 1971 Supreme Court 1542 as follows:- "Before right of party can be considered to have been defeated on the basis of an alleged admission by him the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission." That apart, it has not been proved actually as to who wrote Ext.G. The signature "S.A.A. Khan" has not been proved to be the signature of "Syed Ahmed Ali Khan, Barrister-at-law". Receiver appointed by the Calcutta High Court. In my opinion Ext.G does not amount to an admission of tenancy created by any Receiver in favour of Abdul Waheb. Ext.H is a letter dated 15th of September, 1942, addressed to Abdul Waheb by one S.A. Afzal. Receiver appointed by the Calcutta High Court. In my opinion Ext.G does not amount to an admission of tenancy created by any Receiver in favour of Abdul Waheb. Ext.H is a letter dated 15th of September, 1942, addressed to Abdul Waheb by one S.A. Afzal. The relevant portion of the letter is as follows:- "Dear Sir, The same is receiving my attention and as soon as the inquiry is completed I shall be further communicating with you in this regard. However in the mean time I would like to know if this is the final offer of yours. Further, in order that I may be in a position to know the rental value of these godowns could you possibly give me the details as to the area of land and the structure on the same. Also please let me know if we have to undertake any repairs before or during your tenancy. An early reply will enable us to deal with the matter soon. Yours faithfully, Sd/- S.A. Afzal" Although it has not been proved who is the signatory, S.A. Afzal was, we may presume in the circumstances that he was the "Abjol Ali" mentioned as one of the Receivers by P.W.2 in his deposition. Ext.H is a mere correspondence preceding the creation of some tenancy. This letter speaks of "undertaking some repairs before or during your tenancy". It is clear that some tenancy was under contemplatation but not created. Exts.A to A(4) are the receipts granted by the Shebait of defendant No.15. The tenant here is shown to be "Haji Hafiz Md. Hussain Khan Bahadur of Silchar, Madhurband". The name of the person "through whom paid" is Abdul Waheb. These documents do not show that Abdul Waheb was a tenant in respect of the suit land either under defendant No.15 or under the Khan Bahadur Estate. The plaintiffs case is that Waheb was only a caretaker in respect of the property. The payment of the rents by Abdul Waheb on behalf of the Estate to the landlord defendant No.15 is consistent with, the plaintiffs case. These documents do not show that Abdul Waheb was making payment of rents on his own behalf as a tenant, but on behalf of the tenant. "Haji Hafiz Mahammad Khan Bahadur". The defendant in his evidence has Stated that he has no paper to show that the Receiver save any settlement to Abdul Waheb. These documents do not show that Abdul Waheb was making payment of rents on his own behalf as a tenant, but on behalf of the tenant. "Haji Hafiz Mahammad Khan Bahadur". The defendant in his evidence has Stated that he has no paper to show that the Receiver save any settlement to Abdul Waheb. He has also stated that he has no witness to prove settlement by any of the Receivers with Abdul Waheb. He has also stated that he himself was not present when Abdul Waheb took settlement and has no oral evidence to prove the alleged settlement in favour of Abdul Waheb. Ext.C is a Municipal permission for construction. Exts.9 to 9(10) are municipal tax receipts and J and J(2) are the rent receipts granted by defendant No.15. These documents are not printed in the paper book. Exts.9 to 9(10) ere not denied by the plaintiff. These documents merely prove that certain constructions are on the suit land and in respect of those constructions the defendant is paying taxes to the municipality. The plaintiffs case is that they are unauthorised constructions made by the defendant No.1 on the suit land. These documents do not prove any tenancy in favour of Abdul Waheb. P.W.1 Namor Ali Borbhuiyan deposed that one Abdul Waheb was the last Karmachari of Md. Hafiz. This evidence shows that Abdul Waheb was merely an employee of the Estate and had no authority on his part to lease out any property has been proved in the case. In cross-examination a question was put to P.W.2 Arjon Ali whether he could deny that Abdul Waheb was a tenant in respect of the suit land in question. The answer was he could not P.W.2, although an attorney of the present plaintiff, naturally could not say whether any tenancy which is alleged to have been created much earlier, had been created in favour of Abdul Waheb. It was for the defendant to prove the tenancy. 8. Mr. Ghose relying on an observation of the learned Assistant District Judge very strenuously contends that the failure of the plaintiff. Ahmed Hussain to examine himself as a witness and deny defendant No.1s claim of tenancy is fatal and lends support to the latters claim that "the Receiver" created the alleged tenancy and his subsequent approval. 8. Mr. Ghose relying on an observation of the learned Assistant District Judge very strenuously contends that the failure of the plaintiff. Ahmed Hussain to examine himself as a witness and deny defendant No.1s claim of tenancy is fatal and lends support to the latters claim that "the Receiver" created the alleged tenancy and his subsequent approval. There is no rule of law that enjoins that the plaintiff must examine himself in every case; he may not examine himself at all. if the burden of proof is upon the defendant. In the present case, the burden is upon the defendant to prove the tenancy claimed. The defendants case is not that Ahmed Hussain himself created the tenancy which the latter must examine himself in court to deny. Relying on Exts.A series, C, G and H, the learned Assistant District Judge held that a tenancy had been created in favour of him. The finding is erroneous and cannot be sustained. 8-A. In the result therefore the defendant has failed to prove that any tenancy was created in favour of Abdul Waheb in respect of the suit land. The tenancy claimed by the defendant No.1 to have been derived through Abdul Jalil and Abdul Waheb falls through. The defendant No.1 therefore, cannot claim that he is a tenant within the meaning of Section 3(g) of the Assam Act XII of 1955. 9. This leaves us with the alternative claim of the defendant No.1 namely, that he was recognised by the plaintiff as tenant. The learned Counsel appearing on behalf of the tenant-respondent strongly relies on the following evidence as defendant No.1. "The present Receiver i.e. the plaintiff and his sisters husband and his maternal uncle and manager came to Silchar when I purchased the land. They visited the D/- Holding and they visited my house and took their meal in my house. At that time the Receiver asked me to pay the ground rent of Rs.325/-to defendant No.15 and gave me permission to erect house and Rave settlement of the houses and lands at Rs.325/- to me annually. They also directed me to pay the amount of Rs.325/- to defendant No.15 for the rent of the S/L and other lands held by them under the Bigraha." This evidence does not stand any scrutiny. The defendant No.1 purchased the land on 12-12-1957. They also directed me to pay the amount of Rs.325/- to defendant No.15 for the rent of the S/L and other lands held by them under the Bigraha." This evidence does not stand any scrutiny. The defendant No.1 purchased the land on 12-12-1957. The allegation therefore is that the present plaintiff Ahmed Hussain came to Silchar and visited the disputed property at that time and authorised him to make all the payments of the rents to defendant No.15. It is overlooked that Ahmed Hussain was appointed Receiver only in September, 1960. Naturally therefore he could not have accepted or recognised the defendant as tenant in respect of the suit land in 1957. That apart the plea that alternatively the defendant was accepted as tenant directly by the plaintiff under him was not taken in the written statement. That matter has not been gone into by the trial court. There is no evidence on record to show that the plaintiff recognised him as a tenant. In my opinion, therefore, the defendant has failed to prove that he was a tenant in respect of the suit land and therefore the learned trial Judge erred in holding that defendant No.1 was a tenant and that the suit was not maintainable without a notice for ejectment. In my opinion, the defendants are trespassers and liable to be evicted without any notice. 10. The evidence of P.W.2, who is an attorney of the plaintiff, proves that the suit house would fetch Rs.200/-as monthly rent had it been let out about 2/3 years before the date of dispossession. The plaintiff claims mesne profit @ Rs.200/- per month from May, 1960 to April, 1963. Therefore, the total amount of mesne profit comes to Rupees 7,200/- which amount has been claimed in the plaint. The plaintiff is entitled to mesne profit of Rs.7,200/-. The plaintiff has not adduced any evidence to prove his claim of Rs.300/-as the value of the properties described in Schedule 3. This claim is rejected. 11. In the result, the plaintiffs suit is decreed for declaration of tenancy right and for khas possession against defendant No.1 on contest and ex parte against the other principal defendants, and the amount of Rs.7,200/- claimed as mesne profit is also decreed against defendant No.1. 12. The appeal is allowed with costs. Appeal allowed.