JUDGMENT This is an appeal by the plaintiff against the judgment of the City Civil Court, Calcutta dismissing his suit. The allegations made in the plaint are as follows: The defendant inducted Messrs. Industrial Transport Service, of which the plaintiff is the proprietor, since August, 1961 as a tenant in respect of one room on the ground floor of premises No. 7, Tara Chand Dutta Street (also known 7A, Tara Chand Dutta Street) Calcutta at a monthly rent of Rs. 55/- according to English calendar month and since then the plaintiff had been in exclusive possession of the tenanted premises. At the time of induction, the plaintiff also paid to the defendant a sum of Rs. 700/- as Selami. Since February, 1964 the defendant had been threatening to increase the rent of the suit premises which the plaintiff refused to oblige and the defendant took various measures to oust the plaintiff from the tenancy. The defendant refused to accept the rent for the month of April, 1964 when tendered by the plaintiff according to law and thereafter the plaintiff deposited rent with the Rent Controller, Calcutta month by month as the proprietor of the said Industrial Transport Service. Several criminal cases started between the parties but the defendant failed to dispossess the plaintiff and with the mala fide motive brought a case under section 41 of the Presidency Small Cause Court Act for recovery of possession of the suit premises being S.C.C. Suit No. 1862 of 1965. The summons of the suit were suppressed and the defendant fraudulently obtained an ex parte decree in the said suit. The plaintiff thereafter filed an applications under Order 9, Rule 13 of the Civil Procedure Code and the decree was set aside on 8.2.66. The case was made by the defendant in the above suit by setting up a story that the plaintiff was a licencee under the defendant and the licence was revoked. The plaintiff averred that the case of licence was untrue as he was a tenant as the proprietor of Industrial Transport Service under the defendant. The case was made by the defendant in the above suit by setting up a story that the plaintiff was a licencee under the defendant and the licence was revoked. The plaintiff averred that the case of licence was untrue as he was a tenant as the proprietor of Industrial Transport Service under the defendant. Accordingly the suit was instituted on 23rd March, 1966 by the plaintiff praying for a decree of permanent injunction restraining the defendant from proceeding further with S.C.C. Suit No. 1862 of 1965 which was stayed in the meantime and also for a declaration that the plaintiff's firm under the name and style of Industrial Transport Service was a tenant in respect of the suit premises. 2. The suit was contested by the defendant who filed written statement denying all material allegations in the plaint. The defendant denied that the plaintiff had any tenancy under him in respect of the suit premises as alleged or that he accepted any amount as Selami. It was further stated that there was no occasion for receiving or refusing rent from the plaintiff in the circumstances stated above. It was further stated that the plaintiff brought criminal case being Case No. 126/64 against the defendant's brother and son in the Court of Presidency Magistrate, Calcutta under sections 448 and 380 which ended in acquittal of the accused persons. In that criminal case the plaintiff filed forged rent receipt and a proceeding under section 476 of Criminal Procedure Code was started against the plaintiff. It has been stated before me that the said criminal case led to a sessions trial under sections 467 and 471 India Penal Code which ultimately ended in the acquittal of the plaintiff. The defendant further stated that the plaintiff was not in exclusive possession of the room and the articles of the defendant including the compressor machine oil drums, furniture etc. were all along kept in that room and the defendant's servant also slept there. It was reiterated that the plaintiff was the licencee and the suit in the Small Causes Court was filed after revocation of the licence as required under the law. For all these reasons it was submitted that the plaintiff was not entitled to any relief under the Act. 3. On the above pleadings the trial court framed the following issues :- (1) Is the plaintiff a tenant or a licencee ? For all these reasons it was submitted that the plaintiff was not entitled to any relief under the Act. 3. On the above pleadings the trial court framed the following issues :- (1) Is the plaintiff a tenant or a licencee ? (2) Has the defendant ever inducted the plaintiff as a tenant in respect of one room in the ground floor of the Premises No. 7, Tara Chand Dutta Street (7A, Tara Chand Dutta Street) ? (3) Is the plaintiff entitled to any declaration, parmanent injuction and compensation as prayed for? During the trial the plaintiff examined several witnesses and plaintiff's witness Nos. 1,2,3,4,5,6 and 8 are more or less formal witnesses who proved several documents filed by the plaintiff. The plaintiff wanted to establish through this evidence that he was a transport contractor with his office at the suit premises and had business with several parties, had corporation licence as a transport contractor since about 1963-64. Some documents also have been produced to show that the plaintiff was required to take out a licence as required under section 3 of the Motor Transport Works Act. Further there is correspondence in connection with the proposal for putting in a telephone line in the suit premises in the name of the plaintiff's business. A money order receipt was produced showing tender of money order for the month of April, 1964 which was returned to the plaintiff at the said address with the endorsement "left". Several other postal acknowledgement receipts have been filed which show the address of the plaintiff at the suit premises. The plaintiff also filed rent challans showing deposit of rent from June, 1964 to June, 1966 although some of the challans it appears were not marked exhibits obviously through inadvertence. P.W.7 was a Durwan of the trust estate which owned the suit premises and his evidence was that he had seen the plaintiff living in the suit premises which is a garage for 7/8 years and the plaintiff as also others used to sit in the garage though the witness could not who kept the key of the garage. It was further stated by this witness that he had never seen the plaintiff or his son using the air compressor machine. It was further stated by this witness that he had never seen the plaintiff or his son using the air compressor machine. The plaintiff himself is witness No. 9 and he gave evidence about supporting the allegations made by him in the plaint, and, also proved the documents other than those mentioned above. The plaintiff however said that he had no lorry or vehicle and he secured order for carriage of goods by lorry and also secured necessary lorry and purchased petrol as was required. He also stated that he was a road transport contractor and not a dalal. 4. On behalf of the defendant evidence was adduced apart from the defendant himself by one N.N. Sen, D.W. 2 of Burma Shell, who said that his company installed the air compressor machine to various dealers and likewise air compressor of 7A, Tara Chand Dutta Street was sold to the dealers also to the dealer Indian Motor House. D.W. 3 is the elder brother of the plaintiff who also denied having let out the suit room to the plaintiff or about taking any rent or Selami from him. It was stated that the plaintiff was a broker in lorry transport and used to sit in the room alongwith other similar brokers with the permission of the defendant and the plaintiff was also one of such brokers. D.W. 4 Dilip Chakrabarty, D.W.5 Keramat also stated in evidence that they were acting as such brokers and used to sit in the garage which is the suit premises, for the purpose. The defendant himself D.W.1 stated that he heard in 1964 from his brother Fazal Karim that in 1962 he had given the plaintiff permission to use the room. It was further denied that the plaintiff had taken the suit room at a monthly rental of Rs. 55/- or that the room was in possession since August, 1961. It was also stated that the room was all along in the defendant's possession with the air compressor in the room. The defendant further stated that he utilised the brokers for sale of his petrol at his pump at Tara Chand Dutta Street and the plaintiff who only acted as broker and other transport dalals sat in the suit room with his permission. 5. The defendant further stated that he utilised the brokers for sale of his petrol at his pump at Tara Chand Dutta Street and the plaintiff who only acted as broker and other transport dalals sat in the suit room with his permission. 5. The trial court on the above evidence came to the finding that the plaintiff had failed to establish his case that he was a tenant in respect of the suit premises as alleged and accordingly he dismissed the suit. The present appeal is against this decision. 6. Mr. G.N. Roy, learned Advocate appearing for the plaintiff has urged several grounds in support of the appeal. He has contended that the trial court proceeded on certain basic misconception about the facts of the case which completely vitiated his judgment. He drew my, attention to the observation of the trial court that there was no reason for the plaintiff to deposit the rent from November, 1964 onwards when the rent for the month of April, 1964 was refused. There was nothing to prevent the plaintiff from depositing rent for the months earlier to November, 1964 and there was no explanation as to what led him to deposit rent for that month only. The reason according to the trial court was the commencement of criminal proceeding against the plaintiff by the defendant as has been disclosed in the written statement. The trial court also found that the suit property was not in exclusive possession of the plaintiff which would establish the plaintiff's case of tenancy. The trial court did not accept the evidence of the plaintiff as worthy of credit and the only evidence before the Court about his tenancy was his oral evidence. Mr. Roy, contended that these grounds were not sufficient grounds for holding against the plaintiff overlooking the documents which had been produced. The challans show deposit of rent from June, 1964 which was overlooked by the trial court. The same was the position in respect of other documents. Accordingly he submitted that the judgment under appeal being vitiated by basic misconception of fact should not be allowed to stand. The challans show deposit of rent from June, 1964 which was overlooked by the trial court. The same was the position in respect of other documents. Accordingly he submitted that the judgment under appeal being vitiated by basic misconception of fact should not be allowed to stand. He has further submitted that the evidence indicated that the plaintiff had a stable business of transport which would be consistent with the plaintiff's case of tenancy in the suit premises, as no one could carryon business on such a precarious arrangement if it were true and the plaintiff admittedly was no broker of the defendant. 7. Mr. P.N. Mitra, learned Advocate appearing for the defendant respondent has contended on the other hand that the sub-tenancy being prohibited in law it would be highly improbable for the defendant, a tenant himself, to sub-let for no ostensible gain. It was further contended that the evidence of the defendant's witnesses as also of P.W.7 supported the defendants case that the plaintiff was only a broker who was allowed by the defendant to sit in the suit premises to procure work connecting the owners of goods with the owner's of lorries for the purpose of transport on commission basis. He also submitted that the documents adduced on behalf of the plaintiff did not establish that there was any tenancy in respect of the suit premises. 8. It would appear to me on a consideration of the materials on record that the evidence adduced in the case was not sufficient to establish either that the plaintiff was a tenant in respect of the suit premises or that he was a licencee in respect thereof. It is just possible for the plaintiff to act in the manner he sought to establish by his evidence on the basis of a licence. But the real point in controversy is whether the tenancy claimed in the suit has been established. The plaintiff's case has been that the defendant issued only one receipt in his favour in respect of the suit tenancy and thereafter he did not issue any further rent receipt. This rent receipt as it appears was challenged as being forged and in respect thereof criminal proceedings as stated above started which ended in the acquittal of the plaintiff. The plaintiff's case has been that the defendant issued only one receipt in his favour in respect of the suit tenancy and thereafter he did not issue any further rent receipt. This rent receipt as it appears was challenged as being forged and in respect thereof criminal proceedings as stated above started which ended in the acquittal of the plaintiff. There is no dispute that at the time when the suit was being heard, criminal proceeding in the sessions Court had come to an end. The document, therefore, namely the receipt, alleged to have been granted by the defendant in favour of the plaintiff ought to have been produced by the plaintiff to support his case of tenancy. The trial court also noted that this receipt was not produced as according to its view, it might involve the plaintiff to other serious complications and possibly in legal proceeding. This observation may not correct but at the same time this receipt was available to the plaintiff for being produced in Court. From the record I do not find any indication about any attempt made by the plaintiff to produce the receipt from Court if it was lying there. As a result the trial was held without the most important document which only could have been established the truth or otherwise of the plaintiff's claim. Mr. Roy practically has no explanation to offer about the non-production of the document but he has referred me to the other documents of the plaintiff which according to him clearly indicated that the plaintiff was a transport contractor carrying on business with respectable parties. Even so, in absence of the said receipt or of any explanation from the plaintiff, as would appear from the records of the case or of even of any attempt on his part to produce this document in this suit, I am unable to hold on the materials on record that the plaintiff has been able to establish his case of tenancy of the suit premises under the defendant. In his suit the plaintiff has to prove affirmatively his claim and mere weakness on lacuna of defence will not entitle him to a decree. Further, as has been contended by Mr. Mitra, non-production of this document by the plaintiff would lead to adverse presumption against him particularly in absence of any case of any impediment in producing the document by the plaintiff. Further, as has been contended by Mr. Mitra, non-production of this document by the plaintiff would lead to adverse presumption against him particularly in absence of any case of any impediment in producing the document by the plaintiff. 9. For all these reasons I am of opinion that the plaintiff has not been able to establish his case and the suit was rightly dismissed by the trial court. The appeal accordingly fails and is dismissed. There will be no order as to costs in this appeal. Mr. Roy plays for stay of operation of this judgment for a period of six weeks. The prayer is granted.