JUDGMENT - B.M. SAPRE, J.:---This is a plaintiffs appeal from a judgment and decree dated 13th September, 1965 of the City Civil Court, Bombay, in Short Cause Suit No. 2433 of 1959, dismissing his suit on the footing of a licence. It is not in dispute that the plaintiff is a tenant in respect of a premises on the third floor in building No. 187, Dadyseth Agiary Lane, Bombay-2 consisting of three rooms . The suit premises consists of one room which is at the end of the premises of which the plaintiff is a tenant. According to the plaintiff the defendant as his friend and in order to accommodate him for a period of six months, he gave the suit room to the defendent as a licensee without charging any rent. The defendant executed an agreement dated 23rd December, 1958 for that purpose. The period expired on 23rd June, 1959. But the defendant did not vacate the room. When the plaintiff called upon the defendant to remove himself from the room, the defendant sent him a false telegram on 22nd July, 1959 claiming sub-tenant of the room. The plaintiff thereupon on 23rd July, 1959 revoked the licence, although it was not necessary because the licence had expired by affluex of time, and filed the present suit on 7th August, 1959 for possession of the suit room. The case of the defendant was that he was in possession of the suit room as a sub-tenant of the plaintiff. He admitted having executed the agreement on 23rd December, 1958, but contended that it was meant only for the protection of the plaintiff against his own landlord who might seek eviction of the plaintiff from the premises leased out to him on the ground that he had sub-leased a portion of it. The writing was not to be acted upon. In fact, the defendant had come into possession of the suit room on 16th May, 1956 as a sub-tenant of the plaintiff and he was paying rent of Rs. 65/- per month to the plaintiff. The plaintiff, however, did not pass any receipts for the payment of rent. On one occasion, that is, on 19th October, 1957, the defendant paid a sum of Rs. 426/- to the plaintiff by cheque because the plaintiff was in arrears of rent for three months and his landlord was pressing for the payment of the rent. The plaintiff, however, did not pass any receipts for the payment of rent. On one occasion, that is, on 19th October, 1957, the defendant paid a sum of Rs. 426/- to the plaintiff by cheque because the plaintiff was in arrears of rent for three months and his landlord was pressing for the payment of the rent. This amount was adjusted against the rent which the defendant was liable to pay to the plaintiff at the rate of Rs. 65/- per month. The defendant was thus a sub-tenant of the plaintiff and not a licensee and the plaintiff could not evict him except under the provisions of the Bombay Rent Act. At the trial, the defendant on whom the burden of proof was placed to show that the agreement (Ex. C) dated 23rd December, 1958 was not meant to be acted upon, examined himself and mainly relied upon (Ex. 1), which is the counterfoil of the cheque for Rs. 426/- dated 19th October, 1957 issued in the name of the plaintiff, and (Ex. 2) his Bank pass-book, showing the debit of the above amount of the cheque, in support of his case that he had paid Rs. 426/- to the plaintiff as rent. As against this, the plaintiff examined himself and produced in evidence an agreement (Ex. E) dated 16th May, 1956, admitting thereby that the defendant was occupying the suit room from 16th May, 1956 as claimed by the defendant in his written statement but to disprove the case of the defendant that he was a sub-tenant of the plaintiff, inasmuch as the agreement (Ex. E) was also an agreement of licence and not of sub-lease. The plaintiff did not dispute the receipt of Rs. 426/- from the defendant by a cheque dated 19th October, 1957, but came forward with a suggestion to the defendant in his cross-examination as also in his own evidence that this was the amount repaid by the defendant to the plaintiff towards the advance of a loan of Rs. 500/- which the plaintiff had made to the defendant. The plaintiff in his examination-in-chief however, did not rely upon any document to support his case of loan of Rs. 500/-. But, in cross-examination, on the insistence of the defendant, the plaintiff produced his diary (Ex. 6), described as a cash book, to show that on 3rd February, 1957, he had advanced Rs. The plaintiff in his examination-in-chief however, did not rely upon any document to support his case of loan of Rs. 500/-. But, in cross-examination, on the insistence of the defendant, the plaintiff produced his diary (Ex. 6), described as a cash book, to show that on 3rd February, 1957, he had advanced Rs. 200/- to the defendant and on 23rd June, 1957, he had further advanced a sum of Rs. 300/- to the defendant and on 19th October, 1957, the defendant had repaid Rs. 500/- towards the above advances, Rs. 426/- by the cheque referred to above and Rs. 74/- by cash payment. On appreciating the evidence adduced by either side, the learned Judge of the trial Court accepted the case of the defendant and rejected that of the plaintiff. He held that the cheque for Rs. 426/- given by the defendant to the plaintiff on 19th October, 1957 was towards rent. He disbelieved the plaintiffs case that he had advanced any loan or that the cheque of Rs. 426/- given by the defendant to him on 19th October, 1957 was in repayment of that loan. He thus held that the defendant was a sub-tenant of the plaintiff in the suit room and he was not a licensee as alleged by the plaintiff. He, therefore, dismissed the suit of the plaintiff for possession of the room on the foot of a licence. It is against that decree that the present appeal has been filed. In support of the plaintiffs appeal, Mr. Andhyarujina has submitted that the defendant having admitted the execution of the agreement (Ex. C) dated 23rd December, 1958, a heavy burden lay on him to show that the agreement was not to be acted upon and it was brought into existence for the protection of the plaintiff against his own landlord. That burden had not been discharged. Since the parties had chosen to bring into existence a written agreement, the question, whether the parties intended to bring into existence a lease or a licence, had to be decided on the terms of the agreement itself. Only where there was no formal document executed or where a document had been brought into existence but its terms were either vague or not quite clear, that evidence of the surrounding circumstances could be given to find out the real intention of the parties. Only where there was no formal document executed or where a document had been brought into existence but its terms were either vague or not quite clear, that evidence of the surrounding circumstances could be given to find out the real intention of the parties. In this case, there is a written agreement and its terms are not vague or otherwise ambiguous and, therefore, oral evidence of the surrounding circumstances to find out what the real intention of the parties was could not be given. Mr. Andhyarujina placed reliance on the decisions in (Sohan Lal v. Laxmidas)1, 74 Bom.L.R. 144 (S.C.) and (M.N. Clubwala v. Fida Hussain Saheb)2, A.I.R. 1965 S.C. 610 and on some passage from Halsburys Laws of England, Volume 23, para 1022 at page 427. Mr. Andhyarujina then submitted that the defendants credibility was destroyed because he had gone to the extent of denying his signatures on (Ex. E) the earlier agreement dated 16th May, 1956 between the parties when it was his own case that he had come to occupy the room in suit on 16th May, 1956. The lower Court had, therefore, erred in believing the evidence of such a person. There was also evidence to show that exclusive possession of the suit room was not given to the defendant because the three rooms had a common outer door and this used to be kept locked by the plaintiff and, therefore, the defendant could not make exclusive use of the suit room. Moreover, the children of the plaintiff also used to sleep in the suit room and in this way also, its exclusive possession was not given to the defendant. Finally, although the defendant had alleged in his written statement that he had ample evidence to prove the payment of rent by him at the rate of Rs. 65/- per month, including documentary evidence, that evidence had not been produced. Barring the cheque of Rs. 426/-, he had adduced no documentary evidence to prove the payment of rent. His story that Rs. 426/- represented the rent could not be believed because the rent was Rs. 65/- per month and Rs. 426/- was not a multiple of Rs. 65/-. To explain this, the defendant had come forward with a theory that he had paid Rs. 29/- in cash, thus making a total of Rs. 455/- which was a multiple of Rs. 426/- represented the rent could not be believed because the rent was Rs. 65/- per month and Rs. 426/- was not a multiple of Rs. 65/-. To explain this, the defendant had come forward with a theory that he had paid Rs. 29/- in cash, thus making a total of Rs. 455/- which was a multiple of Rs. 65/- and constituted rent for seven months. But in his own evidence, the defendant had not stated that he had paid Rs. 29/- in cash. As against this, the plaintiffs case was that Rs. 426/- was an amount of repayment of the loan of Rs. 500/- which the plaintiff had advanced to the defendant. That case was clearly borne out by the entries in the cash book (Ex. 6). The learned trial Judge found the entries in (Ex. 6) suspicious on account of some irregularities, but those were not put to the plaintiff in cross-examination and he was not given an opportunity to explain those irregularities. It was, therefore, not correct for the learned Judge to hold, on the basis of those irregularities, that the entries in the cash book (Ex. 6) were suspicious and to reject the case of the plaintiff on that ground of his having advanced a loan of Rs. 500/- to the defendant and the cheque of Rs. 426/- dated 19th October, 1957 being towards the repayment of that loan. The main question that falls for consideration in this appeal is whether the defendant is sub-lessee of the plaintiff in the suit room and not a licensee. The defendant having executed the agreement (Ex. E) dated 23rd December, 1958 and having admitted its execution, the burden was on him to prove that the agreement was not meant to be acted upon and it was brought into existence only for the protection of the plaintiff against his own landlord. That burden was rightly placed by the trial Court on the defendant and it was for that reasons that the defendant was asked to adduce evidence first. The trial Court found that the defendant had discharged that burden and it remains to be seen whether that finding is correct. The two decisions of the Supreme Court and a passage from Halsburys Laws of England relied upon by Mr. Andhyarujina are, in fact, not in point. The question in this case is not whether the agreement (Ex. The trial Court found that the defendant had discharged that burden and it remains to be seen whether that finding is correct. The two decisions of the Supreme Court and a passage from Halsburys Laws of England relied upon by Mr. Andhyarujina are, in fact, not in point. The question in this case is not whether the agreement (Ex. E) is a lease or a licence. The case of the defendant is that he came into possessio of the room in suit forming part of the plaintiffs tenement as a sub-tenant of the plaintiff in May 1956. The plaintiff, however, got the agreement (Ex. C) executed by the defendant stating that the document was not to be acted upon what it purported to be and it was only meant to show to the plaintiffs landlord so that he did not take any action against the plaintiff under the provisions of the Bombay Rent Act for having sub-let a part of the tenament in the plaintiffs possession as a tenant. It is nowhere the case of the defendant that (Ex. C) was the agreement of lease. There is, therefore, no question of interpretation of the agreement (Ex. C) in order to find out whether the intention of the parties was to create a lease or a licence. At page 781 of Sarkar on Evidence, Volume I, Twelth Edition, under the heading section 91 or section 92 Does Not Exclude Extrinsic Evidence to Show That There Was No Agreement or Transection At All and, Therefore, No Contract", the learned author, on the basis of judicial decisions, has observed that while oral evidence to contradict, vary, add to, or subtract from the terms of the writing is excluded only when there is an actual contract between the parties, parol evidence may be admitted to prove that there was no agreement at all. In other words, oral evidence to show that the document was never intended to operate as an agreement but was brought into existence solely for the purpose of creating evidence of some other matter is not excluded by section 91 or section 92. Even assuming for the sake of argument that it was under the agreement (Ex. C) dated 23rd December, 1958 or under the earlier agreement (Ex. Even assuming for the sake of argument that it was under the agreement (Ex. C) dated 23rd December, 1958 or under the earlier agreement (Ex. E) dated 16th May, 1956 that the defendant had come to occupy the suit room, although that is not the case of the plaintiff, under the sixth proviso to section 92, extrinsic evidence was admissible of the surrounding circumstances for ascertaining the meaning of the words licensor and licensee used in these agreements. That was the view expressed in M.N. Clubwala v. Fida Hussain Saheb. Now, it is the case of the plaintiff that he wanted to accommodate the defendant for a period of six months as he was his friend and, therefore, he allowed the defendant to occupy the suit room on 23rd December, 1958. It was neither his case nor has it been stated in the agreement (Ex.C) that the defendant was occupying the suit room even prior to 23rd December, 1958. It was when the defendant came with the case that he was in possession of the room from 16th May, 1956 that the plaintiff came forward with the earlier agreement (Ex. E) dated 16th May, 1956. At that stage, the plaintiff wanted to take advantage of the fact that, even on the earlier occasion, from the agreement that had been executed by the defendant, only a licence and not a lease could be spelled out. Monday, 28th February, 1977. It is interesting to note that the material recitals in (Ex. C) and (Ex. E) are similar. (Ex.E) was also for a period of six months and the so called licence came to an end on 16th November, 1956. There was a specific Cause No. 9 in (Ex.E) to extend the agreement for a further period of six months, if the parties so desired, by their written consent on the terms and conditions mentioned in (Ex.E). It is not the case of the plaintiff that there was a fresh writing to extend the agreement (Ex.E) for a further period of six months. But it is the admission of the plaintiff that the defendant had continued to occupy the suit room even after 16th November, 1956 and he was in such occupation till 23rd December, 1958 when the agreement (Ex.C) was executed. But it is the admission of the plaintiff that the defendant had continued to occupy the suit room even after 16th November, 1956 and he was in such occupation till 23rd December, 1958 when the agreement (Ex.C) was executed. It is difficult to believe that the plaintiff would have allowed the defendant to occupy the suit room without any payment and without getting any agreement, like (Ex.E), executed from his for the period from 16th November, 1956 to 23rd December, 1958. In (Ex.E) it was stated that the defendant was badly in need of accommodation for residence for a short period and the plaintiff was accommodating him in the suit room, because they were friends, for a short period of six months only so as to enable the defendant to search for other accommodation. In (Ex.C), no reference was made to the earlier agreement (Ex.E) at all and the same recitals were mentioned in (Ex.C) that the defendant was badly in need of accommodation for residence for a short period and because the defendant was the friend of the plaintiff, the plaintiff had consented to accommodate the defendant in the suit room for a period of six months only to enable the defendant to search for other accommodation. The recitals in (Ex. C), therefore, do not express the real intention between the parties and support the theory of the defendant that (Ex.C) was not to be acted upon as an agreement of licence but was taken by the plaintiff for his own protection against his own landlord who, in the absence of such a writing from the defendant, might proceed against the plaintiff for breach of the provisions of the Bombay Rent Act of having sublet the premises leased out to him. It is true that the defendant denied having executed the earlier agreement (Ex.E) dated 16th May, 1956 and the learned trial Judge, on comparing the signature of the defendant on (Ex.E) with the admitted signature which he obtained from the defendant, preferred the word of the plaintiff to that of the defendant that (Ex.E) had been executed by the defendant. To that extent, it could be said that the defendant had not stated the truth when he said that he had not executed the agreement (Ex.E). To that extent, it could be said that the defendant had not stated the truth when he said that he had not executed the agreement (Ex.E). But from that alone it could not be said that the defendants credibility is destroyed to the extent of rejecting his case that the agreement (Ex.C) was not meant to be acted upon as an agreement of licence and it was brought into existence merely for the protection of the plaintiff against his own landlord. The plaintiffs own credibility is also destroyed when the came out with the case that the defendant came to occupy the suit room for the first time on 23rd December, 1958 under the agreement (Ex.C). That is the tenor of his case in the plaint. Until the defendant had commen out with the case of his being in possession of the suit room since 16th May, 1956, the plaintiff had not stated that the defendant was in possession of the suit room from 16th May, 1956 and that was under the agreement of licence (Ex.E). As the recitals in both (Ex.E) and (Ex.C) are alike and there is no writing for the period between 16th November, 1956 and 23rd December, 1958, the defendants case is the more probable that he was in possession of the suit room as a sub-tenant paying rent to the plaintiff and only periodically the plaintiff was getting the documents like (Ex.E) and (Ex.C) executed from the defendant merely for his own protection against his own landlord. The credibility of the defendants case is further enhanced by proof of the payment of Rs. 426/- by him to the plaintiff on account of rent. The defendant had come out with this case in his written statement. The plaintiff, who could not possibly deny having accepted a cheque for Rs. 426/- from the defendant dated 19th October, 1957, could meet the case of the defendant only if he could show that he had received that amount from the defendant on some other account and not towards the payment of rent. The plaintiff, therefore, came forward with a case that he had advanced Rs. 500/- to the defendant and the cheque for Rs. 426/- was given by the defendant to the plaintiff towards the repayment of the above amount. The plaintiff, however, came with the above case in a halting and hesitant manner. The plaintiff, therefore, came forward with a case that he had advanced Rs. 500/- to the defendant and the cheque for Rs. 426/- was given by the defendant to the plaintiff towards the repayment of the above amount. The plaintiff, however, came with the above case in a halting and hesitant manner. In the cross-examination of the defendant, it was not suggested what amount the plaintiff had advanced to the defendant. There was only a vague suggestion of a loan without specifying the figure of Rs. 500/- and it was suggested to the defendant that he had repaid Rs. 426/- by a cheque as part-payment of the amount advanced. In his own examination-in-chief, he came out with the figure of Rs. 500/- as a sum he had advanced to the defendant, but did not give the date on which the amount was advanced. It was not even stated whether it was advanced in one lump sum or in two sums. He remained content on his own oral word only for this story of advance and the repayment of Rs. 426/- on 19th October, 1957 towards the above loan. In the affidavit of documents, he did not disclose the cash book (Ex. 6). That shows that the plaintiff himself never wanted to rely upon (Ex. 6) either to show that it contained entries about the advance of Rs. 500/- or entries of repayment of the loan. It was only on the insistence of the defendant that the plaintiff produced (Ex. 6) at a late stage. According to the entries in this cash book, which is now the case of the plaintiff, he had advanced Rs. 200/- to the defendant on 3rd February, 1957 and Rs. 300/- on 23rd June, 1957 and the defendant repaid this amount of Rs. 500/- on 19th October, 1957 when he gave a cheque for Rs. 426/- and paid Rs. 74/- in cash. It is the plaintiffs own admission that if the loan is a short-term loan, it is not entered in the books and that he had never given long-terms loans. If that were so, there seems to be no valid reason for making entries of the advance of loans of Rs. 200/- on 3rd February 1957 and Rs. 300/- on 23rd June, 1957 in (Ex. 6). Apart from the fact that such entries in a book like (Ex. If that were so, there seems to be no valid reason for making entries of the advance of loans of Rs. 200/- on 3rd February 1957 and Rs. 300/- on 23rd June, 1957 in (Ex. 6). Apart from the fact that such entries in a book like (Ex. 6) could be made at any time, the entries dated 3rd February, 1957 and 23rd June, 1957 simply show the debits in the name of the plaintiff and do not show that they were in respect of the loans advanced to the defendant. In regard to the entry dated 19th October, 1957, the entry for Rs. 426/- is in the name of the defendant, but the other entry for Rs. 74/- does not contain the name of the defendant at all. The suggestion to the defendant in cross-examination was that he paid Rs. 426/- by a cheque and the balance (without specifying the amount) subsequently. But (Ex. 6) shows the balance amount of Rs. 74/- to have been also paid on the same date on which the cheque for Rs. 426/- was given. The plaintiff gave vacillating evidence in regard to his account books. He first admitted that he maintained account books in 1955, 1956, 1957 and 1958. But then he changed and said that he had not maintained any books of account in 1956, stating that he started maintaining his books of account from 1957. From this, it is clear that the plaintiff had not produced his real books of account and an adverse inference must be drawn that had he produced them, they would not have supported his story of the advance of any loan to the defendant and repayment of any amount towards that loan. Instead, he produced (Ex. 6), which has no more than a diary of personal expenditure, in which we find entries of expenditure even on vegetables, soaps and so on. It is clear that he was relying upon some debit entries of Rs. 200/- and Rs. 300/- respectively to make out a case of his having advanced these sums to the defendant. Had these entries been genuine, the plaintiff would have disclosed at the first available opportunity that he was in possession of documentary evidence to show that the advance had been given to the defendant. But the plaintiff never wanted to rely upon (Ex. 300/- respectively to make out a case of his having advanced these sums to the defendant. Had these entries been genuine, the plaintiff would have disclosed at the first available opportunity that he was in possession of documentary evidence to show that the advance had been given to the defendant. But the plaintiff never wanted to rely upon (Ex. 6) and had not produced it till he was made to produce it by the defendant in his cross examination. It is difficult to believe that the plaintiff, who had taken two writings (Exs. E and C) from the defendant, would not take any writing from the defendant for the alleged loan. It is his own case that the defendant wasnt repaying the amounts. But there is no evidence of any notice of demand having been served by the plaintiff on the defendant. In view of all these circumstances, the learned trial Judge was right in holding that no loan had been advanced by the plaintiff to the defendant and if, therefore, the defendant had paid Rs. 426/- to the plaintiff on 19th October, 1957, there being no other transaction between them, it must be towards the payment of rent, as was the oral evidence of the defendant. Mr. Andhyarujina pointed out from the written statement that the defendant had pleaded that he had ample proof, even documentary one to prove payment of rent regularly every month, but the defendant had not produced any document except the cheque for Rs. 426/- to prove the payment of rent. But the defendant had also pleaded that the plaintiff did not pass any receipt for the payment of rent because he did not want any evidence to be there to show that the defendant was occupying the suit room as a sub-tenant of the plaintiff. Mr. Andhyarujina also submitted that the defendant had stated in his written statement that he had paid a sum of Rs. 29/- in cash, thus making a total sum of Rs. 455/- as rent for seven months at the agreed rate of Rs. 65/- per month, but in his own evidence the defendant had not stated that he had paid Rs. 29/- in cash. However, the case of the defendant is that he had been paying rent at the rate of Rs. 65/- per month and the payment of Rs. 426/- by cheque was adjusted against the rent. 65/- per month, but in his own evidence the defendant had not stated that he had paid Rs. 29/- in cash. However, the case of the defendant is that he had been paying rent at the rate of Rs. 65/- per month and the payment of Rs. 426/- by cheque was adjusted against the rent. That did not mean that it was the case of the defendant that he had paid Rs. 29/- separately in cash. Mr. Andhyarujina also submitted that the learned trial Judge had drawn inferences against the plaintiff from the entries in (Ex. 6) without giving an opportunity to the plaintiff to explain the entries which according to the learned Judge, were suspicious. As I have stated, the plaintiff himself never placed reliance on (Ex. 6) to prove his case that he had advanced Rs. 500/- as loan to the defendant and the cheque for Rs. 426/- given by the defendant to him was towards the repayment of the amount advanced. He had not disclosed (Ex. 6) in the affidavit of documents. In his examination-in-chief he never referred to the entries in (Ex. 6). In fact, he did not produce (Ex. 6) till the defendant passed for the production of his account books in cross-examination. When the plaintiff was himself not thus relying upon the entries in (Ex. 6) in support of his case of loan of Rs. 500/- to the defendant, hardly any grievance could be made by him that he should have been given an opportunity to explain the entries in (Ex. 6) before the Court held them to be suspicious and rejected his case of his having advanced the amount of Rs. 500/- to the defendant as loan. Mr. Andhyarujina also submitted that no exclusive possession of the suit room was given to the defendant and, therefore, it could not be a case of sub-lease and it could only be a case of a licence. The first circumstance relied upon by the plaintiff was that there was only one outer door and he used to kept it locked. As rightly pointed out by the learned trial Judge, whether the defendant was a licensee or a sub-tenant, he had a right to go out and come in and was not bound to go out of the house only at the time the plaintiff went out. As rightly pointed out by the learned trial Judge, whether the defendant was a licensee or a sub-tenant, he had a right to go out and come in and was not bound to go out of the house only at the time the plaintiff went out. The story of the plaintiff could not, therefore, be believed that he used to lock the door from outside while going out. As for the suit room being in joint possession of the plaintiff and the defendant, no such case of joint possession appears in the plaint or in the correspondence or even in the examination-in-chief of the plaintiff. It appears to be the case of the plaintiff that his two children, aged 3 and 5 years, used to sleep in the room of the defendant with the members of his family. That story is quite unnatural and it has been rightly disbelieved by the learned trial Judge. For all the above reasons I hold, agreeing with the leaned Judge of the trial Court, that the defendant is in possession of the suit room not as a licensee of the plaintiff but he is in possession as a sub-tenant. The suit of the plaintiff on the footing of a licence must, therefore, fail. The suit was, therefore, rightly dismissed. In the result, the appeal fails and is dismissed with costs. -----