PABITRA KUMAR BANERJEE, J, J. ( 1 ) THIS is an appeal from the decree of the appellate Court affirming that passed by the learned Munsif, 2nd Court at Alipore, dated 19. 3. 86 in T. S. No. 143 of 1980 of the said Court. The plaintiff-respondent Ranjit Sankar Chowdhury filed a suit for eviction against the defendant-appellant Sri Sankari Prosad Sarkar in respect of a flat being flat No. 102 at 11/1-B, Ekdalia Place, Calcutta en the allegations inter alia that the defendant came to occupy the said fiat as a licensee in September 1976 for a period of 19 months and thereafter the said licence was extended till December 1978. During the said period the plaintiff received licence fees from the defendant on four occasions and granted receipts for the same. As the defendant refused to vacate the disputed flat inspite of repeated demands, the plaintiff was obliged to file the suit after revoking the licence by a notice. The defendant contested the suit by filing a written statement in which he claimed tenancy right under the plaintiff in respect of the disputed flat at a monthly rental of Rs. 750 for the first six months and thereafter at the rate of Rs. 800 together with a sum of Rs. 20 towards the rent for the parking space. Up to October 1978 the plaintiff accepted the rent from the defendant amicably and thereafter on his refusal to accept the rent the defendant started depositing rent with the Rent Controller. Several issues were framed by the Trial Court and two such issues were whether the defendant was a licensee or a tenant under the plaintiff in respect of the disputed flat. The learned Munsif came to an ending that the defendant was a licensee and not a tenant under the plaintiff and that he was liable to eviction and mesne profits as prayed for in the suit. The suit was accordingly decreed. On appeal the learned Additional District Judge, Alipore upheld all the findings of the learned Munsif and the appeal was dismissed. Feeling aggrieved, the defendant has come up in second appeal. The suit was accordingly decreed. On appeal the learned Additional District Judge, Alipore upheld all the findings of the learned Munsif and the appeal was dismissed. Feeling aggrieved, the defendant has come up in second appeal. ( 2 ) FROM the facts of the case stated above it would appear that the only question which lies at the root of the controversy is whether the defendant-appellant is a tenant or a licensee under the plaintiff-respondent in respect of the disputed flat and an answer to this is decisive of the appeal. The admitted position is that the plaintiff as one of the members of East End Apartments Housing Co-operative Housing Society Ltd. was allotted the disputed flat on ownership basis and he had to incur debts for purchasing the said flat. His mother was allotted the next door flat being flat No. 103 of the said building. The defendant came to occupy the flat No. 102 in September 1976. While the plaintiff has alleged that the defendant's possession was that of a licensee, the defendant has asserted that he was inducted by the plaintiff as a monthly tenant under the West Bengal Premises Tenancy Act, 1956. No document was brought into existence at the time when the defendant's possession commenced. The Supreme Court and the Bench decisions of this Court have laid down several tests for ascertaining whether a transaction is a lease or a licence, The exclusive possession and some interest in the property are undoubtedly important factors, but these are not decisive in that regard. The common factor and possibly the only decisive factor on which all the decisions have laid emphasis is the intention of the parties. Thus while in the case of Associated Hotels of India Ltd. reported in A. I. R. 1959 S. C. page 1263 it was held that the real test is the intention of the parties whether they intended to create a lease or a license, in M. M. Clubwalla's case reported in A. I. K. 1965 S. C. page 610 it was confirmed that "whether an agreement creates between the parties relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties". The aforesaid two decisions of the Supreme Court were followed in two Division Bench decisions of this Court reported in 82 C. W. N. page 695 (Ram Avtar v. Khajan Singh Punjabi) and 84 C. W. N. page 817 (Sankar Ghose v. Arun Kumur Dasgupta) respectively. In both the decisions great emphasis was laid on the intention of the parties and such intention is to be inferred from the surrounding facts and conduct of the parties. The observation made in Sankar Ghose's case (Supra) was as follows, "as we read the judgements of the Supreme Court, it is always necessary to go into the question and find out what was the interaction of the parties by which the defendant came into possession of the property". It would be appropriate to note that in all the decisions cited above certain documents were brought into existence prior to the commencement of the possession of the tenant or licensee and still it was insisted upon that the Court should in the first instance find out what the intention of the parties was at or about the time of induction and how the parties reacted thereafter. ( 3 ) NOW bearing in mind the ratio and principles emerging out of the reported decisions we propose to ascertain the nature and character of the defendant's possession in the disputed flat and the subsequent conduct of the parties in relation thereto. The most significant aspect of this case is that although the defendant set up a tenancy right under the plaintiff, he could not produce a single rent receipt or any other piece of paper in proof of his payment of rent to the plaintiff for the use and occupation of the flat. Under Section 2 (h) of the West Bengal Premises Tenancy Act 1956 a "tenant" means any person by whom or on whose account or behalf the rent of any premises is payable. Thus, the paint of rent by the "tenant" to his 'landlord' is the most important incidence of the tenancy right. Under Section 2 (h) of the West Bengal Premises Tenancy Act 1956 a "tenant" means any person by whom or on whose account or behalf the rent of any premises is payable. Thus, the paint of rent by the "tenant" to his 'landlord' is the most important incidence of the tenancy right. In paragraph 6 (b) of the written statement the defendant stated that at the time when he was inducted as a tenant it was agreed between the parties that no rent receipt would be given to the defendant for the time being and as the defendant had implicit faith in the plaintiff's assurance he did not suspect anything and continued to pay rent without receipt. In his cross-examination the defendant who deposed as D. W. 1 stated that he demanded rent receipt from the very beginning of his tenancy but the plaintiff refused to grant the same on the plea that a litigation was pending between the cooperative society and another party. This contradiction between the statement made in the written statement and that made at the trial throws much light on the weakness of the defence case of tenancy right. The second ingredient namely, rent agreed is not there. The defendant is a qualified person working as. the Construction Manager in the M/s. B. Sen and Company and he used to draw house rent allowance from the Company and claimed income-tax rebate from the Income-tax Department on the house rent so drawn. In this context it is not believable that he would not insist on rent receipt but would continue to occupy the flat and go on paying rents at the risk of eviction at the pleasure of the plaintiff-landlord. The conduct of the defendant is inconsistent with the relationship of landlord and tenant. The plaintiff has admitted that he was anxious to liquidate the debt incurred by him for purchasing the flat and accordingly in terms of the agreement with the defendant he received from him Rs. 20,000 in four instalments towards the licence fees. In the Income-tax returns submitted by the plaintiff for the years 1977-78 and 1978-79 the receipt of the sums on four different dates, namely, 18. 8. 76, 7. 2. 77, 7. 9. 79 and 8. 4. 78 was shown. Besides the defendant, five other witnesses have been examined on his behalf. 20,000 in four instalments towards the licence fees. In the Income-tax returns submitted by the plaintiff for the years 1977-78 and 1978-79 the receipt of the sums on four different dates, namely, 18. 8. 76, 7. 2. 77, 7. 9. 79 and 8. 4. 78 was shown. Besides the defendant, five other witnesses have been examined on his behalf. D. W. 2 is a laundry owner, D. W. 3 claims to have served as a broker, D. W. 4 is the person who occupied the disputed flat for sometime before the defendant came to occupy and D. W. S is the wife and D. W. 6 is the brother-in-law of the defendant. None of these witnesses could explain satisfactorily why inspite of the creation of the tenancy, the defendant conceded to pay rents without receipts. The Courts below had discussed the evidence adduced on behalf of either side, took note of the surrounding facts and circumstances and the conduct of the parties and came to a finding that the plaintiff never intended to create any tenancy in favour of the defendant. In this connection the Court takes note of an important fact regarding the possibility of the plaintiff's intention not to create any tenancy. It may be recalled that in terms of the Rules of the Housing Society, of which the plaintiff was a member, induction of tenant or transfer of the flat by the allottee was an absolute bar. It has been proved that the plaintiff as one of the members of the Society was allotted the disputed ownership flat and it has been rightly pointed out by Mr. Roy Chowdhury, the learned advocate for the plaintiff-respondent, that the plaintiff could never take the risk and expose himself by inducting any tenant. In Shankar Ghose's case (Supra) the parties entered into an agreement whereby the defendant agreed to let out to the plaintiff (tenant) a flat at a monthly rental of Rs. 160. The plaintiff was to hold the flat for one year. After the expiry of one year, as stipulated in the original agreement the term of occupation was extended from time to time. In the said agreement one party was described as a 'landlord' and the other as a 'tenant' and the consideration payable by the tenant was expressed in terms of, "rent". After the expiry of one year, as stipulated in the original agreement the term of occupation was extended from time to time. In the said agreement one party was described as a 'landlord' and the other as a 'tenant' and the consideration payable by the tenant was expressed in terms of, "rent". On the facts of the case it was held that the intention of the parties was to create a licence and not a lease although the terms landlord, tenant and rent appeared in the document. ( 4 ) MR. Shaktinath Mukherjee, the learned advocate for the appellant argued before us that there was no close relationship between the parties, that the defendant was put into exclusive possession of the flat and that the plaintiff had not the freedom to take the case out of the reach of the premises Tenancy Aet by deceitful means. Reliance was placed upon a ruling reported in A. I. R. 1984 Cal. page 105. The facts of the reported decision are clearly distinguishable from those in the instant case in as much as in Cariappa's case (Supra) the parties were in friendly terms and the owner permitted the defendant to occupy the flat with all the fittings, furniture and crockeries belonging to her. It is true that the parties are not closely related, but that fact alone does not warrant any influence ruling out the possibility of the creation of any licence. As regards the exclusive possession of the defendant, in the case of I. B. M. Lall reported in A. I. R. 1968 S. C. page 175 it, has been pointed out that exclusive possession, though an important factor in determining the status of the occupier, is not conclusive. The last contention of Mr. Mukherjee is not also tenable because the parties can enter into any agreement provided the same is not prohibited under the Contract Act, or any other law in force. It might be that the defendant badly needed some accommodation and he had agreed to the terms dictated by the plaintiff-owner. There was nothing wrong in the defendant agreed to occupy the flat as a licensee undertaking to pay license-fees in lumps. All these aspects have been duly considered by the Courts below before passing a decree in favour of the plaintiff and we find no reason to interfere with these finding and to arrive at a different conclusion. There was nothing wrong in the defendant agreed to occupy the flat as a licensee undertaking to pay license-fees in lumps. All these aspects have been duly considered by the Courts below before passing a decree in favour of the plaintiff and we find no reason to interfere with these finding and to arrive at a different conclusion. ( 5 ) MR. Roychowdhury seriously contended that as in the instant case no substantial question of law is involved, it is not open to the appellant to challenge the concurrent findings of facts in second appeal. There is much force behind the contention put forth by the learned counsel, well supported by some of the decisions of Supreme Court which we propose to discuss presently. In the case of Sir Chunilal v. Mehta And Sons Ltd. vs. The Century Spinning And Manufacturing Turning Co. Ltd. reported in AIR 1962 S. C. page 1314, while dealing with the subject as to what question of law should be considered as substantial question of law, their Lordships laid down certain tests in general agreement with the taken in the case of Subba Rao v Noomy Veerajee reported in ILR 1952 Mad 264. Two broad tests are whether the question of law is an open question and fairly arguable or whether it has been settled by the Highest Court. In the case of Mahindra v. Mahindra reported in AIR 1979 S. C. page 798 although this question was not directly raised, their Lordships made a brief reference of Chunilal's case (Supra) and approved of the tests incidentally. These tests are appropriate to the provisions of Section 100 C. P. Code, as it now stands since the Amendment Act of 1976 because, on the recommendation of the Law Commission, the legislature intended to restrict and narrow the scope of enquiry in second appeal and the same has been reflected in the aforesaid amended section of the Code. In the case at hand the factum of licence has been upheld by the Courts below and there is evidence in support of that finding. The question as to whether the defendant is a tenant or a licensee is a question of fact simpliciter and the findings are not assailable on the ground that there has been wrong application of tests or on the balance of evidence it would be possible to reach a different conclusion. The question as to whether the defendant is a tenant or a licensee is a question of fact simpliciter and the findings are not assailable on the ground that there has been wrong application of tests or on the balance of evidence it would be possible to reach a different conclusion. By applying the tests hereinbefore stated the instant case does not involve any substantial question of law. In this context reference may be made to a ruling reported in AIR 1970 S. C. page 986 (Bhagwandas and another v. S. Rajdeb and another) wherein their Lordships had to deal with a case under the Delhi Rent Control Act (59 of 1958 ). Under Section 39 (3) of the Act a second appeal lies to the High Court against the decision of the Rent Controi Tribunal only if the appeal involves "some substantial question of law. " In that case the Rent Controller and the Rent Control Tribunal held, an consideration of relevant terms of agreement between the tenant and the third party and on oral evidence that there was subletting by the tenant in favour of the third party. Their Lordships refused to interfere on the ground that "on the finding no question of law, much less a substantial question of law, arose". ( 6 ) WE came across two recent decisions of the Supreme Court reported in AIR 1987 S. C.- one at page 1484. (Budhwanti and another v. Gulab Chand Prosad) and the other at page 2055 (Dipak vs. Lilabati) in which their Lordships interfered with the findings of the Courts below, even factual in character. In Budhwanti's case (Supra) the findings were vitiated by application of wrong tests or on the basis of conjectures and assumptions. In Dipak's case (Supra) the lower Courts held that services in lieu of the right of occupation would amount to receipt of rent so as to create a sub-tenancy. As the endings were contrary to the effective basis of the restrictions imposed by the structure of the Rent Acts, their Lordships had to interfere and while interfering with the said findings their Lordships observed that although the power is to be exercised sparingly that does not mean that injustice must be perpetuated because it has been done two or three times in a case. It would be important to note that in both the cases presided over by two learned Judges the question of "substantial question of law" was not gone into in the context of the aforesaid expression appearing in Section 100 C. P. Code and in neither of the two cases the larger Bench decision in Chunilal's case (Supra) was referred to or discussed. ( 7 ) IN the aforesaid view of the matter, we dismiss the second appeal and affirm the decree under appeal. The defendant is allowed time till 31. 8. 89 to vacate the disputed flat provided he gives an undertaking to do so within four weeks from this date in this Court. Shamsuddin Ahmed, J. I agree appeal dismissed.