JUDGMENT - A.V. SAVANT, J.:---This appeal by the original plaintiffs arises out of the judgment and decree dated 30th July 1980 passed by the City Civil Court, Bombay in Suit No. 469 of 1963 whereby the learned Trial Judge dismissed the plaintiff's suit and directed the parties to bear their own costs. The suit as filed on 7th January 1963 was for a declaration that the first defendant Miya Ahmed Mahomed Merchant was in occupation of the area of 176 sq.ft., namely, shed A and area of 330 sq.ft. namely, shed B on the property bearing C.T.S. No. 86-88, Ismail Curtay Road, Bombay purely as a licensee of the deceased Ismail Abubakar and that the said defendant No. 1 was at no time in possession of the said suit premises as a tenant. A further consequential declaration prayed for in the suit is to the effect that the deed of assignment Exhibit 49 dated 5-1-1961 executed by the first defendant in favour of the original defendant No. 2 Ibrahim Abdul Kadar was not legal and valid and was, therefore, not binding on the plaintiffs resulting the said defendant No. 2 being a trespasser in the suit premises. The further prayer was for an injunction restraining the defendants from remaining in or upon the suit premises. There was also a prayer for the relief of possession of the suit premises viz., sheds A and B. Plaintiff Nos. 1 to 6 are the heirs of the said Ismail Abubakar. Plaintiff No. 7 Aishabai is the assignee from plaintiff Nos. 1 to 6 under a deed of assignment dated 28-7-1965. Alongwith the plaint, there is a plan showing allotment of different spaces in the two sheds as also the alleged open space between the two sheds A and B referred to above. There is controversy about the exact area of the two sheds A and B. If one compares the areas mentioned in the plaint with those mentioned in the plan annexed to the plaint itself, they do not agree at all. As far as the plan Exhibit A to the plaint is concerned, the area of two sheds is shown as under : Shed A : 16'3" x 11'8" = 189.66 sq.ft. Shed B : 35'0" x 11'8" = 401.66 sq.ft. As against this in the plaint, area of shed A is mentioned to be 176 sq.ft. As far as the plan Exhibit A to the plaint is concerned, the area of two sheds is shown as under : Shed A : 16'3" x 11'8" = 189.66 sq.ft. Shed B : 35'0" x 11'8" = 401.66 sq.ft. As against this in the plaint, area of shed A is mentioned to be 176 sq.ft. and that of shed B is mentioned to be 330 sq.ft. In the plan at Exhibit A there is an open space referred to in the notice explaining the plan as Item No. 2 "middle open space 23'8"x12'9". It has become necessary to refer to these areas in some what details because there is a serious controversy as to what exactly was given in the possession of defendant No. 2 on assignment from defendant No. 1. 2. Apart from the above controversy regarding the exact areas of shed A and shed B the plan at Exhibit A to the plaint, prima facie shows the disputed sheds as C and D instead shed A and B. What has been wrongly shows an shed C in the North-east corner of the plan Exh. A is really Shed A measuring 189.66 sq.ft. Similarly what has been wrongly shown as shed D in the South-east corner in the plan at Ex. A to the plaint, is really shed B measuring 401.66 sq.ft. All the three learned Counsel namely Shri S.G. Vakil for the appellants, Shri A.A. Sayed for respondent No. 1 and Shri A.P. Shah for respondent No. 2 have agreed before me that the correct reference to the sheds A and B should be understood as reference to what is prima facie wrongly shown in the said plan as sheds C and D respectively. Infact all the three learned Counsel are agreed that at the trial itself the parties proceeded with the trial after making the necessary correction in the map at Exh. A to the plaint. What I have referred to above as the areas in the plan at Ex. A, are, therefore, the areas of Sheds A in the north-east corner (wrongly shows as Shed C) and of Shed B in the South-east corner (wrongly shows as Shed D). It is on these admitted premises this appeal has been heard. 3. A to the plaint. What I have referred to above as the areas in the plan at Ex. A, are, therefore, the areas of Sheds A in the north-east corner (wrongly shows as Shed C) and of Shed B in the South-east corner (wrongly shows as Shed D). It is on these admitted premises this appeal has been heard. 3. The plaintiffs' case in brief as under : On 1-11-195 Ismail Abubakar had introduced defendant No. 1 only in respect of shed A which is at the rear and which, according to the plan Exhibit A, is in the North East corner of the property. The plaintiffs further say that shed B which is the South East corner was in the possession of one Surti. Some time in December 1955, Surti vacated that shed. According to the plaintiffs the first defendant encroached upon the entire area of Shed B in December 1955 itself. It was in these facts that, according to the plaintiffs, the plaintiffs permitted the first defendant to occupy both the properties covered by Sheds A and B in December 1955 on the first defendant agreeing to pay Rs. 85/- per month as compensation. The compensation initially agreed in respect of shed A was Rs. 45/- only. On 23-5-1956 a notice was given by the first defendant to Ismail Abubakar making a grievance of absence of rent receipts being issued to him and secondly of the rent being excessive. In his reply dated 6-6-1956 to this notice, which is at Exh. C to the plaint, Ismail Abubakar has said that there was an endorsement in December 1955 and that what was agreed was the payment of compensation of Rs. 85/- in respect of the premises in question. In November 1956 proceedings under section 41 of the Presidency Small Causes Court Act, 1882 were initiated by Ismail Abubakar being Ejectment Application No. 57/1828 of 1956 seeking to recover vacant and peaceful possession of, what is described in the copy of the application produced in this appeal as the "eastern portion" of the plaintiffs' shed. There is no distinction made between the portions occupied by the two sheds A and B on one hand and the portion that was allegedly left open to the sky, in between the two sheds A and B. 4. There is no distinction made between the portions occupied by the two sheds A and B on one hand and the portion that was allegedly left open to the sky, in between the two sheds A and B. 4. In the defendence that were filed in December 1956 to this application under section 41 of the said 1882 Act, the sole defendant Miya Merchant denied the allegation that he was in possession as a licensee and contended that he was in possession as a monthly tenant and hence contended that the application under section 41 was not maintainable. On 7-4-1958 the Small Cause Court dismissed the application filed by Ismail Abubakar holding, inter alia, that there was no formal document embodying the terms of contract between the parties; that the defendant was in exclusive possession of the entire portion which is Eastern half portion of the property shown in the plan Ex. A to the plaint in the present suit and that the circumstances on record in the said section 41 proceedings indicated that the transaction was in the nature of lease and not a licence. Against this judgment dated 7-4-1958 dismissing the application of Ismail Abubakar under section 41 of the said Act, Civil Revision Application No. 1239 of 1953 was filed in this Court which was admitted. However, rule in the said Civil Revision Application was discharged on 22-6-1960 holding that the case sought to be made out by Ismail Abubakar did not appear to be true and if really Ismail Abubakar had permitted the first defendant Miya Merchant to occupy the premises temporarily for two months or so upto February 1956 as alleged, it was improbable that he did not immediately call upon the defendants to deliver possession after February 1956. In fact on the material before this Court in the said Civil Revision Application, this Court came to the conclusion that it was nobody's case that possession of the defendants was not exclusive. 5. After the High Court thus decided the matter on 22-6-1960, the first defendant has assigned his interest in the said premises and the timber business in favour of the second defendant under the deed of assignment dated 5-1-1961 at Ex. 49. 5. After the High Court thus decided the matter on 22-6-1960, the first defendant has assigned his interest in the said premises and the timber business in favour of the second defendant under the deed of assignment dated 5-1-1961 at Ex. 49. In the said deed of assignment at Exhibit 49 the premises are referred to as "shop or shed in the property situate at 86-88, Ismail Curtay Road, Bombay-3." On 9-1-1962 Ismail Abubakar died leaving appellant Nos. 1 to 6 as his heirs who have filed the present suit on 7-1-1963 as mentioned earlier. The seventh appellant, is an assignee from the first six appellants under the deed of assignment dated 28-7-1965. In the plaint in the present suit, the plaintiffs' case is that the two sheds were merely used as godowns. 6. In this suit there is a joint written statement filed by defendant Nos. 1 and 2 and there is also a separate written statement filed by defendant No. 2. In the joint written statement the case of the second defendant is that the suit premises were not mere godowns but there was a running timber business which was being carried on in the said premises. A specific plea is raised that the suit premises were given to Miya Merchant as a tenant. Miya Merchant was in possession and occupation of the said suit premises as a monthly tenant of the said Ismail Abubakar and was doing his business therein till he assigned the said business in favour of defendant No. 2 under the deed of assignment Ex. 49 dated 5-1-1961. In respect of the portion allegedly kept open to sky in between the two sheds A and B the plea taken in the written statement is that the said portion was kept open only for the purpose of light and air coming in and for no other purpose. The plea that the first defendant was a mere licensee of the premises was specifically denied. It was contended that the standard rent of the entire premises was not more than Rs. 30/- p.m. This joint written statement was filed on 17-4-1963. 7. The additional written statement of defendant No. 2 was filed in 1974. The plea that the first defendant was a mere licensee of the premises was specifically denied. It was contended that the standard rent of the entire premises was not more than Rs. 30/- p.m. This joint written statement was filed on 17-4-1963. 7. The additional written statement of defendant No. 2 was filed in 1974. In addition to the contentions raised in the earlier joint written statement, the further contention taken on behalf of the second defendant is that the 2nd defendant was protected by the amended provisions of the Rent Act. The second defendant has also become lawful tenant since the second defendant was in possession of the premises as a licensee which fact was recognised by the plaintiff Nos. 1 to 6 by their letter dated 25-8-1965. This letter dated 25-8-1965 is as Ex. 53. In fact, this is a letter issued by the attorneys of the seventh plaintiff Aishabai to the second defendant. 8. On these pleadings the learned Trial Judge framed as many as 13 issues and on the issue relating to the question of jurisdiction of the City Civil Court, the suit being barred by principles of res-judicata or by the law of limitation, the learned Judge came to the conclusion that the City Civil Court had jurisdiction, that the suit was not so barred by principles of res-judicata nor by law of limitation. On the question that the dismissal of the ejectment application under section 41 of the Presidency Small Causes Courts Act, 1882 does not bar a subsequent suit for possession alleging that the licence was given which was terminated, it is well settled that the principles of res-judicata are not attracted. In the case of (Ramchandra Sheshgiri Kamath v. Janardan Vishwanath)1, A.I.R. 1969 Bombay 111, it has been held that the dismissal of the application under section 41 of the Presidency Small Cause Court Act, 1882 does not bar a suit instituted in the City Civil Court for possession alleged that the respondent was the licensee and that the licence was duly determined. There is no serious controversy before me that the decision in the earlier proceedings under section 41 of the 1882 Act would not operate as res-judicata. 9. I have heard Shri S.G. Vakil the learned Counsel for the appellants at great length. There is no serious controversy before me that the decision in the earlier proceedings under section 41 of the 1882 Act would not operate as res-judicata. 9. I have heard Shri S.G. Vakil the learned Counsel for the appellants at great length. I have also heard Shri A.A. Sayed for respondent No. 1 and Shri A.P. Shah for the second respondent. Shri Vakil for the appellants has not disputed the correctness of the findings on the first five issues framed by the learned Trial Judge relating to the question of jurisdiction, valuation for the purpose of the Courts fees and jurisdiction, res-judicata limitation and cause of action. He has, however, seriously contested issue Nos. 6, 6-A, 6-B and 7 framed by the learned Trial Judge. The said four issue are reproduced below with the findings thereon. 6) Whether the plaintiffs prove that defendant No. 1 was in occupation on leave and licence of two portions in the plaintiff's property at 86/88 Ismail Curtay Road, Bombay - 6 admeasuring 176 sq.ft. and 330 sq.ft. respectively ? 6-A) Whether the plaintiffs prove that there was an open portion to the sky between the front and rear structures and that the defendants trespassed on that portion ? 6-B) Whether the defendants prove that no such portion open to the sky existed and that the defendants were all long in occupation of one continuous premises ? 7) Whether defendant No. 1 was a licensee in respect of the suit premises? The learned Trial Judge recorded his findings on the above said issues as under : 6) In the negative. 6-A) In the affirmative. 6-B) In the negative. 7) In the negative. 10. Shri Vakil for the appellants has mainly contested the findings on the four issues mention above. He has taken me through the pleadings and the entire evidence on record as also some of the findings in the judgment of the learned Trial Judge and has contended as under : i) At no time was the entire Eastern portion of the property given to the first defendant and that what was given to the first defendant as licensee were only the two specific portions of shed A and shed B. ii) The portions left open to sky between the two sheds A and B was really the passage and was not merely left open for the purpose of light and air. iii) Since the first defendant had allegedly trespassed upon the portion occupied by Shed B after Surti vacated the said portion in December 1955, only a licence was created permitting the first defendant to occupy the portion A and B both upto the end of February 1956 only. iv) The case of the first defendant that the entire Eastern portion was given to him and that he was a monthly tenant of the said premises is entirely unbelievable. 11. As stated earlier, defendant Nos. 1 and 2 had filed a joint written statement in the Trial Court. Surprisingly, however, the first defendant tried to support the case of the plaintiffs in this Court. The first defendant has already assigned his interest in the leasehold premises namely the suit premises to the second defendant under the deed dated 5-1-1961 at Ex. 49. Shri A.P. Shah, the learned Counsel for the second defendant on the other hand, has supported the judgment of the learned Trial Judge and has contended that in the first place there was a valid lease in favour of the first defendant. All the ingredients of a lease under section 105 of the Transfer of Property Act were present in the relationship created between Ismail Abubakar and Miya Merchant in 1955. If that be so, the assignment of his interest by defendant No. 1 to defendant No. 2 was entirely permissible in law and was, therefore, valid in law. 12. On the submission that are advanced before me, the following points arise for my consideration. 1) Whether the plaintiffs prove that defendant No. 1 was in occupation of the suit premises consisting of only two sheds A and B or whether defendant No. 1 was in occupation of the entire Eastern portion of the suit property ? 2) Whether defendant No. 1 was in possession of the Eastern portion of the suit property only as licensee or as a lessee ? My answers to both these questions are in favour of the defendants for the following reasons. REASONS 13. Shri Vakil, the learned Counsel for the appellants had led employees on the fact that in the plaint, two specific portions are referred to as Shed A admeasuring 176 sq.ft. and Shed B admeasuring 330 sq.ft. This has been repeatedly averred in paras 2, 4, 5 and 15 of the plaint. REASONS 13. Shri Vakil, the learned Counsel for the appellants had led employees on the fact that in the plaint, two specific portions are referred to as Shed A admeasuring 176 sq.ft. and Shed B admeasuring 330 sq.ft. This has been repeatedly averred in paras 2, 4, 5 and 15 of the plaint. Shri Vakil's contention is that at the time when the transaction between Ismail Abubakar and Miya Merchant took place, plaintiff No. 1 Zulekhabai was present. Reliance is placed on the evidence of P.W. 1 Zulekhabai when she says that she used to visit the premises almost every day. Zulekhabai's evidence is also to the effect that the two sheds were basically meant to be used as godowns for storing timber and that there was no running business as such, the rights of which could be assigned. In her cross-examination Zulekhabai is bold enough to claim that she was not observing parada and that though it was her husband Ismail Abubakar was used to attend to the transactions in respect of the suit premises. She was present when the talks between Ismail Abubakar and Miya Merchant, defendant No. 1, took place. She was, however, forced to admit in the next breath that she did not remember the details of the talks between her husband and the first defendant. Zulekhabai also admitted in her cross-examination that Surti who was supposed to be earlier in occupation of the portion occupied by shed B was alive. She is also frank enough to admit that at times when she could not go to the premises for carrying the tiffin of her husband, she used to send the same with her servant. She is also forced to admit that she had not accompanied her husband to the Court of Small Causes when proceedings under section 41 were initiate. 14. It must be mentioned at this stage that the plaintiffs have specifically pleaded that the portion occupied by Shed B was initially with Surti till December, 1955 when Surti vacated the said portion. That some portion was kept open between sheds A and B so that it may be used as passage was an important aspect of the matter which could have been deposed to either by Ismail Abubakar or by Surti. Ismail Abubakar died on 9-1-1962, as stated earlier. Surti, though alive has not been examined for reasons best known to the plaintiffs. Ismail Abubakar died on 9-1-1962, as stated earlier. Surti, though alive has not been examined for reasons best known to the plaintiffs. In the plaint, in para 3 there is a reference to the intervention of some common friends when the portion occupied by shed B was alleged to be given to the first defendant as a licensee. In reply to the notice dated 23-5-1956 given by Miya Merchant to Ismail Abubakar, a reply was sent through M/s. Sayyed Sayyed Advocates on behalf of Ismail Abubakar on 6-6-1956. There is a reference to the intervention of one Mohamed Hasan Haji Abdul Khalid and Valli Mohamed Usman who were witnesses to the arrangement arrived at between Ismail Abubakar and Miya Merchant. Unfortunately, for the plaintiffs/ appellants neither Surti nor any of these two common friends namely Mohamed Hasan/ Haji Abdul Khalid and Valli Mohamed Usman have been examined. Though the reply dated 6-6-1956 makes a reference to the alleged intervention by these two named persons, the plaint is vague on this important aspect of the nature of transaction and the oral arrangement arrived at between the parties. I cannot lose sight of the fact that the present suit was filed on 7-1-1963 after the High Court decided the Civil Revision Application against the plaintiffs on 22-6-1960. Though undoubtedly the High Court was concerned with the application under section 41 of the P.S.C.C. Act, 1882, care ought to have been taken by the plaintiffs while referring to the alleged arrangement and the precise nature of the transaction that took place between Ismail Abubakar and Miya Merchant. In the face of these serious infirmities, it is difficult to accept the uncorroborated and interested testimony of Zulekhabai when she deposes to the alleged licence granted in favour of Miya Merchant. Various answers by Zulekhabai in her cross-examination, some of which have been referred to earlier, make her version extremely doubtedly apart from the fact that the same is a version of an interested witness who has not been corroborated at all by any independent evidence. 15. Shri Vakil, the learned Counsel for the appellant has strongly criticised the failure on the part of the defendants in not specifically putting the defendants' case to the plaintiff in her cross-examination and reliance has been placed by him on the well known decision in (A.E.G. Carapiet v. A.Y. Derian)2, A.I.R. 1961 Calcutta 359. 15. Shri Vakil, the learned Counsel for the appellant has strongly criticised the failure on the part of the defendants in not specifically putting the defendants' case to the plaintiff in her cross-examination and reliance has been placed by him on the well known decision in (A.E.G. Carapiet v. A.Y. Derian)2, A.I.R. 1961 Calcutta 359. Relying upon the decision of the House of Lords in the case of (Browne v. Dunn)3, 1893(6) R. 67, it was held by the Calcutta High Court in Carapiet's case as under : "Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that be believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. This much a Counsel is bound to do when cross-examination that he must put to each of his opponent's witness in turn, so much of his own case as concerns that particular witness or in which that witness had any share." There can be no controversy about the proposition of law stated above. However, there can be no parallel between the facts of Carapiet's case and case before me. In Carapiet's case the case that the testator was not in a sound and disposing state of mind was not at all put to the witness who had deposed in favour of the execution of the Will being in accordance with law. In para 8 of the judgment, the Calcutta High Court observed as under : "Now, this case that Rev. Venkata Ramiah visited the testator and found him in such an unfit physical and mental condition was not put to any of the doctors and nurses who were called by the propounder to prove testamentary capacity. That, in our judgment, is so serious an omission as to have let to complete miscarriage of justice in this case. Venkata Ramiah visited the testator and found him in such an unfit physical and mental condition was not put to any of the doctors and nurses who were called by the propounder to prove testamentary capacity. That, in our judgment, is so serious an omission as to have let to complete miscarriage of justice in this case. The omission is so serious that, in the absence of this case being put to any of the medical witnesses and strangely enough not being put even to the propounder when she was in the box giving testimony in support of the Will, this Court does not know what the evidence of these persons have been if the case, which was made by witness Rev. Venkata Ramiah was put to these witnesses. It may be noted that Rev. Venkata Ramiah was practically the last witness in the suit except the formal opinion evidence of one Dr. Pijush Kanti Days and one Mr. Chittaranjan Mazumdar called by the respondent. It also is in evidence that Rev. Venkata Ramiah was in Calcutta for this purpose of giving evidence ever since the 10th May 1957. He was in Calcutta when the propounder Mrs. Carapiet was being examined on the 23rd May, 1957. Inspite of the presence of Venkata Ramiah in Calcutta waiting to be sprung as the last dramatic witness for the defendant, not a word was put to the propounder when she was in the box about the witness Venkata Ramiah having found the testator physically and mentally unfit." I do not think that in the facts of the present case when the parties went to the trial with full knowledge of the rival contention and the case that the first defendant was a lessees and not a mere license was put to plaintiff No. 1 Zulekhabai the ratio of the Calcutta decision can have any application here. There is no question of Zulekhabai being taken by surprise or the case that the first defendant was her tenant being not put to her. As stated earlier, there were proceedings under section 41 of P.S.C.C. Act, 1882, there were notices exchanged between the parties and then it was after the High Court decided against the plaintiffs in section 41 proceedings that the present suit was filed. As stated earlier, there were proceedings under section 41 of P.S.C.C. Act, 1882, there were notices exchanged between the parties and then it was after the High Court decided against the plaintiffs in section 41 proceedings that the present suit was filed. In both the written statements filed by the defendants the case of licence has been denied and the case of tenancy has been pleaded specifically. Similarly, the case that the entire Eastern portion was in the occupation of the first defendant has also been specifically pleaded. Unfortunately as stated at the beginning of this judgment, the plaintiffs themselves are not very clear as to the exact portion comprising the suit premises namely the Eastern portion of the entire property. In this behalf if one goes back to the map at Ex. A to the plaint, the total area of two sheds A and B would come to 591.32 sq.ft. (189.66 sq.ft. of shed A + 401.66 sq.ft of shed B). As against this the plaint itself mentions the same two sheds being of 176 sq.ft. (Shed A) and 370 sq.ft. (Shed B) thus totalling to 546 sq.ft. only. 16. Shri Vakil then contended that a mere suggestion in the cross-examination, which suggestion was denied by the plaintiffs, was no evidence at all and that the defendants must lead their own evidence. In support of this proposition he relied upon the decision in the case of (Binapani Roza v. Ravindra Sarkar)4, A.I.R. 1959 Calcutta 213, where in para 7 of the judgment it has been observed that a suggestion in the cross-examination, which suggestion is denied, is no evidence at all. There can be no controversy on this proposition either. In the present case the defendants have led their own evidence and I would be referring to the evidence of D.W. 1 Miya Merchant as also defendant No. 2 .Ibrahim Abdul Kadar. These two witnesses have specifically deposed to the fact that the entire Eastern portion was initially in the possession of the first defendant as a tenant and pursuant to the assignment of 5-1-1961, it was the entire Eastern portion which was in possession of the second defendant. In my opinion, therefore, reliance on the two Calcutta cases is entirely mis-placed in the facts of the present case. 17. In my opinion, therefore, reliance on the two Calcutta cases is entirely mis-placed in the facts of the present case. 17. On the question of the entire Eastern portion being let out to the first defendant, who was in exclusive possession of the said portion, there is enough material in the evidence of Zulekhabai herself apart from the evidence of Miya Merchant and Ibrahim Abdul Kadar. A perusal of the map at Ex. A would show that at the entrance of the property on the southern side facing Ismail Curtey Road there was a small pedhi which was at all times in possession of the plaintiffs. There is no controversy about this pedhi at all in the present proceedings. It is the Eastern half portion excluding this pedhi that was always subject matter of dispute between the parties either under section 41 proceedings in the Small Causes Court or in the present proceedings. The evidence of Zulekhabai further shows that as far as the Eastern portion is concerned, there were successive leases and it appears that Ismail Abubakar went on leasing out the Eastern portion for higher and higher rent. For instance the portion was initially given to one M.A. Moosa for Rs. 30/- p.m. This was only the portion occupied by Shed A on the north-east corner. This very portion of shed A was then let out to defendant No. 1 in 1955 for Rs. 45/- p.m. Zulekhabai is categoric in her admission that Miya Merchant had exclusive possession of the portion which was given to him. Though Shri Vakil the learned Counsel for the appellants tried to explain away this admission, it is not possible to accept his explanation by trying to confuse the passage with the portion given to Miya Merchant. It is unlikely that a man who carries on timber business would be merely content with the passage open to sky between the two sheds A and B without the sheds being in his possession. What is more, there is no controversy that the two sheds A and B were given to the first defendant Miya Merchant. The controversy is in what capacity was Miya Merchant allowed to occupy them namely, whether as a licensee as contended by the plaintiffs or as a tenant as contended by the first defendant Miya Merchant. What is more, there is no controversy that the two sheds A and B were given to the first defendant Miya Merchant. The controversy is in what capacity was Miya Merchant allowed to occupy them namely, whether as a licensee as contended by the plaintiffs or as a tenant as contended by the first defendant Miya Merchant. The story that either once a week or once a fortnight Ismail Abubakar was required to be taken to a doctor, assuming that the story be true, would not lead one to the conclusion that zulekhabai was attending to the business transaction and was actually at the site when such transactions were entered into by her husband Ismail Abubakar. Apart from this, one cannot be oblivious to the fact that normally is the strata of the society to which the parties belong, the women leave it to the husband to deal with such affairs. 18. The evidence of Abdul Hamid, son of the seventh appellant is of no assistance on the points which are canvassed before me in this appeal. Admittedly Aishabai has come on the scene as late as on 28-7-1965 after the suit was filed on 7-1-1963. Abdul Hamid who is P.W. 2 is the son and power of attorney holder of plaintiff No. 7 Aishabai. He has generally deposed to the location of the premises and the nature of business carried on there. The third witness examined by the plaintiffs is Lalchand Sharma who was the licence inspector of the Bombay Municipal Corporation. He has been examined to produce some documents on record, none of which can adversely affect the claim of defendant No. 1 that he was in possession of the entire Eastern portion exclusively as a tenant. 19. As against this evidence of the plaintiffs the first defendant Miya Merchant has examined himself and has categorically stated that he was the tenant of the suit premises from 1955 to 1960-61. He has clearly deposed that he was in exclusive possession of the entire Eastern portion. He has referred to the map which was produced in the Small Causes Court in the proceedings under section 41 and has made it clear that he was in exclusive possession of the Entire Eastern portion of the suit property. He has clearly deposed that he was in exclusive possession of the entire Eastern portion. He has referred to the map which was produced in the Small Causes Court in the proceedings under section 41 and has made it clear that he was in exclusive possession of the Entire Eastern portion of the suit property. He has further deposed to the fact that there was a running timber business carried on in the premises which were not merely used as a godown. While he has admitted that the pedhi on the southern portion of the property facing Ismail Curtey Road was always in possession of the plaintiffs, that never affected his exclusive possession of the remaining part of the suit property namely remaining Eastern portion which constitute the suit premises. He has referred to the talk between him and Ismail Abubakar and has categorically stated that Zulekahabai was not present at the time when the talk took place at the pedhi. He has excluded the intervention of any common friend to which a vague reference is made by the plaintiffs. On the question about the alleged open space, one has to take into account his specific plea in the written statement in para 5 where the defendants admit that in between the two sheds A and B, some portion was kept open to the sky only with a view to allow light and air to come in and not for any other purpose like passage etc. as suggested by the plaintiffs. One cannot forget the fact that in the ejectment application under section 41 what was sought possession of was the entire Eastern portion and there is no reference made to the distinct portions occupied by sheds and the space left open to sky. There is nothing in the evidence of Miya Merchant to dis-credit his version that exclusive possession was given to him in 1955 and that this was in respect of the entire Eastern portion of the property. In the absence of the evidence of either Surti or Mohamed Hasan Haji or Valli Mohamed Usman I am inclined to accept the testimony of Miya Merchant on this point. 20. The evidence of Ibrahim Abdul Kadar is relevant only on the point that there was an assignment from the first defendant to the second defendant on 5-1-1961. In the absence of the evidence of either Surti or Mohamed Hasan Haji or Valli Mohamed Usman I am inclined to accept the testimony of Miya Merchant on this point. 20. The evidence of Ibrahim Abdul Kadar is relevant only on the point that there was an assignment from the first defendant to the second defendant on 5-1-1961. The evidence of Bhagwan Jangam is only for the purpose of producing the sketch at Ex. 4 which was the sketch produced under section 41 proceedings in the Small Causes Court. This is all the oral evidence on record. 21. Coming to the documents, the notice dated 23-5-1956 given by Miya Merchant to Ismail Abubakar makes a grievance of absence of rent receipts and rent being excessive. The reply given by Ismail Abubakar is dated 6-6-1956. Admittedly till this date, Ismail Abubakar had taken no steps whatsoever demanding the possession of the suit premises from the first defendant, if the first defendant was really permitted to occupy it only as a licensee upto February 1956. The proceedings under section 41 of the P.S.C.C. Act in the Small Causes Court were initiated soon thereafter in the month of November 1956. A perusal of the judgment in the said section 41 proceedings would show that on the material before the Court, the Court came to the conclusion that exclusive possession was given to the defendant Miya Merchant and that the transaction was in the nature of lease. Admittedly the entire Eastern portion was in possession of the defendants and the possession of the entire Eastern portion was sought without making any distinction between the portion occupied by sheds and the portion allegedly kept open to sky. Even in the Revision Application in this Court, there is no grievance made about any portion being left open to sky which was not the subject matter of the transaction between Ismail Abubakar and Miya Merchant irrespective of the question of the nature of the said transaction. 22. In the light of the above evidence on record, it appears that exclusive possession of the entire Eastern portion was given initially to the first defendant who continued in possession as a lessee of the premises till 1961 when the assigned his interest in the said premises to defendant No. 2. The monthly consideration was fixed at Rs. 85/-. 22. In the light of the above evidence on record, it appears that exclusive possession of the entire Eastern portion was given initially to the first defendant who continued in possession as a lessee of the premises till 1961 when the assigned his interest in the said premises to defendant No. 2. The monthly consideration was fixed at Rs. 85/-. The conduct of the parties shows that Ismail Abubakar had transferred his interest in the premises to the first defendant. There is no written agreement of licence or any correspondence produced to infer the creation of a personal privilege or licence as distinguished from a lease. There are no special circumstances pleaded or proved such as close relationship, concessional rent, accommodating some one temporarily out of considerations of undue hardship etc. The story about the encroachment by first defendant on the portion which was earlier occupied by Surti and intervention of Mohamed Hasan Haji and Valli Mohamed Usman is not at all believable. Despite the evidence being available to the plaintiffs, the plaintiffs have chosen not to examine any of these witnesses for reasons best known to them. 23. Shri Shah for respondent No. 2 has invited my attention to some of the decisions of the Supreme Court laying down the tests for determination as to whether a transaction is in the nature of a licence or a lease. He has invited my attention to the following cases namely. 1) (Associated Hotels v. R.M. Kapoor)5, A.I.R. 1959 Supreme Court 1262. 2) (D.M. Lal v. M/s. Dunlop Rubber)6, A.I.R. 1968 Supreme Court 175. 3) (Qudrat Ullah v. Municipal Board, Bareilly)7, A.I.R. 1974 Supreme Court 396. and finally 4) (B.V. D'Souza v. Antonio Fausto Fernandes)8, case reported in A.I.R. 1989 Supreme Court 1816 : 1989(3) Bom.C.R. 150 (S.C.). It is not necessary to deal with all these cases in detail. Suffice it to say that for ascertaining whether the relationship between the parties is that of a licence or of a lease one must have regard to the substance of the transaction and the intention of the parties with regard to the elements which in law constitute the lease or a licence. While exclusive possession is an important factor to be considered, it is by no means conclusive. While exclusive possession is an important factor to be considered, it is by no means conclusive. Exclusive possession coupled with the absence of any special circumstance parties being strangers and not related to each other, the consideration being an increased amount of return with successive transactions are all factors which can be taken into account for coming to the conclusion that the relationship between the parties is that of the landlord and tenant. A reference is made to some of these factors in the latest decision of the Supreme Court in Capt. B.V. D'Souza's case reported in A.I.R. 1989 Supreme Court 1816 : 1989(3) Bom.C.R. 150 . (S.C.) 24. In my opinion, therefore, the first defendant must be held to have continued in possession of the premises upto 1961 as a lessee till he assigned his interest in the lease-hold premises to the second defendant on 5-1-1961. No other point was argued before me. 25. In the first two paras of this judgment, I have referred to the confusion in identification of the sheds A and B as a result of some mistake in the map at Exh. A to the plaint. What I have mentioned in para 2 of this judgment, is the correct position regarding shed A measuring 189.66 sq.ft. and shed B measuring 401.66 sq.ft. However, to obviate any controversy on that issue alone, the Counsel for the appellants and for the heirs of respondent No. 2 have filed two joint pursises which are taken on record and marked as Exhibit A in this First Appeal. 26. In the result, the appeal is dismissed. No order as to costs. Appeal dismissed. -----