JUDGMENT : - Bhaskar Bhattacharya, J.: This first appeal is at the instance of defendants in a suit for eviction and is directed against the judgment and decree dated June 29, 1996 passed by the learned Judge, 12th Bench, City Civil Court, Calcutta in Ejectment Suit No. 1185 of 1975 thereby decreeing the aforesaid suit. The proceeding has a chequered career. 2. The respondent herein filed the aforesaid Ejectment Suit No. 1185 of 1975 in the City Civil Court at Calcutta for eviction of the appellants by treating 'them as tenants governed under the provision of West Bengal Premises Tenancy Act on the ground of default in payment of rent and sub-letting and the case made out by the respondent was as follows : Premises No.1, Keshab Chandra Sen Street belonged to one Sisir Kumar Dawn. After the death of said Sisir Kumar Dawn the property devolved upon his widow, Smt. Angurbala and his only son, Samir. 3. The appellants were tenants under them in respect of a portion of the northeri1 side of the said premises consisting of five rooms which were later converted into seven rooms as described in the schedule annexed to the plaint. The tenancy was held at a monthly rental of Rs. 70/- according to English calender. By a registered deed of conveyance dated June 26, 1974, the aforesaid heirs of Sisir Kumar Dawn sold their undivided half share in the said property to Smt. Pachha Debi, the grandmother of the plaintiff and the plaintiff for valuable consideration. By another registered deed of conveyance executed on the same day, the aforesaid heirs of Sisir Kumar Dawn transferred the remaining undivided half share in the said premises No.1, Keshab Chandra Sen Street to Smt. Gayatri Debi for valuable consideration. Smt. Gayatri Debi is the mother of the plaintiff. Ultimately by a registered deed of partition dated August 11, 1974 executed by the co-sharers, the said premises were mutually partitioned among them and under the terms of the said partition, the back portion being 'the northern portion of the said premises was allotted to the plaintiff who became absolute owner thereof. The tenancy of the defendants had fallen exclusively in the portion allotted to the plaintiff. The appellants were duly informed of the said transfer and they became monthly tenant under the respondent in respect of the said premises at monthly rental of Rs. 70/-. The tenancy of the defendants had fallen exclusively in the portion allotted to the plaintiff. The appellants were duly informed of the said transfer and they became monthly tenant under the respondent in respect of the said premises at monthly rental of Rs. 70/-. It was further alleged that the appellants were defaulters in payment of rent and they neglected to pay rent from August, 1974, the date the respondent became exclusive owner. It was further alleged that the appellants were also guilty of sub-letting and were thus liable to be evicted. 4. The aforesaid suit was contested by the appellants by filing joint written statement and the sum and substance of the defence contention was that they were tenants in respect of land under Sisir Kumar Dawn. According to the appellants, said Sisir Kumar Dawn sold the debris consisting of old bricks and other building materials to Mannuram Shaw, the predecessor-in-interest of the appellants on receiving consideration of Rs. 1,000/-. Thereafter, the said Sisir Kumar Dawn let out the vacant land measuring 1 cottah 8 chittaks to Mannuram Shaw on receiving a selami of Rs. 1,000/- on condition that rent would be Rs. 25/- according to English calender. An agreement was accordingly executed between Sisir Kumar Dawn and Mannuram on July 5, 1939 incorporating the terms of the tenancy. According to the said agreement Mannuram was permitted to construct structure with tiles and tin shed over the land. The further defence case is that the predecessor-in-interest of the defendants raised structure on the suit premises and let out two rooms to 'bharatias'. It was further contended by the appellants that the rent of Rs. 25/- a month was gradually enhanced to Rs. 70/- a month but the tenancy was in respect of the land only and it was never in respect of the structure. Therefore, the appellants took the specific plea that they were thika tenants under Calcutta Thika Tenancy Act and the plaintiff/respondent had no right to evict them under the provision of West Bengal Premises Tenancy Act. 5. The learned trial Judge on consideration of the materials on record although found that the appellants were defaulter in payment of rent and had also sublet different portions of the premises to outsiders but dismissed the suit on the ground that there existed no relationship of landlord and tenants under the provisions of West Bengal Premises Tenancy Act. 5. The learned trial Judge on consideration of the materials on record although found that the appellants were defaulter in payment of rent and had also sublet different portions of the premises to outsiders but dismissed the suit on the ground that there existed no relationship of landlord and tenants under the provisions of West Bengal Premises Tenancy Act. In substance, the learned trial Judge accepted the defence case that the appellants were thika tenants and not a premises tenants as alleged by plaintiff. 6. Being dissatisfied, the plaintiff/respondent preferred an appeal being F.A. No. 360 of 1980 before this court, which was ultimately disposed of by Mukul Gopal Mukherjee and M.N. Roy, JJ. on September 26, 1989 thereby setting aside the judgment and decree passed by the learned trial Judge and remanding the matter back to him for fresh adjudication whether the appellants were a thika tenant or a premises tenant. While remanding the matter back to the learned trial Judge, the Division Bench framed the following two additional issues :- "(1) Was exhibit "A" really acted upon by and between the predecessor-in-title of the plaintiff and the predecessor-in-title of the defendants ? (2) Did the defendants all along pay the rent as tenants in respect of the premises and not in respect of their thika tenancy?" 7. By the said order, the Division Bench permitted the plaintiff to adduce additional evidence by proving dhakhilas and other documents so that there may be a full fledged trial on evidence by the court below on the two issues as indicated above. 8. By the said order, the Division Bench however affirmed the findings of the learned trial Judge on the question of default, sub-letting and service of eviction notice under section 13(6) of the West Bengal Premises Tenancy Act with observation that in the event it was held that the appellants were not thika tenants, court would pass a decree for eviction on the aforesaid grounds. 9. After the aforesaid order of remand the respondent further examined Samir, the son of Sisir Kumar Dawn and also examined an Advocate Commissioner, who held local inspection after such remand apart from P.W.-4 the brother of the respondent. Similarly the appellant No.2 was further examined. 10. 9. After the aforesaid order of remand the respondent further examined Samir, the son of Sisir Kumar Dawn and also examined an Advocate Commissioner, who held local inspection after such remand apart from P.W.-4 the brother of the respondent. Similarly the appellant No.2 was further examined. 10. The learned trial Judge after such remand held that the structures were undoubtedly constructed by Mannuram Shaw, the predecessor of the appellants but inspite of such finding held that the rent receipts were granted to the appellants not as 'thika' tenant but as premises tenant and thus decree the suit. Being dissatisfied, the defendants have preferred the instant appeal. 11. Mr. Dasgupta, the learned senior advocate appearing in support of this appeal has firstly contended that in spite of specific finding recorded by the learned trial Judge that the disputed structure was constructed by the predecessor-in-interest of the defendants, the learned trial Judge erred in law in holding that the tenancy was governed by West Bengal Premises Tenancy Act by totally misreading the rent receipts granted by the original owner of the land. 12. Mr. Dasgupta contends that the rent receipts do not show that the tenancy was for structure. In the rent receipts only the Municipal Number of the premises was mentioned. That fact, Mr. Dasgupta contends, does not prove the nature of tenancy. 13. Mr. Dasgupta next strongly relied upon Ext.-A and submits that the respondent could not adduce any evidence showing that Ext. -A was not acted upon. In the absence of any such evidence Mr. Dasgupta submits, it should be held that a clear case of tenancy of land has been created. 14. Mr. Banerjee, the learned advocate appearing on behalf of the respondent has on the other hand supported the judgment and decree passed by the learned trial Judge and has contended that the appellants could not adduce any direct evidence of construction of building by their predecessor; on the contrary in the register of the Calcutta Municipal Corporation the entire premises has been shown to be owned by the predecessor of the plaintiff. Thus, Mr. Banerjee contends that both land and structure were let out to the predecessor-in-interest of the defendant. Mr. Banerjee relied upon the evidence of P.W.-3, a mason and contends that such evidence proves construction by the predecessor of the plain tiff. 15. Mr. Thus, Mr. Banerjee contends that both land and structure were let out to the predecessor-in-interest of the defendant. Mr. Banerjee relied upon the evidence of P.W.-3, a mason and contends that such evidence proves construction by the predecessor of the plain tiff. 15. Mr. Banerjee next contends that even the Ext.-A, shows that not only land but other structure including boundary wall and privy was the part of the tenancy and as such by virtue of Ext.-A, a tenancy for land and structure was created. Mr. Banerjee in this connection relies upon the following decisions of this court : (a) Murari Mohan vs. Prokash; 53 CWN 640; (b) Shantilata vs. Sarjubala, 60 CWN 642; (e) Annapurna vs. Tincowrie, 66 CWN 338. As pointed out in the aforesaid decisions, in order to establish thika tenancy right it must be proved that a tenancy was created for land only and that the tenant has either constructed structure thereon or has acquired such structure either by purchase or by gift for manufacturing, residential or business purpose. Therefore, in a case of thika tenancy, land will be owned by the landlord while the structure by the tenant; on the other hand if both the land and structure are let out to a tenant such tenancy will be governed by West Bengal Premises Tenancy Act. 16. Keeping in view the aforesaid position of law, we will proceed to examine the case in hand on the basis of the materials on record. 17. Ext.-A is a document dated, July 5, 1939 admittedly executed by Sisir Kumar Dawn, the predecessor-in-interest of the plaintiff and Mannuram Shaw, the predecessor of the defendants. By the said deed, Sisir has sold old bricks and broken articles including wooden materials and iron joists to Mannuram for Rs. 1,000/- and by taking a further sum of Rs. 1,000/- as selami let out land in the northern side being part of premises No.1, Keshab Chandra Sen Street, Calcutta to the extent of 1 cottah 6 chittaks at a rental of Rs. 25/- including municipal taxes according to English calender. By Clause 6 of the deed, Mannuram was allowed to construct structure restricted to the aforesaid area of land. 18. As mentioned earlier, previously a Division Bench of this court while remanding the matter directed the learned trial Judge to decide after framing a fresh issue whether Ext.-A was acted upon. 25/- including municipal taxes according to English calender. By Clause 6 of the deed, Mannuram was allowed to construct structure restricted to the aforesaid area of land. 18. As mentioned earlier, previously a Division Bench of this court while remanding the matter directed the learned trial Judge to decide after framing a fresh issue whether Ext.-A was acted upon. Therefore, execution of the said Ext.-A cannot now be disputed by the plaintiff having accepted the order of remand. Onus is no doubt upon the plaintiff to show that Ext.-A was not acted upon because the defendant is relying upon the document, which on the face of it shows grant of permission to the tenant to raise construction on the demised land. 19. This court is quite conscious that mere tenancy for land will not create thika tenancy unless structure thereon is owned by the tenant. There is no dispute that on July 5, 1939 at the time of creation of tenancy of land, there was no structure on the vacant 1 cottah 6 chittaks of land. 20. Ext.-B(3) shows that Sisir realised rent from July 5, to July 31, 1939 at the rate of Rs. 25/- amounting to Rs. 21-12 As-9 Pai. Ext.-B(2) is the rent receipt for August, 1939 at the rate of Rs. 25/-. Those two rent receipts show that the tenancy for land commenced from July 5, 1939. Therefore unless the said tenancy for land is surrendered by Mannuram in favour of Sisir, the latter could not make any construction. It is nobody's case that the said land is lying vacant. Therefore in the absence of any evidence showing surrender of tenancy dated July 5, 1939 landlord could not make any construction. It is not also the case of landlord that tenancy " for land was given but subsequently landlord has constructed structure; on the other hand the case of the plaintiff is that Mannuram was a tenant of structure. No evidence was given by the landlord to show that the selami of Rs. 1,000/- was refunded to Mannuram or that the same was adjusted towards future rent for not' giving effect to Ext.-A. In the absence of any such evidence, we are unable to accept the contention of the respondent that Ext.-A was not given effect to. No evidence was given by the landlord to show that the selami of Rs. 1,000/- was refunded to Mannuram or that the same was adjusted towards future rent for not' giving effect to Ext.-A. In the absence of any such evidence, we are unable to accept the contention of the respondent that Ext.-A was not given effect to. Therefore, the only conclusion that emerges out from the aforesaid fact is that Mannuram raised structure on the vacant land. 21. Mr. Banerjee strenuously urged that if the structure was really constructed by Mannuram, his name would appear in the register of Calcutta Corporation as owner. The inclusion of name in the municipal record merely shows possession of the person whose name appeared. In this case although admittedly Mannuram and after his death, the appellants are all along in possession of the property, the Corporation record does not even record their names as premises tenant although the names of other premises tenants of the owner of the same premises viz.1 Keshab Chandra Sen Street are appearing as tenant. The aforesaid fact unmistakably proves that the Corporation record did not reflect the correct picture even as regards possession. In this connection we find substance in the contention of Mr. Dasgupta that as the appellants were not premises tenant under the respondent, their names did not appear as tenant under the owner. In any view of the matter, the non-inclusion of the names of the appellants in the Corporation record is of no avail to Mr. Banerjee's client. 22. We have already indicated that the learned trial Judge although has held that the structure was made by Mannuram, did not believe the case of thika tenancy as the rent receipts did not mention him as thika tenant. We have noticed that even in the first rent receipt of 1939 the reference of premises no. 1, Keshab Sen Street was there although admittedly at the point of time 1 cottah 6 chittaks of lands were lying vacant. Therefore, mere reference of premises number in the rent receipts cannot have overriding effect over all other materials on record. 23. Mr. Banerjee lastly placed strong reliance upon the evidence of Ibrahim, P.W.-3, a mason, who deposed before the order of remand. We find from his evidence given in 1982 that 40 years back he made some repair works during the life time of Sisir. 23. Mr. Banerjee lastly placed strong reliance upon the evidence of Ibrahim, P.W.-3, a mason, who deposed before the order of remand. We find from his evidence given in 1982 that 40 years back he made some repair works during the life time of Sisir. This witness did not claim that he raised new construction over the vacant land. Therefore his evidence does not throw any light on the construction of new structure. Moreover the Division Bench at the time of previous remand did not rely upon his evidence. If his evidence was believed by the Division Bench there was no necessity of remand permitting the respondent to give evidence on the point whether Ext.-A was acted upon. Therefore, we are not at all impressed by the said submission of Mr. Banerjee. 24. Therefore, on consideration of the entire materials on record we are of the firm view that Ext.-A was very much acted upon and no tenancy of structure was created. 25. The tenancy of the appellants is thus a thika tenancy and as such the suit filed by the respondent is not maintainable. 26. The appeal is thus allowed. The judgment and decree passed by the learned trial Judge are set aside and the suit filed by the respondent is dismissed. No order as to costs. Amit Talukdar, J.: I agree. Appeal is allowed.