JUDGMENT Bhaskar Bhattacharya, J. 1. This second appeal is at the instance of a defendant in a suit for eviction and is directed against the judgment and decree dated April 10, 1996 passed by the learned Judge, Small Causes Court at Sealdah in Title Appeal No. 47 of 1993 thereby affirming those dated March 29, 1993 passed by the learned Munsif, Additional Court, Sealdah in Title Suit No. 114 of 1989. 2. In the year 1983 the respondent filed a suit for eviction against the appellant from the suit property on the allegation that the respondent is a distant relative of the appellant and due to her such relation with the appellant, appellant approached the husband of the respondent for temporary accommodation in the suit property as a licensee without any rent or premium. At that point of time, as the appellant was in urgent need of accommodation, the husband of the respondent granted a licence in favour of the appellant in respect of the suit premises without any payment of money. In the year 1977, after the death of husband of the respondent, at the request of the appellant, the respondent permitted the appellant to stay in the premises licensee as before without any payment of rent. Subsequently the respondent requested the appellant to vacate the suit property but on the pretext or the other, the appellant put off such request premising to vacate as soon as able to secure a suitable accommodation. At last, in year 1983 the respondent gave a lawyer's notice asking appellant to vacate the property. Inspite of such notice the appellant did not quit the property. Hence the suit. 3. The aforesaid suit was contested by the appellant by filing written statement thereby denying the allegation made in the plaint and according to the appellant the tenancy from the respondent's husband at a monthly rental of Rs. 85/- from November 1970 on condition that the respondent would not issue any rent receipt because in that event, Corporation taxes would be increased on the basis of rent paid by the appellant. According to the appellant, on good faith he did not ask for rent receipt and was staying in the property as a tenant. Subsequently, the respondent increased the rent of the tenant on ground floor in the month of May 1982 from Rs. According to the appellant, on good faith he did not ask for rent receipt and was staying in the property as a tenant. Subsequently, the respondent increased the rent of the tenant on ground floor in the month of May 1982 from Rs. 13,200/- and at that time asked the appellant to increase the rent from-Rs. 85/- to Rs. 130/-. The appellant was agree to increase such rent provided the respondent issue receipt. In view of such demand the respondent starting trouble in various ways. Thus, the appellant sent at the rate of Rs. 85/- by money order for the months of 1982 and the same having been refused, he started depositing the rent with Rent Controller. Ultimately, in the month of March, 1983 the instant suit was filed. 4. At the time of hearing of the aforesaid suit, the plaintiff and her son deposed in support of the plaints case while the appellant, Amitava Chatterjee, an employee of the CESC and one Pran Gopal Chatterjee, another of the suit building deposed in favour of the appellant. 5. The learned trial Judge by the judgment and decree dated March 29, 1993 decreed the aforesaid suit with a finding that the appellant had failed to prove tenancy. 6. Being dissatisfied, the defendant preferred an appeal being Title Appeal No. 47 of 1993 and before the learned first appellate Court further evidence was given on behalf of the defendant thereby examining two employees of the Calcutta Municipal Corporation and exhibiting the certified copies of the Assessment Book of Inspection of the said premises. 7. Ultimately, the learned first appellate court below posed the judgment and decree dated April 10, 1996 dismissed the said appeal thereby affirming those passed by the learned trial Judge. 8. Being dissatisfied, the defendant has preferred the instant second appeal. 9. At the time of hearing of the aforesaid second appeal under Order 41 Rule 11 of the Code of Civil Procedure no substantial question of law was formulated by the Division Bench and as such at the time of hearing of the instant appeal, after hearing the learned Counsels of the parties the following substantial questions of law were formulate for the purpose of disposal of the instant second appeal: a) Whether the courts below could accept a new case regarding induction of the appellant as licensee which was not based on averments made in the plaint? b) In view of the fact that the respondent in even denied the plaint case regarding relationship between the parties, whether the courts below were justified in passing a decree in favour of the respondent? c) Exclusive possession for long 13 years before the institution of the suit having been admitted by the respondent which was contrary to the case of the temporary accommodation as pleaded in the plaint, whether the courts below were justified in passing a decree by treating the appellant as a licensee without licence fee? 10. After hearing the learned counsels for the parties and after going through the materials on record I find that in the plaint, the time of induction of the appellant has not been mentioned. In this connection, the relevant pleadings viz. paragraphs 2 and 3 of the plaint are quoted hereunder: "2. The defendant is a distant relative of the plaintiff and he was very familiar with the family of the plaintiff. Due to his relations with the plaintiff, the defendant approached the plaintiffs husband for temporary accommodation of kitchen, bath and privy and water tap of the second floor of premises No. 167/19A South Sinthi Road, Calcutta-700 050, hereinafter referred to as "Suit Premises" and the suit premises is fully described in the schedule below as a licensee without any rent or premium. As the defendant at that time was in urgent need of accommodation the plaintiffs husband granted a license to the defendant in respect of one room, kitchen, bath and privy on the second floor of premises No. 167/19A South Sinthi Road, P.S. Cossipore, Calcutta - 50 as fully described in the schedule below without any payment of rent. 3. The plaintiffs husband died in the year 1977 and the plaintiff, at the request and entreaties of the defendant allowed the defendant to stay in the said premises as a licensee without any payment after the demise of the plaintiffs husband from time to time, the plaintiff requested the defendant to vacate but the defendant, on one pretext or another put off, while promising to do as soon as the defendant was able to secure a suitable accommodation. As the plaintiff need for accommodation grew very urgent herself, requested the defendant to vacate the said accommodation provided by the plaintiffs husband and the plaintiffs as a licensee in the said premises. As the plaintiff need for accommodation grew very urgent herself, requested the defendant to vacate the said accommodation provided by the plaintiffs husband and the plaintiffs as a licensee in the said premises. The defendant on several pretext took time for vacating the said premises, but he did not vacate the said premises as fully described in the schedule below in spite of assurance given to the plaintiff." 11. As mentioned earlier, in reply to the aforesaid case made out in the plaint, the definite case of the appellant was that he was inducted in the month of November, 1970 as a tenant at a monthly rental of Rs. 85/- a month and it was specifically agreed between the parties that no rent received would be granted for the purpose of avoiding enhancement of Municipal rates by the Calcutta Corporation. At the time of hearing of the aforesaid suit, the plaintiff in her cross-examination categorically admitted that the appellant was not her relative and that she did not know the father's name of the appellant. She also did not know his native place and the place from where the appellant got his education. She merely knew that appellant was an employee of Calcutta Electric Supply Corporation but she did not know anything about the nature of his job. She further asserted that the appellant never approached her to induct him as a tenant and there was no talk between the appellant and respondent at the time of induction. She has however made a new case in her evidence that the father-in-law of the appellant was known to her and the said father-in-law was also a contractor under whose supervision the suit building was constructed and according to the request made by the said father-in-law of the appellant, she permitted the appellant to stay for a temporary period. In her examination-in-chief, she stated that the appellant began to reside in the suit premises in between 1965 and 1968. 12. The appellant on the other hand by evidence has proved that an electric meter which stood in the name of one P.K. Banerjee was transferred in his name from the month of November, 1970 although it is established that for the purpose of such transfer there was no written consent of the respondent. 12. The appellant on the other hand by evidence has proved that an electric meter which stood in the name of one P.K. Banerjee was transferred in his name from the month of November, 1970 although it is established that for the purpose of such transfer there was no written consent of the respondent. Regarding the tenancy of P.K. Banerjee whose meter was transferred in the name of the appellant, the specific case of both the respondent and her son, who appeared as witnesses is that there was no such tenant named P.K. Banerjee and prior to induction of the appellant in the second floor there was no tenant. The materials on record however conclusively proved that the electric meter that has been transferred in the name of the appellant previously belonged to one P.K. Banerjee. 13. Moreover, another tenant of the property has also given evidence in support of the case of the appellant that he used to tender rent to the respondent. 14. During the pendency of the first appeal, additional evidence was adduced on behalf of the appellant herein and the assessment inspection book for the period during 1980-81, 1986-87 and 1992-93 were marked as additional exhibits. 15. All the aforesaid materials mentioned above show that at the time of hearing, the respondent totally abandoned her case made out in the plaint that the appellant was a relation of the respondent and on his request he was temporarily accommodated without any licence fee and instead, had given a new story that appellant was not at all known to her but on the request of the father-in-law of the appellant viz. the contractor of the building, the appellant was inducted for a temporary period. Even such case is not fitting with the materials on record in view of the fact that no suit was instituted or licence was revoked prior to 1983. It is the definite case of the defendant that from 1982 he started depositing rent to the Rent Controller and that is the cause of filing of the suit. There is no explanation why a person who is working in Calcutta Electric Supply Corporation and who is not related to the respondent should be permitted to live in a self contained flat on the second floor with his family without any licence fee for such a long time. 16. Mr. There is no explanation why a person who is working in Calcutta Electric Supply Corporation and who is not related to the respondent should be permitted to live in a self contained flat on the second floor with his family without any licence fee for such a long time. 16. Mr. Roy Chowdhury, the learned Advocate appearing on behalf of the respondent vehemently contended that both the courts below having disbelieved the case of the tenancy after consideration of materials on record, this Court should not set aside such concurrent findings of fact in this second appeal after reappreciation of evidence. His further contention is that the onus is upon the appellant to prove tenancy by giving positive evidence and once the respondent has proved ownership of the property, a decree for eviction should automatically follow unless the appellant succeeds in proving tenancy by production of rent receipt or other cogent evidence. 17. There is no dispute with the preposition of law that a second appellate court should not reappreciate the materials on record for the purpose of upsetting the concurrent finding of fact recorded by both the courts below. But the law is equally settled that if the courts below in arriving at a particular conclusion relies upon the evidence which is totally inconsistent with the averment made in the plaint or does not take in consideration some vital pieces of evidence in arriving at such conclusion such finding can be set aside by a second appellate court. [See Dilbagrai Punjabi vs. Sharad Chandra, 1988(Sup.) SCC 710, Sunder Naicks Vadiyar vs. Ramaswami Ayyar, 1995 Sup.(4) SCC 534, Kochakakkada Aboobacker vs. Attah Kasim and Ors., 1996(7) SCC 389 ]. 18. As regards the onus no doubt the initial onus is upon the person asserting tenancy to prove such fact. But once the parties have lead evidence on the disputed issue and the conflicting evidence can be weighed to determine which way the issue can be decided the abstract doctrine of onus loses its importance and becomes academic.(See Narayan B.G. Balajiwale vs. G.V. Gosavi and Ors., AIR 1960 SC 100 ). 19. I am unable to accept the contention of Mr. Roychowdhury that unless rent receipt is produced, the case of tenancy should be disbelieved. The tenancy can also be proved by oral and other circumstantial evidence. 20. 19. I am unable to accept the contention of Mr. Roychowdhury that unless rent receipt is produced, the case of tenancy should be disbelieved. The tenancy can also be proved by oral and other circumstantial evidence. 20. In the instant case, as pointed out earlier, the respondent did not lead any evidence in support of her plaint case that the appellant is a distant relative and was very familiar with the family of the plaintiff or that due to such relation with plaintiff the defendant approached the plaintiffs husband for temporary accommodation in the suit premises without any rent or premium. Moreover, even if the plaintiffs admission made in the evidence that the appellant was inducted between 1966 and 1968 is accepted, such admission is not in tune with her case that the appellant was inducted for a temporary period without any licence fee. Such a long uninterrupted possession in a distinct portion of the property exclusively for long 15 years without payment of any fee is next to absurd unless parties are closely related. It is also very difficult to accept the case of the plaintiff that she did not know that there was a meter in the name of one P.K. Banerjee which has been transferred to the name of such a temporary lincensee and he has been using such meter for long 13 years. 21. Although the additional evidence accepted during the proceeding before the learned first appellate court viz. Corporation Inspection Book does not conclusively prove the veracity of the statement recorded therein but the fact remains that in view of such recording showing the appellant as a tenant, it was the duty of the plaintiff/respondent to show that she had preferred appeal against the assessment on the basis of such inspection report. But no material has been placed before the court showing that the respondent has preferred any appeal before the appropriate forum under C.M.C. Act against the assessment made on the basis of such inspection showing the appellant as a tenant of the suit property. 22. Non consideration of all these vital pieces of evidence and acceptance of a new case as regards relationship between the parties, in my opinion, has vitiated the judgment and decree passed by the learned Courts below and has brought down the standard of such judgments to a stage of perversity. 23. 22. Non consideration of all these vital pieces of evidence and acceptance of a new case as regards relationship between the parties, in my opinion, has vitiated the judgment and decree passed by the learned Courts below and has brought down the standard of such judgments to a stage of perversity. 23. Moreover, the court below did not apply the proper tests which are required to be followed in order to ascertain the real intention of the parties. The fact of exclusive uninterrupted peaceful possession for long 13 years after transferring the electric meter standing in the name of the previous tenant by a total outsider in his own name does not fit with the plaint case of creation of licence to a "distant relation for a temporary period". 24. Therefore, in my opinion, the plaintiff/respondent has failed to prove the case made out in the plaint that the appellant was a licensee for a temporary period being her relation and under the aforesaid circumstances this court is left with no other alternative but to accept the evidence adduced on behalf of the appellant that he was a tenant in respect of the property as pleaded by him. 25. The judgment and decree passed by the learned courts below are therefore set aside. The suit filed by the respondent is this dismissed. 26. In the facts and circumstances, there will be however no order as to costs. Appeal dismissed.