Judgment ( 1. ) THE appellants/defendants have preferred this appeal being aggrieved by the judgment dated 30-8-2001 passed by 11th Additional district Judge, Jabalpur in Civil Original Suit No. 4-A/01 (Old No. 10-B/95)decreeing the suit of the respondent for possession of a part of the House No. 109 described in the map annexed with the plaint situated at Ganjipura Ward, jabalpur along with the direction to pay the mesne profit @ Rs. 25/- per day from 3-1-1995. ( 2. ) THE facts giving rise to this appeal in short are that respondent/plaintiff filed a suit against the appellants/defendants for mandatory injunction and possession in respect of House No. 109 (New No. 1259/3), Ganjipura Ward, jabalpur. As per averment of the plaint such property was purchased by the respondent from its earlier owner vide sale-deed dated 10-8-1989. The husband of the respondent and the appellant No. 2 are the real brothers. The appellant No. 2 is carrying the business in the name and style of appellant No. 1. The appellant no. 2 was in need of some place to keep her business goods. Considering such need the respondent permitted her to use the disputed premises for the aforesaid purpose with the condition that she will vacate the same as per desire and requirement of the respondent. In pursuance of such condition the appellants were remained in occupation of the premises as the licensee of the respondent without any charge. The respondent was in need of such premises. Therefore by terminating such licence through notice-dated 6-10-1994 directed to vacate the premises within fifteen days. In spite its service the same was neither complied nor replied by the appellants. As per further pleadings the respondent also claimed mesne profit @ Rs. 25/- per day from 3-1-1995 till the delivery of possession. ( 3. ) IN written statement, the appellant by admitting the title and ownership of the respondent over the property denied their relationship as licenser and licensee. They claimed to be the tenant of respondent. The alleged requirement of the respondent is also denied. As per further averments she was inducted as tenant in such premises @ Rs. 500/- p. m. in the year 1994 for non-residential purpose, since then she is using the premises as godown for keeping her business goods. The rent of such premises was paid to the respondent regularly for which the receipt was never given to her. As per further averments she was inducted as tenant in such premises @ Rs. 500/- p. m. in the year 1994 for non-residential purpose, since then she is using the premises as godown for keeping her business goods. The rent of such premises was paid to the respondent regularly for which the receipt was never given to her. Keeping in view the relation with the respondent. Initially appellant No. 2 could not insist her to give such receipts but when respondent refused to give the same then she filed an application dated 11-10-1994 before the Rent Controlling Authority stating that respondent did not receive the rent @ 500/- p. m. since 1-5-1994 to 30-9-1994. The same was registered as R. C. A. No. 25-A/90/3/93-94. The notice of such proceeding was issued to the respondent in spite its service she did not appear, on which after holding the appellant to be the tenant of the respondent in such premises they were directed to deposit the outstanding rent by order dated 18. 4. 95. As per averments the copy of such order and the challan by which the rent was deposited are annexed with the written statement. Accordingly he claimed to be the tenant of respondent in such premises and not the licensee. The suit is not maintainable unless the same is filed under the provision of Madhya Pradesh Accommodation control Act. The possession of the appellants as tenant is protected under the law. ( 4. ) IN view of the pleadings of the parties after framing the issues the evidence was recorded. On appreciation by holding the appellants to be a licensee of the respondent in such premises, the decree for possession and mesne profit as mentioned above has been passed against them. The same is under challenge in this appeal. ( 5. ) SHRI V. K. Jain, learned counsel for the appellants assailed the impugned judgment saying that it was not a case of licence. In fact the appellants were inducted in such premises by the respondent as tenant for non-residential purpose by oral agreement. The relationship between the parties as tenant and landlord is established by the evidence laid by the parties, therefore the suit was not maintainable unless the same is filed by the respondent on the grounds available for eviction under the Madhya Pradesh Accommodation Control Act 1961. The relationship between the parties as tenant and landlord is established by the evidence laid by the parties, therefore the suit was not maintainable unless the same is filed by the respondent on the grounds available for eviction under the Madhya Pradesh Accommodation Control Act 1961. He also said that in view of the defence of the appellants mentioned in the written statement the respondent filed an application for amendment to the plaint for incorporating the grounds of eviction provided under the Madhya Pradesh accommodation Control Act 1961 but the same was dismissed by the trial court vide order dated 24-11-2001. On filing the Civil Revision No. 2545/00 by the respondent against such order the same was dismissed by this court vide order-dated 2-8-2001 directing the respondent to file the separate suit. In view of the order of Civil Revision the relationship of the parties appears to be landlord and tenant and not the licensee and licensor but without considering this aspects by holding the appellants to be a licensee in such premises the suit has been decreed. He further said that in view of the order of the Rent Controlling Authority there was no option with the trial court except to hold their relationship as landlord and tenant but contrary to it the conclusion was drawn by the trial court. He placed his reliance on a decision of the Apex Court announced in the matter of C. M. Ramachandra Rao vs. P. N. Ramchandra Rao reported in 2004 (3) SCC 595 . With these submissions he prayed for setting aside the impugned judgment and decree and dismissal of the suit by allowing this appeal. ( 6. ) ON the other hand Shri Ravi Ranjan, Counsel for the respondent by justifying the impugned judgment and decree said that the same are based on sound principle of appreciation of evidence and also is in conformity with law. He further said that appellants failed to prove their set up defence regarding relationship of landlord and tenant between them. So for order of the Rent controlling Authority is concerned it was argued that the same is neither produced nor proved on record. Besides this the appellants could not prove the relationship of landlord and tenant by producing any document in this regard. So for order of the Rent controlling Authority is concerned it was argued that the same is neither produced nor proved on record. Besides this the appellants could not prove the relationship of landlord and tenant by producing any document in this regard. The same is a material circumstance against the appellants to draw the adverse inference for holding that there was no relationship as landlord and tenant between the parties. It was also argued that in spite service of notice (Ex. P. 3) for termination of licence; the same was not replied by disclosing the aforesaid defence as pleaded in the written statement. This is also a circumstance to draw adverse inference against the appellants holding their defence to be false and afterthought. He also argued that in order to prove the relationship of landlord and tenant the appellant No. 2 ought to have entered into the witness box as this material fact was known to her but she did not enter. Her non-examination is another circumstance to draw the inference against the appellants. He placed his reliance on some reported cases and prayed for dismissal of this appeal. ( 7. ) HAVING heard the learned counsel after perusing the record, I am of the considered view that the trial court has not committed any error in passing the impugned judgment and decree. ( 8. ) THE appellants defended the case saying themselves to be the tenant of respondent in disputed premises but they did not produce or prove any document showing that at any point of time the alleged tenancy was remained in existence, even they failed to prove the same by oral evidence. On the other hand the respondent No. 1 plaintiff Sunita Jain (P. W. I), categorically deposed that appellant No. 2 on account of her necessity demanded such premises for some period to keep her business goods on which keeping in view the relation she permitted her to use the premises for some period. I have not found any averments in her entire chief or cross-examination showing that any point of time the relationship of landlord and tenant was established between them. Her testimony is further supported by Mahendra Kumar Jain (P. W. 2),who categorically stated in his chief that considering the demand of appellants respondent permitted her to use such premises without any documentation only for keeping her business goods. Her testimony is further supported by Mahendra Kumar Jain (P. W. 2),who categorically stated in his chief that considering the demand of appellants respondent permitted her to use such premises without any documentation only for keeping her business goods. He further stated in paragraph 4 that it was also settled that on account of necessity and demand of the respondent, appellants shall vacate the premises. As per further deposition the tenancy was never created between them. In his entire cross-examination he did not state any material thing discarding the version of his chief, only in paragraph 7 of his cross-examination in one sentence he stated that the disputed premises was given on the tenancy but on going through his entire deposition, I have not found any substance in such sentence for holding their relationship as landlord and tenant. ( 9. ) ON the other hand the appellant No. 2 Proprietor of appellant No. 1 neither entered in the witness box nor any explanation in this regard was put forth on record, whereas in order to prove the alleged defence of the tenancy she was the only witness who could have proved such fact. Therefore, non-examination of the appellant No. 2 is material circumstance to draw the inference against the appellants that there was no such relationship of landlord and tenant between them. It is settled proposition of law that the party having knowledge of the material fact did not enter in the witness box to state such thing is sufficient circumstance to draw adverse inference against such party. Such proposition is laid by this Court in the matter of Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat reported in 1970 MPLJ 586 = AIR 1970 MP 225 , in which it was held as under : "4. When a material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him. " ( 10. ) APART the above even on going through the other evidence led by the appellants, it has not been proved that appellants were the tenants in such premises. " ( 10. ) APART the above even on going through the other evidence led by the appellants, it has not been proved that appellants were the tenants in such premises. Rajesh Jain (D. W. I) the son of the appellant No. 2 stated that the alleged tenancy was @ Rs. 100/- per month and its rent was paid up to December 1994 but on demanding the receipts of such payment when the same were not given then his mother initiated the proceedings before Rent Controlling Authority, jabalpur. The same was decided in favour of his mother. But it is apparent that such order of the Rent Controlling Authority was neither produced nor proved on record. In the lack of such material document, mere on the oral testimony, the relationship between the parties as landlord and tenant could not be inferred. On going through the cross-examination of this witness, I have not found any material circumstance proving the aforesaid defence of the appellants. So far the testimony of Jitendra kumar Jain (D. W. 2) is concerned, he could not explain or prove the relationship of the parties as landlord and tenant with any material particulars. It appears that this witness being nearest relative of appellant No. 2 without having knowledge of any event came to record his statement. The appellants were duty bound to prove their defence by submitting the order of the Rent Controlling Authority, in which they failed. In written statement such order was pleaded contending that its copy is also annexed with it but the same was not filed. It gives sufficient circumstance to draw the inference against the appellant to hold that neither the alleged tenancy was created nor any order was passed by Rent Controlling Authority. Such view is fully fortified on a principle laid by the Apex Court in the matter of Gopal Krishnaji ketkar vs. Mohamed Haji Latif and others reported in 1969 MPLJ (SC) 271 = AIR 1968 SC. 1413 , in which it was held as under : "even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. 1413 , in which it was held as under : "even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. " ( 11. ) COMING to another aspect of the case that before filing the suit respondent gave a notice dated 6-10-1994 (Ex. P. 3) for termination of the licence to the appellant No. 2 through appellant No. 1 by registered post. The postal receipts (Ex. P. 4) and due acknowledgment receipt (Ex. P. 5) are proved on record in which the correct address of the appellants firm is mentioned. In any case in the light of the provision of presumption enumerated under section 114 (e) of the evidence Act and under the Post Office Act and also the provision of General clauses Act the service of such notice over the appellants could be inferred and the same is held. It is apparent on record that such notice was never replied by the appellants at any point of time before filing the suit by stating the defence which was pleaded later in the written statement. If such defence was bona fide and genuine then the same should have been replied on receiving the notice (Ex. P. 3 ). It gives another circumstance to draw the inference against the appellant holding the defence taken by the appellants is false and afterthought. Such question is answered by the High Court of Patna in the matter of kameshwar Lal vs. The King reported in AIR 1948 Patna 406, in which it was held as under : "furthermore, when Uttim Gorain sent a written notice to the petition to return the documents, the petitioner instead of replying that they had already been returned which is what one would expect if that had been the case, sent no reply at all, and has given no explanation of his conduct in that behalf. In these circumstance, I am not prepared to hold that the inference drawn by the Courts below adverse to the petitioner is incorrect and I would accordingly discharge this rule. " ( 12. ) APART the above, it is undisputed fact on record that the appellant No. 2 and respondent being wives of real brothers are sister-in-law to each other. In view of the available evidence, it appears that on account of such relationship the respondent permitted the appellant No. 2 to use the disputed premises for keeping her business goods as licensee. The licence is defined under section 52 of Indian easement Act, 1882. The same is read as under : "where one person grants to another, or to a definite number of other persons a right do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license. " ( 13. ) IN view of the aforesaid definition, if the case at hand is examined then in the lack of any evidence regarding relationship of landlord and tenant their relation appears to be the licensee and licensor, the same is covered by the above mentioned definition. It is undisputed fact that immovable property was given to the appellants by the respondent with a right to use for keeping the business goods. Such question was answered by the Apex Court in the matter of Sant Lal jain v. Avtar Singh reported in AIR 1985 S. C. 857 in which it was held as under: "8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession. In view of the aforesaid discussion, it has been revealed that there was no relationship as landlord and tenant between the parties and the appellants were permitted by the respondent to use the premises for keeping the business goods as licensee and such licence was terminated, revoked or cancelled by notice dated 6-10-1994 (Ex. P. 3 ). Subsequent to it, the appellant were bound to hand over the vacant possession of the premises in compliance of such notice. When the notice was not complied with by the appellant, then the respondent filed the suit. In such premises the trial court has not committed any error in decreeing the suit of the respondents. " ( 14. ) IN view of the aforesaid discussion, it has been revealed that there was no relationship as landlord and tenant between the parties and the appellants were permitted by the respondent to use the premises for keeping the business goods as licensee and such licence was terminated, revoked or cancelled by notice dated 6-10-1994 (Ex. P. 3 ). In compliance of it, the appellants were bound to hand over the vacant possession of the premises to the respondent. In such premises the trial court has not committed any error in decreeing the suit of the respondent. ( 15. P. 3 ). In compliance of it, the appellants were bound to hand over the vacant possession of the premises to the respondent. In such premises the trial court has not committed any error in decreeing the suit of the respondent. ( 15. ) SO far case law in the matter of C. M. Ramachandra Rao vs. P. N. Ramchandra Rao reported in 2004 (3) SCC 595 cited on behalf of the appellants is concerned, it is suffice to say that in such case there was an agreement in writing and the relationship of landlord and tenant was established by the reliable evidence. Therefore, by holding the relationship as landlord and tenant between the parties the case was decided but here the circumstances are different as mentioned above. Hence, the same is not helping the appellants. Although this court does not have any dispute regarding the principle laid down in it. ( 16. ) UNDER the aforesaid premises, I have not found any merit in this appeal; hence, by affirming the findings of the impugned judgment and decree, the same is hereby dismissed. The appellant shall bear their own costs and also pay the cost of both the courts to the respondent. The counsel fee of this appeal Rs. 2,500. 00 is quantified. Decree be drawn up accordingly. Appeal is dismissed as indicated above. Appeal dismissed.