Judgment :- BHASKAR BHATTACHARYA, J. (1) THIS first appeal is at the instance of a defendant in a suit for declaration of title and permanent injunction and is directed against the judgment and decree dated October 8, 1999 passed by the learned Judge, Eleventh Bench, City civil Court at Calcutta in Title Suit No. 1105 of 1990 thereby declaring that the plaintiff was a tenant under the defendant in respect of the western part of the godown on the ground floor of the premises No. 153a, Acharya Prafulla Chandra road, Calcutta, at a monthly rental of Rs.513/ -. It was further declared that the decree passed in S. C. C. Suit No. 3076 of 1987 was not binding upon the plaintiff and at the same time, the defendant was permanently restrained from dispossessing or evicting the plaintiff from the suit premises in execution of the decree passed in S. C. C. Suit No. 3076 of 1987. (2) BEING dissatisfied, the defendant has come up with the present first appeal. The plaintiff-respondent filed a suit in the City Civil Court at Calcutta being Title Suit No.1105 of 1990 thereby praying for declaration that the plaintiff was a tenant under the appellant in respect of one godown being the western part of godown no. FG-1 situated on the ground floor of premises No. 153a, acharya Prafulla Chandra Road at a monthly rental of Rs. 513/- payable according to the English Calendar and for further declaration that the decree passed in S. C. C. Suit No. 3076 of 1987 was not binding upon it. The plaintiff further prayed for permanent injunction restraining the appellant from dispossessing and/or evicting the plaintiff from the suit premises in execution of the decree passed in S. C. C. Suit No. 3076 of 1987. (3) THE case made out by the plaintiff-respondent may be summed up thus: a) The plaintiff was a partnership firm carrying on business at 25, Gangadhar babu Lane and also at 153a, Acharya Prafulla Chandra Road. The plaintiff was a tenant under the defendant in respect of one godown being the western part of godown no. FG situated on the ground floor of the premises no. 153a, Acharya Prafulla Chandra Road at a monthly rental of Rs. 513/-payable according to English Calendar. The plaintiff was a tenant under the defendant in respect of one godown being the western part of godown no. FG situated on the ground floor of the premises no. 153a, Acharya Prafulla Chandra Road at a monthly rental of Rs. 513/-payable according to English Calendar. B) In the month of June 1985, the plaintiff was inducted in the suit premises and the same was being used as godown. Since the inception of the tenancy, the defendant did not issue any rent receipt after acceptance of monthly rental of Rs. 513/- from the plaintiff. The defendant did not grant such receipt on the ground that the defendant being a tenant would be evicted if such rent receipt was granted. C) The defendant having refused to accept rent from the plaintiff for the month of August 1987, the plaintiff tendered the said rent for the month of august 1987 by money order and the defendant having further refused to accept such money order, the plaintiff started depositing the rent in the office of the Rent Controller after observing statutory formalities. D) On 16th July, 1990, the defendant came to the plaintiff"s office at 25, gangadhar Babu Lane and demanded possession on the ground that the defendant obtained a decree for possession in respect of the suit property from the Small Causes Court at Calcutta. The plaintiff through their advocate made enquiry and came to know that the defendant on 18th december, 1987 instituted the S. C. C. Suit No. 3076 of 1987 before the sixth Bench, Small Causes Court at Calcutta impleading one Monohar Lal chopra as party defendant in his personal capacity alleging revocation of leave and licence. The defendant tried to make a wrongful gain by introducing the alleged story of grant of leave and licence in favour of the said Monohar Lal Chopra suppressing the material fact of the monthly tenancy of the plaintiff. The defendant with an ulterior motive filed the said suit against Monohar Lal Chopra who had no connection with the plaintiff firm. E) The said S. C. C. Suit No. 3076 of 1987 was decreed on 11th July, 1990. The said decree was not binding upon the plaintiff. The defendant having threatened to dispossess the plaintiff by taking aid of the said decree passed against Monohar Lal Chopra, the suit was filed. E) The said S. C. C. Suit No. 3076 of 1987 was decreed on 11th July, 1990. The said decree was not binding upon the plaintiff. The defendant having threatened to dispossess the plaintiff by taking aid of the said decree passed against Monohar Lal Chopra, the suit was filed. The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and the defence taken by the defendant may be summarized thus: (i) At all material times, the defendant was a tenant in respect of one godown being No. FG-1, situated on the ground floor of premises no. 153a, Acharya Prafulla Chandra Road, Calcutta under M/s. Shree shiv Shakti Mills Pvt. Ltd. at a monthly rental of Rs. 1025/- payable according to English Calendar and the defendant had partitioned the godown into two parts by a partition wall running from South to North for the purpose of stocking his rubber goods as well as iron goods since the defendant deal with sale and supply of rubber goods and iron goods as well. (ii) One Monohar Lal Chopra, on or about 31st May, 1985, came to the defendant and requested him to provide a temporary accommodation in a portion of the godown on the ground floor of the said premises and expressed his difficulties and urgency on the ground that he was unable to carry on his business at premises No. 25, Gangadhar Babu Lane, carried on in the name and style of Capital Transport Corporation of india due to the regular disturbance and interference caused by his employee who had formed a Trade Union and were not permitting him to continue the said business at 25, Gangadhar Babu Lane, Calcutta until some sort of settlement was reached with them. (iii) That the said Monohar Lal Chopra further informed the defendant that he would take some time to sort out the difference between him and his employees and requirement for the accommodation was for about 21 months or even less. He assured the defendant that he would vacate the premises definitely by the expiry of 21 months. (iii) That the said Monohar Lal Chopra further informed the defendant that he would take some time to sort out the difference between him and his employees and requirement for the accommodation was for about 21 months or even less. He assured the defendant that he would vacate the premises definitely by the expiry of 21 months. (iv) On the aforesaid request of Monohar Lal Chopra, the defendant granted him a verbal leave and licence for a period of 21 months commencing from 1st June, 1985 and ending in 28th February, 1987, without any licence fee in respect of western part of his godown with small office room in the ground floor of the premises having separate entrance gate opening on Sahitya Parishad Street just beside the gate of the defendant. (v) On the expiry of the period of licence, on 28th February 1987, the defendant asked the said Monohar Lal Chopra to vacate the godown in terms of leave and licence but he refused on various false pretexts. The defendant by his advocate sent notice dated 7th September, 1987 under registered cover determining the said leave and licence and called upon him to deliver the vacant possession of the godown within 15 days from the receipt of the said notice; but in spite of service of the said notice the said Manohar Lal Chopra did not vacate and in reply it was stated that he was a tenant under the defendant in respect of godown at a monthly rental of Rs. 512. 50p. The said Monohar Lal Chopra is the father of some of the partners and the husband of one of the partners of the plaintiff. (vi) The defendant filed a suit in the Presidency Small Causes Court being s. C. C. Suit No. 3076 of 1987 under Section 41 of the Presidency Small causes Court Act against the said Monohar Lal Chopra in which monohar Lal Chopra filed written statement and contested the suit. In course of hearing of the said suit, the partners of the plaintiff, namely, sri Dharampal Chopra was examined on behalf of the said Monohar Lal chopra as DW-2 who produced a book of accounts which was marked as Exbt.-"b". In course of hearing of the said suit, the partners of the plaintiff, namely, sri Dharampal Chopra was examined on behalf of the said Monohar Lal chopra as DW-2 who produced a book of accounts which was marked as Exbt.-"b". The learned Judge of the Small Causes Court decreed the suit on contest with clear finding that the said book of accounts did not help the defendant, Monohar Lal Chopra in the matter of proving his tenancy. (vii) The plaintiff filed the present suit suppressing the material facts as the plaintiff had knowledge that a decree had been passed in which the plaintiff"s partners appeared and examined himself as DW-2 and the book of accounts of the plaintiff was also produced. (viii) The defendant granted leave and licence to Monohar Lal Chopra and not to the firm M/s. Capital Transport Corporation of India. It was a false statement that the plaintiff was inducted as a tenant in respect of the godown. The suit was liable to be dismissed. (4) AT the time of hearing of the suit, Harish Chopra and Dharampal Chopra, two of the partners of the plaintiff deposed in support of the claim while the defendant and one Dilip Kumar Roy deposed in opposing the claim. By the judgment and decree impugned herein the learned Trial Judge decreed the suit with a finding that the appellant created a tenancy in favour of the plaintiff at a monthly rental of Rs. 513/- according to English Calendar and the appellant was permanently restrained from dispossessing the plaintiff in execution of the decree passed against Monohar Lal Chopra. (5) BEING dissatisfied, the defendant has come up with the present appeal. Mr Tandon, the learned advocate appearing on behalf of the appellant, laboriously contended before us that the learned Trial Judge, in holding that the plaintiff was a tenant under the appellant, totally misapplied the tests which are required to be followed in deciding the question whether a person is a tenant or a licensee. According to Mr Tandon, the case made out by the plaintiff was based on falsehood, inasmuch as, Monohar Lal Chopra was none else than the father of the some of the partners of the plaintiff and the husband of the other partner. According to Mr Tandon, the case made out by the plaintiff was based on falsehood, inasmuch as, Monohar Lal Chopra was none else than the father of the some of the partners of the plaintiff and the husband of the other partner. Mr tandon contends that although one of the partners appeared in the previous suit filed against Monohar Lal Chopra and even exhibited the account book of the plaintiff, they deliberately made a false statement that they had no knowledge of the decree passed against Monohar Lal Chopra. Mr Tandon submits that his client was a tenant in respect of the property at the relevant point of time and monohar Lal Chopra, being also a businessman, well understood that it was not lawful to create any tenancy in respect of the said godown and that is why the parties agreed to create a licence for a limited period and that too, without any licence fees. Mr Tandon contends that Monohar Lal Chopra being known to the defendant being a neighbour, his client permitted Monohar Lal Chopra to occupy for a limited period. Mr Tandon contends that the alleged book of accounts produced by the defendant itself indicates that the same was a manufactured one and the same was disbelieved as a proper account book in the earlier proceedings initiated against Monohar Lal Chopra. He, therefore, prays for dismissal of the suit and for setting aside the decree. (6) MR Banerjee, the learned senior advocate appearing on behalf of the plaintiff- respondent, on the other hand, supports the judgment and decree passed by the learned Trial Judge and contends that his client having been put into exclusive possession in respect of the half of the portion of the godown, the learned Trial Judge rightly held that such fact indicated that it was a case of tenancy. Mr Banerjee submits that the parties being not related to each other, it was preposterous to suggest that without payment of any amount, the defendant permitted his client to occupy half of the portion. He, therefore, prays for dismissal of the appeal. (7) THEREFORE, the question that falls for determination in this appeal is whether the learned Trial Judge in the facts of the present case was justified in passing a decree in favour of the respondent. He, therefore, prays for dismissal of the appeal. (7) THEREFORE, the question that falls for determination in this appeal is whether the learned Trial Judge in the facts of the present case was justified in passing a decree in favour of the respondent. (8) AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that the specific case made out by the plaintiff was that the firm took the tenancy through one of its partners, viz. P. W.-1, in the year 1985 and that the father of the P. W.-1, viz. Mohanlal, had no role to play in taking the said tenancy. It is the specific case of the plaintiff that in the year 1990, the defendant informed the firm that he had obtained a decree against the father of the P. W.-1 and from such incident, the plaintiff firm for the first time came to know about the decree passed against Mohanlal and such fact was the cause of action of filing the present case. (9) IT appears from the record that in the previous proceedings against mohanlal, he took the selfsame plea that the plaintiff firm was the tenant under the defendant and in that proceeding, apart from Mohanlal, another brother of the P. W.-1, Dharampal, appeared as a witness on behalf of Mohanlal and also exhibited the account book of the plaintiff firm in support of the defence that the plaintiff firm was a tenant. The learned Trial Judge disbelieved such account book and passed a decree for eviction against Mohanlal in the year 1990. It appears that the said decree had attained finality against Mohanlal. Subsequently, the present suit has been filed at the instance of the plaintiff. (10) IN this suit, apart from P. W.-1, viz. Harish Chopra, his brother, dharampal, who appeared as a witness in the previous proceedings against their father and exhibited the account book of the plaintiff firm in support of the defence that the present plaintiff firm was the tenant, has also appeared as P. W. 2 in this suit but except stating the fact that he appeared in the previous proceedings as a witness and produced the accounts of the firm, did not state anything else in support of the plaintiff. (11) FROM the aforesaid fact, it is clear that the case of the plaintiff that it had no knowledge of the earlier proceedings before passing of the decree is an absolute false statement. The account book of the plaintiff was exhibited in the earlier proceedings and was disbelieved. The said account book was not found to be bound and the page number was written by hand. He admitted in the previous proceedings that there was different handwriting of the rent amount and the other writing and the balance was in pencil. Such deposition has been marked as exhibit in this suit. (12) IT is the definite case of the defendant that Mohanlal was given licence as he approached the defendant for grant of such licence. Therefore, it was the duty of the plaintiff to examine Mohanlal to deny such statement. In our opinion, the p. W.-2, the other witness for the plaintiff having admitted in his deposition that he appeared as a witness in the earlier proceedings and produced the account book of the plaintiff, the present proceeding was really an abuse of process of law, inasmuch as, the plaintiff firm virtually contested the earlier proceedings by sending one of its partners as a witness and by producing its account book which it had no obligation to produce. We cannot lose sight of the fact that the partners of the plaintiff are the sons and the wife of Mohanlal. (13) THEREFORE, the case of the plaintiff that it had no knowledge of the decree against Mohanlal is a fabricated one in order to avoid the earlier decree passed against Mohanlal. It is not even the case of the plaintiff that Mohanlal was colluding with the defendant or that he acted against the interest of the plaintiff firm. (14) WE further find that the learned Trial Judge was impressed by the fact that as the plaintiff was given exclusive possession of the property, such fact indicated that it was a case of tenancy and not the licence. It is now a settled law that exclusive possession alone is not decisive in determining the nature of the transaction between the parties and it is the intention of the parties, which should be gathered from the evidence on record. It is now a settled law that exclusive possession alone is not decisive in determining the nature of the transaction between the parties and it is the intention of the parties, which should be gathered from the evidence on record. In this connection, we may profitably refer to the following observations of the Apex Court in the case of Smt. Rajbir Kaur and another vs. M/s. S. Chokosiri and Co. reported in AIR 1988 SC 1845 while dealing with a case of this nature: "thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmus-test to distinguish one from the other. " (15) IN the case before us, it is the definite case of the appellant that due to labour trouble of the plaintiff, Mohanlal approached the defendant for giving temporary accommodation for a period of 21 months and as he was a neighbour, the defendant agreed to accommodate him in a portion of his tenanted godown which was then partly lying vacant and that too without any licence fees. The parties well knew that it was not possible to give tenancy without taking permission in writing from the superior landlord. It appears that the trouble arose after 21 months when Mohanlal refused to vacate the premises and for the first time sent money by Money order of Rs. 513/ -. (16) IN our view, from the conduct of the parties and after taking into consideration the fact that the plaintiff made deliberate false statement in the plaint regarding their knowledge of the earlier proceedings there was no justification of believing the statement of the P. W.-1 that he took the tenancy through negotiation when no document was forthcoming in support of such tenancy and the account book produced by the plaintiff has been disbelieved in the earlier proceedings. No explanation has been given in this suit as to what prompted the plaintiff to produce its account book in the previous proceedings filed in the suit against Mohanlal. No explanation has been given in this suit as to what prompted the plaintiff to produce its account book in the previous proceedings filed in the suit against Mohanlal. It has already been pointed out that the account books were kept in loose sheets bound in key system and the handwriting of the other portions differed from the portion where the amount of rent was mentioned. Such papers cannot be relied upon as a book of account maintained in regular course of business. (See: Mahasay Ganesh Prasad Ray and anotherv. Narendra Nath Sen and others reported in AIR 1953 SC 431; Kurapati venkata Mallayya and another v. Thondepu Ramaswami and Co. and another reported in AIR 1964 SC 818 ). (17) WE, therefore, hold that in the fact of the present case, the learned Trial judge erred in accepting the case of induction of tenancy in favour of the plaintiff when the selfsame account book was found to be fabricated one in the earlier proceedings. The plaintiff by production of manufactured account book tried to prove payment of rent in support of its case of tenancy. Once we disbelieve the said account book, the case of the appellant that there was no payment for giving temporary accommodation in the godown has been proved and thus, it is established that Mohanlal, as a neighbour of the defendant, was given licence for keeping the goods of the plaintiff for a temporary period. We have already pointed out that the partners of the plaintiff are the sons and the wife of Mohanlal. (18) WE, therefore, allow this appeal and set aside the judgment and decree passed by the learned Trial Judge and consequently, dismiss the suit filed by the respondent. (19) IN the facts and circumstances, there will be no order as to costs.