JUDGMENT: Sengupta, J. 1. THE appeal being No. 228 of 2006 has been filed by one Hari Prasad Saraf who was the plaintiff in Title Suit No. 1620 of 1999, the Appeal No. 230 has been filed by one Gopal Prasad Saraf who was the plaintiff in Title Suit No. 619 of 1999, however, the Appeal No. 229 of 2006 was preferred by both the aforesaid respondents in Title Suit No. 1062 of 1999 filed by the appellant herein. First two suits in connection with the aforesaid appeals were filed by Hari and Gopal, who are the brothers, for eviction of the plaintiff in the Title Suit being No. 1062 of 1999 and appellant in the Appeal No. 229 of 2006 who prayed for decree of declaration that he was a tenant. 2. THE learned trial Judge analogously heard all the three suits as stated above and by common judgment and order dismissed the suits filed by the appellant who asked for declaratory relief, and the decree was passed in favour of both the aforesaid respondents for eviction. Before the learned trial Judge both Gopal and Hari filed their respective suits asking for a decree for recovery of possession of Flat Nos.1O/C situates at Premises No. 2, H. Sarani, Kolkata so far as Gopal is concerned and Flat No.10/D of the same premises so far as Hari is concerned, on the ground that appellant was a licensee, and he failed and neglected to vacate and quit the said two flats on revocation of licence. The appellant on the other hand in his declaratory suit claimed that he was a monthly tenant in respect of the said two flats which are actually one unit. 3. THOUGH the respective parties filed their respective written statements separately as against, mutual plaints however, the issue was one and identical: 4. WHETHER the appellant was a monthly tenant or mere licensee occupying the said two flats? The learned Trial Judge though framed several issues in three suits; however, the controversy in substance in all the three suits is as mentioned above. 5. IN the analogous hearing both the respondents examined one witness, namely, their constituted attorney and the appellant examined himself. 6. The learned Trial Judge though framed several issues in three suits; however, the controversy in substance in all the three suits is as mentioned above. 5. IN the analogous hearing both the respondents examined one witness, namely, their constituted attorney and the appellant examined himself. 6. IT appears that the appellant specifically stated that there has been oral tenancy and in spite of request no rent receipt was issued and the tenancy continued even after service of alleged notice of eviction on the ground of mere licence. IT would appear from the facts and circumstances of the case that it was a pure case of tenancy not mere licence. The learned Trial Judge, however, did not accept the plea of tenancy and as well as evidences of both oral and documentary, adduced in support thereof by the appellant. 7. THE learned Counsel Mr. S.N. Mitra appearing for the appellant submits, while narrating the facts and the written notes of argument that since there is no evidence recording terms of agreement of tenancy, such terms have to be found and to be determined from conduct of the parties established by substantial evidences. 8. THE appellant in his evidence has proved oral agreement of creation of tenancy since December, 1998. Since then he had been uninterruptedly occupying the said two flats along with the members of the family, and had regularly paid rent to the respondents, who however, refused to grant any receipt. This oral testimony of the appellant was not cross-examined. His legal submission is that if a witness is not cross- examined on a point it would be deemed that his point is admitted by the parties who fail to cross-examination. On this legal submission, he has drawn support of the two decision, one of this Court reported in AIR 1982 Calcutta and another one of Supreme Court reported in 2003(1) SCC 240 . None of the respondents has come forward to contradict oral testimony of creation of oral tenancy. Under this circumstances, he submits that adverse inference has to be drawn against the respondents under Section 114 illustration (g) of the Indian Evidence Act, 1872. On this point of law he has cited following decisions:? I. AIR 1927 Privy Council, II. 1999(3) SCC 457 , III. 1999(3) SCC 573 . 9. ACCORDING to Mr. Under this circumstances, he submits that adverse inference has to be drawn against the respondents under Section 114 illustration (g) of the Indian Evidence Act, 1872. On this point of law he has cited following decisions:? I. AIR 1927 Privy Council, II. 1999(3) SCC 457 , III. 1999(3) SCC 573 . 9. ACCORDING to Mr. Mitra, on the strength of the Supreme Court decision reported in AIR 2005 SC 439 a power of attorney-holder cannot depose about the case of his principal. Since sole witness of the respondents was power of attorney holder and it was granted in the year 2004, his testimony should not be accepted. This power of attorney holder (PW-1) was not present when oral tenancy was created. He could not say that he was present at the time when discussion took place and such agreement of oral testimony was concluded between the appellant and the respondents. 10. WHILE determining real relationship between parties with reference to leave and licence or tenancy tests laid down by the Hon'ble Apex Court have to be applied. These tests are to be found in the following decisions of the Supreme Court:? I. AIR 1988 SC 1845 II. 1999(4) SCC 545 III. 2004 (3) SCC 595 . If those decisions are read it would be evident in this case that the relationship between the appellant and both the respondents is not licensee and licensors. 11. HE submits that not having rent receipt, or for that matter not taking any step under Section 25 of West Bengal Premises Tenancy Act, 1956 before the rent controller on account of refusal of rent receipt by the landlord, does not negate or invalidate oral tenancy. 12. THE facts and circumstances of this case would lead to one conclusion that it was a case of tenancy. As the appellant was in possession of the suit premises in December 1988 and factum of possession itself suggests an inference of tenancy. Although notice to quit was served on 15th May, 1992 no action was taken pursuant thereto till April, 1999 and there is no explanation for this delayed action. In absence of such explanation it would suggest that it was a case of tenancy otherwise action would have been taken immediately. Although notice to quit was served on 15th May, 1992 no action was taken pursuant thereto till April, 1999 and there is no explanation for this delayed action. In absence of such explanation it would suggest that it was a case of tenancy otherwise action would have been taken immediately. THE appellant came over to the suit premises, relinquishing his tenanted accommodation at 227/1, AJC Bose Road, Kolkata-20 although there was no threat of eminent dispossession from the said premises. As such there was no reason to leave secured right of tenancy, unless there has been an oral tenancy in respect of the suit premises. Unfortunately, the learned trial Judge did not consider any of the above points. Mr. A. Chatterjee, learned Counsel for the respondents submits that it was the appellant's burden to prove that there has been a tenancy right. Sections 101 and 102 of the Indian Evidence Act, 1987 clearly provide that who is to prove if there be any assertion of any right followed by "denial. Such burden has not been discharged by producing cogent evidence of tenancy right. No document has been produced that there was a monthly tenancy. The story of refusal to issue rent receipt is totally fabricated and the learned trial Judge has rightly refused to accept such story. Had it been true fact of refusal of rent receipt in normal course of event the appellant ought to have taken action under Sections 25(1) and 25(2) of the West Bengal Premises Tenancy Act, 1956 but no step was taken. Therefore, it is apparent that it was not a case of tenancy. He submits that almost in identical case Division Bench of this Court by decision reported in 1992(1) CLJ 174 has specifically held so and the said judgment is squarely applicable in this case. 13. ACCORDING to him, in a suit for eviction of licensee plaintiff is to prove only the ownership and further he inducted the defendant in the suit property. In the present case, the ownership is admitted by the appellant, and it is also admitted that the appellant was inducted by the respondents in the suit premises, hence nothing remains to be proved by the respondents-plaintiffs. In the present case, the ownership is admitted by the appellant, and it is also admitted that the appellant was inducted by the respondents in the suit premises, hence nothing remains to be proved by the respondents-plaintiffs. He further submits that mere length of possession of the property simplicitor is not good enough to hold that there exists tenancy right, this legal concept is to be found in the decisions of the Supreme Court reported in 1999(4) SCC 545 and AIR 1965 SCC 610. He has also relied on an unreported decision of the learned Single Judge of this Court in the case of Gobinda Chandra Naskar v. Smt. Rani Bose in the similar facts and circumstances (Gobinda Chandra Naskar v. Smt. Rani Bose in S.A. No. 33 of 1990). He, therefore, submits that this appeal has no merit and it deserves dismissal. 14. AFTER hearing the learned Counsel for the parties and having perused the records, it appears to us that the point which has fallen for consideration of this Court is whether the learned Trial Judge has correctly rejected the contention of the appellant being monthly tenant and consequently granted eviction decree holding him to be licensee? From the records factually it emerges that the appellant was inducted by both the respondents in respect of two flats as mentioned above and the appellant has been still in possession from the date of induction. The appellant has been paying @ Rs. 2,000/- per month for occupation of the said two flats to Hari and Gopal. 15. IN our view, factum of possession of the appellant in this matter is hardly of any relevance. Relevancy is in what capacity the appellant has been in possession. The appellant has not only put up a defence to resist the claim of eviction decree on the ground of revocation of leave and licence but he filed a separate suit also asserting his right of tenancy. When analogous hearing took place the entire focus was on the decision of the suit filed by the appellant for declaration of tenancy. 16. WE are unable to accept the contention of Mr. Mitra that creation of oral tenancy is proved, for, the monthly tenancy can be proved, in our view, by producing the documentary evidence, namely, the rent receipt. When analogous hearing took place the entire focus was on the decision of the suit filed by the appellant for declaration of tenancy. 16. WE are unable to accept the contention of Mr. Mitra that creation of oral tenancy is proved, for, the monthly tenancy can be proved, in our view, by producing the documentary evidence, namely, the rent receipt. The WEst Bengal Premises Tenancy Act is a special statute and Section 25 thereof makes it clear that tenant must obtain the rent receipt as in case of refusal to issue, or non-issue of rent receipt by the landlord protective measure in the Act itself has been provided. The implication of not taking steps by the tenant under Section 25 of the 1956 Act in case of refusal to issue or non-issue of rent receipt has been clearly discussed in the decision of the Division Bench of this Court reported in 1992(1) CLJ 174 . In this case we failed to understand why such a step was not taken by the appellant. Only explanation can be inferred from the act and conduct is that the appellant did not dare approach the Rent Controller, knowing well that it was not the case of tenancy; otherwise ordinary prudent man, cannot remain rest assured without having any rent receipt being issued. The rent receipt under the provision of the said Act for a monthly tenant is a valuable piece of document and the same crystallizes conclusively right of tenancy and hence all protection under the said statute is available. 17. IN this case, mere non-appearance of the respondents at the time of the trial as a witness hardly changes the legal position as it has been rightly argued by Mr. Chatterjee that initial burden is on the appellant to prove tenancy and he has miserably failed to discharge the same. Under the provision of Section 102 of the Evidence Act read with Section 101 thereof it is the plaintiff who is to prove his own case in case of denial and further he will fail in the action if no evidence is adduced. To our mind, there is no evidence so to say to prove the tenancy by the appellant in this action. The observation of the Supreme Court in a decision rendered in K.S. Nanji and Co. To our mind, there is no evidence so to say to prove the tenancy by the appellant in this action. The observation of the Supreme Court in a decision rendered in K.S. Nanji and Co. v. Jatashankar Dossa and Others, reported in AIR 1961 Supreme Court 1474 is very helpful in this case on the proposition of law. IN Paragraph 11 in the report the Supreme Court expressed its opinion as follows:? ".........Looking from a different perspective, we arrive at the same result. Under the Evidence Act there is an essential distinction between the phrase 'burden of proof as a matter of law and pleading and as a matter of adducing evidence. Under Section 101 of the Evidence Act, the burden in the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts. That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other.........." 18. WE respectfully taking queue of the aforesaid legal proposition conclude here that appellant as a plaintiff since failed to discharge his initial burden question of shifting the same upon the respondents does not and cannot arise. It is clear from the facts in this case, if the plaintiff fails to prove by adducing legally acceptable evidence his action will fail under Section 102 of the Evidence Act. In this case, we noticed that belated attempt was made by the appellant to create his tenancy right collecting a document by depositing the requisite amount after the suit was filed, to the Rent Controller. Belated attempt by the tenant in obtaining rent control challan is of no relevance and it is according to us, desperate and frustrated attempt to generate evidence and such document ought to be and is rightly overlooked by the learned Trial Judge. Discussion on agreement of creation of tenancy is of no substance and oral evidence cannot be substitute of documentary evidence to prove tenancy right. Hence, question of taking adverse inference in this case as urged by Mr. Mitra is wholly misplaced. Discussion on agreement of creation of tenancy is of no substance and oral evidence cannot be substitute of documentary evidence to prove tenancy right. Hence, question of taking adverse inference in this case as urged by Mr. Mitra is wholly misplaced. Therefore, the authorities cited by him on this proposition are not considered at all by this Court since both are totally out of context. 19. THE Supreme Court decisions on the question of relationship between the parties have an important factor are not applicable in this case. In all those decisions of the Supreme Court cited by Mr. Mitra we factually found that there were documents executed by the parties. But, from the documents it was not clear the nature of the relationship created thereunder. In that context, the Supreme Court observed that in order to find out the exact nature of transaction the relationship was a factor. 20. IT is absurd to accept the plea that provision of Section 25 could have been resorted to by any of the tenants for any reason whatsoever. When the law require, a thing is to be done, it must be done and if it is not done, consequence will follow and the party or the person who takes the risk of not approaching the appropriate forum under Section 25 of 1956 Act will inevitably have to run the risk of jeopardising tenancy right. Late filing of suit after service of quit notice as contended is not a factor for rejecting the contention and claim of the respondents. When the licence is revoked the person in occupation is a trespasser and the trespassing is a continuing wrong and action can be brought at any time within the prescribed period of limitation. We are, therefore, of the view that the learned Trial Judge has rightly granted decree and it does not call for any interference. Accordingly, the appeal is dismissed without passing any order as to costs. Chakraborty, J. : I agree.