JUDGMENT: ASHIM KUMAR BANERJEE. J 1. IN 1956 premises No. 3 Mangoe Lane Kolkata was being owned and possessed by one Tilack Chand Surana. After his demise, the property was devolved upon his heirs being Hansraj Surana, Himatmull Surana and Chand Kumari and Abhoy Singh Surana (Chand Kumari and Abhoy being the legal heirs of pre-deceased son Bachraj). The Respondent Vijay Kumar Raijada was known to the family. His father was working in the said family. Due to close relationship the family inducted Vijay Kumar Raijada as a tenant in respect of one tin shed go-down in the southern back portion of the said premises by Abhoy Singh Surana. Abhoy was entrusted to manage and look after the entire estate. The monthly rental was fixed at rupees two hundred forty one. 2. ON November 1, 1974 Vijay was inducted as a tenant in respect of one godown at the southern back portion at a monthly rent of rupees forty-seven only. 3. IN 1978, the owners entered into a Deed of Partition by which they got the property partitioned by mutual consent of each other. Chand Kumari became the exclusive owner of the back portion of the said premises that was re-numbered as 3/1 Baretto Lane, the front portion was re-numbered as 3A Mangoe Lane. The partition deed was executed on May 11, 1978. 4. ON June 1, 1978 Abhoy wrote a letter to Vijay Box Manufacturing Company to attorn the tenancy in favour of Chand Kumari Debi who became the exclusive owner of the back portion in which Vijay was a tenant. Abhay on behalf of Chand Kumari issued a letter confirming his tenancy on behalf of Chand Kumari vide letter dated March 17, 1981. It is now contended, Vijay surrendered the tenancy on November 30, 1981 to Chand Kumari on the understanding that he would be provided similar occupation in premises No. 3/A Mangoe Lane, Kolkata under the ownership of the other co-sharer who was absolute owner of the premises no. 3/A Mangoe Lane, Kolkata. On December 4, 1981 tenancy was created in respect of 3/A Mangoe Lane, Kolkata, the rent being same. 5. IT was, in fact, a transfer of tenancy in the name of Raijada Packaging Industries from the Vijay Box Manufacturing Company, both being run by Vijay as proprietor. 3/A Mangoe Lane, Kolkata. On December 4, 1981 tenancy was created in respect of 3/A Mangoe Lane, Kolkata, the rent being same. 5. IT was, in fact, a transfer of tenancy in the name of Raijada Packaging Industries from the Vijay Box Manufacturing Company, both being run by Vijay as proprietor. On March 18, 1993, Chand Kumari died testate by leaving a Will executed on January 4, 1984 bequeathing the subject properties in favour of Ratan Kumari Surana the wife of Abhoy Singh Surana who was named as executor. Abhoy applied for probate and got the same in December 1993. As executor, he handed over the entire estate to Ratan Kumari on June 23, 2004. In July 2005, Ratan Kumari allotted approximately nine hundred square feet area in the newly constructed incomplete building to Vijay without any monetary consideration. Since then, Vijay was using the said go-down free of cost and at the same time enjoying the other tenancy that was given to him in respect of the front portion of the building by the other cosharer. On January 5, 2006 Ratan Kumari asked for vacant possession by terminating the license in respect of the go-down. Ratan Kumari subsequently filed a suit being title suit No. 1239 of 2006 for a decree that he was a trespasser in respect of the said godown and was in illegal possession. Being the absolute owner of the said premises Ratan Kumari prayed for his eviction. Learned Judge, City Civil Court ultimately heard and disposed of the suit vide judgment and order dated April 19, 2010. 6. THE Learned Judge dismissed the said suit principally on the ground that the plaintiff could not prove her title in respect of the subject property. Hence, this appeal by Ratan Kumari. We heard the rival contentions of the parties. Mr. Kajal Kumar Bera, Learned counsel appearing for the appellant took us to the relevant documents. He put his emphasis on the agreements of tenancy appearing at pages 155 157 and 158 160 of the paper book. The said documents would show that the tenancy was created on July 1, 1965 by Abhoy Singh Surana in favour of Vijay Box Manufacturing Company. He put his emphasis on the agreements of tenancy appearing at pages 155 157 and 158 160 of the paper book. The said documents would show that the tenancy was created on July 1, 1965 by Abhoy Singh Surana in favour of Vijay Box Manufacturing Company. The said document would also show that at the foot note of the said document subsequent insertion was made on November 30, 1981 to the following effect "tenancy terminated and peaceful and vacant possession is given to the land lady Smt. Chand Kumari Debi on 30th November, 1981. Our lying machines will be removed from the go-down by the 30th November, 1981". The foot note was signed by someone having illegible signature on behalf of Vijay Box Manufacturing Company as proprietor. 7. THE second document was dated December 4, 1981 wherein Abhoy Singh Surana created another tenancy with effect from December 1, 1981 in favour of Vijay Box Manufacturing Company having the same rent. However, the first tenancy would relate to south side ground floor of premises No. 3, Mangoe Lane, Kolkata whereas the second tenancy would relate to west side of premises No. 3 Mangoe Lane, Kolkata. 8. MR. Bera strenuously contended that the first tenancy was surrendered simultaneously on second tenancy being created in his favour. Subsequent handing over possession of the go-down was nothing but an internal arrangement with the owner of the premises no. 3/1A, Baretto lane Calcutta. No rent was payable on that score. It was a plain and simple working arrangement having no financial attachment. Hence, such license could be revoked at the discretion of the owner and the owner was entitled to a Decree for Recovery of possession. Mr. Bera took us to the evidence that was led by the parties. 9. HE also contended that the application under Order 7 Rule 11was filed almost at the final stage of hearing of the suit that was not maintainable. The Learned Judge possibly overlooked this aspect. He also referred to Section 116 of the Evidence Act to show that a tenant or a licensee was estopped from challenging the title of the landlord under whom such tenancy/licensee was created. He referred to the decision of the Apex Court in the case of Subhas Chandra Vs Mohammad Shariff and ors. reported in All India Reporter 1919 Supreme Court page-636. He referred to the decision of the Apex Court in the case of Subhas Chandra Vs Mohammad Shariff and ors. reported in All India Reporter 1919 Supreme Court page-636. He also took us to the definition of 'surrender' to show that the foot note appearing at the first agreement was sufficient enough to show that the first tenancy was terminated upon surrender being effected and possession being handed over to the owner. 10. MR. Abdul Alim, learned counsel appearing for the respondent on the other hand contended that the creation of two tenancies were admitted as would be apparent from those two documents referred to above. Subsequent handing over of possession of nine hundred square feet go-down was not related to any of the said documents. If the tenant did not pay any rent that would have a different consequence. The present suit was not filed for default in making payment of rent. According to him, the first tenancy was never surrendered. The possession was handed over to the landlord for building/re-building purpose. The go-down was handed over after rebuilding of the premises that was in exchange of the original tenancy that was demolished. He further contended that the tenant could not continue to pay in view of the dispute as to the ownership. The respondent was always ready and willing to pay the rent as and when the lawful owner of the premises would demand it. He further disputed the signature appearing in the first document at the footnote. According to him, no surrender was effected on November 30, 1981 or on any date, the signature appearing at the foot did not belong to the respondent. 11. IN reply, Mr. Bera contended that PW-4 being an employee of the estate, proved the signature appearing in the subject documents. Hence no further proof was necessary. Moreover, the defendant never prayed for any hand writing expert to be appointed to examine the disputed signature. 12. WE have considered the rival contentions. We have carefully perused the evidence. Two tenancies were created independently. The second document did not have any mention of the first tenancy. It was never mentioned that the second tenancy was being created in exchange of the first tenancy. 12. WE have considered the rival contentions. We have carefully perused the evidence. Two tenancies were created independently. The second document did not have any mention of the first tenancy. It was never mentioned that the second tenancy was being created in exchange of the first tenancy. The footnote appearing in the first document was in dispute as we find from the written statement, hence it was necessary for the Court below to examine the signature appearing at exhibit 2/1 particularly when specific challenge was thrown to the same. If we overlook such footnote we would find two distinctive tenancies being created on two different dates being July 1, 1965 and December 4, 1981. Even if we take it that the two tenancies were created by the same person, unless and until the exhibit 2/1 was not properly proved it would be not possible for us to come to a definite conclusion that the first one was surrendered and the second one was created in exchange thereof. Unless such controversy is resolved, we cannot decide on the second issue that would relate to handing over of nine hundred square feet go-down without any rent. 13. IF we could come to a definite conclusion on the first issue that the first tenancy was surrendered and terminated we would safely grant a decree of declaration as to the go-down. Taking a sum total of the situation, we hold that a conclusive decision would only be possible, once the footnote and the signature appearing at the first agreement being page 155 157 are conclusively proved. The appellant would then be entitled to appropriate relief in his suit. The learned Judge possibly overlooked this aspect. The learned Judge erroneously held that the appellant failed to prove his ownership. It was the case of the respondent that he got possession of the nine hundred square feet from the owner. He admitted that Abhoy Singh Surana was looking after the property on behalf of Chand Kumari. After the demise of Chand Kumari, Abhoy Singh Surana acted as executor to her Will. Abhoy subsequently handed over the property to Ratnan Kumari being the sole legatee. These admitted facts would obviously be sufficient to maintain the suit by Ratan Kumari. The rent receipts would also show that Abhoy Singh Surana was all throughout looking after the estate. After the demise of Chand Kumari, Abhoy Singh Surana acted as executor to her Will. Abhoy subsequently handed over the property to Ratnan Kumari being the sole legatee. These admitted facts would obviously be sufficient to maintain the suit by Ratan Kumari. The rent receipts would also show that Abhoy Singh Surana was all throughout looking after the estate. Abhoy Singh Surana conducted the suit on behalf of his wife Ratan Kumari. On that score, the Learned Judge was wrong. 14. THE appeal thus succeeds in part. The judgment and decree of dismissal is set aside. The title suit No. 1239/ 2006 is remanded back to the City Civil Court, Calcutta for being heard afresh. The parties would be at liberty to rely upon the evidence that was led earlier. They would also be at liberty to adduce further evidence including expert evidence on the subject footnote and signature appearing therein. The Court below would appoint a hand writing expert to examine the exhibit 2/1 to find out veracity of the same. The parties would be at liberty to challenge the report by adducing further evidence on that score. The entire process must be had within a period of six months from the date of the communication of this order. 15. AS and by way of interim measure, the respondent would be obliged to pay a sum of rupees five thousand per month with effect from July 2012 as and by way of occupation charges in respect of the disputed go-down to the appellant. The appellant would be at liberty to accept the same without prejudice to her rights and contentions in title suit No. 1239/2006. 16. IN case the appellant does not accept such payment the respondent would be obliged to deposit the same in Court and the Registrar, City Civil Court would keep the same in a suitable interest bearing deposit till the disposal of the suit. In default of payment and/or deposit of any two monthly occupation charges, the title suit No. 1239 of 2006 would stand disposed of and decreed in favour of Ratan Kumari, the appellant above, as prayed for by her in her plaint. 17. THE appeal is disposed of without any order as to costs. The lower Court record be sent down at once. Urgent Photostat copy will be given to the parties, if applied for.