JUDGMENT Poonam Srivastav, J.The instant first appeal arises from Title (Eviction) Suit No. 5 of 1992/2 of 2002 passed by Shri Ashok Kumar Pathak, Sub Judge VII, Ranchi decreeing the suit vide judgment dated 29th July, 2003 and decree dated 12th August, 2003. 2. Senior Advocate Mr. P. K. Prasad assisted by Mr. Rahul Gupta and Mr. Ayush Aditya, appears on behalf of the appellant and Senior Advocate Mr. V. Shivnath assisted by Mr. Amar Kumar Sinha and Sidharth Ranjan Advocate, on behalf of the respondents. 3.The original plaintiff Late Pramod Bihari Lall instituted the eviction suit on the ground that the suit premises was given on rent to the defendant-Yamunadas Sarda on an agreement dated 24th October, 1986 at the rate of Rs. 10,000/-. The plaintiff's case is that the tenant was inducted on a lease deed only for one month. The tenanted premises which was a shop room was not vacated after expiry of the lease period of one month. The tenant continued to pay rent at the rate of Rs. 10,000/- per month till 1st October, 1987 and thereafter stopped payment of rent. The plaintiff's case is that the tenant is a defaulter and, therefore, rendered himself liable for eviction under section 11 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to be referred as "the Act"). The suit was instituted also on the ground of bonafide personal need for his own use and occupation and that the tenant defendant has caused material damage to the suit premises. The assertion in the plaint was that the rent for the period from October, 1987 till November, 1987 was barred and, therefore, he claimed rent with effect from December, 1989 at the rate of Rs. 10,000/- per month amounting to Rs. 3,60,000/-. The plaintiff further alleges that he effected service of notice demanding vacant possession of the suit premises. The defendant neither paid arrears of rent nor vacated the suit premises but contested the suit by filing a written statement. 4. The tenant-appellant claimed that the suit as framed was not maintainable as it was bad for non-joinder of necessary party, Narendra Kumar Sarda and Smt. Kamal Kant Sarda; the plaintiff has no cause of action as alleged in paragraph 17 of the plaint. The suit premises was taken on rent by virtue of the document dated April, 1989 on a monthly rent of Rs. The suit premises was taken on rent by virtue of the document dated April, 1989 on a monthly rent of Rs. 2,500/- per month and not Rs. 10,000/-, as stated in the plaint. The amount of Rs. 2,500/- was all along accepted without any objection. 5. The defendant disputed the plaint allegation and submitted his written statement that he made regular monthly payment. The rate of rent was not Rs. 10,000/- per month and, therefore, the arrears claimed to the tune of Rs. 3,60,000/- was also disputed. The appellant further claimed that a lease deed was drawn up on a non-judicial stamp for the purpose of registration. This deed was handed over to the plaintiff Late Pramod Bihari Lall for taking steps to get it registered. However, the registration could not take place but the defendant required a copy of the lease deed for submitting it in Bank for a loan account. It is further contended on behalf of the appellant that the original plaintiff P.B. Lall submitted the unregistered lease deed in Canara Bank, Doranda Branch, Ranchi for procuring loan. Initially when the premises was let out in November, 1986 it was agreed that the rate of rent would be Rs. 2500/- and Rs. 7,500/- would be paid for beautification and furnishing for which the plaintiff would submit an account. The appellant paid a sum of Rs. 90,000 for furnishing to P.B. Lall but the tenanted premises was neither properly furnished nor beautified. The plaintiff did not issue rent receipts and there was no practice of payment of rent every month. In fact, a lump sum amount used to be paid as and when demanded by the plaintiff with an undertaking that the same would be adjusted in future rent. The amount was collected by the plaintiff through his employee namely one Dhananjay Singh and, according to the appellant, it is alleged that a total sum of Rs. 5, 39, 932. 75 Paise has been paid from the date of commencement of tenancy i.e. with effect from November, 1986. Thus, according to the appellant, there was an excess payment and the plaintiffs-respondents were liable to adjust the same against the future rent. 6. The trial court framed as many as twelve issues on the basis of the pleadings of the parties: (i) Is the suit as framed maintainable? (ii)Whether the plaintiffs have valid cause of action? Thus, according to the appellant, there was an excess payment and the plaintiffs-respondents were liable to adjust the same against the future rent. 6. The trial court framed as many as twelve issues on the basis of the pleadings of the parties: (i) Is the suit as framed maintainable? (ii)Whether the plaintiffs have valid cause of action? (iii)Whether the suit is bad for non-joinder of necessary parties? (iv)Whether the defendant committed default in payment of monthly rent from the month of October, 1987? (v)Whether the monthly rent of the tenanted premises is Rs. 10,000/- per month as the same is Rs. 2,500/-? (vi)Whether the plaintiff requires the suit premises reasonable and in good condition? (vii)Whether the partial eviction of the suit premises by Defendant would satisfy the requirement of the plaintiff? (viii)Whether the defendant has caused damage to the tenanted premises? (ix)Whether the plaintiffs are entitled to the arrears of rent amounting to Rs. 3, 60,000? (x)Whether the defendant has deposited excess amount with the plaintiff which is to be adjusted in future? (xi)Whether the suit premises was let out by virtue of fresh deed of Lease of April, 1989 and the said document is lying at hand? (xii)To what relief or reliefs, if any the plaintiffs are entitled to? 7. Issue Nos. (vi), (vii) and (viii) relates to the release of the tenanted premises for personal need of the landlord and whether partial eviction of the defendant-tenant would satisfy the requirement of the plaintiff and also whether any damage was caused to the tenanted premises. These issues are of no relevance at present since the trial court dismissed the claim of eviction on the ground of breach of terms of tenancy by causing damage to the condition of the suit premises and also the eviction on the ground of personal necessity. No appeal has been preferred by the landlord on the ground of benafide need or damage to the building. Thus the present appeal proceeds only on the question of default. 8. The suit for eviction was decreed on the ground of default of rent and the present appeal proceeds for eviction on the ground of arrears of rent. No appeal has been preferred by the landlord on the ground of benafide need or damage to the building. Thus the present appeal proceeds only on the question of default. 8. The suit for eviction was decreed on the ground of default of rent and the present appeal proceeds for eviction on the ground of arrears of rent. 9.Submission of learned counsel is that the court below has not recorded any specific finding regarding the period of default, but it is held that the plaintiff did not receive rent with effect from October, 1987 till date i.e. institution of the suit; thus the arrears are for more than two months. 10. Both the parties adduced oral and documentary evidence in support of their respective claim. The plaintiff examined six witnesses. Rita Lal wife of the original plaintiff P.B. Lal entered the witness box as P.W. 6. Ravi Shankar Verma was examined as P.W. 1 to prove that there was a lease between P.B. Lal and the defendant Yamuna Das Sarda and he is a witness of the lease deed. He has substantiated the fact that the lease agreement was for one month only from2nd November, 1986 to 2nd December, 1986. The premises was given for exhibition of electronic goods for one month on a rent of Rs. 10,000/-. P.W. 1 has expressed his ignorance regarding payment of rent or any terms and conditions subsequent to the lease deed between P.B. Lal and the defendant. P.W. 2 Ravi Pratap Sinha has submitted that the suit premises was given to Yamuna Lal Sarda on a rent of Rs.10,000/-, but in the cross-examination, he has clearly stated that he has no knowledge as how the plaintiff was realising rent from the defendant; whether he was realising himself or through any body else. He further submits that he has seen the paper and also heard that rent was Rs. 10,000/- though he has denied the suggestion that rate of rent was Rs. 2,500/- per month. P.W. 9 Dr. G.P. Sharan has also tried to support the plaintiff’s case, but in his cross-examination has admitted that he has only seen a paper regarding rent being Rs. 10,000/- which was an agreement paper. He admitted that he has not read the whole agreement paper. 11. P.W. 6 Rita Lal is the widow of the original plaintiff Late P.B. Lal. G.P. Sharan has also tried to support the plaintiff’s case, but in his cross-examination has admitted that he has only seen a paper regarding rent being Rs. 10,000/- which was an agreement paper. He admitted that he has not read the whole agreement paper. 11. P.W. 6 Rita Lal is the widow of the original plaintiff Late P.B. Lal. According to her evidence, the defendant was inducted for one month but after expiry of one month, he did not vacate and continued as tenant on the same terms and conditions. After expiry of one month, the defendant paid rent for few months @ Rs. 10,000/- by cheque. The deposit slips have been proved as Exts. 2 to 2/f, which was filled up by Dhananjay Singh, the caretaker of Rita Lal. In paragraph 2 she states that after October, 1987, no payment was made either by cheque or money order or by cash. In paragraph 6, she admits that Dhananjay Singh was her caretaker and that he used to sign the vouchers towards payment made to him. In paragraph 6, she further states that Shardaji has never given any notice for adjustment of payments made to Dhananjay Singh towards rent. She states that her husband used to keep accounts of the rent paid. Her husband never came to Ranchi for acceptance of rent. Her caretaker Dhananjay Singh used to collect rent on behalf of her husband. Dhananjay Singh was still the caretaker. In paragraph 13, she states that she used to file returns showing rent @ Rs. 10,000/- per month and she can file the same. 12. The defendant has also examined a number of witnesses. D.W. 6 Yamunadas Sarda, D.W. 8 Narendra Kumar Sarda are the material witnesses on behalf of the appellant. D.W. 3 is K.N. Prasad Rao, senior Manager of Canara Bank who has produced photo copy of the lease deed dated April, 1989. D.W. 11 Jagdish Raja to prove the signature of Amarendra Mishra, who was working as an employee to P.B. Lal. D.W. 12 is Amarendra Mishra himself in whose hand-writing Ext. F is prepared to substantiate that the rate of rent is Rs. 2, 500/- per month. D. W. 13 is Raj Kumar Singh. 13. The documentary evidences on behalf of both the parties are Ext. 1, deed of lease for a period of only one month; Exts. 2 to 2/f are the bank Pay-in-slips. F is prepared to substantiate that the rate of rent is Rs. 2, 500/- per month. D. W. 13 is Raj Kumar Singh. 13. The documentary evidences on behalf of both the parties are Ext. 1, deed of lease for a period of only one month; Exts. 2 to 2/f are the bank Pay-in-slips. Ext. A is the notice. Exts. B to B/10 are the vouchers showing payments made to Dhananjay Singh, caretaker of the plaintiff. Ext. C is a slip containing instruction of P.B. Lal to pay Rs. 6000/- to Dhananjay Singh. Exts. D to D/1 are the money receipts showing payment to Araya Travels towards Air Ticket of P.B. Lal and his wife Rita Lal. Ext. E is a Will. Ext. F is the accounts prepared by one Amarendra Mishra on behalf of P.B. Lal showing details of payment made to the plaintiff. Ext. G series are the balance sheet of Sarda Color Lab. Ext. H is a photo copy of the lease deed in which signature of Bank Manager has been marked as Ext. H. All these exhibits except Ext. F have been marked without any objection by the plaintiff. 14. The appellant has challenged the impugned judgment on a number of grounds and the said grounds constitute following points for determination in the present appeal:-- (i)Effect of non-joinder of parties. (ii)The lease deed is only for a period of one month for a specific purpose for exhibition of electronic goods, therefore, it was a license or a lease. (iii)Non-production of Dhananjay Singh as a witness, the admitted caretaker of P.B. Lal. (iv)Rate of rent is Rs. 2,500/- or Rs. 10,000/-, as the appellant’s specific contention in the written statement is regarding rate of rent. (v)Onus was on the plaintiff to support his contention regarding rate of rent, if there is a default on the part of the appellant and also period for which the tenant is in arrears. 15. Arguments of Mr. P.K. Prasad, on behalf of the appellant, is that the first so called lease deed is not a lease but it is a licence. Emphasis is that the possession of the shop in question was for holding an exhibition of electronic goods for a limited period of one month. There was no stipulation that the period of lease could be extended whatsoever. Emphasis is that the possession of the shop in question was for holding an exhibition of electronic goods for a limited period of one month. There was no stipulation that the period of lease could be extended whatsoever. The terms of the said deed is itself demonstrative of the fact that it is a licence within the meaning of Section 52 of the Easement Act. 16. The next contention of the senior counsel on behalf of the appellant is that in view of the specific controversy regarding payment of rent and also on the face of the admitted vouchers in which the amount of Rs. 2500/- as rate of rent is mentioned, besides endorsement of Dhananjay Singh that sometimes payment of Rs. 5000/- as two months rent @ Rs. 2500/- or Rs. 30,000/- for twelve months, Dhananjay Singh was the only material witness to deny the said document. Mr. Prasad submits this witness should have been examined since there was no other document to substantiate rate of rent. The initial lease deed was the sole document to substantiate the plaintiff's case. The onus was on the plaintiff himself to prove the plaint assertion and non-production of Dhananjay Singh is sufficient to draw an adverse inference specially on the face of admission by P.W. 1 that he is present in court and was all along present in the court on every date. Rita Lal (P.W. 6) also admitted that Dhananjay Singh still continues to be her care taker. Thus emphatic argument is that these circumstance are sufficient to draw a presumption against the plaintiff-respondent. The learned counsel has also stressed that the suit is bad for non-joinder of parties. 17. Senior counsel Mr. V.Shivnath assisted by his juniors has controverted each and every argument on behalf of the appellant. Emphasis that Ext. 1 is an agreement which was executed at the inception of the tenancy and the agreement was only in between Yamunadas Sarda and P.B. Lal and in view of the assertions made in paragraphs 3 and 4 of the plaint, the tenancy was extended from time to time till 1st October, 1987. Therefore, the assertion on behalf of the appellant that the suit is bad for non-joinder of party is without any basis. Besides the written statement was filed by Yamunadas Sarda, the defendant alone. Therefore, the assertion on behalf of the appellant that the suit is bad for non-joinder of party is without any basis. Besides the written statement was filed by Yamunadas Sarda, the defendant alone. The appellant has also not made any specific denial of the plaintiff's assertion that the defendant is a defaulter. The payment of lump sum amount at different intervals even if substantiated cannot be adjusted towards future rent. Admittedly there was no notice from the defendant tenant for making such adjustments and, therefore, learned counsel has emphasised that no adjustment whatsoever can be made. Certain pay in slips of the Bank was also pointed out by the landlord's counsel in support of his contention that the rate of rent is Rs. 10,000/- and not Rs. 2,500/-. The lease deed executed subsequently is a waste paper since it is an unregistered document. Respondents' counsel has supported the findings of paragraphs 20 and 21 of the judgment that the defendant alone was inducted in the suit premises in the year 1986. However, decisions have been relied upon by the learned counsel and the defendant-appellant has been held to be a defaulter with effect from October, 1987 and once the default is constituted, tenant has no escape from eviction. 18. After hearing the contentions of the respective counsel on behalf of the appellant and the respondents, the main question to be decided in the instant appeal is regarding rate of rent and the next question that whether the defendant appellant is a defaulter within the meaning of the Act. The plaintiff's assertion that the tenancy commenced after execution of the lease deed which is Ext. 1. On examination and perusal of the said lease deed, it transpires that the suit premises was given to Yamunadas Sarda for a period of one month commencing from 2nd November, 1986 and ending on 2nd December, 1986 at the rate of Rs. 10,000/- for exhibition of electronic goods. The terms and conditions of the lease deed stipulated that on expiry of the lease, vacant possession will be handed over to the tenant. 19. The plaintiffs have relied only on this deed alone and on its basis, the court below proceeded to decide that the leased out premises continued till the institution of the suit and the terms and conditions have continued to be the same. The argument on behalf of the appellant that Ext. 19. The plaintiffs have relied only on this deed alone and on its basis, the court below proceeded to decide that the leased out premises continued till the institution of the suit and the terms and conditions have continued to be the same. The argument on behalf of the appellant that Ext. 1 is only for a specific period of one month and that too for special purpose i.e. for holding exhibition of electronic goods. The assertion is that, in fact, it is a license under section 52 of the Easement Act and not a lease within the meaning of Section 105 of the Transfer of Property Act. The entire case of the plaintiff rests on this deed alone which admittedly was neither extended nor there is any stipulation in the terms and conditions of the deed for extending the period. It is not a case of the plaintiff that there was any specific agreement to extend the period of lease which was duly executed in the year 1986. 20. Shri P.K. Prasad has supported his argument on the basis of a decision of the Apex Court in the case of Board of Revenue etc. vs. A.M. Ansari etc. (AIR 1976 Supreme Court 1813). The view expressed by the Apex Court is that to ascertain whether a document creates a license or lease, the substance of the document should necessarily be examined. The real test is the intention of the parties if the document creates an interest in the property, it is a lease, but if it only permits the other party for use of the said immovable property for a specified purpose and for a specific period, the position is that the said deed cannot be accepted as a lease creating tenancy right in favour of the plaintiffs. In the case of Revenue Board (Supra) the agreement was for a short period of nine to ten months and during the said period, the Apex Court ruled that merely right was created for a limited period and, therefore, characteristic of license was eloquent on the face of the deed and it did not amount to lease. The observation of the Apex Court in Revenue Board (Supra) are quoted below:- "It is the creation of an interest in immovable property or a right to possess it that distinguishes a lease from a licence. The observation of the Apex Court in Revenue Board (Supra) are quoted below:- "It is the creation of an interest in immovable property or a right to possess it that distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease. As to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case. For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not to its form". 21. I have closely scrutinised the lease deed and apparently on perusal of Ext. 1, it transpires that it is for a specific purpose, permitting the appellant to hold an electronic exhibition. It cannot be said that any interest is created in favour of the defendant and no exclusive possession of the property was handed over. The plaintiff was entitled to get hold of possession of the suit premises on expiry of period of one month i.e. 2nd December, 1986. The case of the plaintiff, according to the plaint, is that the parties agreed to continue the tenancy on the same rate of rent. This fact has been disputed by the tenant. In fact, on the basis of the assertions made in the written statement, the tenancy was between Yamunadas Sarda, his son Narendra Sarda and his daughter-in-law. The rent was only Rs. 2,500/- and Rs. 7,500/- was towards beautification. The appellant did make payments through Exts. 2 to 2/f which are pay in slips through which the defendant deposited the amount in the Bank. The total amounts deposited was to the tune of Rs. 1,10,000/-. This, according to the plaintiff, covers the rent for a period from November 1986 to September, 1987 at the rate of Rs. 10,000/- per month. Thus on the basis of these facts, rent was claimed at the rate of Rs. 10,000/- and the suit was also decreed on the basis of a finding that the rate of rent was Rs. 10,000/-. 10,000/- per month. Thus on the basis of these facts, rent was claimed at the rate of Rs. 10,000/- and the suit was also decreed on the basis of a finding that the rate of rent was Rs. 10,000/-. No other document or evidence is adduced by the plaintiff to substantiate the rate of rent. 22. The defendant-appellant, on the contrary have admitted that initially after expiry of the period of one month; there is no agreement or stipulation to continue with the tenancy according to the lease deed (Ext.1). In fact the defendant pleaded that Rs. 7,500/- was towards furnishing and beautification. The defendant have brought on record a number of documents such as Exts. B/2, which is a voucher dated 21.4.1990, the amount of Rs. 30,000/- being the annual rent for one year. This voucher contains the signature of Dhananjay Singh with date shows that the rent was at the rate of Rs.2,500/- per month. Ext. B/9 is another voucher dated 22.1.1992 for a sum of Rs. 5000/- which is an advance rent of two months at the rate of Rs. 2,500/-. this again contains the signature of Dhananjay Singh at the back. Ext. B/11 is a voucher dated 3.7.1990 for an amount of Rs. 20,040/- which is the rent for 18 months beside D.D. commission. Dhananjay Singh has signed this voucher. Ext. B/15 is a voucher dated 4.10.1989 for Rs. 6,255/- and it is the amount paid to Arya Travels for tickets for Madras for medical check up and it is on account of the shop rent which bears the signature of Dhananjay Singh. Ext. B/16 is another voucher dated 30.9.1989 for Rs. 1000/- depicting part payment of the rent signed by Dhananjay Singh. Ext. B/17 is the another voucher dated 17.8.1989 for Rs. 300/-. Ext. B/18 is a voucher dated 12.11.1987 for Rs. 5000/- towards the rent of shop for two months without specifying the month to which it related. Ext. B/26 is a voucher dated 18.1.1994 showing payment of Rs. 5000/- as rent though signature of P.B. Lal or Dhananjay Singh is not there. Ext. B/30 is a voucher dated 15.11.193 for Rs. 5000/-towards shop rent. Several other vouchers have also been filed and exhibited to substantiate that the defendant-appellant paid money under different heads to P.B. Lal. Ext. Ext. B/26 is a voucher dated 18.1.1994 showing payment of Rs. 5000/- as rent though signature of P.B. Lal or Dhananjay Singh is not there. Ext. B/30 is a voucher dated 15.11.193 for Rs. 5000/-towards shop rent. Several other vouchers have also been filed and exhibited to substantiate that the defendant-appellant paid money under different heads to P.B. Lal. Ext. C is a slip dated 1.5.1989 written by Shri P.B. Lal with his signature asking to pay Rs. 6000/- to Dhananjay Singh. Exts. D and D/1 are the cash memo of Arya Travels dated 5.10.1989 and 2.5.1988 respectively. Exts. E and E/2 are the bills raised in the name of Sarda Color Lab on account of purchase of Air tickets. Ext. F is an account given by Dhananjay Singh showing payment made by the defendant from time to time. This has been exhibited to substantiate that the defendant has made excess payment of rent of Rs. 68,419/-as on 31.3. 1992, though it does not bear the signature of P.B. Lal. In fact, it denotes payment on various other Heads. Ext. G series are the profit and loss account of the firm of Sarda Color Lab. Ext. H is the seal and signature of the Branch Manager of Canara Bank on a photo stat copy of an unregistered lease deed executed for a period of five years between P. B. Lal and Yamunadas Sarda, Narendra Kumar Sarda, partner of Sarda Color Lab. This deed was proved by D.W.9, Manager of Canara Bank but it was not marked as exhibit as it was not admissible in evidence for want of registration and the court below was of the view that it was not legally proved. However, the said lease deed is also a part of the record which shows that the agreed rent was Rs. 2500/-. 23. I have inspected each and every voucher and I find that there is specific assertion on a number of documents that two months rent at the rate of Rs. 2,500/- is given which was received by Dhananjay Singh. Obviously, these vouchers are admitted and exhibited without objection. Thus the only document where "Rate of Rent"is mentioned are those vouchers. 24. It is true that advance payments towards air tickets or for any other purpose where it is not mentioned "Rent" cannot be adjusted towards rent for want of notice. 2,500/- is given which was received by Dhananjay Singh. Obviously, these vouchers are admitted and exhibited without objection. Thus the only document where "Rate of Rent"is mentioned are those vouchers. 24. It is true that advance payments towards air tickets or for any other purpose where it is not mentioned "Rent" cannot be adjusted towards rent for want of notice. However, in my opinion, there are a number of vouchers which are undisputed and marked as exhibits. They clearly mention rate of rent as Rs. 2,500/- and also are duly signed by Dhananjay Singh, he was admittedly present in the court all along but did not enter the witness box to dispute his signature on the vouchers showing rate of rent as Rs. 2,500/-. This alone lends credence to the assertion of the defendant-appellant regarding rate of rent. In view of this, I am not able to accept that the plaintiff was able to discharge his burden of establishing rate of rent as Rs. 10,000/- per month. 25. On scrutiny of the oral evidence produced on behalf of the plaintiff, the evidence of Smt. Rita Lal appears to be material to prove the plaint case. P.W.1 has only proved Ext. 1 but he has expressed his ignorance regarding further renewal after expiry of one month, his evidence is not very material. He has further deposed that Dhananjay Singh was a caretaker of P.B. Lal and he is present in the Court all along through the court proceeding. Similarly, the evidence of P.Ws.2, 3 and 4 are also not very relevant. Thus P.W. 6 alone is a witness who has proved deposit slips. Exts. 2 to 2/1 though it is filled by Dhananjay Singh, caretaker, who was not examined by the plaintiff. She has denied any payment either by cheque or cash memo or by money order coupon, but in paragraph 6 she admits that Dhananjay Singh is care taker and used to sign voucher of payment made to him. She further admits that her husband used to go to Madras for treatment by plane and the money used to be collected by Dhananjay Singh, which was adjusted towards rent. She further admits that her husband used to maintain the account of rent paid but never gave the acceptance of rent in writing. She further admits that her husband used to go to Madras for treatment by plane and the money used to be collected by Dhananjay Singh, which was adjusted towards rent. She further admits that her husband used to maintain the account of rent paid but never gave the acceptance of rent in writing. It was her caretaker Dhananjay Singh who collected rent on behalf of the appellant and still continues as a caretaker on the date her statement was recorded. P.W. 6 states that Rs. 10,000/- per month towards rent was shown in her Income Tax Return, but this assertion has not been substantiated by any documentary proof or copy of Income Tax return. 26. On a close analysis of the statements as well as the evidence which was exhibited without any objection from the plaintiff, save Ext. F which is the account maintained by one Amarendra Mishra on behalf of P.B. Lal, showing details of payment made to the plaintiff and deduction of rent at the rate of Rs. 2,500/- per month in the intervening period commencing from 24.10.1986 to 31.3.1982. Apparently the plaintiff has come up with a case that the appellant was in arrears of rent and the rate of rent was Rs. 10,000/-. The basis of claiming Rs. 10,000/- as rent is a lease deed (Ext. 1). Therefore, in my opinion, a heavy onus lies on the shoulder of the plaintiff to substantiate these facts to hold that the defendant-appellant is a defaulter within the meaning of the Act and is liable to be evicted on the ground of arrears of rent. The plaintiff has also admitted payment of rent from various vouchers which have been exhibited and perusal of those vouchers go to show that rent was accepted duly signed by Dhananjay Singh who is admittedly the caretaker of the plaintiff and specially the clear admission that P. B. .Lal stayed at Hazaribagh on account of Kidney problem and rent was collected through Dhananjay Singh. The number of vouchers clearly mention rate of rent Rs.2, 500/- . The court below has calculated the rate of rent as Rs. 10,000/-, only on the basis of the lease deed (Ext. 1). The said deed is not sufficient to arrive at the conclusion that the rate of rent was Rs. 10,000/- even for the subsequent period. The number of vouchers clearly mention rate of rent Rs.2, 500/- . The court below has calculated the rate of rent as Rs. 10,000/-, only on the basis of the lease deed (Ext. 1). The said deed is not sufficient to arrive at the conclusion that the rate of rent was Rs. 10,000/- even for the subsequent period. I am also of the opinion that the said deed is not sufficient to hold that tenancy continued at Rs. 10,000/- per month for subsequent period as well. 27. On the other hand, the only argument is that there is no notice on behalf of the tenant to the landlord for making adjustment of the payment towards air ticket or where the caretaker has failed to make a mention that the rate of rent as Rs. 2,500/-. The court below was liable to examine that once there are undisputed documents on record to substantiate that rent was paid at different intervals at the rate of Rs. 2,500/-, the court could not record a finding in favour of the plaintiff assuming that the defendant was not able to substantiate that the rate of rent was Rs. 2,500/-.The plaintiff cannot avail any benefit on the short coming of the defendant. The plaintiff has to prove its own case on the basis of evidence adduced. I cannot lose sight of the fact the defendant has taken this stand right in the beginning in his written statement that the rate of rent was Rs. 2,500/- . In absence of any deed of agreement or any rent receipts issued by the plaintiff, no adverse conclusion could have been drawn against the defendant holding that the rate of rent was Rs. 10,000/- per month and thus the defendant is defaulter. I have also noticed that there is no finding regarding the period of arrears and also to prove the rate of interest. The plaintiffs have relied upon Exts. 2 to 2/f. There is no mention of the word “rent” in the said exhibits and the Bank pay-in-slips in respect of different amounts are Rs. 5,000/-, Rs. 10,000/-, Rs. 15,000/- and Rs. 30,000/-. Thus virtually there is no evidence on behalf of the plaintiff to substantiate that the rate of rent was Rs. 10,000/- per month. P.W. 6 though stated that she used to show Rs. 10,000/- per month in her income tax return. 5,000/-, Rs. 10,000/-, Rs. 15,000/- and Rs. 30,000/-. Thus virtually there is no evidence on behalf of the plaintiff to substantiate that the rate of rent was Rs. 10,000/- per month. P.W. 6 though stated that she used to show Rs. 10,000/- per month in her income tax return. This is also a bald statement in the court without any substantiation. 28. So far the argument on behalf of the appellant regarding non-production of Dhananjay Singh is also very relevant omission or a deliberate intention on behalf of the plaintiff. The best evidence regarding the payment through the vouchers signed by Dhananjay Singh and admitted to have been accepted by P.W. 6 was Dhananjay Singh. According to P.W. 1, he was present in the court all along in the court proceeding but why was he with-held and not examined on behalf of the plaintiff, cast a shadow of doubt and the argument on behalf of the appellant cannot be brushed aside. It may not be true that he was intentionally with-held and was not produced as a witness but the assumption and presumption for with-holding the most important witness who could be material to prove the rate of rent and the continuance of the defendant as a tenant on the same terms and conditions that was stipulated initially when the lease deed was executed. section 114 (g) of the Evidence Act provides for evidence which could be and is not produced,if produced, be unfavourable to person who withholds it. Therefore, in the instant case, since P.B. Lal, who was a party to the original lease deed, died before he could enter the witness box, it was Dhananjay Singh alone who could establish that the amount received by him on behalf of P.B. Lal was not towards rent but it was certain amount as a loan or otherwise. Since a presumption of fact affects the burden of proof, in the instant case, the burden was on the shoulder of the plaintiff to negate the assertions in the written statement but sadly he was not produced. On the contrary a number of witnesses who were not very material were examined on behalf of the plaintiff but not Dhananjay Singh who was present in the court as admitted by P.W. 1. This Court has no option but to draw an adverse presumption. On the contrary a number of witnesses who were not very material were examined on behalf of the plaintiff but not Dhananjay Singh who was present in the court as admitted by P.W. 1. This Court has no option but to draw an adverse presumption. P.W. 6 had also admitted that he continues as caretaker of the plaintiff. Ext. B series was signed by Dhananjay Singh and thus he was the best person who could deny or admit those documents. The Apex Court held that adverse inference must be drawn against the person who with-held best evidence in the case of Punit Rai vs. Dinesh Chaudhary [2003(8) Supreme Court Cases 204] (Paragraphs 14 and 15). 29. The plaintiff's case is based on the fact that the defendant is in arrears of rent and the rent was liable to be paid by the tenant @ of Rs. 10,000/- per month. The defendant disputed rate of rent and has adduced documentary evidence in shape of vouchers wherein money was accepted by the plaintiff's caretaker Dhananjay Singh. He had made an endorsement that rate of rent was Rs. 2,500/- per month. The plaintiff witness (P.W. 1) admitted presence of Dhananjay Singh in court all through the proceedings. The substituted plaintiff Rita Lal (P.W. 6) admits that Dhananjay Singh continues as a tenant on the date when her evidence was recorded. In view of these circumstances, he was a very important and material witness, but for reasons best known, he was not examined as a witness. Thus in view of the decision of the Apex Court on the question of non-production of such a material witness is sufficient to draw an adverse inference. 30. Similarly in the case of Pradip Buragohain vs. Pranati Phukan [ 2010(11) SCC 108 ], the Apex Court was of the view that presumption to the disadvantage of a party in the event of withholding material witness certainly leaves the Court to draw an adverse inference. 30. Similarly in the case of Pradip Buragohain vs. Pranati Phukan [ 2010(11) SCC 108 ], the Apex Court was of the view that presumption to the disadvantage of a party in the event of withholding material witness certainly leaves the Court to draw an adverse inference. Paragraphs 28 and 29 of the said judgment read as under:- "28.Non-production of the documents admittedly available with the appellant that would lend credence to the version set up by the appellant that the incident of corrupt practice was reported to him and/or to his election agent would give rise to an adverse inference against the appellant that either such complaints were never made or if the same were made they did not contain any charge regarding the commission of corrupt practices by the respondent in the manner and on the dates and the places alleged in the petition. 29. We may in this regard refer to Illustration (g) to Section 114 of the Evidence Act, 1872 which permits the court to draw an adverse presumption against the party in default to the effect that the evidence which could be but is not produced would, if produced, have been unfavourable to the person who withholds it. The rule is contained in the well-known maxim: omnia praesumuntur contra spoliatorem. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted." 31. So far the question of non-joinder of party is concerned, this is an argument on the basis of lease deed which was allegedly executed at a subsequent date and the same was used in Canara Bank to obtain loan. No doubt, the said deed was used by the plaintiff and later on in the court they resiled from the said deed, but it was not in possession of the defendant. The Manager of Canara Bank (D.W. 9) produced it and admitted that the deed dated April, 1989 between P.B. Lal and Narendra Kumar Sarda was with the Bank. The said deed was signed by the then Manager of Canara Bank Shri K.B. Prasad Rao, Doranda Branch, Ranchi. He also admitted that he was acquainted with the signature and writing and identified mark and seal of the Bank. 32. The said deed was signed by the then Manager of Canara Bank Shri K.B. Prasad Rao, Doranda Branch, Ranchi. He also admitted that he was acquainted with the signature and writing and identified mark and seal of the Bank. 32. Thus it appears that there was some agreement between Narendra Kumar Sarda and P.B. Lal and subsequent thereto the rent was being accepted by Dhananjay Singh on vouchers with effect from 21st April, 1990, at the rate of Rs.2,500/- vide Ext. B/2. No doubt the lease deed dated April, 1989 is unregistered document but the subsequent payments by vouchers Ext. B/2 onwards by Narendra Kumar Sarda and acceptance by Dhananjay Singh on behalf of P.B. Lal does raise a presumption that some sort of agreement was arrived at between the two. However, the suit could not be thrown simply on account of non-joinder of party, but for the reasons discussed above, it is apparent that the tenancy did continue subsequently between Narendra Kumar Sarda and P.B. Lal. 33. Learned counsel on behalf of the plaintiff-respondent in support of his contention that non-payment of rent for a period of two months, the tenant can be held defaulter, though default may not be consecutively for two months. This argument on behalf of the plaintiffs-respondents is based on a decision of this Court in Vijay Sahu vs. Sukhram Prasad [2001 (3) Jhr CR 482 (Jhr)]. Another decision relied upon by the respondent is Balwant Singh and others vs. Anand Kumar Sharma and others [2000 (1) PLJR 975]. A Division Bench of this Court held that provision of B.B.C. Act is a self contained special legislation and section 11 has overriding effect which mandates payment of rent within the time fixed by the contract or where there is no such contract, by the last day of the next following month. Though the Act envisages implied contract for payment of rent at the convenience of the tenant In the instant case, the requirement of the B.B.C. Act and its procedure is not disputed. 34. In the instant case, the consistent stand of the appellant is that the rate of rent is Rs. 2, 500/-. There is nothing on record to substantiate the claim of the plaintiff regarding rate of rent but for the lease deed executed in the year 1986. There is no other document subsequent thereto. 34. In the instant case, the consistent stand of the appellant is that the rate of rent is Rs. 2, 500/-. There is nothing on record to substantiate the claim of the plaintiff regarding rate of rent but for the lease deed executed in the year 1986. There is no other document subsequent thereto. The plaintiffs have failed to discharge their burden to substantiate the rate of rent after expiry of the deed and also the period of default. It only says that subsequent to October, 1987 no rent was paid by the defendant. Payment of rent is admitted till September, 1987 and the various receipts /vouchers etc., substantiate advance payment. Therefore, this decision is also of no consequence. 35. The decision cited on behalf of the plaintiff-respondents in support of the contention that no notice was given for making any adjustment is not material in the controversy involved in the instant appeal. In fact assuming that the payment of Air Ticket is not as rent and other advanced is not taken into consideration even then the lump sum payment of Rs. 30,000/- as well as other payments mentioned specifically that the amount is being paid as rent at the rate of Rs. 2,500/- per month to Dhananjay Singh, who accepted on behalf of P.B. Lal, who was the caretaker, as admitted by the plaintiff, is sufficient to hold that the plaintiff has not discharged its burden regarding rate of rent and also period of arrears. Besides I tend to agree with the submissions made on behalf of the defendant-appellant that the deed (Ext. 1) was in fact a license and not a lease. The word "lease" is defined in Section 105 of the Transfer of Property Act. A lease of immovable property is a transfer of right to enjoy such property made for certain time express or implied for a consideration. In the instant case, the accommodation was given to the defendant to hold an exhibition for a period of one month of electronic goods but there was no stipulation that possession will continue and that any interest is being transferred, though the plaintiff has stated that the tenancy continued on the same terms and conditions. There is nothing to substantiate this assertion. On the contrary, the witnesses adduced on behalf of the plaintiffs only stated that they have seen the lease deed. There is nothing to substantiate this assertion. On the contrary, the witnesses adduced on behalf of the plaintiffs only stated that they have seen the lease deed. They are aware that such a deed was executed but nothing regarding any stipulation or continuance of such terms and conditions or stipulation between the parties after expiry of one month time that tenancy is attorned. 36. In the circumstances, I hold that the plaintiffs have not been able to substantiate that the rate of rent was Rs. 10,000/- per month and they have not been able to dispute the receipt of payment made by the defendant rather admitted to have been accepted on her behalf. Once the payment through vouchers with an endorsement that the payment is towards rent at the rate of Rs. 2,500/- was not disputed, then it was not 'rent' and the mention of specific month cannot be of any help; specially the most material witness who signed the vouchers and accepted money with an endorsement was withheld. Therefore, I conclude that the rate of rent was Rs. 2,500/- per month. In fact there was an advance payment. the defendant cannot be held to be a defaulter within the meaning of the B.B.C. Act and thus the judgment and decree for eviction on the ground of arrears of rent is not sustainable. I am not in agreement with conclusions and the findings arrived at by the trial court for the reasons detailed hereinabove are set at naught. 37. The appeal succeeds for the reasons discussed above. The judgment and decree passed by the court below is hereby set aside. No order as to costs.