Judgment Jyotirmay Bhattacharya, J. Ref: C.A.N 2764 of 2014 In connection with this appeal, the appellants/defendants have taken out an application for adducing additional evidence in this appeal. In the said application, the appellants have annexed the Inspection Book of the Calcutta Municipal Corporation to show as to who were the recorded tenants of the suit premises under the defendants’ father during the relevant time. Mr. Ghosh, Learned Senior Counsel, appearing for the plaintiff submits that the certified copy of the document described as Inspection Book maintained by the Calcutta Municipal Corporation, is not admissible in evidence under Section 35 of the Evidence Act. He further contended that the entries made in the Inspection Book are mainly done on the basis of hearsay evidence and as such it is not admissible. He further submits that the Inspection Book maintained by the Municipal Authority is not a public document under Section 74 of the Indian Evidence Act and as such the certified copy thereof cannot be admitted in the evidence. In support of such submission he has relied upon a decision of this Hon’ble Court in the case of Jitendra Nath Joardar Vs. Makhan Lal Choudhury reported in 61 CWN 175. We find substance in such contention of Mr. Ghosh. Accordingly, we refuse to admit those documents as additional evidence in this appeal. The plaintiff’s application for additional evidence is thus, rejected. Ref: F.A. No. 179 of 2006 This first appeal is directed against the judgment and decree passed by the Learned Trial Judge, 6th Bench, City Civil Court, Calcutta on 8th March, 2006 in Title Suit No.1824 of 1989, at the instance of the defendants/appellants. Let us consider the merit of the instant appeal in the facts of the present case. The plaintiff filed a suit for declaration of his tenancy right under the defendants and for injunction for restraining the defendants from disturbing his peaceful possession in the suit premises. He alleged that he was inducted as a tenant in the suit premises by the father of the defendants in the year 1975. He claimed that since there was cordial relationship between the plaintiff and the defendants’ father, the plaintiff never demanded any rent receipt from his landlord, excepting on one occasion when he required one rent receipt in connection with running of his motor car repairing shop in the suit premises. He claimed that since there was cordial relationship between the plaintiff and the defendants’ father, the plaintiff never demanded any rent receipt from his landlord, excepting on one occasion when he required one rent receipt in connection with running of his motor car repairing shop in the suit premises. He claimed that only one rent receipt which was granted by his landlord has since been missing and as a result the said rent receipt could not be produced by him. He further claimed that in the year 1978, the landlord by his letter dated 7th November, 1978, being Ext. 1, confirmed his tenancy right in respect of the suit premises since 1975 at a rental of Rs.220/- per month. That is the only sheet-anchor of the plaintiff to prove his tenancy. He further relied upon several other documentary evidence such as trade licence issued by the Corporation, electricity bills etc., to support his claim for tenancy in respect of the suit premises. But in our view, those documents at best may support the plaintiff’s claim for possession in the suit premises but those documents cannot have any relevance on the issue regarding the plaintiff’s claim for his tenancy right in the suit premises. Since possession of the plaintiff in the suit premises is not disputed by the defendants, those documents such as trade licence, electricity bills, which are nothing but documents of possession, cannot help the court to resolve the dispute regarding the character and/or nature of possession of the plaintiff in the suit premises. In fact, tenancy cannot be construed even if the plaintiff is found to be in possession in the suit premises since 1975. A person can occupy a premises in different capacity such as, owner thereof or as a tenant under the owner of the premises or as a licensee under the owner of the premises or as a trespasser. The plaintiff herein has not claimed that he was inducted as a licensee under the defendants’ father. He has not claimed that he was occupying the said premises as owner thereof. On the contrary, he has admitted the title and/or ownership of the defendants’ father in the said premises. He has also not claimed that he trespassed in the suit premises and he has acquired title by adverse possession. He has not claimed that he was occupying the said premises as owner thereof. On the contrary, he has admitted the title and/or ownership of the defendants’ father in the said premises. He has also not claimed that he trespassed in the suit premises and he has acquired title by adverse possession. As such, even the length of possession in the suit premises is irrelevant for our present consideration as presently we are required to consider as to whether the plaintiff has succeeded in proving his definite claim of his induction as a tenant in the suit premises by the defendants’ father in 1975 or not. The defendants contested the said suit by filing a written statement denying the material allegations therein. They claimed that plaintiff was never inducted as a tenant in the said premises by their father. Their positive case is that the defendants wrongly and forcibly trespassed into the suit premises sometime in 1989 and immediately thereafter a complaint was lodged against the said plaintiff with the local police station. However, since the possession of the suit premises could not be recovered from the plaintiff they not only prayed for dismissal of the suit but also made a counterclaim in the said suit for recovery of possession of the premises from the plaintiff. Parties laid their respective evidence in course of trial of the suit. Various documents were exhibited by both the parties but we do not feel any necessity of discussing the relevance of those documents excepting the tenancy confirmation letter which was allegedly issued by the father of the defendants. The other documents, in our view, may be evidence in support of the plaintiff’s claim for possession in the suit premises but character of possession of the plaintiff in the suit premises cannot be decided with reference to those documents. Thus, we feel it necessary to concentrate on Ext.1, that is the tenancy confirmation letter, allegedly given by the defendants’ father, which is the sheet-anchor of the plaintiff to prove his tenancy in respect of the suit property. The plaintiff as P.W. 1 proved the said document by evidence. Let us now examine as to how far the said document was proved by the plaintiff or in the alternative what is the evidential value of such document. The plaintiff as P.W. 1 proved the said document by evidence. Let us now examine as to how far the said document was proved by the plaintiff or in the alternative what is the evidential value of such document. He stated that the said letter was given by Achintya Lodh, the father of the defendants, since deceased, sometime in 1978. He stated that the said letter bears the signature of Achintya babu. He claimed that the said letter was signed by Achintya babu in his presence. He further stated that Achintya babu got the said letter typed by himself. The said letter was thus marked as exhibit with objection. Let us now consider his evidence in cross-examination. In cross-examination, he said that Shri Lodh sent the letter to him. He further stated that such letter was filed in court and the said letter was marked as Ext.1. He further stated that he did not know what was written in Ext. 1. He said in his examination-in-chief that the Achintya babu got the said letter typed. It is not his statement that Achintya babu typed out the said letter. He failed to give the name of the typist who typed out the said letter. He failed to examine the typist who typed out the said letter. In the absence of examining the typist, contents of the letter cannot be held to been proved as per law. He also stated in his cross-examination that he did not know as to what was written in the said letter. Thus, he failed to prove the contents of the said letter. In the background of his evidence on Ext.1, we can at best hold that the signature of Achintya babu on the said letter was proved by the plaintiff. That was the only document which was the sheet-anchor of the plaintiff in support of his claim for tenancy in the suit premises. The defendant No.1 in her evidence did not dispute the genuineness of the signature of Achintya babu in the said letter being Ext.1. She stated in her evidence that her father was an aged person and he was suffering from various old age related illness. The defendant No.1 in her evidence did not dispute the genuineness of the signature of Achintya babu in the said letter being Ext.1. She stated in her evidence that her father was an aged person and he was suffering from various old age related illness. She further stated that her father had a business and since he was unable to look after his business due to his ill health, he used to keep some signed blank letter heads in his office for making correspondence with his client. She further stated that the plaintiff somehow or other, managed to procure some singed blank letter heads of her father and converted the same into a tenancy confirmation letter. She specifically stated that the said letter was not issued by her father. As a matter of fact, her father died in 1984 and several blank letter heads carrying signatures of her father were produced in court and were marked exhibits on proof. Thus suspicion was created as to the genuineness of the said tenancy confirmation letter. The Learned Trial Judge held that the defendants have failed to prove as to how the plaintiff managed to procure one of such signed blank letter head carrying the signature of the defendants’ father. Thus, by relying upon the said document being Ext. 1, the Learned Trial Judge declared the plaintiff’s tenancy right in the suit premises. We cannot approve such finding of the Learned Trial Judge as we have already held above that the plaintiff has failed to prove the contents of tenancy confirmation letter being Ext.1. In our view, the contents of the said document cannot be regarded as evidence unless it is admitted into evidence on proof thereof by competent witness as per law. Thus, we have no hesitation to hold that the plaintiff’s tenancy right in respect of the suit premises cannot be declared on the basis of the said document being Ext. 1. The long and continuous possession of the plaintiff in the suit premises also led the Learned Trial Court to declare the plaintiff’s tenancy right in the suit premises. Such conclusion was drawn by the Learned Trial Judge by relying upon two decisions of this Hon’ble Court; one in the case of Prokriti Kumar Ghosh Vs. Anita Ghosh reported in 2002(1) CHN 385 and another in the case of Sunil Chowdhury Vs. Such conclusion was drawn by the Learned Trial Judge by relying upon two decisions of this Hon’ble Court; one in the case of Prokriti Kumar Ghosh Vs. Anita Ghosh reported in 2002(1) CHN 385 and another in the case of Sunil Chowdhury Vs. Arup Kumar Ghosh reported in AIR 2006 CAL 109 . No doubt exclusive possession is one of the incidence of the tenancy, but mere possession of the premises for a long period alone cannot be held to be the only decisive factor for identifying such possession as that of a tenant. In addition to possession, the tenant must also establish that right to possess the tenancy was transferred to him by his landlord. In order to prove tenancy, intention of the parties to create tenancy should also be proved. Payment of rent by the tenant to the landlord is another incidence of tenancy which is also required to be proved by the tenant to establish his tenancy right in the suit premises. In this regard reference may be made to the following decisions of the Hon’ble Supreme Court in the case of Mrs. M.N. Clubwala and Anr. Vs. Fida Hussain Saheb and Ors. reported in 1965 SC 610 and in the case of Capt. B. V. D’Souza Vs. Antonio Fausto Fernandes reported in 1989 SC 816. Let us now consider as to how far the plaintiff succeeded in proving these incidences of his tenancy in the facts of the instant case. He said that excepting on one occasion, rent receipt was not granted in favour of the plaintiff by the father of the defendants. He said that since there was cordial relationship between the plaintiff and the father of the defendants who used to treat him as his own son, there was no practice of grant of rent receipt by the landlord. He however stated that only on one occasion a rent receipt was issued by the father of the defendants but the same could not be produced by the plaintiff as it was lost. No diary was lodged by the plaintiff to record loss of such tenancy receipt by him. The plaintiff has also not taken any steps to call for the counterpart of the receipt which was allegedly issued by the father of the defendants. No diary was lodged by the plaintiff to record loss of such tenancy receipt by him. The plaintiff has also not taken any steps to call for the counterpart of the receipt which was allegedly issued by the father of the defendants. The Learned Trial Judge however held that even in the absence of the rent receipt, tenancy can be inferred from circumstantial evidence. As a matter of fact, after considering the long and exclusive possession of the plaintiff, the Learned Trial Judge declared the plaintiff’s tenancy right in the suit premises under the defendants, without giving due weightage to the evidence of the defendants’ as to how the plaintiff got entry in the suit premises. In this regard, we feel it necessary to discuss the defendants’ evidence on record. The defendants’ witness being D.W. 1 stated that the suit premises were let out to various tenants. Rent receipts were granted by the defendants’ father to the admitted tenants of the said premises. The defendants claim that Mono Type India Pvt. Ltd. was their tenant in the said premises and Kayum Khan, the brother of the plaintiff was a Darwan of the said tenant, Mono Type India Pvt. Ltd. Defendants’ witness further stated that the suit premises had two entrance gates; one of such entrance gate was on the Southern side of the said premises having its access through Crooke Lane and the other entrance gate was located on Waterloo Street. She stated that the plaintiff had motor car repairing shop on the back side of the suit premises at Crooke Lane, and he by taking advantage of his brother (Kayum Khan), who was a Darwan of one of the defendants’ admitted tenant in the said premises, broke open the gate of the Southern side of the suit premises and forcibly occupied the suit premises on 15th October, 1989. She further stated that immediately thereafter a complaint was lodged with the local police station on 21st February, 1989, but since the defendants failed to remove the plaintiff from the suit premises forcibly, they prayed for the plaintiff’s eviction from the suit premises, by way of counter claim. She further stated that immediately thereafter a complaint was lodged with the local police station on 21st February, 1989, but since the defendants failed to remove the plaintiff from the suit premises forcibly, they prayed for the plaintiff’s eviction from the suit premises, by way of counter claim. This part of the defendant’s evidence remain unshaken in cross examination, which leads us to disbelieve the plaintiff’s claim for his tenancy in the suit premises, in the absence of rent receipt as creation of tenancy in favour of a stranger, without grant of rent receipt, is very difficult to believe. Admittedly, the plaintiff is in no way related to the defendants and/or their father. He was absolutely a stranger to the defendants’ family. The premises is situated in the costliest commercial area in the city of Calcutta. It is difficult to believe that a stranger was inducted in the premises as a tenant without any rent receipt granted by the landlord. It is also difficult to believe that the plaintiff regularly paid rent to the defendants’ father and he never insisted upon grant of rent receipt. Section 25 of the West Bengal Premises Tenancy Act lays down detail procedure as to the steps which are required to be taken by the tenant in case rent receipts are not granted by the landlord after realization of rent from the tenant. In case rent receipt is not granted by the landlord after realization of rent, the tenant is required to approach the Rent Controller for issuing direction upon the landlord for grant of rent receipt and in case the landlord even thereafter fails to grant rent receipt then certificate will be issued by the Controller certifying payment of such rent to the landlord. No such step was ever taken by the plaintiff as per the scheme of Section 25 of the said Act either for obtaining rent receipt from the landlord or from obtaining rent certificate from the Rent Controller. The consequence of not taking any steps to invoke the provision contained in Section 25(2) of the West Bengal Premises Tenancy Act, 1956 by the tenant, has been discussed in the case of Mrs. Juthika Basu –Vs-Lieutenant Colonel, A.N. Sharma reported in 1992 (1) CLJ 174 . The Learned Trial Judge held that the said decision is not applicable in the present case. Juthika Basu –Vs-Lieutenant Colonel, A.N. Sharma reported in 1992 (1) CLJ 174 . The Learned Trial Judge held that the said decision is not applicable in the present case. According to the Learned Trial Judge, Section 25 of the said Act can be applied only when the landlord refuses to grant receipt after receiving rent from him. The Learned Trial Judge held that since the landlord never refused to grant rent receipt after realization of rent, Section 25 of the said Act, could not have been invoked by the tenant. We cannot agree with the Learned Trial Judge as Section 25 of the West Bengal Premises Tenancy Act provides that every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent, a written receipt for the amount paid by him, signed by the landlord or his authorized agent and that if the landlord or his authorized agent refuses or neglects to deliver to the tenant a rent receipt, referred to in sub-Section (1) for any rent paid by the tenant, the Controller shall, on an application made in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorized agent, by order, direct the landlord or his authorized agent to pay to the tenant, by way of damages such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of rent paid. Thus, Section 25 of the said Act can be invoked not only in a case where the landlord refuses to grant receipt after acceptance of rent but also in a case where the landlord neglects to grant rent receipts to the tenant after realization of rent from him. In the present case we find that the plaintiff claims that he never demanded for such receipt from the landlord because of his cordial relationship with his landlord and as such the question of refusal to grant of such receipt by the landlord did not arise. In the present case we find that the plaintiff claims that he never demanded for such receipt from the landlord because of his cordial relationship with his landlord and as such the question of refusal to grant of such receipt by the landlord did not arise. At the same time, we find that Section 25 casts a duty upon the landlord to grant receipt to the tenant after realization of rent from him and if the landlord neglects to grant such receipt after realization of rent from the tenant then certainly Section 25 will come into play. Admittedly, the tenant has not taken any such step in terms of the provision contained in Section 25 of the said Act. The tenant was a stranger to the landlord’s family. How he became familiar to the landlord and how cordial relationship was established between them, remained unexplained by the tenant. No independent witness successfully proved that he witnessed payment of rent by the plaintiff to the defendant. Even the rent receipt allegedly granted by the landlord has been withheld by the tenant. No steps was taken by the plaintiff for issuance of direction upon the defendant to produce the counterpart of the said rent receipt. All these facts lead us to disbelieve the plaintiff’s claim for tenancy in the suit premises particularly when we find that the plaintiff’s brother was a Darwan of an admitted tenant under the defendants’ father in the said premises and the plaintiff had access to the said premises through his said brother. Be that as it may we need not make any research on the respective claims of the parties as to how and when the plaintiff entered in the suit premises, inasmuch as such an enquiry is unnecessary for our present purpose as we cannot refuse to grant a decree for eviction against the plaintiff if we find that the defendants’ ownership in the suit premises is admitted by the plaintiff and the plaintiff fails to establish his tenancy in the suit premises. Before parting with, we like to mention here that the Learned Trial Judge also relied upon the evidence of D.W. 1 in a criminal proceeding where, the said defendant according to the Learned Trial Judge admitted that the plaintiff was in possession of the suit premises under her father as a tenant thereof. Before parting with, we like to mention here that the Learned Trial Judge also relied upon the evidence of D.W. 1 in a criminal proceeding where, the said defendant according to the Learned Trial Judge admitted that the plaintiff was in possession of the suit premises under her father as a tenant thereof. Relying upon such admission made by the defendant No.1 in an earlier criminal proceeding, the Learned Trial Judge declared the plaintiff’s tenancy in the suit premises. Let us now consider as to how far the Learned Trial Judge was justified in doing so. We have considered the certified copy of the deposition of the D.W.1 given in the criminal proceeding which was marked as Ext.5 in the suit. On perusal thereof we failed to find out any admission made by the D.W. 1 in the criminal proceeding regarding the plaintiff’s tenancy in the suit premises. On the contrary we find that she disputed the plaintiff’s tenancy in the said premises in her evidence given in the said criminal proceeding. In our view the Learned Trial Judge misconstrued the evidence of the D.W.1 recorded in the criminal proceeding. That apart admission must be clear and unambiguous. To construe admission, her entire evidence is to be read and the context in which such evidence was given by the witness. To use any statement made in the earlier proceeding as her admission in another proceeding, the witness is required to be confronted with the admission which was alleged to have been made by her in the earlier proceeding. Unless the witness is confronted with the admission which she allegedly made in the earlier proceeding, evidence of such witness cannot be used as admission against her in the subsequent proceeding. On scrutiny of the evidence of the parties particularly the defendants’ witness being D.W. 1, we do not find that the said witness was ever confronted with the admission which she allegedly made in the earlier proceeding. Even assuming that admission was there, still then we hold that no reliance can be placed upon the evidence of the said D.W. 1 which she allegedly made in the criminal proceeding in the present suit for the reason as aforesaid. Thus, we hold that even the evidence of the D.W. 1 in the criminal proceeding cannot be considered as an admissible evidence in the present case. Thus, we hold that even the evidence of the D.W. 1 in the criminal proceeding cannot be considered as an admissible evidence in the present case. We further, hold that the Learned Trial Judge ought not to have taken into consideration the evidence of the D.W. 1 which she allegedly made in the criminal proceeding in the present suit. In the above circumstances, we hold that the plaintiff has failed to prove his induction as tenant in the suit premises by the defendants’ father. He was never accepted as a tenant by the defendants. He is nothing but a trespasser in the suit premises, and he admitted the ownership of the defendants. Thus we set aside the judgment and decree of the Learned Trial Judge and pass a decree for eviction of the plaintiff/respondent from the suit premises on the counter claim of the defendants/appellants. The counterclaim of the defendants/appellants is thus, allowed. The plaintiff/respondents is permitted to vacate and deliver up vacant and peaceful possession of the suit premises to the defendants/appellants within two months from the date in default, the defendants/appellants will be at liberty to recover the vacant and peaceful possession of the suit premises from the plaintiff/respondent by evicting him therefrom through the process of execution. The plaintiff’s suit is thus, dismissed and the defendants’ counter claim is, thus, allowed. The appeal thus stands allowed with costs of Rs.50,000.00 (Rupees fifty thousand) to be paid by the plaintiff/respondent to the defendants/appellants.