( 2026:JHHC:812 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 484 of 2003 Matlub Alam son of Mahboob Alam, resident of Ward No. 11, Baribazar, P.O. and P.S. Chaibasa, District : West Singhbhum … … Plaintiff/Respondent/Appellant Versus Ibrahim Mistry son of late Md. Jan, resident of Ward No. 10, Baribazar, Chaibasa (died and deleted v.o.d. 22.06.2022) 1(a) Md. Imran 1(b) Md. Rayis 1(c) Md. Rahim 1(d) Md. Amin 1(e) Md. Shahjad 1(f) Md. Nayim Serial no. 1(a) to 1(f) are resident of Niche Tola, Ward No. 13, Kamaltoli, P.O. and P.S. Chaibasa, District-West Singhbhum 1(g) Md. Karim R/o near Madina masjid, ward no. 8, P.O. and P.S. Chaibasa, District West Singhbhum 1(h) Md. Nasim, R/o Near Bharat Press, ward no. 8, Baribazar, P.O. and P.S. Chaibasa, Dist. West Singhbhum … Defendants/Appellants/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Rahul Kumar Gupta, Advocate : Mr. Surya Prakash, Advocate For the Respondents : Mr. Vishal Kumar Tiwary, Advocate : Mr. Anjani Kumar, Advocate --- 29/09.01.2026 Heard the learned counsel appearing on behalf of the parties. 2. This appeal has been filed against the judgement and decree dated 02.07.2003 (decree signed on 09.07.2003) passed by the learned 2nd Additional District Judge, Chaibasa in Eviction Appeal No. 02 of 1998 whereby the learned 2nd Additional District Judge, Chaibasa has been pleased to allow the appeal preferred by the defendant. The Trial Court judgment is dated 19.02.1998 passed by learned Sub Judge-II Chaibasa in Eviction Suit No. 4 of 1991 whereby the learned Sub Judge- II Chaibasa had allowed the suit in favour of the plaintiff. The judgement was reversed in 1st appeal. The plaintiff is the appellant before this court. 3. This appeal was admitted for final hearing vide order dated 06.03.2006 by framing substantial question of law. However, on ( 2026:JHHC:812 ) 2 account of certain typographical error, the second substantial question of law has been modified vide order dated 08.01.2026. Consequently, following are the two substantial questions of law are involved in this case. (i) Whether the learned lower appellate court has committed serious errors in reversing the judgment and decree of the learned trial court on the basis of assumption and presumption? (ii) Whether the learned lower appellate court has committed an error in holding that the defendant could not substantiate its case that the defendant is a licensee or not? Preliminary objection of the respondents 4. Learned counsel for the respondents has pointed out that as back as in the year 2022, it was brought on record by filing an application on 12.10.2022 that out of three daughters of Sohra Khatoon, two of them namely, Saleha Khatoon and Khairoon Nisha expired during the pendency of the 2nd appeal. It is further not in dispute that the plaintiff is the power of attorney holder of the three daughters of Sohra Khatoon and is also the son of Saleha Khatoon. The learned counsel for the respondents has submitted that on account of death of two of the persons who had executed the power of attorney, the 2nd appeal on behalf of dead persons cannot be pursued. Response of the appellants to the preliminary objection 5. In response, the Learned counsel for the appellant has submitted that in a suit relating to landlord-tenant relationship, the right to collect rent is to be seen. He has referred to the definition of landlord as defined under the BBC Act and has submitted that admittedly one of the three sisters namely, Ashrafun Nisha is alive and therefore, it cannot be said that the power of attorney has completely lost its force. In addition to this, the learned counsel has also submitted that the plaintiff is the son of Saleha Khatoon and therefore, he also inherits the suit property. 6. Arguments of the appellants on merits . I. On merits, learned counsel for the appellants has submitted that there is a legal difference between lease and licence. Lease and licence, both can be of a vacant land and/or of vacant building. ( 2026:JHHC:812 ) 3 He submits that terminology used may not decide, but the intention of the parties and the nature of transaction between the parties would be the key to decide as to whether it is a lease or a licence. It is not in dispute from the side of the appellant that if the lease is that of a building, then under such circumstances it is tenancy and would be covered under the rent control act, that is, BBC Act. II. Learned counsel for the appellant has referred to the judgment passed by the Hon'ble Supreme Court reported in (1991) 2 SCC 180 (Puran Singh Sahni Vs. Smt. Sundari Bhagwandas Kripalani (Smt.) and others) and has submitted that the distinction between lease and licence has been considered by the Hon'ble Supreme Court in paragraphs 16, 17 and 24 of its judgment and also there is discussion in this regard in paragraphs 12, 13, 15 and 19 which reveals that in case of a lease, there is a transfer of right to possess in exclusion of the others, but in case of licence, there is no exclusive right to possess or to enter the premises and in absence of a licence , the entry into the premises would amount to trespass. III. The learned counsel for the appellant has relied upon the judgement passed by the Hon’ble Supreme Court reported in 2007 SCC OnLine Patna 180 (Hindustan Petroleum Corporation Ltd. and Anr. Vs. Rajeshwar Prasad) and referred to paragraph 17 thereof. He has submitted that even in a situation where the vacant land is involved by making a lease or right to possess, and subsequently the tenant makes construction and pays rent for the entire premises, the said premises cannot legally be called a vacant land and cannot be legally deemed to stand out of the definition of “building” as provided under the definition of Building as defined under the JBC Act. The learned counsel has submitted that in the said case, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was involved, and the court found that the similar definition was used under the Bihar Act. ( 2026:JHHC:812 ) 4 IV. The learned counsel submits that there is evidence on record to show that the defendant had admitted that after the construction over the property, he has been paying rent not only for the land but also for the building. Therefore, the suit premises involved in this case cannot be taken out of the applicability of Bihar Buildings (Lease, Rent and Eviction) Control Act. V. The learned counsel for the appellant has referred to paragraphs 2, 3 and 4 of the plaint to submit that a specific statement was made by the plaintiff that there was a Title (Partition) Suit No.31 of 1987, which ended in a compromise between the parties on 27.11.1989, and a decree was drawn up. It was further stated that three tenants, including the present defendant, Narayan Sao and Qutubuddin, were in occupation of the property as tenants under Kaniz Fatima and that after partition, all the three tenants agreed to attorn Saleha Khatoon and others as landlords, in respect of the house and the premises in their occupation. Thereafter, the plaintiff, being the power of attorney holder, started realizing rent from all the tenants, including the present defendant. VI. He has then referred to paragraph 13, 15, 16 and 17 of the written statement and has submitted that the defendant had taken the plea that the holding did not belong to Sohra Khatoon alone and that there had been long litigation between Saleha Khatoon and Kaniz Fatima in respect of Holding No.939. The learned counsel submits that this litigation is essentially referrable to the partition suit, which has been referred to in the plaint. VII. The learned counsel has further submitted that the factum about partition suit and the compromise was denied in paragraph 15 of the written statement. At the same time, in paragraph 16, the defendant has stated that he has no knowledge of any partition or allotment of the property as described by the plaintiff. It was also denied by the defendant that they ever held the property as a tenant under Kaniz Fatima and that there was any relationship of landlord and tenant between the defendant and Kaniz Fatima. ( 2026:JHHC:812 ) 5 VIII. The learned counsel has also submitted that during the evidence, it has come to light that the defendant paid rent to Kaniz Fatima, and in the year 1990, Kaniz Fatima refused to accept the rent. He submits that this conduct of the defendant itself reveals that Kaniz Fatima ceased to continue as the landlord, and since the property was allotted by way of compromise to the three sisters, they acquired the status of landlords, and the rent was being collected by their power of attorney, who is the plaintiff before the court. He has referred to paragraph 10 of the cross- examination of D.W. 1. IX. The learned counsel further submits that the son of co-tenant, i.e. son of Kutubuddin, deposed before the court, and it came on record that there was an eviction suit against him as well, numbered as Eviction Suit No.3/1991, which ended in a compromise. Ultimately, the plaintiff was found to be the landlord and he has deposed before the court that all three were tenants under the plaintiff. 7. The plaintiff namely Matlub Alam claimed in the plaint that he was the constituted attorney of Saleha Khatoon, Ashrafun Nisha and Khairun Nisha, all daughters of late Mansoor Ali. It is not in dispute that their mother was Sohra Khatoon who had a full sister namely Kaniz Fatma. Both Sohra Khatoon and Kaniz Fatma were daughters of Sabiran Bibi. The plaintiff stated that Sabiran Bibi died leaving behind her two daughters Sohra Khatoon and Kaniz Fatma. The plaintiff was the power of attorney holder of the three daughters of Sohra Khatoon. 8. It was the specific case of the plaintiff is that Town Khasmahal Holding No. 939 originally belonged to Sabiran Bibi. However, after her death, the three daughters of Sohra Khatoon filed Title (Partition) Suit No. 31 of 1987 in which compromise was arrived between the parties on 27.11.1989 and the compromise was signed by the plaintiff as attorney of three daughters of Sohra Khatoon and the property described in the suit was allotted in favour of Saleha Khatoon and others and decree was accordingly drawn up. ( 2026:JHHC:812 ) 6 9. The plaintiff being the power of attorney holder of three daughters of Sohra Khatoon claimed that the suit property belonged to the three daughters of Sohra Khatoon. He also claimed that the property which were allotted to them consisted of vacant land, two rooms and one gumti and one covered garage with tin shed in which three tenants were inducted including the present defendant namely Ibrahim Mistri and two others namely Narayan Saw and Qutubuddin who were occupying the property as tenant under Kaniz Fatma, the sister of Sohra Khatoon. It was their further case that after partition, all the three tenants agreed to attorn Saleha Khatoon and others as landlord and the plaintiff being the attorney of landlord started realizing rent from all the tenants including the present tenant. 10. It was the case of the plaintiff that the defendant continued as a tenant on monthly rent of Rs. 50/- and the defendant started paying rent to the plaintiff from the month of December, 1989 and the plaintiff issued rent receipts regularly to the defendant. The defendant paid rent till April, 1990 and thereafter failed to pay the rent in spite of repeated requests and demand. Consequently, he became a defaulter in payment of rent. The plaintiff sent a registered notice to the defendant on 30.01.1991 which returned unserved in connivance with the postal peon and thereafter the plaintiff requested the defendant to vacate the suit premises, but the defendant neither vacated the suit premises nor gave any response to the notice and ultimately the suit for eviction was filed. 11. Written statement was filed by the defendant inter-alia denying the relationship of landlord and tenant. It was also stated that the plaintiff had not filed the documents along with the plaint and defendant reserved his right to submit a detailed objection on additional written statement in the suit. The title of the plaintiff was also denied. It was asserted that plaintiff had no concern with the land and the structure over the suit premises and had no cause of action. The defendant clearly denied that the holding belonged to Sohra Khatoon alone. It was asserted that Sabiran Bibi and her step son had long drawn litigation and it was also asserted that there has been long drawn litigation between Saleha Khatoon and Kaniz Fatma with regard to holding no. ( 2026:JHHC:812 ) 7 939. The defendant asserted that a portion of vacant land was given on license by Sabiran Bibi to the defendant in the year 1962 who erected structure of permanent nature and was running a motor repairing workshop and his coal business as a licensee under Sabiran Bibi who used to collect license fee @ Rs. 200 per annum which was subsequently increased to Rs. 500 per annum. Sabiran bibi expired in the year 1968 and after her death, her daughter Kanij Fatma used to realize and receive the license fee from the defendant and said Kanij Fatma received the license fee from the defendant till the end of 1990 and from the month of January, 1991 Kanij Fatma had not demanded the license fee, though the defendant was always to ready to pay license fee to Kanij Fatma. It was also asserted that no step was taken to revoke or terminate the license. The defendant denied the averments regarding partition suit and also denied any knowledge with respect to compromise. 12. It was also asserted that Saleha Khatoon and others or anybody on their behalf never apprised the defendant of the fact averred in paragraph 2 of the plaint. Paragraph 2 of the plaint was relating to averment that Title Partition Suit No. 31 of 1987 was filed in which compromise was arrived between the parties on 27.11.1989. The defendant denied having any knowledge of partition and allotment of property as described by the plaintiff. The defendant also denied that the defendant ever held the property as a tenant under Kanij Fatma and also asserted that there was no relationship of landlord and tenant between the defendant and Kanij Fatma. It was also asserted that the defendant also denied the assertion of the plaintiff that the other occupants had ever agreed to attorn in favour of Saleha Khatoon and also denied that the defendant had never agreed and accepted Saleha Khatoon and others as his landlord and such statements were false. It was also asserted that Saleha Khatoon and Others or the plaintiff or Kanij Fatma never acted or could have acted as landlord of the defendant. It was asserted that the defendant had never paid rent to the plaintiff or to Saleha Khatoon and Others. The plaintiff had not filed ( 2026:JHHC:812 ) 8 any rent receipt or counter foil to evidence the factum of payment of rent by the defendant and bearing the signature of the defendant. 13. Thus, perusal of the written statement reveals that the defendant denied the relationship of landlord and tenant between the plaintiff/Saleha Khatoon and others and asserted that the plaintiff was a licensee under Sabiran Bibi since the year 1962 and subsequently under Kanij Fatma and paid license fee to her till the year 1990 and thereafter Kanij Fatma never asked for any payment in spite of requests did not accept payment from the defendant. The defendant completely denied any knowledge of compromise in Title Partition Suit and that in the compromise the suit premises was allotted to Saleha Khatoon and others. The defendant also denied that at any point of time, Saleha Khatoon and others or the plaintiff ever demanded rent from the defendant. 14. The learned Trial Court framed following issues for consideration: - (1) Is the suit, as framed maintainable? (2) Has the plaintiff got any valid cause of action in the said suit? (3) Whether the court fee paid by the plaintiff is sufficient? (4) Whether the suit is bad for non-joinder and mis-joinder of parties? (5) Whether there is relationship of land lord and tenant in between the plaintiff and the defendant in respect of the suit property as described in Schedule ‘A’ of the plaint? (6) Whether the defendant is defaulter in payment of rent of the suit premises continuously for two months or more and he is liable to be evicted from suit premises on the said ground? (7) Whether the plaintiff is entitled to get a decree for arrears of rent amounting to Rs. 500/- against the defendant? (8) Whether the plaintiff is entitled to get any other relief or reliefs in the present suit? 15. The learned Trial Court took up issue nos. 1,2,3 and 4 together and decided all the issues in favour of the plaintiff. Further issue no. (5) i.e. whether there was a relationship of land lord and tenant in between ( 2026:JHHC:812 ) 9 the plaintiff and the defendant with respect to the suit property was also decided in favour of the plaintiff. The other issues were also decided in favour of the plaintiff and ultimately the suit was decreed. 16. The learned Trial Court had considered both oral and documentary evidences on record and recorded a finding that the defendant in his evidence had stated that he had been giving license fee to Kanij Fatma who was daughter of Sabiran Bibi till 1990 and then in the year 1991, he went to give license fee to Kanij Fatma, but she refused to accept the license fee. He deposed that the plaintiff has no right, title and interest in connection with the suit property. The Court recorded that the defendant in his evidence who was examined as D.W. 1 did not clarify as to why he stopped taking monthly license fee from the year 1991 and further observed that this aspect of the matter was sufficient to prove that in Title Suit No. 31 of 1987 the suit property was allocated to Sohra Khatoon and her three daughters and it was because of this reason, Kanij Fatma after 1990 refused to accept rent. 17. The court also recorded that the defendant in his cross examination has stated that Sabiran Bibi had taken permission to construct a house over the property and after construction over the property the land lord was Sabiran Bibi and consequently observed that the cross examination reveals that the defendant admitted that Sabiran Bibi was the landlord. The court ultimately recorded that the suit property was allocated to the three daughters of Sohra Khatoon (Sohra Khatoon was full sister of Kanij Fatma) and under such circumstances the defendant was under an obligation to pay rent to the plaintiff. The learned Trial Court ultimately held that the defendant was tenant under the three daughters of Sohra Khatoon and the plaintiff being the power of attorney holder was entitled to realize rent from the defendant with respect to the suit property and there was a relationship of land lord and tenant between the parties. 18. While deciding issue no. (6) the learned Trial court has referred to exhibit 5 to 5/d which were the five rent receipts said to have been issued by Saleha Khatoon to the defendant being the monthly rent and that the defendant in his evidence had accepted that he had not paid rent ( 2026:JHHC:812 ) 10 since 1991 and prior to this he had paid rent to Kanij Fatma. The Court held that after May, 1990 the defendant did not make payment of rent to Saleha Khatoon/her three daughters and after 1989, the land lord was Saleha Khatoon and her three daughters. The learned Court ultimately held that the defendant was a defaulter in payment of rent and directed for eviction of the defendant. 19. So far as the learned 1st appellate court is concerned, the learned court recorded the finding from paragraph-18 onwards and held as under:- A. Admittedly, there is no agreement of tenancy between the defendant and the plaintiff nor there is any documentary evidence showing existence of tenancy between the plaintiff and the defendant and the predecessor in interest of the plaintiff i.e. Kanij Fatma or Sabiran Bibi. B. There is no documentary evidence like rent receipt etc. to show that the defendant was paying any rent with respect to the tenanted premises to Sabiran Bibi or to Kaniz Fatma the then owner of the suit property and when Saleha Khatoon and others acquired the suit property on the basis of compromise decree in Title (P) S. No. 31/1987 as claimed by the plaintiff. C. The plaintiff had not examined Kaniz Fatma as witness to support that the defendant was a tenant under her or there was any relationship of landlord and tenant between her and the defendant or that the defendant was paying monthly rent to her and not the license fee as claimed by the defendant. There is no explanation for not examining Kanij Fatma or her husband who were said to have been realizing the rent with respect to the suit property from the defendant. D. The counter foils of rent receipt (exhibit-5 series) from December, 1989 to April, 1990 at the rate of Rs. 50 per month was disbelieved by learned 1st appellate court in absence of any signature of the defendant. ( 2026:JHHC:812 ) 11 E. The argument of the plaintiff that the defendant did not sign the counter foil was also rejected in absence of any foundational averment to that effect. F. The plaintiff has not examined any independent witness showing payment of each and every monthly rent by the defendant vide Exhibit-5 series (rent receipts). G. Minus the exhibit-5 series, there was no other documentary evidence to show that there was any relationship of land lord and tenant between the plaintiff and the defendant with respect to the tenanted premises. H. The plaintiff had taken a plea that the notice dated 30.01.1991 was sent upon the defendant vide exhibit-6 and 6/A by which the tenancy was terminated due to non-payment of rent and the defendant was asked to vacate the tenanted premises, but admittedly the notice was not served upon the defendant. I. The court also observed that it was alleged by the plaintiff that the defendant got the notice returned in collusion with the postal peon but the postal peon was not examined to show as to why the notice was not served upon the defendant or that the defendant avoided service of notice. The learned 1st appellate court observed that the notice exhibit-6 series also was not going to help the plaintiff to substantiate the relationship of land lord and tenant between the parties. 20. The learned 1st appellate court considered the oral evidences from paragraph 21 onwards and observed that- (i) the defendant claimed to be licensee under Sabiran Bibi and subsequently under Kanij Fatma and claimed that he was paying only license fee to them previously @ Rs. 200 per year and subsequently @ Rs. 500 per year but the defendant had not filed any chit of paper to show that he was occupying the premises as a licensee and not as a tenant. (ii) It was argued by the plaintiff that the defendant also admitted that the owner of the suit holding was Kanij Fatma and subsequently ( 2026:JHHC:812 ) 12 when Saleha Khatoon and others stepped into the shoes of Kanij Fatma, they became the owner in respect of the suit property. (iii) The defendant is also presumed to be the tenant under the plaintiff and there is also presumption of attornment by the defendant. (iv) It was argued by the plaintiff that the defendant had also admitted that the owner of the suit holding was Kanij Fatma and as such the defendant was tenant under Kanij Fatma and subsequently when Saleha Khatoon and others stepped into shoes of Kanij Fatma and became the owner in respect of the suit property, the defendant is also presumed to become the tenant under the plaintiff and there is also presumption of attornment by the defendant. This argument was rejected by the learned 1st appellate court by observing that the it was true that the defendant had not filed any documentary evidence in the case that he was holding the tenanted premises as a licensee under Kanij Fatma or he was paying any license fee to her. But the case of the plaintiff and the defendant stand on the same footing that both of them got valid documentary evidence to substantiate the claim as licensee viz a viz tenancy but in the present case the liability of the plaintiff is greater to establish that there was a relationship of landlord and tenant between the parties and the defendant was paying rent of the suit premises and held that the plaintiff failed to establish that the defendant was a tenant in the suit premises under him or under the predecessor in interest of the plaintiff by reliable evidence. (v) The court further observed that even if the defendant had not been able to show that he was holding the suit premises as licensee under Kanij Fatma, but the defect in the plea of the defendant cannot be a ground for the plaintiff to evict the defendant from the suit premises under the BBC Act [Bihar Building (Lease, Rent and Eviction) Control Act] as the plaintiff failed to establish the relationship of land lord and tenant between the parties. The ( 2026:JHHC:812 ) 13 learned court ultimately held that the learned trial court erred in deciding, especially issue nos. 5 and 6, that there was relationship of landlord and tenant between the plaintiff and the defendant with respect to the suit premises and that the defendant was a defaulter in payment of rent. It was observed that when a primary question of existence of tenancy between the parties was not established, there was no question for the defendant to pay rent to the plaintiff and held that the defendant was not liable to be evicted from the tenanted premises. The court also held that deciding the question of right, title and interest of the plaintiff in the suit holding was beyond the scope of the eviction suit. (vi) The court also recorded that the finding of the learned trial court was not based on sound footing and as per evidence on record. (vii) The court recorded that without any reliable and admissible evidence, the trial court decided that there was a relationship of landlord and tenant between Kanij Fatma and defendant and subsequently in between the plaintiff and the defendant and the trial court wrongly arrived on the conclusion that the defendant attorn the tenancy in favour of the plaintiff or that the defendant was paying rent to the plaintiff. (viii) The court recorded that the finding of the trial court is mainly based upon the right, title and interest of Saleha Khatoon and others/plaintiff and presumption of tenancy of suit premises without deciding the basic question of relationship of landlord and tenant between the parties which was a prime question to be decided in a case under BBC Act. (ix) The court also recorded that the court did not find that the defendant anywhere admitted himself to be as tenant under Kanij Fatma or Sabiran Bibi and as such Section 109 of the Transfer of Property Act as argued by the plaintiff, nor the attornment will be presumed, as against the defendant. (x) The learned court also recorded in paragraph 19 of the evidence of the plaintiff (P.W. 4) that he had denied to know about any tenancy agreement between the defendant and Sabiran Bibi. ( 2026:JHHC:812 ) 14 21. Paragraph 24 of the appellate court’s judgment is quoted is as under:- “ So far as oral evidence of plaintiff (P.W. 4) is concerned, I find that in para-10 he has argued that the husband of Kaniz Fatma was alive and summon was got issued against him by the plaintiff, but he did not turn up in Court for his evidence. In para-19 he has denied about any agreement of tenancy in between the defendant and him or his mother or Mausi and he also denied to know about any tenancy agreement in between the defendant and Sabiran Bibi. In para-20 he denied that Ext 5 series rent receipts do not bear the signature of the defendant. In para-21 and 22 he has denied to possess any documentary prove to show the tenancy in between him and the defendant or in between Kaniz Fatma and the defendant. He also admitted that holding No.is not mentioned on the said Ext.5 series. In para-23 he has denied to show any paper that the defendant agreed to pay rent of the suit premises to him. He has also admitted that Kaniz Fatma is alive and he intends to examine her as witness in this case but I find that she was not examined in this case to support the case of the plaintiff. From the aforesaid oral evidences of the plaintiff, I also find that the relationship of land lord and tenant in between the plaintiff anu the defendant is not established, both by oral or documentary evidences.” 22. The learned 1st appellate court ultimately allowed the appeal and set aside the order of eviction passed by the learned Trial Court. 23. The learned counsel for the appellants while assailing the appellate court’s judgment has submitted that the case of the plaintiff stood established by virtue of admission made by the defendant in as much as the defendant had admitted in his evidence that he had taken the suit property and had constructed building and had been paying rent to the plaintiff Sabiran Bibi and after her death to Kanij Fatma for the land as well as building. ( 2026:JHHC:812 ) 15 24. The learned counsel has relied upon the judgment passed by the Hon’ble Patna High Court reported in 2007 SCC Online Patna 180 (Hindustan Petroleum Corporation Ltd. And Another versus Rajeshwar Prasad) and has submitted that it has been held in paragraph 17 thereof that the even in case where originally the premises was a vacant land and subsequently tenant makes construction and pays rent for the entire premises, the said premises cannot be legally called a vacant land. It would be covered within the definition of building as provided under Section 2(b) of BBC Act now JBC Act. 25. The learned counsel submits that the learned 1st appellate court while reversing the judgment and decree failed to consider this aspect of the matter and has erred in law by holding that tenancy was not proved. 26. Learned counsel for the appellant has referred to the judgment passed by the Hon'ble Supreme Court reported in (1991) 2 SCC 180 (Puran Singh Sahni Vs. Smt. Sundari Bhagwandas Kripalani (Smt.) and others) and has submitted that the distinction between lease and licence has been considered by the Hon'ble Supreme Court in paragraphs 16, 17 and 24 of its judgment and also there is discussion in this regard in paragraphs 12, 13, 15 and 19 which reveals that in case of a lease, there is a transfer of right to possess in exclusion of the others, but in case of licence, there is no exclusive right to possess or to enter the premises and in absence of a licence , the entry into the premises would amount to trespass. It has been held that the intention of the parties in making the agreement is determinative of the question whether it was a lease or licence. The test of exclusive possession, though of significance, is not decisive. By mere use of the word lease or licence the correct categorization of an instrument under law cannot be affected. While interpreting the agreement court has also to see what transpired before and after the agreement. The best interpretation is made from the context. The intention of the parties to an agreement has to be gathered from the terms of the agreement construed in the context of the surrounding, antecedent and consequent circumstances. The crucial test would be what the parties intended. If in fact it was intended ( 2026:JHHC:812 ) 16 to create an interest in the property, it would be a lease, if it did not, it would be a licence. Interest for this purpose means a right to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title. 27. The learned counsel has also submitted that though the compromise decree was not exhibited before the learned court but the compromise petition filed before the court was duly exhibited which contain the signature of Kanij Fatma also and as per the same, the suit property was allocated to Sohra Khatoon and her three daughters and the plaintiff was the power of the attorney of the three daughters of Sohra Khatoon and was entitled to collect rent. He has then referred to the definition of landlord and submits that any person who is entitled to collect rent comes within the definition of landlord. 28. Learned counsel for the respondents has pointed out that as back as in the year 2022, it was brought on record by filing an application on 12.10.2022 that out of three daughters of Sohra Khatoon, two of them namely, Saleha Khatoon and Khairoon Nisha expired during the pendency of the 2nd appeal. It is further not in dispute that the plaintiff is the power of attorney holder of the three daughters of Sohra Khatoon and is also the son of Saleha Khatoon. 29. The learned counsel for the respondents has submitted that on account of death of two of the persons who had executed the power of attorney, the 2nd appeal on behalf of dead persons cannot be pursued. 30. In response, the Learned counsel for the appellant has submitted that in a suit relating to landlord-tenant relationship, the right to collect rent is to be seen. He has referred to the definition of landlord as defined under the BBC Act and has submitted that admittedly one of the three sisters namely, Ashrafun Nisha is alive and therefore, it cannot be said that the power of attorney has completely lost its force. In addition to this, the learned counsel has also submitted that the plaintiff is the son of Saleha Khatoon and therefore, he also inherits the suit property. 31. During the course of argument, it is not in dispute that the property is a lease hold property of khas mahal and Khas Mahal Lease was executed by government in favour of Sabiran Bibi who died ( 2026:JHHC:812 ) 17 sometimes in the year 1968. She had two daughters namely Sohra Khatoon and Kaniz Fatima. Sohra Khatoon had three daughters namely Saleha Khatoon, Ashrafun Nisha and Khairoon Nisha, all daughters of late Mansoor Ali and the plaintiff was the power of attorney of all the three daughters. Further, the plaintiff is the son of one of the three daughters of Sohra Khatoon and two of the daughters of Sohra Khatoon had expired during the pendency of this 2nd appeal. Thus, the plaintiff (power of attorney holder) was representing only one of the daughters of Sohra Khatoon and therefore any judgement passed in this case would not bind the legal heirs and successors of remaining two daughters of Sohra Khatoon. The power of attorney could not represent the legal heirs and successors of deceased daughters and otherwise also no relief can be granted to the appellant (power of attorney holder) in this appeal. This would be the position even if the plaintiff, power of attorney holder of three sisters , was the son of one of the sisters out of the two who had expired . 32. The learned counsel appearing on behalf of the respondents has vehemently opposed the prayer and has submitted that suit was not filed by the three daughters of Sabiran Bibi, rather it was filed by the power of attorney holder and in the year 2022, it has been brought on record that out of the three daughters, two daughters have already expired. He submits that in such circumstances the present appeal cannot proceed at the instance of the power of attorney of two deceased persons. The learned counsel has also submitted that the power of attorney cannot depose in connection with the personal knowledge of the principal. He submits that none of the three daughters nor their mother and aunt were examined before the court. 33. The learned counsel has submitted that the defendant never accepted the relationship of land lord and tenant between the parties and never accepted that the rent was ever paid to the plaintiff or the three daughters of Sohra Khatoon. He has also submitted that the compromise decree has not been exhibited to even prima facie hold that the plaintiff or his principals had allocated the suit property in any partition suit. He has further submitted that at no point of time the plaintiff or their ( 2026:JHHC:812 ) 18 predecessor in interest ever demanded rent from the defendant and it was the specific case of the plaintiff that Kanij Fatma had refused to accept the rent from the year 1990. The learned counsel submits that in absence of any demand of rent by the three daughters/ power of attorney holder, there was no occasion for the defendant to pay rent/license fee to the plaintiff. He has also submitted that since the vacant land was taken, therefore there was no applicability of the JBC [Jharkhand Building (Lease, Rent and Eviction) Control Act]. 34. This court is of the considered view that the learned 1st appellate court has not committed any error while reversing the judgment and decree of the learned trial Court and the same cannot be said to be based on assumption and presumption in as much as the plaintiff before the court failed to prove that the property was allocated to the plaintiff by virtue of a decree passed in the Title Partition Suit in as much as the decree was never exhibited before the court. Mere the compromise entered into between the parties is not sufficient to hold that it translated into a decree. It is not in dispute from the side of the defendant that they were paying license fee to Kanij Fatma. Further, admittedly there is no material on record to show that the defendant was aware about the out- come of the title partition suit and that the suit property was allocated to the plaintiff or his principals. There is nothing on record to show that the plaintiff ever demanded rent from the defendant. Even the legal notice said to have been sent by the plaintiff to the defendant was not served upon the defendant. Thus, the land lord tenant relationship between the defendant and the plaintiff could not be established. 35. This court finds that the learned trial court has committed an error in holding that the defendant could not substantiate his case that the defendant is a licensee, rather the evidence of the defendant itself reveals that defendant was a licensee and not a tenant under Kanij Fatma. Further, the relationship of land lord and tenant between the plaintiff and the defendant has not been proved and the plaintiff failed to prove his case. The alleged rent receipts as produced by the plaintiff were rightly discarded by the learned 1st appellate court by citing reasons, interalia, on the ground that they did not have the signature of ( 2026:JHHC:812 ) 19 the defendant. The error committed by the learned trial court has been rectified by the learned 1st appellate court while allowing the appeal and holding that the plaintiff has not bee able to prove the land lord tenant relationship between the parties. Thus, the learned 1st appellate court has not committed any error, much less, any serious error in reversing the judgement and decree of the learned trial court and the perusal of the appellate court judgement reveals that the same has not been passed on any presumptions or assumptions. The 1st substantial question of law is accordingly answered against the appellant and in favour of the respondent. 36. Further, the 1st appellate court has held that the plaintiff failed to prove the land lord tenant relation ship between the parties and has not committed any error while recording such a finding. The law is well settled that it is the plaintiff who has to establish his case and in the present case, the plaintiff having failed to establish his case, the 1st appellate court has rightly reversed the findings of the learned trial court and has rightly held that the plaintiff has failed to prove the land lord tenant relationship between the parties. The 2nd substantial question of law is also decided against the appellant. 37. In view of the aforesaid, the decree of the 1st appellate refusing to evict the defendant and dismissing the suit by reversing the findings of the learned trial court , does not call for interference. Accordingly, this appeal is hereby dismissed. 38. Pending I.A., if any, is closed. 39. Let the L.C.R. be sent to the court concerned. 40. Let this order be communicated to the court concerned through FAX. (Anubha Rawat Choudhary, J.) Dated: 09.01.2026 Uploaded on: -20.05.2026 Binit