Das, J.:— This is an appeal by the defendant under Clause 15 of the Letters Patent against the decision of a learned Judge of this Court, dated the 15th of June, 1953.

2. The plaintiffs were admittedly tenants under the defendant in respect of premises No. 115, Lansdowne Road, Calcutta. On the 5th of July, 1947, a notice determining the tenancy was served on the plaintiffs. Thereupon the defendant who is the landlord instituted a suit for ejectment, being Title Suit No. 117 of 1947. The suit was decreed by the trial court on the 18th of December, 1950. The tenants preferred an appeal. The appeal was dismissed by the lower appellate court on the 12th of July, 1951. It appears, that on the 14th of July, 1951, and on subsequent dates, namely, 17th September, 1951, 5th November, 1951, 10th November, 1951, 27th December, 1951, 30th January, 1952, and 3rd March, 1952, the plaintiffs, that is, the tenants, remitted by money order certain sums as rent payable by them in respect of premises No. 115. Lansdowne Road, Calcutta. In the coupon there is an endorsement to the effect. “Please acknowledge the receipt of rent for holding No. 115, Lansdowne Road, Calcutta,” for the months; in question. The plaintiffs, that is, the tenants preferred an appeal against the decision of the lower appellate Court, dated the 12th of July, 1951. The appeal was filed in this Court on the 24th of July, 1951, and was registered as Second Appeal No. 1086 of 1951. The appeal was dismissed by Mr. Justice Das Gupta and Mr. Justice P.N Mookerjee on the 19th March, 1952. During the hearing of the appeal Dr. Sen Gupta, the learned Advocate, who appeared on behalf of the tenants-appellants submitted that the Court should take note of the subsequent payments of rent by the tenants to which I have just now referred. The learned Judges did not deal with the effect of such payments of rent and left the question open. On the 24th of March, 1952, the tenants as plaintiffs instituted the present suit for a declaration of the tenancy right and for an injunction restraining the defendant, the landlord, from, executing the, decree for ejectment obtained by him. The trial court dismissed the plaintiffs' suit on the 27th of January, 1953. Against that decision the plaintiffs preferred an appeal to the lower appellate Court. The appeal was dismissed by the lower appellate Court on the 26th of March, 1953. The lower appellate Court was of the opinion that no fresh tenancy was created as a result of payments of rent as alleged by the plaintiffs. Against that decision the plaintiffs preferred a Second Appeal to this Court, being Second Appeal No. 682 of 1953. This appeal was heard by a learned Judge of this Court and the appeal was allowed by a judgment, dated the 15th of June, 1953. The learned Judge was of the opinion that the payment evidenced by the money orders was an unconditional payment of rent and the acceptance of the money orders was unequivocal with the result that a new tenancy came into being. The learned Judge was also of the opinion that no question of statutory tenancy arose after the decree for ejectment had been passed. The learned Judge, however, gave leave to prefer an appeal under clause 15 of the Letters Patent. The defendant landlord preferred the present appeal, being Letters Patent Appeal No. 6 of 1953. The question before us is whether a new tenancy was created as alleged by the plaintiffs.

3. The question whether a new tenancy has been created or not is essentially a question of fact. The lower appellate Court had come to a finding that the facts relied on by the plaintiffs were not sufficient to raise an inference of tenancy. In our opinion the finding of the lower appellate Court was binding on this Court in Second Appeal and it could not have been set aside by this Court on Second Appeal.

4. But even assuming that the question is open to debate in this Court, the question still remains whether the facts and circumstances of this case raise an inference of a tenancy in favour of the plaintiffs.

5. The question is whether the facts relied on, namely, the transmission of money as rent by money order and the acceptance thereof by the landlord, raise an inference of a new tenancy.

6. The test in cases like these is whether “qvo animo the rent was received, and what the real intention of both parties was?” [Per Lord Mansfield in Doe d Cheny v. Batten (1) (1775) 1 Cowp. 243 at 245]. This test has been accepted ever since. See per Lord Goddard, C.J, in Clarke v. Grant (2) [(1949) 1 All E.R 768]. The principle thus enunciated has been applied by a Bench of this Court in the case of Panchanan Ghose…Defendant, v. Haridas Banerjee…Plaintiff, . (3) (58 C.W.N 438).

7. In deciding the question whether the new tenancy has been created or not we have to bear the above principles in mind. The facts which have been relied upon by the plaintiffs respondents are that the rent was transmitted by them by money order with an endorsement thereon “please acknowledge receipt of rent for holding 115, Lansdowne Road, for the rent of a particular month”. The money so sent was accepted by the landlord, that is, by the defendant appellant. In order to find out whether the money transmitted by the plaintiffs as rent was transmitted as such and whether the receipt of the money by the defendant landlord was received by the latter as such, reference may be made to the surrounding circumstances of the case. At the time when the money was so transmitted for the first time by money order the defendant landlord had succeeded up to the lower appellate-Court in his suit for ejectment of the plaintiffs tenants on the ground of bona fide requirement of the premises for his own use and occupation. The plaintiffs-tenants were contemplating to file an appeal against the decree for ejectment passed against them. Can it be conceived that in this setting the transmission of the money was an offer by the plaintiffs-tenants for a new lease? In my opinion, the answer must be in the negative. Even if it be assumed that it was an offer by the plaintiffs-tenants, can it be imagined that the defendant landlord in accepting the money really intended to create a new tenancy thus nullifying the effect of his hard-earned success in a suit for ejectment, in two courts? It is the case of the defendant landlord that) the money was neither tendered as alleged nor was received by him as rent. The defendant in his evidence has stated that he received the money as damages and not as rent and that he had no intention to create a fresh tenancy in favour of the plaintiffs. None of the plaintiffs has deposed in this case. In the plaint there is a bare assertion that rent was transmitted. The relevant paragraphs in the plaint are as follows:

“For a long time and specially after 12-7-51 when your plaintiffs' title appeal against the ejectment decree obtained by the defendant was dismissed, the plaintiffs have been sending to the defendant by Postal Money Order rents at the rate of Rs. 305 per month in accordance with English Calendar month for the premises No. 115, Lansdowne Road, and the defendant actually received the same rent month after month by duly signing the acknowledgment receipts. Acknowledgment receipts so signed by defendant for rents from June, 1951, to December, 1951, are filed herewith.”

“In consequence of the payments and acceptance of rents as stated above a fresh tenancy has been created between the plaintiffs and the defendant in respect of the premises in suit at a monthly rent of Rs. 305, and the decree in T.S 117 of 1947, obtained by the defendant now confirmed by the High Court based on a determination of the old lease by the usual service of notice does not entitle the defendant to evict the plaintiffs from the premises in suit.”

8. In paragraph 8 of the plaint the plaintiffs state that the cause of action arose on the 19th March, 1952, when their Lordships Das Gupta and P.N Mookerjee, JJ., announced their judgment dismissing the Second Appeal *** In paragraph 9 of the plaint the plaintiffs pray for a declaration that the plaintiffs are tenants from month to month under the defendant at a rent of Rs. 305 in respect of premises No. 115, Lansdowne Road, Calcutta-26.

9. It appears from the paragraphs quoted above that in the plaint the plaintiffs do not suggest any specific date when the tenancy came into existence nor do they state the terms of the tenancy Sushil Kumar Sarkar, the only witness examined by the plaintiffs, stated in cross-examination that rents were deposited with the Rent Controller up to September and October, 1947.

10. That thereafter no rent was paid for fifteen months and that then there was some change in the law and “we again began to pay rent, this time by money order” In the above circumstances the fact that the money order coupons contained a statement already referred to, is not unequivocal. It is consistent with the view that the sums were being transmitted by money order for preserving the rights, real or assumed, of the plaintiffs under the then Rent Control Act. This is borne out by the deposition of Sushil Kumar Sarkar just referred to. Whether payment of rent would or would not benefit the plaintiffs-tenants or whether or not the defendant landlord was entitled to accept it as rent is not material. We are concerned with the real intention of the parties. The facts of this case do not show that the parties did intend to bring into existence a new tenancy in my opinion, the parties were not ad idem. The burden of proof lay on the plaintiffs. In my opinion, the plaintiffs have failed to discharge the burden. The finding arrived at by the lower appellate Court must, therefore, be affirmed.

11. We accordingly hold that no new tenancy was created as alleged by the plaintiffs

12. In the result this appeal succeeds the judgment under appeal is set aside and the plaintiffs' suit is dismissed with costs in all the courts—the hearing fee in this appeal being assessed at five gold mohurs

Guha Ray, J.:— I agree.

P.S