Monoj Kumar Mukherjee, J.:— In this appeal the appellant challenges a decree for eviction passed against them by the learned Judge, 9th Bench, City Civil Court, Calcutta in a suit filed by the respondents. The case of the plaintiff/respondents, as made out in the plaint, is as follows:

Under a registered deed of lease dated February 18, 1956 the defendant/appellant became a tenant in respect of a flat on the first floor or premises No. 208 Jamunalal Bazaz Street, Calcutta for a period of sixteen years commencing from 1st Magh Sudi 2012 S.Y corresponding to 12-2-56 under Samdeo Gopiram, a registered partnership firm at a monthly rental of Rs. 301/5/(Rs. 301.31) according to Hindi Sambat which was subsequently increased to Rs. 351.31 due to enhancement of municipal taxes. During the subsistence of the lease the plaintiffs purchased the entire premises No. 208, Jamunalal Bazaz Street, Calcutta by an indenture of conveyance dated 9-9-1969 and became absolute owner thereof. By virtue of the said purchase the defendant became a lessee under the plaintiffs and there was necessary attornment. By efflux of time the lease expired on 1st Magh Sudi 2028 S.Y but in spite of such expiry, the defendant did not vacate the suit premises. The defendant also failed and neglected to pay the rent from Pous 2028 S.Y Apart from their claim to, recover possession on expiry of the lease the plaintiffs also averred that they required the suit premises for their own use and occupation. By way of abundant caution the plaintiffs therefore sent a notice through their learned Advocate requiring the defendant to quit and vacate the suit premises but in spite of receipt of the same they did not vacate the premises. Hence the suit for eviction and for khas possession.

2. In their written statement the defendant admitted that they entered into a lease with the predecessor-in-interest of the plaintiff in respect of the suit premises at a monthly rental of Rs. 301/5.annas inclusive of tax but they denied that the rent was enhanced to Rs. 351.31 P. due to enhancement of taxes. According to them sometime after execution and registration of the written lease the parties gave a go-by to the same and the defendant became a monthly tenant under the predecessor-in-interest of the plaintiffs at a monthly rent of Rs. 351/5/- annas under a fresh agreement. They denied that they became lessees under the plaintiffs but admitted that the plaintiffs were the landlords and that they paid rent to the plaintiffs against receipts. It is the further case of the defendant that even if it was conceded that there was a written lease as alleged they were holding over the property after expiry thereof. They denied the allegations of non-payment of rent and contended that as the plaintiffs refused to accept the rents when tendered they had been regularly depositing the rent in the Office of the Rent Controller.

3. In deciding the suit in favour of the plaintiffs the learned trial Judge held that the relations between the parties was governed by the registered deed of lease which was for a term of 16 years and the defendant's contention that the parties entered into a fresh agreement thereafter was not at all substantiated.

4. Mr. Dasgupta, the learned Advocate appearing for the appellant, raised three points in support of the appeal. He first contended that in view of the admitted position that the rent reserved under the registered lease, was varied it should be held that the tenancy subsisting under the lease at a monthly rental of Rs. 301.31 was replaced by a fresh monthly tenancy with a rental of Rs. 351.31 P. According to Mr. Dasgupta, there was no escape from that conclusion having regard to the fact that a rent reserved in respect of a lease could be varied only by a registered document and there was no such document in the present case. In support of his contention Mr. Dasgupta relied upon a Full Bench decision of this Court in the case of Lalit Mohan Ghose v. The Gopali Chuck Coal Co. Ltd., reported in (1912) 16 Cal WN 55, besides some decisions of other High Courts. Mr. Mukherjee, learned Advocate appearing for the respondents, submitted that the above contention of Mr. Dasgupta could not be entertained in view of the Division Bench judgment of this Court in the case of D.S Com. (P) Ltd. v. S.S.S Jain Sabha, reported in (1984) 88 Cal WN 298 : (AIR 1984 Cal 194) wherein a similar contention was repelled.

5. Having given our anxious consideration to the contention of Mr. Dasgupta in the light of the decision cited at the Bar, we find the same untenable. In the case of D.S Com. (P.) Ltd., (AIR 1984 Cal 194) (supra), upon the expiry of a lease for 20 years the landlord, instituted a suit for eviction of the tenant. The defence of the tenant was that an admitted increase in the rate of rent was equivalent to creation of a new monthly tenancy and as such the suit was not maintainable without determination of the said tenancy in accordance with law. In negativing the above contention of the tenant this Court held that alteration in the rate of monthly rent did not necessarily mean an implied surrender of the earlier lease and creation of a new tenancy. According to the learned Judges where the lessor and the lessee agreed upon the enhancement of the rent without intending to create a new relationship it could not be said that increase in the rate of rent created a new tenancy after implied surrender of the previous lease. Mr. Dasgupta, however, strenuously urged that the above decision required reconsideration as it failed to notice the principle enunciated in the Full Bench decision of this Court in the case of Lalit Mohan (1912-16 Cal WN 55) (supra). According to Mr. Dasgupta, the case of Lalit Mohan was an authority for the proposition that a variation in the rate of rent could not be done except by a registered deed of lease and consequently if any such variation was made in breach of the provision of S. 17(1)(b): of the Registration Act, 1877 it would tantamount to creation of a fresh lease at the varied rate of rent. This contention of Mr. Dasgupta cannot be accepted firstly because the above Full Bench decision of our High Court was in fact considered in the case of D.S Com. (P.) Ltd. (supra) and in consideration thereof the following observation was made:

“When on the basis of such an oral agreement only for varying the rate of rent payable under a registered deed of lease, the lessor seeks to recover rent at the enhanced rate, S. 17(2)(b) of the Registration Act which has been made supplemental to the Transfer of Property Act would stand as a bar and the ratio of the Full Bench decision in the case of Lalit Mohan Ghose (supra) and the other reported decisions taking the same view would apply.”

6. The second reason for which we cannot accept the above contention of Mr. Dasgupta is that the Full Bench decision in Lalit Mohan Ghose's case (1912-16 Cal WN 55) has only laid down that a document, which varies the essential terms of an existing registered lease, such as the amount of rent or incidents of such payment, required registration and the principle so laid down has been followed by besides other High Courts, the Supreme Court in the case of Sunil Kumar Roy v. Bhowra Kankanee Collieries Limited, reported in (1970) 3 SCC 565 : (AIR 1971 SC 751) to which Mr. Dasgupta also drew our attention, but nowhere it has been laid down that as soon as there was a variation in the essential terms of such a registered lease it stood replaced by a fresh tenancy and creation of a new relationship between the parties. On the contrary, in the case of D.S Com. (P.) Ltd., (AIR 1984 Cal 194) (supra) it was held relying upon the judgment of the Supreme Court in the case of Gappulal v. Thakurji Shirji, reported in AIR 1969 SC 1291 that there was no inflexible principle that every variation in the rate of rent payable under a registered deed of lease necessarily implied surrender of the said lease and creation of a new tenancy or that whenever a rate of rent was altered, a hew relationship between the parties would be created. The Division Bench, however, observed that if it was found on the materials made available that the rate of rent was varied as the lessor and lessee agreed to create a new relationship between them, the previous lease would stand impliedly surrendered because such new relationship could not have been created if the previous lease had continued to exist.

7. Taking a clue from the above observation made in the case of D.S Com. (P.) Ltd., (AIR 1984 Cal 194) (supra) Mr. Dasgupta next argued that the evidence on record clearly made out a case of surrender, not only implied but express, and consequently it must be held that the increase in the rate of rent had created a new relationship between the parties and for that matter, a new monthly tenancy. To bring home his point Mr. Dasgupta first drew our attention to para 10 of the written statement filed by the appellant wherein it has been stated that the enhancement of rent was not due to enhancement of corporation taxes as alleged by the plaintiffs but was due to the fact that sometime after the execution of the lease, the parties gave a go-by to the lease and the defendant became a monthly tenant under the predecessor-in-interest of the plaintiffs at a monthly rental of Rs. 351.31 p. Mr. Dasgupta next drew our attention to the evidence adduced by Sachidananda Somani and Sankarlal Somani, the two partners of the appellant firm, in support of the above averments made in the written statement. Both of them stated that Onkarmal Bhotika, a partner of the firm of Shamdeo Gopiram, the erstwhile landlord, demanded enhancement of rent reserved under the registered deed of lease and they agreed to the same only because Onkarmal Bhotika undertook to give a go-by to the registered deed of lease and to create a fresh tenancy. We are unable to rely upon the above leading and for that matter, the evidence laid in support thereof.

8. Except the bald statement that sometime after the execution of the lease “parties” gave a go-by to the lease and the defendant became tenant under Gopiram Onkarmal no other fact was pleaded in the written statement to prove such fresh tenancy. The written statement nowhere discloses who were the parties who gave a go-by to the lease and when was the lease given a go-by and as such no reliance can be placed upon the interested evidence of the two partners of the appellant firm. The most important witness who could have proved creation of the new tenancy — if the case of the appellant was true — was Onkarlal Bhotika the partner of Shamdeo Gopiram but he was not examined on behalf of the defendant. Mr. Dasgupta however contended that the onus was upon the plaintiff to examine him as the creation of new tenancy was pleaded in the written statement and the plaintiff was fully aware of the same. We cannot accept this submission of Mr. Dasgupta as Onkarmal Bhotika was not named as the person with whom the defendant's firm had allegedly a talk regarding creation of fresh tenancy. Besides, it was for the defendant to prove the positive fact of creation of a new tenancy, particularly when the registered lease was subsisting and not for the plaintiff to prove the negative. On the contrary, it appears to us that the plaintiff's story that the rate of rent was required to be enhanced due to enhancement of corporation taxes seems to be more probable. Another circumstance on which the learned trial Judge relied to negative the above contention of the defendant — and with which we also agree — is that the original security deposit of Rs. 301/5.kept with the original lessor was renewed by the present plaintiffs without increasing the quantum thereof and the defendant accepted that position. This circumstance militates against the defence of creation of new tenancy after surrender of the old tenancy.

9. The next contention of Mr. Dasgupta was that the registered lease in question could not be treated as one for 16 years, as it contained a term entitling the lessor to terminate the lease by giving one month's notice. For proper appreciation of the contention of Mr. Dasgupta we extract below the term referred to by him:

“…..Lessors further covenant that this lease is not terminable at the option of the Lessors and the will of the lessee is supreme in the lease. The lessee therefore further agrees and covenants hereby with the lessors that if the lessee fails and neglects to pay the amount of two months' rent legally payable by the lessee on three occasions within a period of 18 months the lessee hereby allows the lessors a clear option to terminate this lease forthwith by giving 15 days' notice only ending with the month and also to take steps for eviction of the lessee under the provision of Act XVII of 1950 if the lessors so desire, as if there was no lease effected at all and in that case all incidents of monthly tenant will become operative and the lessors shall be able to take recourse to provisions of Act XVII of 1950. Any objection if raised by the lessee to the same will be inoperative and invalid as against the lessors.”

10. According to Mr. Dasgupta the above right reserved to the lessors clearly indicated that the lease could be terminated at the option of the lessors at any time even during the period of 16 years and that necessarily meant that the lease was not operative for the said period. In other words, according to Mr. Dasgupta, in view of the above clause the tenancy was to be treated as a monthly one governed by the tenancy law and since the lease was not terminated strictly in accordance with such law the suit was liable to be dismissed. In support of his contention Mr. Dasgupta relied upon the decision of the Supreme Court in the case of Ram Kumar v. Jagadish Chandra reported in AIR 1952 SC 23. We have carefully gone through the said decision and we find that the principle laid down therein has no manner of application in the facts of the instant case.

11. In that case the defendant executed a registered kabuliyat dated 8-12-1924 in favour of the Receiver who was in charge of the plaintiffs estate by which he purported to take a settlement of the suit land for building purposes for a period of 10 years at an annual rent. The first payment of annual rent was made on 8-3-1925 and the second payment was made on 16-3-1926. Since then no further payment was made. The kabuliyat not being an operative document under S. 107 of Transfer of Property Act the question that fell for determination before the Supreme Court was whether the tenancy created by implication of law was a monthly tenancy under S. 106 of the said Act. The Supreme Court held that the tenancy created by implication of law in favour of the defendant should be held to be from month to month since its inception in 1924. According to the Supreme Court the tenancy not being for manufacturing or agricultural purposes it could be recognised as a tenancy from month to month under S. 106 unless there was a contract to the contrary (emphasis supplied). The Supreme Court observed that stipulation as to payment of annual rent would no doubt raise a presumption that the tenancy was from year to year, but being contained in an inoperative document could not come in the way of raising a presumption under S. 106 of the said Act. In the present case there was a contract between the parties and consequently no question of creation of tenancy by implication of law does arise. As has been noticed, in the case of Ram Kumar (AIR 1952 SC 23) there was only a kabuliyat and not a document of lease as in the present case.

12. As against the above decision cited by Mr. Dasgupta, Mr. Mukherjee relied upon the Division Bench judgment of this Court in the case of Ila Basu v. Narayani Bajaj, reported in (1954) 58 Cal WN 102 wherein a similar point as urged by Mr. Dasgupta was negatived. In that case the suit premises were leased on the 10th of August, 1951 and it was for a period of 30 years. The dispute was whether on consideration of the terms of the lease it could be properly said that the same was terminable during the period of 30 years at the option of the landlord. In the lease deed the lessor's right to terminate the lease within the said period of 30 years was reserved on the failure of the lessee to make payment of rent for a certain period. Relying on such term it was contended on behalf of the defendant-lessee that as it gave a right of reentry to the landlord on certain things happening, namely the rent remaining unpaid for three months after the due date, it should be held that the lease was terminable within the period of 30 years at the option of the landlord and in view of the existence of such a clause, S. 5 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which said that the Act would not apply to any lease entered into after 1st of December, 1941 for a period of not less than 15 years which was not terminable within the said period at the option of the landlord, would be applicable. In interpreting the words “terminable……..at the option of the landlord” appearing in S. 5 of the said Act the Court held that those words could not be reasonably applied to a case where in view of something happening the lease was forfeited. The Court observed that it was true that in such a case the landlord might not choose to enforce the forfeiture but it would be inappropriate to speak of such a lease as terminable at the option of the landlord. The Court also held that the words “terminable……at the option of the landlord” appearing in S. 5 were applicable to a case where there was a provision of cutting off a part of the term wholly and solely because the landlord so chose but where a will of the landlord was not supreme and could be exercised only if the tenant acted or omitted to act in a particular way, it could no longer be properly said that the landlord was free to cut off the term. In the instant case also the right of the lessor under the lease to terminate the lease was not an absolute or supreme right; and it could be exercised only on the happening of a certain event, namely, non-payment of rent for certain months in a certain period. It cannot therefore be said that the clause for termination earlier quoted, supplanted the period of the lease. This contention of Mr. Dasgupta therefore also fails.

13. Mr. Dasgupta lastly contended that the different notices that were served upon the appellant calling upon them to vacate the premises clearly indicated that a fresh tenancy was created even after the expiry of the period of the lease. Having gone through the notices we do not find that Mr. Dasgupta is right in his contention. The tenancy referred to in the various notices specifically spoke of the one which expired by efflux of time. Besides there is nothing on record to show that after the expiry of the lease in terms of the registered deed of lease the plaintiffs accepted any rent from the tenant/appellant.

14. As all the points raised by Mr. Dasgupta fail, the appeal fails and the same is hereby dismissed with costs.

Amal Kumar Chatterjee, J.:— 15. I agree.

Appeal dismissed.