S.N. Bhattacharjee, J.
1. This appeal arises from the final Judgment and decree dated 20.6.1997 passed by a learned single Judge of this court under Chapter XIII (A) of the Original Side Rules in Suit No. 55 of 1996 filed by the plaintiff-landlord seeking delivery of possession of the suit premises occupied by the defendant/tenant who declined to vacate the same even after expiry of the lease for 20 years created by registered deed of lease.
2. The tenant came Into possession in August. 1973 on payment of Rs. 12,600/- as rent and service charges month by month till the deed of lease for 21 years commencing from August. 1973 without any renewal clause was executed on 29.12.1973 and registered on 28.4.1974. The lease expired on 31st July, 1994. Before expiry of the lease the lessee requested the lessor for extension of the lease for another period of 20 years by his letter dated 1.6.1994 and thereafter again on 5.7.1994. The lessee Issued a cheque for Rs. 35,340.57 as rent for August 1994 in respect of expired lease as also for another, unexplred lease but the lessor returned the cheque declining to accept, the rent for the expired lease. On 26.10.94 the lessor forwarded a proposal for Increased rate at market price in response to the request of the lessee for extension of lease but the lessee found the proposal too steep and promised by his letter dated 7.11.94 to forward the same to the Joint Managing Director of Its Company for consideration. The lessee continued its possession keeping on depositing rent at old rale with the Rent Controller when on 8th March. 1996 the plaintiff Instituted this suit after having served a notice to quit upon the Defendant calling upon it to vacate by 30th August. 1995.
3. The plaintiff took out summons for final Judgment under Chapter XIIIA of the High Court Rules on 10.5.1996.
4. The defendant/tenant opposed the prayer for final Judgment under Chapter XIII A of the said Rules and raised some triable Issues which, according to it, cannot be decided without adduction of evidence in a full trial.
5. The learned trial Judge framed the following Issues arising out of the pleadings :
'(1) Whether the monthly tenancy created in August, 73 and continued month by month payment and acceptance of monthly rent till December, 1973 have been merged with the Deed of Lease executed on 29th December, 1993 and registered In March, 1974?
(2) Whether the plaintiff, by the notice of quit dated 19th July, 1995. waived his right to claim possession on the expiry of the tenure of lease and the defendant has been treated by the plaintiff as a monthly tenant and the plaintiff acquesced in the stay of the defendant as a monthly tenant for the month of August, 1994?
(3) Was there any agreement for renewal or extension of lease 21 years between the plaintiff and the defendant as alleged in paragraph 310 of the affidavit-in-opposition and disputed in paragraphs 410 and (g) of the affidavit-in-reply?
(4) Can the Intention of the plaintiff to treat the defendant as the monthly tenant even after the expiry of lease and waiver of the right of possession on the expiry of lease be implied also from non-adjustment of the amount of security deposit of Rs. 25,000/- against the rent of the last two months in terms of the said lease?
(5) Whether this court has pecuniary Jurisdiction to receive, try and determine the present suit and
(6) Lastly, whether the lease Itself granted any option to any of the parties to determine the lease prior to its operation and is such the lease is governed by the West Bengal Premises Tenancy Act, 1956 and In consequence thereof the suit is not maintainable.'
6. According to him, all the issues excepting issue No. 3 are issues on law and can be decided In a summary trial. Even If the issue No. 3 is decided in favour of the defendant by holding that an agreement for extension of the lease was discernible from the correspondences between the parties, such agreement was not a concluded agreement and thereby did not create any interest in the property in favour of the defendant. Then all the issues were decided against the appellant by the learned trial Judge,
7. The learned counsel for the appellant urged before us that the lease deed which was executed on 29.12.73 and registered on 28.4.74 cannot take effect from a date anterior to its execution and as such cannot also cover the period of monthly tenancy created before its execution. The monthly tenancy created in favour of the appellant under West Bengal Premises Tenancy Act. 1956 (W.B.P.T. Act, for short) by payment and acceptance of rent month by month since the date of original induction of the appellant in August, 1973, cannot be held to have been terminated or extinguished or evaporated by subsequent registered deed of lease even by consent or by conscious act of the parties as has been held by the learned trial Judge.According to him, the theory of merger of monthly tenancy under W.B.P.T. Act with the lease 21 years created under section 105 of T.P. Act Is not applicable In this case as this is not a case of merger oflessor Interest with larger or superior interest in the Immovable property. It has therefore, been argued that the monthly tenancy created under (W.B.P.T. Act) is not otherwise terminable de hors the protective provisions of the said Act. It at best remained dormant or under suspended animation during the period of contractual tenancy for 21 years and after expiry of such tenure It sprang up with all its force. Relying upon the decision in Baneswar Pal v. Smt. Nirmal Jyoti reported in : AIR1979Cal396 , the learned counsel has argued that when a deed of lease Is expressed to commence from anterior date, the anterior date would be material only for the purpose of computation of the period of lease but interest as the lessee under a Deed of Lease cannot be said to have become effective from the anterior date. According to the learned counsel, the learned trial Judge fell in error by holding that the earlier monthly tenancy which was created as a consequence of payment and acceptance of rent stood evaporated or merged with the contractual lease for 21 years, by conscientious act of the parties.
8. The next limb of argument of the learned counsel is that the learned trial Judge assumed for the sake of argument that there was an agreement between the parties for extension of the lease but wrongly held that such agreement was neither a concluded one nor the same was enforceable. The learned Judge has failed to appreciate that the notice of ejectment itself allowed the defendant to occupy till August 30, 1994. He further argued that by giving one month's notice of the ejectment the plaintiff treated the defendant as a monthly tenant although such notice was inoperative against the protective wing of the West Bengal Premises Tenancy Act, 1956.
9. The arguments advanced on behalf of the appellant and issues framed by the learned trial Judge hereinbefore boll down to only one question :
'What is the nature of possession of the defendant before the execution of the lease deed and after the expiry of the lease period till the institution of this suit, regard being had to the facts and circumstances of the case?'
10. This is eminently a legal Issue and does not require to be decided by evidence In a full trial.
11. It does not appear from the lease deed dated 29.12.73 that the parties had Intention to create two types of lease or to convert the monthly lease into a contractual lease for 21 years. It is evident from the deed that negotiation for creation of contractual lease for 21 years was completed by execution of the deed on 29.12.73 and by registration on 28.4.74. The respondent was let into possession for 5 months in the suit premises during the course of negotiation which was completed In December, 1973. What is the nature of this possession
12. In P.G. Sawoe (P) Ltd. v. Union of India reported in 79 CWN page 317, the defendant was also let into possession of the premises in suit on December 1, 1956 in course of negotiation for a lease of 5 years. The parties, however, could not agree to the terms of the draft lease and the negotiations were broken off after November 6. 1961. No lease as contemplated by the parties was executed but the plaintiff assented to the continuance of thedefendant's possession of the said premises. The defendant had been paying certain amount of money monthly as rent while the negotiations were in progress and also after the negotiations has been broken off and such sums were accepted by the plaintiff as rent by granting receipts. It was held that the defendant occupied the premises during the course of negotiation as a tenant-at-will or sufference and therefore the sums paid as rent during such occupation by the defendant to the plaintiff was not rent but must be regarded as fair compensation for permissive possession but after negotiations were broken off after November 6, 1961, the acceptance by the plaintiff of the sums paid as monthly rent by the defendant converted the tenancy-at-will or sufferance to a monthly tenancy and the defendant was entitled under the West Bengal Premises Tenancy Act, 1956 to protection from eviction.
13. In Sudhir Kr. Majumdar v. Dhtrendra Nath Biswas reported in 79 CWN. 321 it was held,
'A tenancy-at-will is to be Implied from permissive occupation * * * * the tenant-at-will is not liable to pay rent. An agreement for payment of reasonable compensation for use and occupation is Implied from the permissive occupation. Such compensation is not rent. The tenancy-at-will is licence to occupy the property not amounting to an interest in the property.'
14. It cannot be disputed that payment of rent does not by Itself create relationship of landlord and tenant. It was held In Dr. H.S. Rikhy & Qrs. v. New Delhi Municipality reported in : [1962]3SCR604 ,
'The question must, therefore, depend upon whether or not there was a relationship of landlord and tenancy in the sense that there was a transfer of interest by the landlord In favour of the tenant.'
15. It is nobody's case that the parties intended to create monthly tenancy for 5 months and thereafter another contractual lease for 21 years by a registered deed of lease under Transfer of Property Act. On the contrary, commencement of the contractual lease from the date of Initial Induction In August, 1973 as stated in the deed of lease clearly indicates that the transfer of interest of the tenant was intended to be created by execution of a lease deed and not otherwise by letting into possession before the creation of the deed. Once It is held that no monthly tenancy was crated before the execution of the deed of lease for 21 years, the question of revival of the said tenancy after expiry of the lease period does not arise at all.
16. The next question, therefore, remains whether the lessee's possession after expiry of the lease Is that of a tenant-at-sufferance or of a monthly tenant under West Bengal Premises Tenancy Act.
17. The learned counsel for the Appellant submits that the possession of appellant even after the expiry of the lease was with the assent of the lessor as would be evident from the correspondences including notice to quit dated 19.7.95 subject to fixation of rent at an agreed rate and such possession amounts to holding over within the meaning of section 116 of T.P. Act. It was also argued that one month's notice to quit is also Indicative of the lessor's intention to treat the possession as that of a monthly tenant.
18. In disposing of the issue No. 3 the teamed trial Judge rightly held that even if It be taken for granted that there was an oral agreement for extension of the lease such agreement being independent of the contract for lease is not a concluded agreement for lack of consensus on the point of fixation of rent and as such the same is not enforceable nor the same can be used as a defence against delivery of possession. The learned counsel for the appellant relied upon a Division Bench decision reported in Remington Rand of India Ltd. v. Sohanlal Rajgharta reported tn : AIR1984Cal153 when It was held,
'In the instant case, It is not disputed that the prevailing rent can be ascertained and, therefore, it is difficult to hold that said stipulation to pay prevailing market rent is void in uncertainly as contended on behalf of the defendant'
19. It is argued that had there been a full trial the court could have held that there was an agreement between the parties or extension of the lease subject to fixation of rent and also be fixed up the prevailing marketrent.
20. It is to be noted that in the above case the vacant possession of the first floor of the premises was delivered to the lessor after expiry of the lease period and there was an agreement referred to in the letter that the lessee would continue to the in occupation of the ground floor of the above premises as monthly tenant on the terms and conditions of the lease except that the monthly rent of the entire ground floor shall be Rs. 3,200/- per month and such tenancy would stand determine with the expiry of 31st March, 1972. The defendant did not pay the rent at the said rale i.e. at the rate of Rs. 3.200/- per month the reason being that the prevalent market rent was not decided. In a proceeding under section 17(2) of the West Bengal Premises Tenancy Act the High Court fixed the rate of rent of the suit premises at Rs. 10.000/-per month. It was held by the DIvison Bench that such rent fixed by the learned single Judge was the contractual rent and not fair rent. In that case both the parties agreed to fix the rent at the prevailing market rent and there was no difficulty in determining contractual rent under section 17(2) of the West Bengal Premises Tenancy Act and the new tenancy created between the parties after surrendering the first floor on the expiry of the lease. That case, therefore, is distinguishable from the present case. In this case the lessee has been in possession only on the pretext of extension of the lease without agreeing to the enhanced rent demanded by the lessor. Whether such possession amounts to holding over is a monthly tenant? In this case the landlord was agreeable to extend the lease of enhanced rent as proposed by him were paid. He did not accept the old rate of rent offered by the lessee and returned the cheque. He has expressed his discontent In writing as the defendant was sitting over the matter without agreeing to the proposal. He has declared the possession of the defendant as being unauthorised. From this conduct assent of the landlord to the possession of the defendant in the suit premises cannot be Inferred. It is now well-settled that the tenant by its sufferance is no better than a mere trespasser and he can be turned out without notice to quit.
21.In Bodrilal v. Indore Municipality reported in 1973 SC 508 it has been held, where the lease granted by a municipality provides for renewalsubject to the condition that the tenant should pay the upset price and increased rent within specified date but he does not comply with the condition, he becomes a tenant by sufferance even if the munclpallty accepts rent paid at the old rate and he can be evicted without notice.'
22. In Gordhan v. Alt Bux reported in AIR 1981 206 it has been held that mere delay In taking steps for evicting the lessee on the expiry of a lease for a fixed period cannot lead to an inference that the lessor assented to continuance of the lease as a lessee. Serving of notice to quit by the lessor, under such circumstance, cannot also lead to a presumption of holding over.
23. In Padmanabha v. Sankaran reported in AIR 1987 Kerala 1998 it has been held, 'that mere payment of rent by a statutory' tenant and acceptance of the same by the landlord cannot be taken as an evidence of a new lease by holding over. They must be independent evidence of assent by landlord.'
24. The learned counsel for the respondent has submitted that the appellant had been staying in the suit premises on the pretext of having the lease extended without abiding by the terms of the lessor and has raised this moonshine defence to play a long innings. He has further argued that Issuance of notice under section 106 of T.P. Act or under any other statute has not effect as determination of tease which already stood determination by efflux of time Is unnecessary and mere surplusage. [B. Rampal v. Yasoday reported In : [1980]1SCR334 ]. Similar view has been taken by Supreme Court in Shanti Devt v. Amal Kr. Banerjee reported in AIR 1981 SC 1550. Similarly in AIR 1981 SC IIII Dattapant v. Vithal Ray as also in : AIR1932All314 it has been held uniformly that notice to quit is not necessary the tenancy stands determined by efflux of time. In J. Thomas & Co. Put. Ltd. v. P.K. Tibrewala & Anr. reported in 1998 (2) CHN 502 Initial period of 21 years expired on 31.10.86 whereafter rent was paid at the existing rate of Rs. 950/- per month and accepted for 5 years on the lease being renewed for 5 years by exercising option. The defendant refused to vacate after expiry of the option period on the plea that he is protected in West Bengal Premises Tenancy Act by virtue of section 3(2) of the Act. It was held no monthly tenancy had been created during the contractual lease period and the defence to the claim for landlord's delivery of possession is thoroughly non-existent and moonshine. Special Leave Petition against that order of Division Bench was also dismissed by the Supreme Court.
Facts of the case being undisputed we do not find any triable Issues. Law on the point is also well-settled.
The appeal, therefore, being bereft of any merit Is dismissed with costs of 100 G.M.
R. Pal, J.
25. I agree.
26. The Court : The learned counsel appearing on behalf of the appellant, prays for slay of operation of this judgment and order. Such prayer Is granted. There will be a stay of operation of this Judgment and order for a period of 4 weeks from date. All interim orders granted by the Appellate Court will continue in the meantime.
After expiry of the period of stay, subject to any order that may be passed by the Supreme Court, time for the Special Officer to submit his report will be extended till 31st January, 2000.
All parties concerned Including the Special Officer are to act on a xeroxed signed copy of this Judgment and order on the usual undertaking.
27. Appeal dismissed with costs