Chittatosh Mookerjee, J.
1. M/s. Martin Harris (Pvt.) Ltd., the defendant-appellant, had been a lessee in respect of premises No. 1B, Asutosh Mookerjee Road under successive lease? periodically granted by the Official Trustee, West Bengal as Trustee of the Estate of D. A. David for the Davidean Girls' School. Lastly, on 13th of July, 1968 the Official Trustee, West Bengal had granted to the defendant-appellant lease of the said premises with retrospective effect from 1st of January, 1965 up to the 31st of Dec., 1968. The said lease in favour of the defendant-appellant was not renewed for any further period. On 21st April 1969 the defendant-appellant wrote to the Official Trustee of West Bengal the following letter :
Re: 1B, Asutosh Mukherjee Road. We wish to surrender the tenancy rights of the above premises with immediate effect, please arrange to take possession.
Thanking you, Yours faithfully,
For Martin & Harris (Private) Ltd
2. The defendant-appellant in para. (9) of their written statement pleaded that on the expiry of the aforesaid lease there was holding , over of Ihe tenancy in respect of the entire premises No. 1B, Asutosh Mookerjee Road on and from 1st of Jan., 1969 as a tenant from month to month. The defendant further averred in the said paragraph that since it had decided to deliver vacant possession of the major portion of the said tenancy, it did so on 30th of April 1969 and kept in its possession two rooms in the said premises. According to the defendant, as such its tenancy continued under the Official Trustee of West Bengal in respect of the said two rooms.
3. On 20th Sept., 1974 the Official Trustee, West Bengal by a registered deed granted a lease in favour of M/s. Elgin Properties, the plaintiff-respondent of the entire premises No. 18, Asu-tosh Mookerjee Road for a term of 21 years with retrospective effect from 1st of May, 1969. The plaintiff respondent had demanded from the defendant appellant payment of occupation charges in respect of the two ground floor rooms in premises No. 1B, Asutosh Mookerjee Road in possession of the defendant. The defendant by a letter had denied its liability. Thereafter, the plaintiff by a registered letter dated 17th July, 1975 had purported to terminate the alleged licence in favour of the defendant appellant for occupying the said two rooms and thereafter on 7th of April, 1976 instituted a suit against the defendant in the 4th Court of the Subordinate Judge, Alipore for recovery of vacant possession by evicting the defendants from the said two rooms described in the Schedule B of the plaint, for recovery of Rs. 72,542/- as occupation charges and also for recovery of further sums on account of mesne profits tentatively valued at Rs. 100/- up to the actual date of recovery of possession of the suit rooms. The defendant had contested the said suit, inter alia, denying that the defendant was a mere licensee in respect of the said two suit rooms and it claimed to be still a tenant under the Official Trustee, West Bengal in respect of the suit premises. The defendant also had denied its liability to pay occupation charges or mesne profits to the plaintiff.
4. The learned Subordinate Judge, 4th Court, Alipore has decreed the suit in part and has ordered that the plaintiff would get a decree for recovery of khas possession and also a decree for Rupees 43700/- against the defendant for occupation charges. The learned Subordinate Judge has also granted in preliminary form a decree for mesne profits. Being aggrieved, the defendant has preferred the instant appeal.
5. Mr. Ginwala, learned advocate for the appellant, has submitted that the provisions of the West Bengal Premises Tenancy Act applied to the defendant's tenancy under the registered lease dated 13th July, 1968 which was for a term of three years. Therefore, even after the expiry of the term of the said lease, the defendant had continued to be a statutory tenant. After the defendant had given vacant possession of the major portion of the Premises No. 1B, Asutosh Mookerjee Road its continued occupation of the two ground floor rooms in the said premises by operation of law must be deemed to be as a statutory tenant. Therefore, according to Mr. Ginwala, the plaintiff appellant (respondent 3) under sub-sec, (1) of Section 13 of the West Bengal Premises Tenancy Act was not entitled to recover possession of the said two rooms from the defendant appellant except upon establishing any one or more of the grounds set out under the proviso to said Sub-section (1) of Section 13 of the Act. The defendant was neither a licencee nor a trespasser and, therefore, the instant suit brought by the plaintiff respondent ought to fail. Mr. Ginwala however did not make any submission regarding the decree of the learned Subordinate Judge for recovery of occupation charges and mesne profits.
6. Even if it is assumed that after the defendant's registered lease was expired by efflux of time, the defendant had continued as a tenant and enjoying protection under the West Bengal Premises Tenancy Act, as a statutory tenant the defendant had surrendered the said tenancy. Undisputedly, after the lease for a term of 3 years in its favour had expired by efflux of time, the defendant company by its said letter dated 21st April, 1969 had informed the Official Trustee that it wished to surrender its tenancy rights with immediate effect and had requested the Official Trustee to arrange to take possession. In view of the clear language of the said letter and the conduct of the parties proved in the case, we find no substance in the submission of Mr. Ginwala that the defendant's said letter (Ext. 1) contained a mere promise to do something in future. We have already referred to para 3 of the defendant's written statement wherein it had admitted that it had decided to deliver vacant possession of the major portion of its tenancy and it had doneso on 30th of April, 1969 keeping in its possession two rooms in the said premises. The defendant's said letter (Ex. 1) had been marked as an exhibit on admission. In our view, the aforesaid act of the parties amounted to surrender of the tenancy of the suit premises held by the defendant under the Official Trustee. The defendant had yielded up his ten-nancy interest and the landlord. Official Trustee had accepted the same. Therefore, there was a valid mutual agreement resulting in surrender of the defendant's tenancy which the defendant was holding after the expiry of the term of its lease dated 13th July, 1968. Even if the defendant did not immediately deliver to the Official Trustee its possession of the two ground floor rooms, the defendant's tenancy stood determined by implied surrender. It is settled law that implied surrender or surrender by operation of law occurs, (1) by the creation of new relationship or (2) by relinauish-ment of possession (vide Mulla on Transfer of Property Act, 6th Edn., page 744. See also observations in Muhammad Ibrahim v. Bani Madhab Mullick, : AIR1952Cal196 , and in Sm. Sailabala Dassee v. H. A. Tappassier, : AIR1952Cal455 . Mulla on Transfer of Property Act, 6th Edn., at pages 744 and 745 has, inter alia, pointed out that implied surrender is put on the ground of estoppel and the intention of the parties is immaterial. It has been further pointed out that relinquishment of possession operates as an implied surrender. There must be a taking of possession but not necessarily a physical taking out something amounting to a virtual taking possession.
7. We find no substance in the appellant's submission that although in pursuance of its letter dated 21st April, 1969 (Ext. 1), it had delivered to the lessor, Official Trustee, West Bengal, the possession of the entire Premises No. 1B, Asutosh Mookerjee Road except the two rooms, the defendant continued to be a statutory tenant under the Official Trustee. In Halsbury's Laws of England (3rd Edn.), Vol. 23, para 1415 at p. 687, it has been observed 'Any arrangement between the landlord and the tenant which operates as a fresh demise will work as a surrender of the old tenancy; and this may result from an agreement under which the tenant gives up part of the premises and pays a diminished rent for the remainder provided a substantial difference is thereby made in the conditions of the tenancy (vide Jones v. Bridgnr an (1'878) 39 LT 500, Re : Savile Settle Estates (1931) 2 Ch 210 at page 216).
8. It is not necessary for us to examine the correctness of the submission of Mr. Ginwala, learned advocate for the appellant, that a part surrender of the lease is recognised in law. The learned advocate had relied upon the observations in para 1223 at page 557 of Halsbury's Laws of England, 3rd Edn., which deals with the question of apportionment of rent in case of cessation of possession of a part of premises by a lessee. Surrender under Section 111(e) of the Transfer of Property Act consists of yielding up lessee's interest to the lessor by mutual agreement. Secondly, the defendant-appellant by its letter (Ext. 1) dated 21st April, 1969 had categorically expressed its intention to surrender its tenancy rights of Premises No. 1B, Asutosh Mookerjee Road without any reservation. The defendant has neither pleaded nor proved any mutual agreement by which it was granted a tenancy in respect of the two rooms in its occupation. Defendant's only witness, Kammurti, DW 1, in his examination-in-chief stated that defendant did not surrender the tenancy of the property. But during cross-examination, DW 1, admitted that he was not present at the time of surrender. He also had no talk with the Official Trustee, West Bengal on behalf of the defendant about the nature of its possession. Admittedly, after delivering possession of the major portion of the suit premises, the defendant did not pay any rent either to the Official Trustee or thereafter to the plaintiff. In fact, the defendant neither pleaded nor proved that there was ever any agreement regarding payment of rent or other terms of the alleged tenancy claimed by the defendant in respect of the said two rooms.
9. We reject the contention of the learned advocate for the appellant that) by operation of law the defendant had become a statutory tenant in respect of the said two rooms. The defendant's previous lease admittedly stood determined and by mutual consent he had yielded up major portion of the premises and thereby he had surrendered his tenancy which might have been continuing by the operation of West Bengal Premises Tenancy Act, 1956.
10. Mr. Ginwala, learned advocate for the appellant, is not correct in his submission that after the expiry of the aforesaid registered lease the defendant's tenancy was a statutory one and, therefore, the defendant continued in possession as a tenant until any decree or order for eviction had been made by a court of a competent jurisdiction. The West Bengal Premises Act, 1956 provides for regulation of certain incidents of tenancies governed by the said Act. Sec-lion 13 (1) of the said Act has, inter alia, provided that no decree or order for recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant excepting on one or more of the grounds set out thereunder. But as at present advised, we find no legal impediment in the way of the tenant himself voluntarily and lawfully surrendering his tenancy and amicably yielding up possession. Therefore, in the instant case when the defendant yielded up possession of the entire Premises No. 1B, Asutosh Mookerjee Road excepting two rooms in the suit and the plaintiff landlord accepted the same, the defendant's tenancy which was continuing by operation of law stood determined at the instance of the tenant.
11. The decision in V. Dhanapal Chettiar v. Yesodai Ammal, : 1SCR334 , upon which Mr. Ginwala has placed his reliance, does not really support the case of the appellant. The controversy in the said case centered round the question whether a notice under Section 106 of the T. P. Act was at all necessary to be given by the landlord before getting a decree or order for eviction against a tenant protected under any State Rent Control Act. The Supreme Court in the said case has held that such a notice under Section 106 by the landlord was unnecessary and a mere surplusage and making out a case under the Rent Control Act for eviction of the tenant by itself is sufficient. Untwallia. J. in in para 5 of his judgment in V. Dhanapal Chettiar's case : 1SCR334 (supra), had clearly recognised that under the T. P. Act purely as a matter of contract a lease comes into existence but there has been appreciably inroad on the freedom of contract. Untwallia, J. further held that none of the State Acts has abrogated or affected the provision of Section 107 of the T. P. Act which lay down how leases are made. We have already held that by reason of the defendant expressing his intention in writing to surrender his tenancy and to deliver immediate possession (vide Ext. 1) and thereafter yielding up possession of the demised premises except two rooms which was accepted by the then lessor, the defendant's tenancy stood determined. There was no provision in the West Bengal Premises Tenancy Act by which relationship of landlord and tenant between the defendant and the then owner, Official Trustee, West Bengal in respect of the said two rooms in defendant's occupation could be created, continued or imposed upon the Official Trustee or the persons claiming under it. The defendant could have claimed a new tenancy in respect of the said rooms by establishing that there was a fresh contract between the parties. In the facts of this case the defendant's occupation of the two rooms by itself to make the defendant either a contractual or even a statutory tenant between the Official Trustee, on the one hand, and the defendant, on the other, there was neither any registered instrument nor any agreement accompanied by delivery of possession of the said two rooms to the latter. Therefore, the defendant could not claim that he was a tenant in respect of the said two rooms. The expression 'tenant' under Section 2 (h) no doubt includes any person continuing in possession after termination of his tenancy or in the event of such person's death such of his heirs as were ordinarily residing with him at the time of his death. Not only persons against whom any decree or order for eviction has been made by a Court of competent jurisdiction but also a tenant who has surrendered his tenancy and no longer continuing in possession are excluded from the category of contractual and statutory tenants.
12. After the defendant had surrendered his tenancy rights and had delivered possession of the premises except two rooms, the defendant neither pleaded nor proved that his said occupation of the two rooms was based on any contract. The Deputy Official Trustee by his letter dated 27th Jan. 1971 addressed to the defendant (Ext. 9), inter alia, stated that the defendant had not yet made over vacant possession of the room on the ground of the premises which had been retained at the time of delivery ofvacant possession on surrendering the lease. Vacant possession of the rooms found in occupation of Sri Arun Ghosh and M/s. Caxton & Co. was also not delivered. The Deputy Official Trustee had inter alia requested the defendant to vacate the rooms still in defendant's occupation and to settle occupation charges until delivery of possession. The defendant did not deny the receipt of the said letter and never sent any reply disputing the correctness of the assertions made in the said letter (Ext. 9). After obtaining lease from the Official Trustee the plaintiffs by their letters (Exfs. 3a and 3b) had again called upon the defendant to settle up occupation charges in the rooms occupied by the defendant with leave and licence. It is significant that the defendant in reply did not categorically deny that its occupation of the said rooms was under a leave and licence. But by its letter (Ext. 3) dated 18th Mar. 1975 the defendant merely denied liability in respect of the contention in the plaintiff's letter dated 1st Mar. 1975 (Ext. 3b). The defendant also did not deny the assertions made in the subsequent letters of the plaintiff dated 31st May and 1st June, 1975 Exts. 3d and 3e) that it was liable to pay occupation charges in respect of the suit rooms as a licencee under the plaintiff, prior to the suit, the defendant did not assert that by contract or by operation of law it had become a tenant in respect of the disputed rooms. At the trial, the defendant did not allege or prove any agreement of tenancy in respect of the said rooms. As the defendant failed to prove a tenancy based on contract, it cannot successfully defend the plaintiff's claim for recovery of possession. Since there was no contract of tenancy, the defendant cannot claim that the West Bengal Premises Tenancy Act either imposed or continued the defendant's tenancy upon the plaintiff landlord.
13. The plaintiff also proved that it had obtained a decree for eviction against M/s. Caxton & Co. who had been previously a sub-tenant in respect of a portion of the ground floor of Premises No. 1B, Asutosh Mookerjee Road under the defendant. The High Court had also affirmed the said decree against the said M/s. Caxton & Co. The defendant was made pro forma defendant in the said (suit. In the circumstances, we hold that the defendant was a mere licensee anddid not enjoy any protection against eviction under the West Bengal Premises Tenancy Act and the court below rightly decreed the suit in favour of the plaintiff respondent.
14. We, accordingly dismiss this appeal without any order as to costs.
15. After the judgment is delivered, the learned Advocate for the appellant prays for a certificate under Article 133 of the Constitution of India. We do not consider that the case involves any substantial question of law of general importance and, therefore, in our opinion, the said question does not need to be decided by the Supreme Court.
16. Accordingly, we reject the oral prayer for certificate.
17. On the prayer of the learned Advocate for the appellant, we direct that the operation of the judgment and decree shall remain stayed for two months. During the period stay would operate the appellant would be bound to comply with the interim order granted in this Court.
18. Let the records be sent down expeditiously.