JUDGMENT

K. JAYACHANDRA REDDY, J. :—Leave granted.

2. This appeal is directed against the order of the Division Bench of the High Courtof Calcutta. The appellant was transposed as the plaintiff in the Original Side Suit No. 2479/67 in the High Court of Calcutta. The suit was filed for a declaration that the various properties set out in the Schedule belonged and still belong to the joint family consisting of the members mentioned in the plaint. Pending the suit an application was filed for appointment of a receiver for the various properties mentioned in Schedul Aannexed to the petition, for injunction and for other reliefs. One Mr. S. C. Sen was appointed as Receiver. A declaration was also sought in the suit that the trust dated Oct. 20th, 1948 created.by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same. Premises Nos. 38, New Road, Alipore; building with open space was one of the properties belonging to the trust. Grindlays Bank Limited (Grandlays for short), respondent No. 1 herein was the original tenant and they were occupying four flats and they surrendered a portion of the tenancy namely two flats i.e. Flats Nos. 1 and 2 which came into effect from Ist April, 1978. The receiver let out these two flats to M/s. Tata Finlay Ltd. (Tatas for short) with effect fron. February 7, 1979 pursuant to a letter written by Tatas. Questioning the action of the receiver an application was filed in the High Court contending that the receiver had no authority to create any tenancy and that the receiver has virtually created two new tenancies terminating the original tenancy of Grindlays and it was contended before the learned single Judge of the Calcutta High Court that neither Grindlays nor Tatas were entitled to occupy the premises and they are liable to be evicted summarily. The learned single Judge was not inclined to order summary eviction as prayed for but, however, observed that the respective contentions of the parties as to the validity of the tenancy created in favour of Tatas have not been finally decided by the High Court and that the parties are at liberty to agitate the same grounds in any action that they may be advised to proceed for eviction of Tatas and Grindlays. As against the order of the learned single Judge, an appeal was filed before a Division Bench. It was contended before the Division Bench that upon surrender of Flats Nos. 1 and 2 by the Grindlays a fresh tenancy was created by the receiver from Ist April, 1978 and the other tenancy in favour of Tatas is beyond the powers of the receiver and that the receiver had no authority to create any tenancy either in favour of Grindlays or Tatas. Various contentions were raised before the Division Bench and ultimately the Division Bench having considered the several submissions passed an order, the operative portion of which reads as follows:

"Therefore, the petitioner is entitled to get a decree for possession on any ground mentioned in S. 13(1) of the said Act and such relief can be obtained in a suit which cannot be filed in this Court inasmuch as the premises in question is situated outside the original side jurisdiction of this Court."

More or less the same contentions are advanced before us. Firstly it is submitted that the receiver had no right or authority to create any lease or tenancy in respect of the said flats for a term exceeding three years at a time and such creation of a tenancy should be deemed to be only for a period of three years terminable on the expiry of the said period. In this context a further submission is that upon surrender of Flats Nos. 1 and 2 by Grindlays a fresh tenancy was created by the receiver from 1st April, 1978 for which he had no authority. ,Therefore, the High Court ought to have ordered summary eviction of Tatas and Grindlays.

3. It is not in dispute that the tenancy in respect of Flats Nos. 1 and 2 was surrendered by the Grindlays and from Ist April, 1978 Tatas was inducted as tenant in