An oral lease reserving a yearly rent is invalid and does not create a tenancy. A tenant-at-will is not protected by the West Bengal Non-Agricultural Tenancy Act. A demand for possession is necessary for the termination of a tenancy at will.

( 1 ) THE Second Appeal arises out of a suit for recovery of khas possession, mesne profits, demolition of the structures built upon the suit property and an injunction. The plaintiffs allege that the defendant No I has no existing interest in the land and that on the 5-8-1948 the defendant No. 1 wrongfully trespassed upon the land and thereafter has constructed some temporary structures thereon. The defendant No. 1 alleges that he has taken settlement of the suit land from the plaintiffs in Magh 1354 B. S. at an annual rent of Rs. 5/- and has thereafter constructed pucca structures with brick walls and tiled roof thereon with the knowledge and consent of and without any objection from the plaintiffs. The defendant No. 1 claims that the plaintiffs have no right to eject him and that in the alternative and in case the plaintiffs are found to be entitled to a decree for ejectment, the defendant No. 1 should be given a decree for the sum of Rs. 2500/- by way of compensation for the value of the structures.

( 2 ) BOTH courts have concurrently found that In Magh 1354 B. S. the plaintiffs granted an oral lease of the property to the defendant No. 1 at a yearly rent of Rs. 5/- and that the plaintiffs allowed the defendant No. 1 to raise permanent structures on the land. On this finding both courts have dismissed the plaintiff's suit. This finding Is amply supported by the evidence on the record and is not now challenged. I agree with the finding.

( 3 ) WITH regard to the validity of the lease the trial court held that the lease even though invalid as a bemeadi lease was a valid lease for one year and that the suit being brought within one year from Magh 1354 B. S. When the lease was granted, the suit was liable to be dismissed. On the other hand, the lower appellate court held that the plaintiffs having let the land to defendant No. 1 and allowed him to erect pucca structures on the land are not entitled to sue him in ejectment. I am unable to agree either with the trial court or with the lower appellate court on this point.

( 4 ) THERE is no dispute that the. plaintiffs are the owners of the land.

( 5 ) THE oral lease purports to reserve a yearly rent. By Section 107 of the Transfer of Property Act such lease must be made by a registered Instrument.

( 6 ) 'the oral lease having reserved a yearly rent the parties intended that the lease would be from year to year. That intention not being expressed in the proper legal form cannot be given effect to. The Court cannot make a new bargain between the parties and hold that there is a good and valid lease for at least one year; See Ram Kumar v. Jagadish Chandra.

( 7 ) LEASES other than a lease from year to year or for a term exceeding one year or reserving a yearly rent may be made by oral agreement accompanied by delivery of possession.

( 8 ) ORAL agreement for a lease is to be Implied from payment and acceptance of rent. A lease is therefore, made by possession under a void lease accompanied by payment and acceptance of rent, and such a lease is presumed to be a lease from month to month.

( 9 ) THE defendant No. l did not allege payment and acceptance of rent in the written statement. The plaintiffs in their evidence deny payment of rent. The defendant No. 1 does not produce any rent receipt. None of the courts below have found that rent was paid or accepted. Payment and acceptance of rent by defendant No. 1 Is not established in this case. No other circum- stances have been proved from which a lease from month to month is to be implied.

( 10 ) THERE is no contract to grant the lease in writing. Clearly Section 53a of the Transfer of Property Act has no application.

( 11 ) AN oral agreement to grant a lease by itself is no defence to a suit for ejectment. The defendant No. 1 has not brought any suit for specific performance of the oral agreement to grant a lease. Had such a suit been brought in a proper case, the court might specifically enforce the agreement prov