The creation of a new tenancy requires an intention on the part of both the landlord and the tenant to create a new tenancy.

( 1 ) THIS is an appeal by the defendant under Clause 15 of the Letters Patent against the decision of a learned Judge of this Court dated the 15th of June, 1953.

( 2 ) THE plaintiffs were admittedly tenants under the defendant in respect of premises No. 115, Lansdowne Road, Calcutta. On the 5th of July, 1947, a notice determining the tenancy was served on the plaintiffs. Thereupon the defendant who is the landlord instituted a suit for ejectment, being Title Suit No. 117 of 1947. The suit was decreed by the trial court on the 13th of December, 1950. The tenants preferred an appeal. The appeal was dismissed by the lower appellate court on the 12th of July, 1951. It appears that on the 14th of July, 1951 and on subsequent dates, namely 17th September, 1951; 5th November, 1951; 10th November, 1951; 27th December, 1951; 30th January, 1952 and 3rd March, 1952 the plaintiffs, that is, the tenants remitted by money order certain sums as rent payable by them in respect of premises No. 115, Lansdowne Road, Calcutta. In the coupon there is an endorsement to the effect "please acknowledge the receipt of rent for holding No. 115, Lansdowne Road, Calcutta" for the months in Question. The plaintiffs, that is, the tenants preferred an appeal against the decision of the lower appellate Court dated the 12th of July, 1951. The appeal was filed in this Court on the 24th of July, 1951 and was registered as Second Appeal No. 1086 of 1951. The appeal was dismissed by Mr. Justice Das Gupta and Mr. Justice P. N. Mookerjee on the 19th of March, 1952. During the hearing of the appeal. Dr. Sen Gupta the learned Advocate who appeared on behalf of the tenants-appellants submitted that the Court should take note of the subsequent payments of rent by the tenants to which I have just now referred. The learned Judges did not deal with the effect of such payments of rent and left the question open. On the 24th of March, 1952, the tenants as plaintiffs instituted the present suit for a declaration of the tenancy right and for an injunction restraining the defendant, the landlord, from executing the decree for ejectment obtained by him. The trial court dismissed the plaintiffs' suit on the 27th of January, 1953. Against that decision the plaintiffs preferred an appeal to the lower appellate court. The appeal was dismissed by the lower appellate court on 26th of March, 1953. The lower appellate court was of the opinion that no fresh tenancy was created as a result of payments of rent as alleged by the plaintiffs. Against that decision the plaintiffs preferred a Second Appeal to this Court, being Second Appeal No. 632 of 1953. This appeal was heard by a learned Judge of this Court and the appeal was allowed by a judgment dated the 15th of June, 1953. The learned Judge was of the opinion that the payment evidenced by the money orders was an unconditional payment of rent and the acceptance of the money orders was unequivocal with the result that a new tenancy came into being. The learned Judge was also of the opinion that no question of statutory tenancy arose after the decree for ejectment had been passed. The learned Judge, however, gave leave to prefer an appeal under Clause 15 of the Letters Patent. The defendant-landlord preferred the present appeal, being Letters Patent Appeal No. 6 of 1953.

( 3 ) THE question before us is whether a new tenancy was created as alleged by the plaintiffs.

( 4 ) THE question whether a new tenancy has been created or. not is essentially a question of fact. The lower appellate Court had come to a finding that the facts relied on by the plaintiffs were not sufficient to raise an inference of tenancy. In our opinion the finding of the lower appellate court was binding on this Court in Second Appeal and it could not have been set aside by this Court on Second Appeal

( 5 ) BUT even assuming that the question is open to debate in this Court, the question still remains whether the facts and circumstances of this case raise an