Variation of rent by oral agreement does not necessarily imply surrender of a registered lease. Implied surrender requires an intention to create a new relationship between the parties.

( 1 ) THE plaintiff-respondent by a registered deed dated 29th Dec. , 1958 had granted in favour of the defendant-appellant a lease for a term of 20 years commencing from 1st Sept. , 1958 in respect of two rooms in the ground floor of Premises No. 18d, Sukias Lane, Calcutta. The said lease deed, inter alia stipulated monthly rent of Rs. 196/- per month and did not provide for any increase of rent during the lease period which was to end on 31st Aug. , 1978. Undisputedly, with effect from April, 1977 the defendant-lessee had been paying rent to the plaintiff at the rate of Rs. 245/- per month instead of Rs. 196/-per month.

( 2 ) THE plaintiff-respondent had instituted, in the City Civil Court at Calcutta, a suit against the defendant for recovery of possession in the aforesaid two ground floor rooms at Premises No. 18d, Sukias Lane, Calcutta, and for recovery of arrears of rents and mesne profits. In para (2) of its plaint, the plaintiff had pleaded that the defendant was a lessee in respect of the suit rooms at a rent of Rs. 245/- per mouth under the aforesaid registered deed of lease dated 29th Dec. , 1958 for a term of 20 years. The plaintiff pleaded that the lease had expired by efflux of time on the expiry of 31st Aug. , 1978 and prayed for recovery of possession by evicting the defendant. The plaintiff further pleaded that the defendant had failed to pay rent since June, 1978 amounting to Rs. 735/ -. The plaintiff also claimed recovery of mesne profits from 1st Sept. , 1978 at the rate of Rs. 10/- per diem.

( 3 ) THE defendant in its original written statement had, inter alia, denied that the aforesaid registered deed of lease was a lease for non-residential purposes and had claimed that its tenancy was governed by the West Bengal Premises Tenancy Act and therefore, it was not liable to be ejected. On 14th August, 1981 the defendant had filed an additional written statement, inter alia, pleading that with the consent of both parties, on 1st April, 1977 the registered lease in question was determined and it had been verbally agreed between the parties that the defendant should occupy the said premises as a monthly tenant under the plaintiff on payment of rent of Rs. 245/-per month instead of Rs. 196/- per month. Pursuant to the said alleged agreement, the defendant had paid rent to the plaintiff at the new rate since April, 1977. The defendant claimed that the said monthly tenancy which had commenced on 1st April, 1977 had not yet been determined in any manner recognised by law and consequently the plaintiff's suit was bound to fail.

( 4 ) THE learned Judge, 12th Bench, City Civil Court at Calcutta had decreed the suit in favour of the plaintiff. He has believed the plaintiff's evidence that the rent under the registered lease deed had been enhanced to Rs. 245/- per month because of the levy of surcharge by the Corporation of Calcutta and the learned Judge has rejected the defendant's case that by mutual agreement the registered lease had been determined and that a new tenancy had come into being with effect from April, 1977. The learned Judge disbelieved the evidence given by the defendant's witnesses on the suit issued. Being aggrieved, thereby, the defendant has preferred the present appeal.

( 5 ) MR. Saktinath Mukherjee, learned advocate for the defendant-appellant, inter alia, submitted that it is settled law that the term as to the amount of rent reserved in a lease is a term of the lease itself and not collateral to it. Therefore, a document which does not purport to create a lease but purports to vary the rent reserved by a previous tense requires registration if the previous lease is a registered one or if it comes within Sub-clause (b) of Clause (1) of Section 17. Registration Act, (vide Lalit Mohan Ghosh v. Gopali Chuck Coal Company Ltd. , (1912) ILR 39 Cal 284 : 16 Cal WN 55 (FB): Parbati Charan Mukhopadbya v. Bande Ali Akon, (1936) 40 Cal WN 638 : (AIR 1936 Cal 155); Kailash Chandra Pathak v