Acceptance of rent from a lessee who remains in possession under statutory protection does not constitute a fresh tenancy by holding over.

( 1 ) THIS is an appeal under Clause 15 of the IN Letters Patent directed against the judgment and decree dated January 5, 1971, passed by a learned single Judge of this court allowing a second appeal, being Second Appeal No. 801 of 1956. By the judgment under appeal the learned single Judge having set, aside a concurrent decree for recovery of possession passed by the two courts below, the plaintiff has preferred the present appeal. The appeal involves a short point as to whether acceptance of rent from a lessee of non-agricultural land after the expiry of the lease but for a period during which the lessee was protected against eviction under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940 (hereinafter referred to as the 1940 Act) by the landlord would constitute a fresh tenancy by holding over or not. The material facts are not in dispute and may be set out briefly as follows:--The defendant/respondent (hereinafter referred to as the defendant was a lessee under the predecessor-in-interest of the plaintiff/appellant (hereinafter referred to as the plaintiff) for a period of 7 years ending with Pous 1349 B. S. corresponding to Jan. 15, 1943. Before the lease had expired the 1940 Act came into force on May 30, 1940. Under Section 3 of the said Act, every suit or proceeding in any court for ejectment of a non-agricultural tenant other than one on account of non-payment of rent by such tenant was to be stayed so long the said Act continues in force. The proviso to the said section further provided that every proceeding for delivery of possession in execution of a decree for ejectment on account of non-payment of rent by such tenant shall be stayed if within 30 days from the date of the decree such tenant deposits in court the amount of the decree together with the costs of the proceeding. Section 6 further provided that every suit or proceeding to which the provisions of Section 3 are applicable which is pending at the date of the commencement of the Act shall be stayed for the period during which the Act continues to remain in force. In that background when the lease in favour of the defendant expired on Jan. 15, 1943, no suit for his eviction was instituted by the plaintiff forthwith but admittedly the plaintiff continued to accept rent offered to him up to and including the rent for the year 1355 B. S. Last of the rents offered was by money-order dated Aug. 5, 1949, which was received by the plaintiff on August 11, 1949. It is, however, not in dispute that the 1940 Act remained in force during the ' entire period for which rent was so accepted and the same was repealed by Section 91 of the West Bengal Non-Agricultural Tenancy Act, 1949 (hereinafter referred to as the 1949 Act) which came into force on May 15, 1949.

( 2 ) ON Feb. 23, 1954, the plaintiff instituted the suit out of which the present appeal arises praying for recovery of possession of the leasehold land by eviction of the defendant therefrom and for compensation. Such a suit was instituted on the basis that the lease in favour of the defendant having expired and the defendant under the terms of the lease being bound to deliver vacant possession, the plaintiff was entitled to recover possession of the leasehold land by evicting the defendant therefrom.

( 3 ) THE defendant did not dispute the position that he was a lessee in respect of the non-agricultural land holding under a registered lease for a period of 7 years which expired with effect from Jan. 15, 1943. His defence, however, was that since there was payment and acceptance of rent even after the expiry of the lease he must be held to be holding over so that the tenancy created by such holding over if tagged with the original lease for 7 years, then he is entitled to claim non-ejectable right under the provisions of the 1949, Act. Alternatively, it was claimed on behalf of the defendant that in any event in the absence of any notice determining the te