To create a new tenancy under Section 116 of the Transfer of Property Act, 1882, there must be a bilateral contract between the lessor and lessee, with an offer of accepting a renewed or fresh demise and a definite assent expressed by the lessor.

SUBHRO KAMAL MUKHERJEE, J.

( 1 ) THIS appea' is arising out of a suit, inter alia, for recovery of khas'possession on the expiry of lease and for recovery of mesne profits.

( 2 ) THE predecessor-in-interest of the defendants, namely, Ranen roychowdhury, was inducted as a lessee by Gunindra Mohan Bose, under a registered deed of lease dated October 1, 1964 for a period of 21 years commencing from August 1, 1964. On the death of Gunindra Mohan Bose, the property devolved upon his son, Amal Kumar Bose, who by executing a registered deed of conveyance dated August 13, 1984 conveyed the property in favour of the plaintiff. By such purchase the plaintiff stepped into the shoes of the lessor. The lessee accepted the plaintiff as his landlord and paid the rents to the plaintiff.

( 3 ) THE lease expired on August 1, 1985 by efflux of time. The plaintiff, under mistaken impression, received rent from the lessee for the month of august 1985 and granted receipt therefor. However, when such mistake was detected, the plaintiff sent back the rent for the month of August 1985 to the lessee by money order, but the lessee refused to accept the said money order.

( 4 ) THE plaintiff instituted this suit for recovery of possession and recovery of mesne profits against the defendants, who were the successors-in-interest of the original lessee.

( 5 ) THE defendants contested the suit by filing a written statement. The defendants, inter alia, contended in the written statement that the deed of lease was never acted upon and the defendants were monthly joint tenants entitled to all protections of the West Bengal Premises Tenancy Act, 1956. Alternatively, it was contended that the defendants were holding over the property on the same terms and conditions as the plaintiffs intended to continue the lease by acceptance of rent after the expiry of the lease.

( 6 ) THE learned Trial Judge by the impugned judgment and decree dated may 30, 2001 decreed the suit on contest, but without any order as to costs. The learned Judge granted decree for recovery of khas possession in favour of the plaintiff. The plaintiff, also, got a decree for mesne profits from June 1990 till the date of recovery of possession to be ascertained under a separate proceeding under Order 20, Rule 12 of the Code of Civil Procedure. The learned Judge, inter alia found that the defendants were lessees as per the lease agreement and as such, they are not entitled to protections under the West Bengal Premises tenancy Act, 1956. The learned Judge, further, found that the plaintiff accepted the rent for the month of August, 1985 by mistake and when he came to realise the mistake, he rectified his mistake by sending back the rent to the lessee by money order.

( 7 ) MR. Prabal Kumar Mukherjee, learned Advocate, appearing in support of the appeal, submits that admittedly the plaintiff accepted the rent for the month of August, 1985, that is, after the expiry of the lease and as such assented to the continuance of the lease in favour of the lessee on the same terms and conditions. Therefore, the lessee became a monthly premises tenant.

( 8 ) MR. Harish Tandan, learned Advocate, appearing on behalf of the plaintiff/respondent, submits that the rent for the month of August, 1985 was accepted by the plaintiff under a mistaken impression inasmuch as although the lease commenced from August 1, 1964, but the document was registered on October 1, 1964; the transferee landlord/plaintiff was, therefore, misled. However, Mr. Tandan draws our attention to the rent receipt granted by the plaintiff for the month of August, 1985 and submits that even in the said rent receipt it was clearly mentioned that the rent was accepted in terms of the lease deed dated October 1, 1964. Mr. Tandan, finally, submits that the landlord has never assented to the continuance of the lease and as such neither the original lessee nor his successors-in-interest became monthly premise tenants.

( 9 ) MR. Tandan in support of

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