A lawful tenancy can be created only if the lessor is capable of giving khas possession of the tenanted portion in favor of the lessee.

( 1 ) THIS first appeal is at the instance of the defendant No. 1 in a suit for eviction and is directed against the judgment and decree dated 30th September, 1993, passed by the learned Judge, 9th Bench, city Civil Court at Calcutta in Title Suit No. 2136 of 1982 thereby passing a decree for recovery of possession and mesne porfit at the rate of Re. 1 per day in favour of the plaintiff till the recovery of possession.

( 2 ) THE respondent No. 1 filed the aforesaid suit being Title Suit No. 2138 of 1982 in the City Civil Court at Calcutta thereby praying for recovery of possession of the suit property from the appellant herein and the case made out by the respondent No. 1 may be epitomised thus: (a) The suit property being premises No. 3/1/1c, Nanda Ram Sen Street belonged to the defendant Nos. 2 and 3 and one Aloke Ranjan Saha and in the year 1943, they let out the entire ground floor consisting of two rooms, kitchen, bathroom and privy with a porch and courtyard to one anil Kumar Saha at a rental of Rs. 28/- per month and such amount was subsequently increased to Rs. 35/- per month according to Bengali calendar. (b) In or about 1945, the said Anil Kumar Saha, left the said premises after subletting the entire ground floor to the plaintiffs father namely, shyamupada Saha, since deceased, at the same rate of rent, who used to pay the rent payable by the said Anil Kumar Saha, on his behalf, to the landlords. (c) In or about 1947, the said Anil Kumar Saha took back one room and a kitchen and the said Shyamapada Saha continued to occupy one room in the ground floor as a sub-tenant under the said Anil Kumar Saha, paying one-half of the monthly rent, i. e. Rs. 17 and 8 annas to the said anil Kumar Saha. Subsequently, in the year 1952, the said Anil Kumar saha sublet the said one room and kitchen which he had kept in his possession to one Ranjit Kumar Saha and the rent was being paid in equal shares by the said Ranjit Kumar Saha and Shyama Pada Saha to the landlords in the name of Anil Kumar Saha. (d) In or about 1967-68 the said Ranjit Kumar Saha left the said premises after putting the defendant No. 1 in possession of one room and kitchen in the ground floor of the said premises without knowledge and consent of either the said Anil Kumar Saha or the landlords. The said shyamapada Saha ,who had no legal title, raised no objection to the said transfer of possession and the arrangement for payment of rent continued as before and accordingly, the defendant No. 1 and shyamapada Saha used to pay rent in equal share on behalf of the Anil kumar Saha. (e) The said one room and kitchen occupied by defendant No. 1 is the subject-matter of the suit property. (f) The said Shyamapada Saha, the father of the plaintiff died in the month of July, 1972 and since then, the plaintiff, his mother and brothers continued in possession of one room in the ground floor of the said premises as sub-tenants under the said Anil Kumar Saha and continued to contribute one-half of the rent as was being done by Late Shyamapada saha. Though the defendant No. 1 remained in possession of one room and kitchen in the ground floor, he was never recognised as a sub-tenant by the said Anil Kumar Saha, who remained the recorded tenant under the landlords. (g) At the request of Anil Kumar Saha, who surrendered his tenancy in favour of the landlords, the said landlords including defendant Nos. 2 and 3 accepted the plaintiff as a monthly tenant in respect of the entire ground floor of the said premises No. 3/1/1c, Nanda Ram Sen Street, with effect from 16th December, 1980 at a rental of Rs. 40/- per month, according to the Bengali Calendar month. (h) In or about August, 1981 there was a partition among the owners of the said premises and since then, the defendant Nos. 2 and 3 became the owners of the said premises and plaintiff has been paying rent to them. (i) After the plaintiff became a tenant in respect of the ground floor of the premises, the d