K.S. Radhakrishnan, J.

Whether execution of a fresh lease deed between the landlord and the tenant after 1.4.1940 would extinguish or disrupt the prior continuous occupation and hence fatal to a claim under S.11(17) of Act 2 of 1965 is the question that arises for consideration in this case.

2. Counsel for the landlord placing reliance on Ext.B5 dt. 1.5.48 submitted the said document has to be treated as a fresh entrustment of lease to the tenant and hence whatever rights accrued to the tenant prior to the execution of the said deed would stand extinguished. Revision petitioner herein filed a petition under S.11(3) claiming surrender of tenanted premises for the purpose of running a textile shop for the two of his sons who are unemployed. Schedule premises originally belonged to one Kallyanikutty Amma which was let out to one Gopalan Chettiar on 14.5.1948 on a monthly rent of Rs.40/-. Part of the building numbered as 10/334 was sublet to the revision petitioner on 28.5.1953. Later room No.10/333 was partitioned by Gopalan Chettiar and a portion was let out to 4th respondent and another portion was sublet to first respondent. Kallyanikutty Amma later sold her right in the petition schedule room to the petitioner as per document No.882/83. Gopalan Chettiar is no more. His wife and children are respondents 1 to 3. Petition schedule building bona fide required for starting a textile shop.

3. Respondents 1 to 3 resisted the petition. It was stated that room No.10/334 and its upstair portion was taken on lease by Gopalan Chettiar on 1.3.1937 from Lakshmi Amma. The adjacent room No.10/333 was taken on lease by Gopalan Chettiar on 31.10.1937. However, rent deed happened to be executed in the name of his friend Kotheri Kelu though Gopalan Chettiar was paying the rent. Bona fide need urged by the landlord was also disputed. Landlord in order to establish his case got himself examined as PW.1. PW.2 was also examined on his side. A1 to A5 documents were produced. First respondent examined as RW.1. RW.2 was also examined to show possession of the respondents prior to 1948. Exts.B1 to B11 documents were produced on the side of the respondents.

4. Rent Control Court after considering oral and documentary evidence came to the conclusion that the need urged by the landlord is bona fide and ordered eviction and the protection claimed by respondents under S.11(17) was negatived. Rent Control Court did not accept the contention that the rent was being paid to the landlord Sankunni Kurup and others in the year 1940 and before. Evidence of RW.2 was also disbelieved. Court concluded that evidence on record would show that Gopalan Chettiar had executed rent receipt with respect to the petition schedule building in the year 1948 and that it was a fresh entrustment. On the said reasoning the protection claimed under S.11(17) was rejected and ordered eviction. Respondents 1 and 2 took up the matter in appeal. Appellate Court found that they are entitled to get benefit of S.11(17) and the Rent Control Petition was dismissed.

5. Counsel appearing for the revision petitioner Sri. M.C.Sen contended that the Appellate Authority misunderstood the scope of Ext.B5 which was direct lease by Kallyanikutty Amma to Gopalan Chettiar. Counsel submitted Appellate Authority failed to examine the effect of Ext.B3 kychit. Further it was also pointed out that B3 does not contain signature of landlady. Further it was also stated B7 would clearly show that the landlady herself was receiving rent and receipt was issued to Gopalan Chettiar. Further it was also stated B5 would not show that entrustment was prior to the year 1940. In any view of the matter counsel submitted if at all there was any right the same got extinguished on execution of B5.

6. Counsel appearing for the respondent Sri. T.Sethumadhavan on the other hand contended that Ext.B5 would positively show that Gopalan Chettiar was in possession of the premises prior to the said date. Counsel submitted that Gopala