A lease can be continued under Section 116 of the Transfer of Property Act by holding over or by express renewal. In the absence of any evidence of willingness or consent of the landlord to continue the lease, the court cannot hold that the lease continued.

( 1 ) THE present second appeal arises out of the suit for ejectment. The plaintiff Gaya prasad filed the present suit with the allegations that he was a partner of the Firm M/s. Badri Prasad bholanath defendant No. 1. The others were arrayed as defendants Nos. 2 to 7. The business was being carried on in premises No. 3 Baluwa Ghat, Allahabad. The plaintiff had given the disputed premises on licence to the partnership of which he himself was a member and the licence was revoked by registered notice dated 18-4-1970. The defendants, however, were occupying the disputed property illegally and were liable to be ejected.

( 2 ) ONE written statement was filed by the defendants Nos. 1, 2 and 3. It was mentioned in para 12 of the written statement that Dwarika Prasad father of defendant No. 3 was the tenant of the disputed property and the business was being carried on by the plaintiff as a partner with the consent of Dwarika Prasad and defendant No. 3. It was alleged that the suit was liable to be dismissed as it was filed against the plaintiff himself as a partner.

( 3 ) THE appeal came up to this court earlier when it was decided by Honble Mr. Justice Gopinath. He decreed the suit for ejectment of the defendants. The matter was taken to the Honble supreme Court by the defendants. The Supreme Court remanded the case to the 1st Appellate court holding that the appeal was to be decided afresh in the light of the observations made by it. The Supreme Court, however, made it clear that the disputed property will be deemed to be an accommodation within the meaning of the U. P. Temporary Control of Rent and Eviction Act and the title of the plaintiff could not be challenged by the defendants. The Supreme Court further held as under:-

"the premises were in the occupation of the first defendant Firm and, prima facie the implication of possession are not necessarily consistent only with a licence. Moreover, the plaintiff himself was one of the partners of the firm which was in possession. Notwithstanding title in the plaintiff, the admitted possession of the first defendant need explanation. Rival versions were set up, one of the licence and the other of lease. "

Their Lordships of the Supreme Court after making various observations permitted the parties to lead fresh evidence. The court below proceeded to decide issues Nos. 3 and 4 after remand. It observed that the finding that the defendants were not licencees of the plaintiff was accepted by the Honble Supreme Court. He held that defendants were subtenants of Dwarika Prasad and the suit was not maintainable. The plaintiff Ganesh Prasad has come up in appeal, the appeal was admitted on two questions. Firstly, whether the defendants were licensees of tenants; what was their status? Secondly, whether provisions of U. P. (Temp.) Control of Rent and Eviction Act 1947 applied to the premises. Both these questions were covered by issues Nos. 3 and 4.

( 4 ) THE issue No. 3 related to the fact of tenancy of Dwarika Prasad father of defendant No. 3. The plaintiff was not in picture in the year 1954 when the disputed premises is alleged to have been in occupation of Dwarika Prasad as a lessee. The defendants have relied upon a lease deed in favour of Dwarika Prasad, executed by the then landlord Lax-man Prasad, paper No. 128/c. By this document it appears that the disputed property was given to Dwarika Prasad father of defendant No. 3 for a fixed period of 4 years 2 months. Clause 2 of the aforesaid lease deed provided that the lessee had no right to create sublease. This lease deed is dated 21-7-1950. The lease was to commence on 1st October, 1950 and was to expire on 30th November, 1954. This lease has been held as continuing by the lower appellate court. The lower appellate court, has disbelieved the Qabuliat executed by subsequent tenant in respect of the disputed property.

( 5 ) THE court below relied upon a paper purporting to be assessment list of the year 1960 to 1965. A certif