JUDGMENT The judgment of the Court was as follows :–– This is the plaintiff's appeal against the concurrent judgment and decree of affirmance dismissing the plaintiff's suit for declaration of title and joint possession. 2. The suit property is a tank originally belonging to Kalimuddin in 8 annas share and the remaining 8 annas share belonging to Ayezuddin and Reazuddin. The plaintiff's case is that they purchased Kalimuddin's interest by a registered conveyance dated May 1, 1954 for a total consideration of Rs. 999/- following a Bainanama of June, 1953 when a consideration of Rs. 400/- was paid. Since the purchase the plaintiffs came to possess the suit property in 8 annas share. The defendant No. 1, the contesting defendant, started criminal proceeding under sections 107 and 144 of the Code of Criminal Procedure alleging that he took settlement of the suit tank on December 6, 1953 corresponding to Agrahayan 22, 1360 B. S. after the surrender by the said previous owners of their interest in the tank to the landlord. The plaintiffs averred that there was no such surrender of the tank by Kalimuddin and a surrender was manufactured on papers. The plaintiffs accordingly, filed this suit on September 22, 1954 for declaration of their 8 annas title and joint possession with the contesting defendant. 3. The defendant No. 1 filed a written statement denying the material allegations made in the plaint. It was his specific case that Kalimuddin and his co-sharers surrendered their right, title and interest in the suit tank to the landlord, who, thereupon, possessed the same for some time and on December 6, 1953 settled the suit tank to the said defendant at an annual rent. On the basis of such settlement the defendant had been in lawful possession thereof, and in any event, the suit was barred by limitation. 4. The suit was tried on evidence before the learned Munsif who by his judgment dated August 18, 1955 dismissed the suit holding that the suit was barred under Article 142 of the Limitation Act. It was also held that the deed of surrender executed by Kalimuddin (Exs. E1) did not require registration though he impounded it for deficit of stamp. It was further found that Kalimuddin after the said surrender did not pay any rent to the landlord and the alleged rent receipts, Exts. It was also held that the deed of surrender executed by Kalimuddin (Exs. E1) did not require registration though he impounded it for deficit of stamp. It was further found that Kalimuddin after the said surrender did not pay any rent to the landlord and the alleged rent receipts, Exts. 4(a) and 5 were not proved and further the plaintiffs did not succeed in disapproving the deed of surrender which was executed by Kalimuddin. 5. An appeal was preferred against the said decision and the Appellate Court was of the opinion that the learned Munsif's finding of limitation was a natural corollary to his finding on surrender. It was held that the execution of surrender by Kalimuddin was not established and as the finding of surrender in such circumstances could not stand, the finding of limitation which rested on the finding of surrender also had no basis. Accordingly, it was necessary to decide afresh the question of limitation as also the alleged execution of the surrender deed by Kalimuddin. The Court was of the opinion that the deed of surrender by the other co-sharers had no legal force, and further it was not executed for minors by their guardian and could not, thus, be utilized to prove Kalimuddin's signature. The judgment and decree of the learned Munsif was accordingly, set aside and the case was remanded to that Court for its decision in accordance with law after affording an opportunity to the defendant to have the signature of Kalimuddin examined by a handwriting expert. 6. After remand, the learned Munsif came to the conclusion Exts. 4(a) and 5 did not show payment of rent nor did they appear to be genuine documents. It was further held that Kalimuddin had no possession after his surrender and there was no evidence to show that the plaintiffs ever came in possession. Accepting the opinion of the handwriting expert it was also held that Kalimuddin and his co-sharers executed the deeds of surrender and, accordingly, they ceased to have any interest in the suit tank after the respective surrender. Accordingly, the suit was dismissed in the view that was taken. 7. An appeal was preferred by the plaintiffs against the said decision and the Appellate Court also came to the conclusion that surrender by Nasiruddin was valid and legal and the same was also the case with the surrender of Kalimuddin. Accordingly, the suit was dismissed in the view that was taken. 7. An appeal was preferred by the plaintiffs against the said decision and the Appellate Court also came to the conclusion that surrender by Nasiruddin was valid and legal and the same was also the case with the surrender of Kalimuddin. It was further held that surrender did not need to be in writing and could be done without any registered instrument. There was the further finding that Kalimuddin had no possession after his surrender, and, accordingly, the suit was also barred by a limitation. The appeal, in the circumstances, was dismissed. The present appeal is by the plaintiffs against the said decision. 8. Mr. Pramatha Nath Mitter, the learned Advocate for the appellants, contended that the Courts below after remand, ignored the directions of the lower Appellate Court in the order of remand wherein there is specific direction that the alleged surrender of other co-sharers could not be utilized in coming to the finding about the impugned surrender, purported to have been executed by Kalimuddin. According to Mr. Mitter, this wrong approach of the Courts below vitiated the proceedings which should be interfered with in this appeal and the judgments of the Courts below should be set aside accordingly. 9. Mr. Bhupal Chandra Roy Chowdhury, the learned Advocate for the defendant No.1 referred to the written statement in which the defendant No. 1 had claimed his title on the basis of a settlement taken from the landlord on surrender by its original owners, namely, Kalimuddin and his co-sharers, and in the plaint also the plaintiffs prayed for joint possession with the defendant No. 1 thereby, admitting defendant No. 1's title in the tank admitting it to the extent of 8 annas share of the other co-sharers. Therefore, it was contended there was nothing wrong in the approach made by the Courts below in considering the other surrender in coming to their respective conclusions. 10. On consideration of the respective contentions, it appears to me that the dispute in the present appeal has to be decided on the relevant evidence on record and not on the basis of surrender by the other co-sharers. Accordingly, it is to be seen whether there has been a legal and valid surrender by Kalimuddin. 10. On consideration of the respective contentions, it appears to me that the dispute in the present appeal has to be decided on the relevant evidence on record and not on the basis of surrender by the other co-sharers. Accordingly, it is to be seen whether there has been a legal and valid surrender by Kalimuddin. In support of the case of the defendant, the deed, of surrender by Kalimuddm, dated Aswin 19, 1348 B. S. executed by him, Ext. E1, was produced by the Zaminder's man. There can be no dispute now and it has not been disputed that this document was executed by Kalimuddin. Mr. Mitter contended that this document which purports to extinguish the title of Kalimuddin in the suit tank is compulsorily registerable, as required under section 17(1)(b) of the Indian Registration Act, 1908. In absence of such registration the document was not admissible in evidence and any oral evidence about surrender would also be inadmissible in law. The grievance of the appellants was that the Courts below have relied on this peace of evidence, which was otherwise inadmissible, in coming to the finding that there was a surrender by Kalimuddin. In support, reliance was placed on the decision of (1) Nadig Neelakantha v. The State of Mysore, AIR 1960 Mysore 87 in which a surrender deed by a tenant of a tenancy was held to be compulsorily registerable as it purported to extinguish the interest of the ,tenant in such tenancy exceeding Rs. 100/- in value. Mr. Mitter further contended that after the surrender is reduced to writing, to be an enforceable document it must be registered. Mr. Mitter also drew my attention to section 26C of the Bengal Tenancy Act which provides that every instrument of "transfer" of the holding of an occupancy right with which we are concerned here, has to be done by a registered instrument irrespective of value. In sub-section (6) certain transfer like lease were excluded from the definition of '"transfer". But surrender was not included within sub-section (6) and accordingly, Mr. Mitter contended that the document of surrender was also not exempted by sub-section (6) and required registration. 11. Mr. In sub-section (6) certain transfer like lease were excluded from the definition of '"transfer". But surrender was not included within sub-section (6) and accordingly, Mr. Mitter contended that the document of surrender was also not exempted by sub-section (6) and required registration. 11. Mr. Roy Chowdhury contended that it is now settled law that surrender did not require any instrument in writing and he referred to the decision in (2) Elias Meyer v. Bengal Coal Company Limited, 22 CWN 441 and also to the decision in (3) Brojo Nath v. Maheswar, 28 CLJ 220 which also laid down the principle that for surrender of lease no document in writing is necessary, and, further, a surrender does not require a registered document. Reference was also made to the decision in (4) Makhanlal Laha v. Nagendra, 37 CWN 119 in which it was held that transfer in the Partition Act does not include surrender by tenants. It was further contended by Mr. Roy Chowdhury that a surrender is not a transfer and if a lease under the Bengal Tenancy Act could be brought into existence without a registered instrument, a surrender of the interest created by such lease will not require any registered instrument to be enforceable and effective. 12. There is no dispute that in cases where the Bengal Tenancy Act makes a specific provision, the provisions of Transfer of Property Act or the Indian Registration Act would have no application in matters so provided. A lease being a mode of transfer under the Transfer of Property Act for a tenancy valued at above Rs. 100/- is required under section 17(1)(b) of the Registration Act to be registered and it could be contended on the basis of the Nadig Neelakantha's case, referred to above that surrender which extinguishes tenant's interest created by a registered instrument would require registration. Under the Bengal Tenancy Act, however, a lease would not require registration as lease has been excluded by sub-section (6) of section 26C. A surrender is merely an extinguishment of the interest created by a lease and follows an interest created by a lease. If the lease does not require registration, it is obvious that deed extinguishing such an interest would not also require registration. Even if surrender is not specifically mentioned, it is, in my opinion, implicit in the said sub-section. A surrender is merely an extinguishment of the interest created by a lease and follows an interest created by a lease. If the lease does not require registration, it is obvious that deed extinguishing such an interest would not also require registration. Even if surrender is not specifically mentioned, it is, in my opinion, implicit in the said sub-section. Accordingly, it can be said that a deed of surrender extinguishing an interest created by a lease governed by section 26C of the Bengal Tenancy Act was not required under the law to be registered, as section 17(1)(b) and section 49 as also the relevant section of the Transfer of Property Act would have no application to transfer by lease or extinguishment of interest. I, therefore, hold that the document, Ext. E1, was not required in law to be registered and was admissible in law. 13. The next point is about the possession. Mr. Mitter contended that possession is a corollary to the finding on surrender and was inextricably bound or tied up with it and was not an independent finding. It, however, appears to me that the judgment under appeal and also the judgment of the trial court dealt with the question of possession independently and both the Courts have come to the conclusion on the materials on record that Kalimuddin never exercised possession after surrender. This is also corroborated by Ext. H to which my attention was drawn by Mr. Roy Chowdhury. It was an application to the landlord dated 2nd Baisakh, 1360 B. S.––April 15, 1953, for settlement of the suit tank by the plaintiff No. 1, Achinta, through his father Ramesh, wherein the suit tank was stated to be in khas possession of the landlord. It may be noted that in the plaint of the present suit, Achinta, a minor, was represented by his father, Ramesh and there can be little doubt that the plaintiff's guardian was aware of the correct position of the tank, being in khas possession of the landlord after surrender when he made the application settlement of the tank to his son, Achinta. The Courts below have disbelieved the evidence of Kalimuddin, as also the rent receipts, Exts. 4(a) and 5, holding the same to be not genuine documents, and these findings on possession being findings of fact cannot be assailed in second appeal, as rightly pointed out by Mr. Roy Chowdhury. 14. The Courts below have disbelieved the evidence of Kalimuddin, as also the rent receipts, Exts. 4(a) and 5, holding the same to be not genuine documents, and these findings on possession being findings of fact cannot be assailed in second appeal, as rightly pointed out by Mr. Roy Chowdhury. 14. As all contentions on behalf of the appellants fail this appeal is dismissed with costs. Leave under Clause 15 of the Letters Patent is asked for and is granted.