JUDGMENT - R.A. JAHAGIRDAR, J.:---This is a petition challenging the order passed by the Appellate Bench of the Court of Small Causes at Bombay in Appeal No. 221 of 1967 by which the Appellate Bench set aside the decree of the Court of first instance passed in R.A.E. R. Suit No. 617/559 of 1962. Though the judgments of both the courts below are fairly elaborate and the arguments before me have been more than necessarily elaborate, I find that the question involved in this petition is a very narrow or and that is the interpretation of a document executed on 19th of September, 1961, which is at Exhibit D on record. The following facts, which can be taken as admitted facts, may now be mentioned :---- 2. A building situated at Vithalabhai Patel Road at Bombay was owned by one Abubakar and thereafter is owned by his son Ibrahim Abubakar Ibrahim Abubakar therefore, can be regarded as the owner of the said building. There are two garages, being Garages Nos. 5 and 6, in the said building of which Tahira Industries Private Limited was admittedly the tenant. The petitioners, who were the plaintiffs in the abovementioned suit, occupied Garage No. 5 as sub-tenants of Tahira Industries while respondent No. 1 occupied Garage No. 6 as the sub-tenant of Tahira Industries. 3. On 19th of September, 1961, Tahira Industries executed an assignment deed, which is registered, in favour of the petitioners by which, as the recitals of the assignment deed itself show, Tahira Industries intended to assign their business along with its stock-in-trade, furniture, fixtures, fittings, goodwill and the tenancy rights incidental thereto to the petitioners. In paragraph 1 of the assignment deed it has been mentioned that a consideration of Rs. 3,028.13 has been paid to Tahira Industries. Of the five items which are purported to have been assigned, the goodwill of the firm was valued at Rs. 500 and the stock-in-trade, furnitures, fixtures and fittings in the premises were valued at Rs. 1,500/-. The tenancy rights in the business were valued at nil. This assignment deed purported to transfer the business of Tahira Industries in Garages Nos. 5 and 6 along with the tenancy rights incidental thereto. Six days after the execution of this assignment deed, another document, which is at Exhibit B in those proceedings, came into existence. 1,500/-. The tenancy rights in the business were valued at nil. This assignment deed purported to transfer the business of Tahira Industries in Garages Nos. 5 and 6 along with the tenancy rights incidental thereto. Six days after the execution of this assignment deed, another document, which is at Exhibit B in those proceedings, came into existence. It is a receipt purportedly signed by Ibrahim Abubakar but it bears the rubber stamp of the Deputy Custodian of Evacuee property. Under this document at Ex. B the landlord is said to have accepted rent from the petitioners. On 12th of October, 1961, Tahira Industries intimated to the first respondent who, as already mentioned above, was the tenant of Garage No. 6 abut the assignment and called upon the first respondent to treat the petitioners as the head tenant to whom in future the first respondent was liable to pay the rent. On 30th of October, 1961, the first respondent called upon Tahira Industries to furnish the particulars of the assignment. No reply has been given by Tahira Industries in this regard. 4. However, on by a notice dated 29th of June, 1962 the petitioners terminated the tenancy of the first respondent in respect of Garage No. 6 for non-payment of rent. To this notice the first respondent replied questioning the title of the petitioners to terminate the tenancy and also disclosing that on 27th of July, 1961 the first respondent had assigned the business along with the tenancy rights incidental thereto to the second respondent. Despite this, the petitioners did not issue any notice to the second respondent but proceeded to file the present suit on 14th of November, 1962. The suit was for possession of Garage No. 6 on various grounds. 5. Respondents Nos. 1 and 2, who will hereinafter be referred to as "the respondents" (the other respondents being formal parties), resisted the suit by denying the right of the petitioners to file the suit and to ask for possession of garage No. 6 hereinafter referred to as "the suit premises" from them. 5. Respondents Nos. 1 and 2, who will hereinafter be referred to as "the respondents" (the other respondents being formal parties), resisted the suit by denying the right of the petitioners to file the suit and to ask for possession of garage No. 6 hereinafter referred to as "the suit premises" from them. In the trial the partner of the first petitioners was examined to prove the petitioners case; one; P.S. Jani said to be the Mehta of the landlord Ibrahim Abubakar was examined for proving what was sought to be established as the consent of the landlord for the assignment of the tenancy rights by Tahira Industries to the petitioners; Manilal Mansi Lalka, on employee of Tahira Industries, was examined for deposing about the assignment. 6. The learned trial Judge raised various issues; the most important one being as to whether the first respondent was the sub-tenant of the petitioners. Noticing that Tahira Industries could not have assigned the business in Garages Nos. 5 and along with the tenancy rights incidental thereto because the business was not run by Tahira Industries, the leaned trial Judge had no difficulty in holding that the said assignment could not operate in respect of the business. However, the learned trial Judge thought that the assignment had been made with the previous consent of the landlord and, therefore, it was permissible under section 15(1) of the Bombay Rent Act. This, according to the learned trial Judge, bestowed upon the petitioners all the rights of Tahira Industries which included the right to collect rent from the first respondent. So holding the learned trial Judge decreed the suit by his judgment and order dated 31st of January, 1967. 7. In the appeal which was preferred by the respondents, attention was focused on the document at Exhibit B. Examining the same the Appellate Bench noticed that it was purportedly signed by the Deputy Custodian of Evacuees properties though the signature was Ibrahim Abubakar. After analysing the provisions of section 19(2)(b) of the Administration of Evacuee Property Act, 1950 the Appellate Bench came to the confusion that the property must have been in possession of the Custodian to Evacuee Property and, therefore, Ibrahim Abubkar in capacity as the erstwhile landlord could not give consent to the assignment by Tahira Industries. After analysing the provisions of section 19(2)(b) of the Administration of Evacuee Property Act, 1950 the Appellate Bench came to the confusion that the property must have been in possession of the Custodian to Evacuee Property and, therefore, Ibrahim Abubkar in capacity as the erstwhile landlord could not give consent to the assignment by Tahira Industries. The Appellate Bench also noticed, and in my opinion rightly, that the story about the consent being given to the assignment was not made out either in the notice or in the plaint in the suit, but was introduced for the first time during the course of the evidence. In the latter half of paragraph 7 of its judgment the Appellate Bench has in effect held that the petitioner had failed to prove that consent had been given by the landlord even in his individual capacity. 8. The Appellate Bench also thought that if effect is to be given to Exhibit B it would amount to the creation of fresh tenancy by the landlord in favour of the petitioners and since the petitioners were not in possession of Garage No. 6 no tenancy could be created in respect of the same by the document at Ex. B. Since Tahira Industries had offaced themselves from the suit premises and had ceased to be the tenants of Garage No. 6 after Exhibit D was executed, the first respondent became the direct tenant of Garage No. 6. So holding the Appellate Bench allowed the appeal and set aside the decree passed by the Court of first instance. The Order of the Appellate bench is the subject-matter of challenge in this petition. 9. Mr. Paranjpe, the learned Advocate appearing in support of the petition, has criticised the judgment of the Appellate Bench by contending that the Appellate Bench has wrongly launched on enquiry into the effect of the document at Exhibit B. According to Mr. Paranjpe, it was nobodys case that the property was with the Custodian of Evacuee Property and therefore, it was not permissible for the Appellate Bench to hold that Ibrahim Abubakar, unless authorised specifically by the Custodian of Evacuee Property could not have given consent to the assignment. Paranjpe, it was nobodys case that the property was with the Custodian of Evacuee Property and therefore, it was not permissible for the Appellate Bench to hold that Ibrahim Abubakar, unless authorised specifically by the Custodian of Evacuee Property could not have given consent to the assignment. It is true that it was not a nobodys case to begin with that the property was with the Custodian of Evacuee Property, but the petitioners themselves have invited this examination by the Appellate Bench by placing reliance upon Exhibit B which was not disclosed by them in their list of documents in the trial Court. They had not, as already mentioned above, pleaded the consent of the landlord to the assignment either in the notice or in the plaint. If, therefore, they sought to rely upon a document which apparently showed that it was issued by Ibrahim Abubakar on behalf of the Custodian of Evacuee Property, it was for the petitioners to explain that the apparent tenor of the document was not the real one. No explanation has been given on behalf of the petitioners in this regard. Ibrahim Abubakar who is said to have given consent has not stepped into the witness box. Mr. Paranjpe at one time suggested that Ibrahim Abubkar was too big a man to be examined in the Court. One may or may not agree with Mr. Paranjpe in this regard. If for any reason it was not possible for Ibrahim Abubakar to step into the witness box he could have been examined on commission. The petitioners never made an attempt to prove the so-called consent by Ibrahim Abubakar by primary evidence. I, therefore, do not blame the Appellate bench of the Court of Small Cause in examining the effect of Exhibit B on which the petitioners themselves have placed total reliance. If the apparent tenor of Exhibit B is accepted as the real one as indeed it should be accepted in the absence of any proof to the contrary, then the reasoning of the Appellate Bench cannot be said to be erroneous. 10. I, however, proceed to confirm the order of the Appellate Bench even on the ground that the petitioners have totally failed to prove that there was a consent to the assignment of the tenancy rights of Garage Nos. 10. I, however, proceed to confirm the order of the Appellate Bench even on the ground that the petitioners have totally failed to prove that there was a consent to the assignment of the tenancy rights of Garage Nos. 5 and 6 by Tahira Industries in favour of petitioners within the meaning of section 108(j) of the Transfer of Property Act. It may be noted that section 15(1) of the Bombay Rent Act prohibits the assignment of tenancy rights unless the contract with the landlord permits such an assignment to be made. Under the proviso to sub-section (1) of section 15, under certain circumstances specified in the notifications issued by the State Government assignment of the business are permitted and as incidental to such assignments, assignment of the tenancy rights are permitted. The trial Court has rightly held that the assignment of 19th of September, 1961 (Exhibt D) cannot be given effect to as an assignment under the proviso to section 15(1) of the Bombay Rent Act for the simple reason that the business which was being conducted in Garage Nos. 5 and 6 was not the business of assignors who, therefore, could no have assigned the same. The question is whether there is an assignment under section 108(j) of the Transfer of Property Act and such assignment has been consented to by the landlord. I have already mentioned earlier that such consent was not mentioned in the notice nor was it pleaded in the plaint. For the first time in the evidence, probably after realising that the assignment under the proviso to sub-section (1) of section 15 could not stand, the petitioners introduced the case of consent by the landlord by tendering in evidence Exhibit B. It was not difficult then for them to lead proper evidence to prove the story of consent set up by them for the first time during the course of the trial. 11. Evidence was sought to be led to show that in July 1961, that is before the document at Exhibit D was executed, the petitioners has approached Ibrahim Abubakar and had obtained oral consent for the transfer of tenancy by Tahirar Industries to the petitioners. The Appellate Bench has refused to accept this story and I have no hesitation in rejecting the same for variety of reasons. The Appellate Bench has refused to accept this story and I have no hesitation in rejecting the same for variety of reasons. One is already given, namely that this is a story set up for the first time during the course of the trial. Secondly the so-called consent obtained in July 1961 does not find a mention in the document at Exhibit D which was executed in September 1961. The consent allegedly given by the landlord must be deposed to by the landlord himself and not by the beneficiaries of the so-called consent. The petitioners have not examined Ibrahim Abubakar, the landlord, for proving the consent either directly or on commission. Moreover, the story of consent also appears to be mythical because the consent ought to be given to Tahira Industries and not to the petitioners who were going to be the transferees. Consent was given, if at all, to the assignment at Exhibit D which is said to have been shown later by the petitioners to the landlord. This assignment considering all its recitals and the language was supposed to be an assignment under the proviso to section 15(1) of the Bombay Rent Act. I have, therefore, no hesitation in holing that there was no consent by the landlord to the assignment of the tenancy rights within the meaning of section 108(j) or the Transfer of Property Act to be permissible under section 15(1) of the Bombay Rent Act. 12. I have referred earlier to the recitals of the assignment at Exhibit D and have mentioned that the said assignment appears to be one under the proviso to section 15(1) of the Bombay Rent Act. A proper reading of the recitals of the said assignment at Exhibit D must lead one to the conclusion that it is not an assignment of the tenancy rights within the meaning of section 108(j) of the Transfer of Property Act, but purports to be one under the proviso to section 15(1) of the Bombay Rent Act. The tenancy rights which are assigned under Exibit D are the tenancy rights in the business and not in the premises and they have been valued at nil. It is inconceivable that the tenancy rights which are valued at nil could have been assigned alone. The tenancy rights which are assigned under Exibit D are the tenancy rights in the business and not in the premises and they have been valued at nil. It is inconceivable that the tenancy rights which are valued at nil could have been assigned alone. Reading the evidence as a whole one gets an impression that the petitioners some how or the other persuaded Tahira Industries to execute this document at Exhibit D with a view to enable the petitioners to obtain possession of Garages Nos. 5 and 6 also from respondent No. 1. In any case, there is not legal material at all to hold the landlord had consented to the assignment of the tenancy rights in respect of both the garages by Tahira Industries in favour of the petitioners. 13. Mr. Walavakar, the learned Advocate appearing for the respondents wanted me to confirm the finding of the Appellate Bench that there was a surrender of tenancy by Tahira Industries to the landlord and thereafter a new tenancy of Garage No. 6 came into existence in favour of the petitioners and by virtue of section 14 of the Bombay Rent Act a new tenancy must be deemed to have come into existence in respect of Garage No. 6 in favour of respondent No. 1, however, do not intend to enter into a discussion on this aspect of the case because Tahira Industries are not parties to these proceedings. It cannot be reasonably argued that the original landlord by accepting deposit from the petitioners eliminated the tenancy of Tahira Industries unless Tahira Industries themselves say so in unequivocal terms. However, this issue is not concluded by my judgment. The relationship of the respondents with the Tahira Industries and with the original landlord Ibrahim Abubakar may be got decided either by the respondents themselves by filing an interpleader suit or by raising this question in any suit which either the landlord or Tahira Industries may file against the respondents. In view of the finding which I have confirmed that the petitioners are not the landlord of the respondents, the amount which have been deposited by the respondents from time to time in the Court shall be paid over to them. 14. In the result, this petition must fail. Rule is discharge with costs. Petition fails. -----