JUDGMENT Chittatosh Mookerjee, J. 1. Braithwaite & Company Limited, which was the defendant No.2 in the Court below has preferred this appeal against the judgment and decree passed by the learned Subordinate Judge, 4th Court, Alipore, 24 Parganas, passed in favour of the plaintiff/ respondent for recovery of possession of Flat No. 12A with fittings and fixtures, a servant's a quarter and a garage in premises, Lansdowne Court, being No. 5B, Sarat Bose Road, P.S. Bhawanipore and also for recovering mesne profits. 2. M/s. R.P. Agarwalla & Brothers Private Limited, the plaintiff/respondent as the Trustee to the Estate of Miss Madavi Agarwalla (Minor), had instituted the said suit originally against the defendant No.1, Braithwaite & Company (India) Limited, inter alia, on the allegation that by virtue of a registered Deed of Sale dated 19.9.1972 executed by M/s. Property Development Trust Private Limited, the plaintiff had become the sole and absolute owner of the of the Flat No. 12A with fitting and fixtures, a servant's quarter and garage No. 26 with fittings and fixtures on the ground floor of the said building, Lansdowne Court. The said M/s. Property Development Trust Private Limited had prepared a scheme to build and construct the said multistoried building consisting of 28 residential flats with furniture, fittings and fixtures, servants quarters garage upon the Municipal Premises No. 5B, Sarat Bose Road. The plaintiff's further case was that said M/s. Property Development Trust Pvt. Ltd. by a unregistered lease dated 1.2.1955 executed between the said company and the defendant No.1 had purported to demise to the defendant for a term of 25 years the suit property subject to the terms and conditions set out in the said lease deed. The plaintiff claimed that, due to its non-registration the said lease was inoperative in law and the term of the said purported lease had also expired on 31.1.1980. On the expiry of the said term the defendant was not entitled in law and equity to any right to occupy the suit property and was in wrongful occupation of the same from 1.2.1980. The plaintiff had called upon the defendant to vacate the suit property but the defendant had failed to comply with the same. The plaintiff also had claimed recovery of mesne profits from the defendant at the rate of Rs. 300/- per diem from 1.2.1980. 3. The plaintiff had called upon the defendant to vacate the suit property but the defendant had failed to comply with the same. The plaintiff also had claimed recovery of mesne profits from the defendant at the rate of Rs. 300/- per diem from 1.2.1980. 3. The Central Government had previously taken over the management of the undertakings of Braithwaite & Company (India) Limited in terms of section 18A of the Industries Development and Regulation Act, 1951. Thereafter, the Indian Parliament enacted the Braithwaite & Company (India) Limited (Acquisition and Transfer of Undertakings) Act, 1976. On and from the appointed day (i.e., 1.4.1975) the undertakings of the said Company and its right, title and interest, by virtue of the said Act, stood transferred to and vested in the Central Government. Mr. Dutt, learned advocate for the appellant, has drawn our attention to the general effect of vesting contained in sub-section (1) of section 4 of the said Act. As a result of the said vesting all assets, rights, leaseholds, powers authorities and privileges and all property, movable and immovable including lands, buildings, workshops, stores, instrument, machinery, equipment, cash balances, cash in hand, reserve funds, investments, book debts and all other rights and interest or arising out of such property as were immediately before the appointed cay in the ownership, possession, power or control of the company steed transferred and vested in the Central Government. In exercise of its powers under section 6 of the said Act the Central Government had vested the said undertaking of the said company in the appellant which was a Government Company. With effect from the date of such vesting the appellant had become the owner in relation to the said undertaking and all rights and liabilities of the Central Government had deemed to have become the rights and liabilities of the appellant company. 4. For the foregoing reasons, the appellant company was rightly added as defendant No.2 in the aforesaid suit. In the written statement filed on behalf of the defendant No.2 (the present appellant) it was, inter alia, contended that the suit was not maintainable in view of the provisions of the West Bengal Premises Tenancy Act, 1956. The defendant No.2 who is the appellant before us, had set out its own version of the facts of the case in various sub-paragraphs of paragraph 12 of its written statement. The defendant No.2 who is the appellant before us, had set out its own version of the facts of the case in various sub-paragraphs of paragraph 12 of its written statement. We propose to later on advert to the contents of some of these sub-paragraphs of paragraph 12 of the written statement. The defendant No.2 however, did not elaborate in its written statement how the defendant No.1 had acquired the said alleged tenancy right. The defendant No.2 also had denied the plaintiff's claim for recovery of mesne profits. 5. In support of their respective cases both parties had adduced oral and documentary evidence in the trial court. The learned Subordinate Judge, 4th Court, Alipore, as already stated has decreed the suit in favour of the plaintiff. The learned Subordinate Judge, inter alia, found that the lease (Ext. 5) was executed between the predecessors-in-interest, both of the plaintiff and the defendant No.1, on 1.2.1955. The Directors of the lessor and the lessee had signed the deed and the company seals had been affixed. The document (Ext.5) was, however, unstamped and also unregistered. According to the learned Subordinate Judge, in view of the section 107 of the Transfer of Property Act the said deed was not valid. But under section 49 of the Registration Act, the same was admissible in evidence for collateral purposes and also as an evidence of Part Performance by the defendant. The learned Subordinate Judge held that the tenancy of the defendant was covered under the said unregistered lease dated 1.2.1955 and all payments and acceptance of rents were made in terms of or pursuant to the said unregistered lease (Ext. 5). According to the learned Subordinate Judge, no relationship of landlord and tenant was thereby created between the plaintiff and the defendant No.1 and the said defendant was only entitled to the benefit of protection of section 53A of the Transfer of Property Act. Therefore, after the expiry of the period of 25 years as stipulated in the said unregistered lease (Ext. 5) the defendants had become trespassers and the plaintiff was entitled to recover possession and to claim mesne profits. After the expiry of the said terms of the unregistered lease on 31.1.1980 the plaintiff did not receive any rent and the defendants could not claim any tenancy right either by holding over or as statutory tenants. 5) the defendants had become trespassers and the plaintiff was entitled to recover possession and to claim mesne profits. After the expiry of the said terms of the unregistered lease on 31.1.1980 the plaintiff did not receive any rent and the defendants could not claim any tenancy right either by holding over or as statutory tenants. The Court below also held that the defendants did not validly exercise their option to obtain renewal. Hence the defendants were not entitled to occupy the suit flat after the expiry of the said term of 25 years. 6. Mr. Bankim Chandra Dutt, learned advocate for the appellant has submitted that the learned Subordinate Judge has erred in holding that the defendant had become a trespasser after expiry of the period of 25 years stipulated in the said unregistered lease deed (Ext. 5). According to Mr. Dutt, the defendant No.1 had entered into possession of the said fiat long before the said unregistered lease (Ext. 5) which was purported to be executed by both parties. The defendant throughout had paid and the plaintiff landlord had accepted rent. Because of its Non-Registration the lease (Ext. 5) was invalid but by reason of payment and acceptance of rent, by legal implication, a monthly tenancy was created in defendant's favour. The said monthly tenancy was governed by the provisions of the West Bengal Premises Tenancy Act, 1956 and the plaintiff was not entitled to recover possession save and except on anyone or more of the grounds set out in sub-section (1) of section 13 of the West Bengal Premises Tenancy Act, 1956. Mr. Dutt has submitted that the defendant No.2 itself did not plead section 53A of the Transfer of Property Act by way of its defence and the Court below did not even frame any issue on the said point. According to Mr. Dutt, the Deed (Ext. 5) was unstamped and therefore the same could not be made the foundation for invoking section 53 of the Transfer of Property Act. The plaintiff landlord ought not to have been allowed to rely upon section 53A of the said Act in order to deprive the defendant No.2 of its protection against eviction granted by the West Bengal Premises Tenancy Act, 1956. The plaintiff landlord ought not to have been allowed to rely upon section 53A of the said Act in order to deprive the defendant No.2 of its protection against eviction granted by the West Bengal Premises Tenancy Act, 1956. Therefore, the learned Subordinate Judge had completely misdirected himself in law by invoking the provisions of section 53A of the Transfer of Property Act and in holding that the plaintiff landlord was entitled to recover possession from the defendant after expiry of the period of 25 years stipulated in the said unregistered lease (Ext. 5). Mr. Dutt has also attempted to distinguish the decision of the Supreme Court of the case of Technicians Studio Pvt. Ltd. vs. Smt. Lila Ghosh & anther, AIR 1977 SC 2425 , on the ground that the defendant's tenancy had allegedly commenced before the execution of the unregistered lease (Ext. 5) and the invalidity of the said unregistered lease deed did not affect in any way its said pre-existing tenancy right. According to Mr. Dutt the ratio of the latter Supreme Court decision in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & other, AIR 1980 SC 226 , would apply to the present case. 7. Mr. Saktinath Mukherjee, who has appeared on behalf of the plaintiff/respondents has, on the other hand, submitted that in its pleading the defendant No.2 had clearly taken the stand that in pursuance of the aforesaid Agreement (Ext. 4) and the Lease Deed (Ext. 5) its predecessor, the defendant No.1, had been put in possession of the disputed Flat No. 12A, Lansdowne Court, 5B, Sarat Bose Road and during the whole term of 25 years as stipulated in the said Lease Deed both parties had acted according to the terms of the said Lease Deed. Therefore, according to Mr. Mukherjee, it is not open to the defendant appellant to urge for first time in this Court that even prior to the execution of the unregistered Lease Deed (Ext. 5), the defendant No.1 had been a monthly tenant of the disputed flat and that notwithstanding the invalidity of the said Lease Deed the defendants had continued to be monthly tenants according to the principle's laid down by the Supreme Court in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & other (supra). Mr. Mukherjee has further submitted that the third Schedule to the Agreement (Ext. Mr. Mukherjee has further submitted that the third Schedule to the Agreement (Ext. 4) contained almost all the terms of the proposed lease and, therefore even assuming that the defendant No.1 was given occupation of the said fiat in pursuance of the said Agreement and had paid rents, the third Schedule to the said Agreement ought to be considered as an operative lease document because all the terms of the lease could be ascertained therefrom and the agreement also showed that both parties intended to create a lease for 25 years. Therefore, in the absence of their registration both the third Schedule to the Agreement (Ext. 4) and the Lease Deed (Ext. 5) were hit by section 107 of the Transfer of Property Act. It is settled law that when a person is in occupation under a void lease, he acquired no interest in the property which was proposed to be demised to him but he may claim equitable right under the doctrine of Part-Performance as embodied in section 53A of the Transfer of Property Act. According to Mr. Mukherjee, the ratio of the Supreme Court decision in Technicians Studio Pvt. Ltd. vs. Smt. Lila Ghosh & anther, AIR 1977 SC 2425 , would apply to the present case and the term of 25 years as stipulated in the said Lease Deed (Ext. 5) having already expired, the defendants who have no further legal or equitable right to possess the premises cannot successfully contest the plaintiff's claim for recovery of possession. The learned advocate for the respondent has further submitted that in the instant case payment of rent were made by the defendant and their acceptance by the plaintiff were in terms of the said invalid lease (Ext. 5) and not independently of the said invalid lease. Therefore, a monthly tenancy by implication could not and did not arise. 8. The principal point in this appeal is whether the plaintiff/respondent was entitled to recover possession of the suit premises treating the defendant No.2 as a trespasser. In other words, whether the defendant No.1 whose interest has now vested in the defendant No.2 had become a tenant of the suit premises or the only right available to it was to protect its possession in terms of section 53A of the Transfer of Property Act, 1881. In other words, whether the defendant No.1 whose interest has now vested in the defendant No.2 had become a tenant of the suit premises or the only right available to it was to protect its possession in terms of section 53A of the Transfer of Property Act, 1881. A lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument (Vide Section 107 of the Transfer of Property Act, 1882). In the absence of its registration the Deed of Lease (Ext. 5) dated 1.2.1955 could not affect the immovable property comprised therein. The plaintiff/respondents case in brief was that the Lease Deed (Ext 5) which was required to be registered not having been registered, the defendant No.1, who had taken possession of the disputed flat in Part Performance of the said contract, only enjoyed protection under section 53A of the Transfer of Property Act. The term of 25 years stipulated in the said unregistered deed having already expired, the bar under section 53A of the said Act imposed upon the plaintiff/respondent held been already lifted and it was entitled to recover possession from the defendant No.2, the successor-in-interest of the defendant No.1, who no longer enjoyed any right to protect its possession. 9. The defendant No.2, no doubt, did not seek protection under section 53A of the Transfer of Property Act but in order to decide the right of the defendant No.2 to resist the plaintiff's claim for recovering possession of the suit premises, it was most pertinent to consider whether the defendant No.2 was a monthly tenant or it had no title or interest but merely a right to protect its possession against the claim of the plaintiff contrary to the terms of the contract. In case the defendant No.2 was not a tenant of the suit premises then it could no longer plead that the plaintiff was debarred from claiming recovery of possession of the suit premises because the term of 25 years as stipulated in the unregistered Lease Deed (Ext. 5) had expired on 1.2.1980. In case the defendant No.2 was not a tenant of the suit premises then it could no longer plead that the plaintiff was debarred from claiming recovery of possession of the suit premises because the term of 25 years as stipulated in the unregistered Lease Deed (Ext. 5) had expired on 1.2.1980. On the other hand, if the defendant No.1, and thereafter the defendant No.2, had become a monthly tenant of the suit premises the said tenancy would be protected by the provisions of the West Bengal Premises Tenancy Act, 1956 and the plaintiff respondent would not be entitled to recover possession except on the grounds specified under sub-section (1) of section 13 of the said Act. 10. We find no substance in the contention raised on behalf of the appellant that the Lease Deed (Ext. 5) being unstamped could not be relied upon for invoking the section 53A of the Transfer of Property Act. The Supreme Court in the case of Maneklal Mansukhbhai vs. Hormusji Jamshedji Ginwalla & Sons, AIR 1950 SC 1 , has inter alia, laid down that a formal lease is not necessary to attract the application of section 53A. All that is required is that an agreement in writing signed by the transferor can be gathered from the evidence. In the case of Maneklal Mansukhbhai vs. Hormusji Jamshedji Ginwalla & Sons (supra), the Supreme Court held that the correspondences summarized in Ext. 181 which was secondary evidence of the agreement could be relied upon in support of plea of Part Performance. Further section 53A of the said Act, inter alia, speaks of not only of a contract which is required to be registered but has not been registered but also of an instrument of transfer which had not been completed in the manner prescribed therefor by the law for the time being in force. 11. Further section 53A of the said Act, inter alia, speaks of not only of a contract which is required to be registered but has not been registered but also of an instrument of transfer which had not been completed in the manner prescribed therefor by the law for the time being in force. 11. Before section 53A was inserted in the Transfer of Property Act, in their two reported decision in Ariff vs. Jadunath Mazumdar, AIR 1931 PC 79: 58 IA 91 and in the case of Main Pir Bux vs. Mohomed Taher, 61 IA 388: AIR 1934 PC 235, the Judicial Committee of the Privy Council had laid down that the equity of Part Performance could not operate to nullify the provisions of the Indian Statute Law relating to transfers of property and registrations of documents (See also the discussions in Mulla's Transfer of Property Act, 6th Edition, under the heading Position in India before 1929 at pages 285-86). Section 53A which was inserted by Transfer of Property (Amendment) Act, 1929 has only partially imported the English equitable doctrine of Part Performance. The said right under the Indian Law is a statutory one and is more restricted than the English equity in two respects – (1) there must be a written contract and (2) it is only available as a defence (Vide Mulla's Transfer of Property Act, 6th Edition, page 288). It is also well-settled that section 53A confers no active title but merely debars the transferor or any persons claiming under him from enforcing any right in respect of the property other than right expressly provided by the terms of the said unregistered contract or incomplete instrument of transfer (Vide in Probodh Kumar Das vs. Dantmara Tea Company, 66 IA 293: 44 CWN 145, and the other reported cases mentioned in the foot note (a) at page 292 of Mulla's Transfer of Property Act, 6th Edition). 12. We have already observed that the term of 25 years as stipulated in the aforesaid unregistered Lease Deed (Ext. 5) had already expired and the defendant No.2 did not bring any suit to enforce its purported option to obtain renewal of the lease. Therefore, the possession of the defendant No.2 was no longer protected under section 53A of the Transfer of Property Act. 5) had already expired and the defendant No.2 did not bring any suit to enforce its purported option to obtain renewal of the lease. Therefore, the possession of the defendant No.2 was no longer protected under section 53A of the Transfer of Property Act. Accordingly, the defendant No.2, only by establishing that the defendant No.1 and, thereafter, the defendant No.2, had otherwise become a tenant of the suit premises can successfully resist the plaintiff's claim for recovery of possession. We may further point out that from mere payment by the defendant month by month of the sum stipulated as rent in the said unregistered Lease Deed (Ext. 5) it is not possible to conclude that a tenancy was brought into existence. Thus acceptance of these payments tendered as rent would pot be decisive of tenancy. Such payments by the defendant might be evidence of the defendant No.1 willingness to perform its part of the said contract (Vide the observations of Gupta, J. in the ease of Technicians Studio vs. Lila Ghosh (supra) at page 2428, right hand column). Mr. Dutt, learned advocate for the appellant, has tried to urge that the defendant No.1 was already in possession prior to the date of execution of the unregistered lease (Ext. 5) by two of its Directors. Again the defendant No.1 alleged entry into the flat prior to the execution of the lease (Ext. 5) by itself would make the defendant No.1, a monthly tenant dehors the said deed. Because in case the defendant No.1 was already in possession and after execution of the said unregistered Lease Deed (Ext. 5) it had continued in possession in Part Performance of the said contract of lease, then the act of such continuance in possession and payments of monthly amounts might be only in furtherance of the said contract and the same would not confer upon the defendant No.1 any tenancy interest. In the case of Technicians Studio vs. Lila Ghosh (supra), the Supreme Court had rejected a similar argument on behalf of the appellant that in the said case the tenancy at will was implied because the defendant had entered into possession under a void lease and had paid rents. Gupta, J. who delivered the judgment had, inter alia, observed that the said payments could be explained as evidence of the appellant's willingness to perform their part of the said contract. 13. Gupta, J. who delivered the judgment had, inter alia, observed that the said payments could be explained as evidence of the appellant's willingness to perform their part of the said contract. 13. Our attention has been drawn both by Mr. Dutt and Mr. Mukherjee the learned advocates, to the following observations of Gupta, J. at page 2428, right hand column of the reports in the case of Technicians Studio vs. Lila Ghosh (supra):- "This does not mean, however, that there cannot be relationship of landlord and tenant in any case where the transferee has taken possession of the property, under a void lease or in Part Performance of a contract and entitled to protection under section 53A of the Transfer of Property Act, whether relationship of landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy and the intention has to be gathered from the facts and circumstances of the case. It is possible to find on the facts of a given case that payments made by a transferee in possession were really not in terms of the contract but independent of it and this may justify an inference of tenancy in his favour. The question is ultimately one of fact." 14. These observations of Gupta, J. do not assist the appellant because it had failed to prove that the payments of rent were made not in terms of the contract but independently of it. 15. The Supreme Court in its later decision in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & other (supra) had distinguished its earlier decision in the aforesaid case of Technicians Studio Pvt. Ltd. vs. Smt. Lila Ghosh & anther (supra). Desai, J. who delivered the judgment of the Court found as a fact that the tenant had been inducted for a period of five years under a valid lease and therefore, it had continued to be a lawful tenant at the beginning of the second lease which was, however, void for went of registration. The said invalid or inchoate lease did not impinge upon the nature of the tenant possession and did not change the nature of its possession as a tenant to one who was only entitled to protect his possession under section 53A of the Act. The said invalid or inchoate lease did not impinge upon the nature of the tenant possession and did not change the nature of its possession as a tenant to one who was only entitled to protect his possession under section 53A of the Act. Thus, in case a person had a subsisting valid tenancy or lease before he had entered into an unregistered lease, which needed compulsory registration, then the said invalid document in a given case may have no impact upon his prior subsisting tenancy or lease. In the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & other (supra), the Court had no occasion to consider a case of a transferee who had continued in possession in Part Performance of a invalid contract. We may also respectfully point out that the Supreme Court in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & other (supra), did not lay down the proposition that whenever a person who is put in possession under an unregistered invalid lease, pays rent by implication a monthly tenancy would be created in his favour. Desai, J. in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & other (supra), at page 232 of the reports with approval had quoted the observations of Gupta, J. in the case of Technicians Studio vs. Lila Ghosh (supra), at page 2428, to the effect that it has to be gathered from the facts and circumstances of each case whether by such payment and acceptance thereof, the parties intended to create a monthly tenancy. 16. The decision of the Supreme Court in the case of Ram Kumar Das vs. Jagdish Chandra Deo, AIR 1952 SC 23 , was referred to in both the decisions in Technicians Studio Pvt. Ltd. vs. Smt. Lila Ghosh & anther (supra), and in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & other (supra). It was admitted that in the beginning there was a relationship of landlord and tenant between the parties and the only question that arose for decision in case of Ram Kumar Das vs. Jagdish Chandra Deo (supra) was whether the defendant was in fact a monthly tenant under the plaintiff on the date when the notice to quit was served (Vide the observations of Gupta, J. in the case of Technicians Studio vs. Lila Ghosh (supra) at page of the reports). Desai, J. at page 232 of the reports in the case Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta (supra) distinguished the aforesaid observations of Gupta, J. made in the case of Technicians Studio vs. Lila Ghosh (supra), on the ground that the appellant. Technicians Studio Pvt. Ltd., was not a tenant at the commencement of the lease which had turned out to be void but both in the case of Ram Kumar Das vs. Jagdish Chandra Deo (supra), and in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta (supra), the common distinguishing feature was that admittedly prior to the execution of the lease there were relationship of landlord and tenant between the parties. 17. In the light of the above legal position we may now proceed to consider the facts of the present case in order to determine whether prior to the entering into the aforesaid unregistered contract for granting lease of 25 years, the defendant No.1 had been already a monthly tenant of the suit premises. If in fact there was such prior relationship of landlord and tenant, then the said invalid contract of lease (Ext. 5) had no impact upon the said prior tenancy right of the defendant No.1 and therefore, defendant No.2 could not be evicted as a trespasser. 18. At one stage of his submission Mr. Dutt, learned advocate for the appellants, urged that the defendant No.1 had been put in possession in terms of the Agreement dated 12.8.1953 between Property Development Trust Pvt. Ltd. and the defendant Braithwaite & Co. (India) Ltd. In our view, even assuming that the possession of the suit premises by the defendant No.1 had commenced under the said Agreement (Ext. 4) and under the subsequent unregistered Deed of Lease (Ext. 5) there would be hardly any difference in the legal position. By the said Agreement dated 12.8.1953, Property Development Trust Pvt. Ltd. (the predecessor-in-interest of the plaintiff in relation to the said premises) in consideration of payment of a sum of Rs. 55,000/- had, inter alia, undertaken to let out to the defendant No.1 on a lease for a term of 25 years of Flat No. 12A, with servant's quarter, garage and other appurtenances in the multi-storied building proposed to be erected at 5B, Sarat Bose Road. 55,000/- had, inter alia, undertaken to let out to the defendant No.1 on a lease for a term of 25 years of Flat No. 12A, with servant's quarter, garage and other appurtenances in the multi-storied building proposed to be erected at 5B, Sarat Bose Road. Property Developments Trust Pvt. Ltd. who was described as the lesser had, inter alia, undertaken that as soon as the building shall be complete, it would grant to the defendant No.1 described as the lessee, with immediate possession a lease of the said Flat No. 12A for the term prescribed and at the rent reserved and subject to the terms and conditions contained in the form of lease set out in the Third Schedule to the said Agreement and to do things and signs and register all necessary and proper instruments for carrying into full effect and complete the grant of the said lease to the lessee. The learned advocate for the respondent had submitted that the Third Schedule to the said Agreement (Ext. 4) contained the terms and conditions of the lease which were identical, except for certain minor alterations in the terms of the subsequent lease deed (Ext. 5) executed by both parties. Thus, the Agreement (Ext. 4) which was in substance an agreement to grant lease could equally form foundation for invoking the doctrine of part-performance as enacted in section 53A of the Transfer of Property Act. 19. In their plaint the plaintiffs had averred, inter alia, that the suit property had been demised to the defendant No.1 for a term of 25 years (Vide paragraph 4 of the plaint). In paragraph 5 of the plaint it was claimed that the said lease due to non-registration was inoperative in law and after expiry of 25 years the defendant was not entitled by law and equity to any right to occupy the suit property and was in wrongful occupation of the same. The plaintiff in paragraph 6 of the plaint had averred that the defendant could not legally claim to be entitled to exercise option for renewal of the lease which was inoperative, unenforceable and not valid in law. The plaintiff in paragraph 6 of the plaint had averred that the defendant could not legally claim to be entitled to exercise option for renewal of the lease which was inoperative, unenforceable and not valid in law. The defendant No.2 who was subsequently added as a party, in his written statement did not expressly claim that prior to the execution of the said unregistered lease, its predecessor, the defendant No.1, had become a monthly tenant by payment and acceptance of rent or otherwise. The defendant No.2 had merely asserted that it held a tenancy governed by the West Bengal Premises Tenancy Act without setting forth the alleged facts on the basis of which the said tenancy was created. The learned advocate for the plaintiff/respondent has also drawn out attention to sub-paragraphs (a) to (c) of paragraph 12 of the written statement. After setting cut the facts relating to the execution of the said contract for granting lease of Flat No. 12B the defendant No.2 had claimed in paragraph 12(d). As aforesaid the said landlord Company (Property Development Trust Pvt. Ltd. on or about 1.2.1955 let out and deliver vacant possession of the suit premises (viz. the Flat No. 12A, 7th floor including servants' quarter in the same floor and garage No. 26 in the ground floor with all amenities and easements). The defendant No.1 and the defendant No.2 also took possession of the same. Thus the case of the defendant No.2 itself was that in pursuance of the said contract of tenancy, the premises had been let out on or about 1.2.1955 and on the same date possession of the disputed premises had been delivered to the defendant No.1. The defendant No.2 did not plead that before entering into such contract of the tenancy (Ext. 4 and 5) the defendant No.2 was already a monthly tenancy of the suit premises. 20. The averments of the defendant No.2 in its written statement that the lease (Ext. 5) had not been acted upon was contrary to the stand taken by the defendant No.1 and thereafter the defendant No.2 before the institution of the suit. 4 and 5) the defendant No.2 was already a monthly tenancy of the suit premises. 20. The averments of the defendant No.2 in its written statement that the lease (Ext. 5) had not been acted upon was contrary to the stand taken by the defendant No.1 and thereafter the defendant No.2 before the institution of the suit. We have also referred to paragraph 12(d) of the written statement of the defendant No.2 which contained an implied admission that on or about 1.2.1955 the defendant No.1 was delivered possession and it had become a tenant in pursuance of the aforesaid contract to grant tenancy of Flat No. 12A. It has transpired in evidence that the agents of the different flats of Lansdowne Court increased payment of the occupier's share of the municipal taxes. The defendant No.1 relying upon clause (5) of the aforesaid unregistered lease had denied its liability to pay any extra amount (vide Ext 7). The defendant No.2 by a registered letter dated 30.7.1979 addressed to the plaintiff had, inter alia, claimed right to obtain renewal of the lease as per the Deed of Lease dated 1.2.1955 executed between Property Development Trust Pvt. Ltd. and Braithwaite and Co. Ltd., which was described as at lessee in respect of Flat No. 12A. The defendant No.2 itself stated that the date of commencement of the said lease was 1.2.1955 and it was executed for a period of 25 years with a clause for renewal at the option of the lessee. The said renewal clause was set out in the letter. The defendant No.2 purported to give notice that it was exercising the said right of renewal on the expiration of 25 years. The defendant No.2 had also disclosed that by virtue of the Braithwaite & Co. Ltd. (Acquisition and Transfer of Undertaking) Act, 1976, the undertakings of the defendant No.1 had been transferred and vested in the Central Government. The Central Government by Notification dated 3.12.1976 had directed that the said undertakings shall vest in the Government Company, Braithwaite & Co. Ltd. (Vide Ext. 1). Again on 25.6.1980 the defendant No.2 relying upon the said renewal clause in the lease-deed had made identical claim for obtaining renewal of the lease (Ext. 1a). The plaintiff in reply had denied the defendant's Tight to exercise said option for renewal or the lease, inter alia, on the ground that the lease was void. 21. Ltd. (Vide Ext. 1). Again on 25.6.1980 the defendant No.2 relying upon the said renewal clause in the lease-deed had made identical claim for obtaining renewal of the lease (Ext. 1a). The plaintiff in reply had denied the defendant's Tight to exercise said option for renewal or the lease, inter alia, on the ground that the lease was void. 21. Thus, before the institution of the suit the defendant No.2 had throughout admitted that it was in possession under the said unregistered lease (Ext. 5) and had claimed right of renewal in accordance with same. At the trial of the suit, the defendants did not also take any different stand. In course of cross-examination of the plaintiff's witnesses only a vague suggestion was given on behalf of the defendants that prior to the said registered lease the defendant No.1 had been inducted as a monthly tenant under the then landlord. The plaintiff's witnesses had denied that the defendant No.1 was a monthly tenant. D.W.1, Alok Kumar Ghosh had joined the office long after the defendant No.1 was put in possession of the flat. Therefore, he could have no personal knowledge regarding the induction of the defendant No.1. In reply to questions put during his cross-examination, the D.W.1 claimed that he derived his knowledge from rent bills and he did not know how the rent was paid in respect of the suit premises. He could not deny the suggestion that the payments of rent were on the basis of the purported lease deed dated 1.2.1955. He further admitted that he could not say whether the defendant No.1 had taken possession of the said flat on the basis of the purported lease-deed. D.W.1 also admitted that after expiry of the term of the said lease (Ext. 5) dated 1.2.1955 the defendant No.2 had purported to exercise its option for renewal of the said lease. Rabindranath Chakraborty, D.W. 2, who had served under the defendant No.1 since 1949, also did not state that the defendant No.1 tenancy had commenced prior to the term of the lease mentioned in the unregistered lease-deed. 5) dated 1.2.1955 the defendant No.2 had purported to exercise its option for renewal of the said lease. Rabindranath Chakraborty, D.W. 2, who had served under the defendant No.1 since 1949, also did not state that the defendant No.1 tenancy had commenced prior to the term of the lease mentioned in the unregistered lease-deed. He had merely stated that the keys of the disputed flat had been handed over on 25.1.1955 the defendant No.2 itself had proved that the letter dated 22.1.1955 written by the Property Development Trust Pvt. Ltd. which also contained an endorsement by J.B. Coleman, an officer of the defendant No.1, acknowledging the delivery of the keys of the disputed flat. Apparently, the defendant No.1 was given such access to the flat on 25.1.1955 for carrying out certain works inside the flat and the formal possession of the flat admittedly was given to the defendant No.1 on 1.2.1955. He had also mentioned that on 11.1.1956 the Board of Directors of the defendant No.1 dealt with the lease of the suit flat. D.W. 2 had claimed that he was attached to the Secretariat Department of the defendant No.1 from 1949 to 1960. He, however, did not state that the alleged monthly tenancy in favour of the defendant No.1 in respect of the suit premises bad commenced from 1.2.1955. The statement of D.W.2 that on 23.2.1983 the keys of the flat had been handed over to Mr. Coleman, the Chief Draftsman of the defendant No.1 did not mean that the defendant No.1 tenancy had commenced from the said date. The defendant No.1 and the defendant No.2 had throughout taken the stand that the tenancy had commenced from 1.2.1955. In its judgment the trial court rightly pointed out that the defendant No.1 did not start paying rent from 25.1.1955 but it had began to pay rent only with effect from 1.2.1955. We affirm the trial court's finding that there was no tenancy or relationship of landlord and tenant between the parties prior to the commencement of the unregistered lease dated 1.2.1955. All payments and acceptance of such rents were in terms and in pursuance of the said unregistered lease (Ext. 5). We affirm the trial court's finding that there was no tenancy or relationship of landlord and tenant between the parties prior to the commencement of the unregistered lease dated 1.2.1955. All payments and acceptance of such rents were in terms and in pursuance of the said unregistered lease (Ext. 5). Therefore, the ratio of the Supreme Court decision in the case of Technicians Studio vs. Lila Ghosh (supra) fully applies to the present case and the defendant No.1 and thereafter the defendant No.2 had not become a tenant by paying rent in terms of the said lease (Ext. 5) because such payments constituted acts in furtherance of the unregistered contract of lease in favour of the defendant No.1 prior to the execution of the said contract of tenancy (Ext. 5), In this case, there was "real nexus" between the prior possession of the defendant No.1 and the agreement to grant lease and its possession was unequivocally referable to the said contract (Vide in the case of Sardar Govindarao Mahadik & anther vs. Devi Sahai & other, AIR 1982 SC 989 . Accordingly the defendant No.2 cannot claim any tenancy right on the basis of the later Supreme Court decision in the case of Biswabani Pvt. Ltd vs. Santosh Kumar Dutta (supra). The payments of rent by the defendant No.1 were made in terms of the lease-deed (Ext. 5). Therefore, there was no scope for creating a monthly tenancy in favour of the defendant No.1. Neither the defendant No.1 nor its successor-in-interest the defendant No.2, was a tenant and therefore they did not enjoy protection against eviction. After 31.1.1980 when the term of 25 years as stipulated in the said unregistered lease-deed (Ext. 5) had expired, the plaintiff was entitled to recover possession. We accordingly uphold the decree for eviction passed by the learned Subordinate Judge. 22. The learned Subordinate Judge has ordered that the plaintiff would also get a decree for damages which for the present was confined to the amount upon which court fees had been paid by the plaintiff. Future damages were to be assessed as provided under the law. The learned Subordinate Judge has totally over-looked that under the original unregistered lease-deed executed by M/s. Property Development Trust Pvt. Ltd. and the defendant No.1, the letter was to pay a sum of Rs. Future damages were to be assessed as provided under the law. The learned Subordinate Judge has totally over-looked that under the original unregistered lease-deed executed by M/s. Property Development Trust Pvt. Ltd. and the defendant No.1, the letter was to pay a sum of Rs. 250/- per month for use and occupation of the suit premises according to English Calender. Subsequently, due to enhancement of municipal tax the said monthly sum had been enhanced to Rs. 269.50/- paise per month. The plaintiff in paragraph 12 of the plaint held claimed that after 31.1.1980 it was entitled to recover from the defendants mesne profits at the rate of Rs. 300/- per diem. Up to the date of the institution of the suit, the plaintiff had prayed for recovery of Rs. 33,000/- as mesne profits and thereafter further mesne profits at the same rate till recovery of possession on taking of additional court fees from the plaintiff. 23. Even if the said unregistered lease-deed (Ext. 5) had stipulated that in case of default on the part of the lessee in delivering up vacant possession after expiry of the term of 25 years, the lessee would be liable to pay mesne profits at the rate prevalent at the time in respect of the premises with similar amenities of the locality without any holding of enquiry the Court below has erred in awarding the plaintiff mesne profits at the rate in excess of the monthly rent reserved in the said unregistered lease-deed (Ext. 5). In the first piece, the plaintiff upon whom the onus of proof lay did not establish by satisfactory evidence that the current market value of rent of similar premises would be higher than the said stipulated rate. The test is not that the plaintiff had lost by his exclusion but what the defendant has or might have reasonably received therefrom by his wrongful possession, when the mesne profit is claimed against a tenant who refuses to vacate after the termination of his tenancy, ordinarily, the Court awards mesne profits on the basis of the rent last paid by him (See Mulla on Civil Procedure Code, 13th Edition, pages 928-29). In the facts of the present case where the defendant had been in lawful possession and had behalf paying rent or the rate stipulated in the Lease-Deed up to 31.2.1980, the Court ought not to decree mesne profits at the higher rate against the defendant No.2 after its right to remain in possession had come to an end. In fact, the if learned advocate for the respondent has not seriously disputed the contention of the appellant that the mesne profits ought not to be awarded at the rate exceeding the rate which the appellant had been paying up to the month of January, 1980. This part of the decree of the trial court therefore ought to be set aside with a direction to pass a fresh decree for mense profits at the rate of Rs. 269/- per month. 24. We accordingly dismiss the appeal and affirm the trial court's judgment and decree for recovery of possession passed in favour of the plaintiff/respondent. We however set aside the trial courts decree for mesne profits and remand the case for passing a fresh decree for mesne profits in accordance with law and in the light of the observations made in this judgment. In the circumstances of the case, both parties would bear their respective costs throughout. 25. After the delivery of the judgment, Mr. Banerjee has orally prayed for granting the appellant certificate for preferring appeal to the Supreme Court. In the view that our judgment does not involve any substantial question of law of general importance which is fit to be considered by the Supreme Court, we, therefore, reject the prayer for granting the certificate. On the prayer of Mr. Banerjee four months time is granted to vacate the suit premises. Let the decree be expeditiously drawn up.