JUDGMENT Surya Kumar Tiwari, J.: This appeal arises out of a judgment delivered by the Hon'ble Justice Dipak Kumar Sen on 25th and 27th of February, 1976, in Civil Suit No. 1229 of 1956. 2. By a registered Lease Deed dated 03.07.1941, the premises described in the Lease Deed (Exhibit 'O' at page 297 of the paper book) was leased out by Chitpur Golabari Company Limited. Allen Berry & Company Limited was a Lessee and the demised premises was 24-B, Park Street. Even after the expiry of the lease period, the Lessee Allen Berry & Co. continued to remain in possession of the premises. The Lessee served a notice on the Lessor on 12.08.1953, intimating that the Lessee would be vacating the tenanted premises on 31st August, 1953 at 3.30 P.M. The said notice is printed at page 259 of the paper book. The Lessee, on 26th of August, 1953 wrote another letter to the Landlord, expressing their inability to vacate the premises and desired that the Lessee wanted to continue as tenant in future also. 3. On 28th of August, 1953, the Lessor wrote to the lessee that the notice served by the Lessee had already been accepted and that notice could not be withdrawn except by mutual consent. 4. The lessee -intimated to the Lessor that since the sub-tenants were unwilling to vacate the premises, they were unable to surrender the possession of the premises to the Landlord. In the meanwhile the lessee had sub-let another portion measuring 4000 sq. ft. to the appellant Chowringhee Sales Bureau Pvt. Ltd., on a monthly rent of Rs. 1000/(Rupees one thousand only) with effect from 21st January, 1954. 5. On May 28, 1954, the lessor filed a suit for ejectment in the High Court (Civil Suit No. 1654 of 1954). On 28th March, 1955 suit No. 1645 of 1954 was disposed of in view of private settlement between Lessor and Lessee. Terms of Settlement were filed in the court and are enumerated in the application filed in the suit (printed at page 281 of the paper book.). 6. The parties informed the court that possession of so much portion which was in occupation of Asia Udyog Limited had already been handed over to the plaintiff and the defendant has handed over a list of subtenants of the said premises to the plaintiff along with the correspondence. 6. The parties informed the court that possession of so much portion which was in occupation of Asia Udyog Limited had already been handed over to the plaintiff and the defendant has handed over a list of subtenants of the said premises to the plaintiff along with the correspondence. The petition further contended that these sub-tenants were inducted without the contest of the plaintiff. It was further admitted by defendant in the application that the possession of the premises was surrendered in view of the notice dated 12th August, 1953. 7. All the aforesaid facts are not in dispute between the parties. 8. On April 1955, the plaintiff's Solicitor served a notice on the defendant/appellant stating that Allen Berry had no right to induct him as a sub-tenant and that the defendant was only a trespasser in the said premises. The defendant was called upon to vacate the premises and deliver peaceful possession of the portion occupied by him. The plaintiff also returned the defendant's cheque dated 05.04.1955 along with the letter. 9. On 7th May, 1956, the present suit came to be filed. On 27th April, 1955, Calcutta Credit Corporation purchased the suit premises from Chitpore Golabari Co. Ltd. Hence, the Corporation also was joined as a Co-plaintiff. 10. The suit was resisted by the defendant on the ground that the tenancy of the principal tenant, Allen Berry, was not terminated properly before sub-letting a portion of the premises to the defendant. Want of consent of the plaintiff shall be deemed to have waived as per terms of settlement filed by Lessor and Lessee in the Court. As per terms of settlement, the defendant have sent the rent for the month of March, 1955 but the same was returned by the plaintiff. The defendant, further, alleged that since the Allen Berry was competent to sub-let the premises being a tenant of the first decree, the defendant became direct tenant in the premises under the principal landlord and was entitled to the protection of the Rent Control Legislation. The trial court decreed the suit. Hence this appeal. 11. A similar litigation on the basis of identical facts regarding the adjoining portion was contested between the parties where the sub-tenancy was claimed by Happy Homes Limited and the same was decided by the Supreme Court in the year 1967 (reported in AIIR 1968 SC page 471). The trial court decreed the suit. Hence this appeal. 11. A similar litigation on the basis of identical facts regarding the adjoining portion was contested between the parties where the sub-tenancy was claimed by Happy Homes Limited and the same was decided by the Supreme Court in the year 1967 (reported in AIIR 1968 SC page 471). The learned counsel for appellant has placed reliance on the case of Dhanapal Chattklr vs. Yesodai Ammal (AIR 1979 SC page 1745) which lays down when a tenant is protected under the Rent Control Act, the tenancy actually terminates on the passing of the order or decree for eviction. Hence giving of the notice under s. 106 of the Transfer of Property Act was a mere surplusage. The counsel argues that even if a notice was served by the previous tenant Allen Berry & Co., they continued to be tenant even after creation of sub-tenancy. This case actually lays down that even if landlord serves: a notice under s. 106 of the Transfer of Property Act, the rights of tenant would be unaffected until a decree for ejectment is passed by a competent court. But the case of Dhanapal Chattiar (supra) does not lay down that the tenant himself cannot put an end to his tenancy by serving a notice on the landlord under s. 111(k) of the Transfer of Property Act. 12. We shall now consider whether Allen Berry voluntarily and lawfully brought their tenancy to an end? Allen Berry had served a notice on 12.08.1953, intimating that the premises would be vacated by them at 3.30 P.M. on 31st August, 1953. The Supreme Court in case of Calcutta Credit Corporation vs. Happy Homes ( AIR 1968 SC 471 ) upheld the validity of notice given under the similar circumstances. The Supreme Court in Happy Homes case held “we are unable to agree with the counsel for the respondent that in order to determine a tenancy under Transfer of Property Act at the instance of a tenant, there must be actual delivery of possession before the tenancy is effectively determined. This contention is contrary to plain terms of s. 111(h) of the Transfer of Property Act. We are, therefore, of the opinion that by virtue of the notice dated August 12, 1953, and acceptance thereof by the landlord, the tenancy of Allen Berry was determined at 3.30 P.M. on August 31, 1953”. This contention is contrary to plain terms of s. 111(h) of the Transfer of Property Act. We are, therefore, of the opinion that by virtue of the notice dated August 12, 1953, and acceptance thereof by the landlord, the tenancy of Allen Berry was determined at 3.30 P.M. on August 31, 1953”. 13. Now a question would arise where a tenant who has served a notice on the loandlord intimating his intention to quit on a certain date but refuses to quit and inducts a sub-tenant after the termination of his contractual lease, can a tenant pass any estate on the sub-tenant? Such a tenant whose days are numbered and is awaiting an ejectment cannot be said to have passed any estate in favour of the sub-tenant, without consent of the landlord. 14. In Happy Home's case (supra) the legal provisions and the rights of such tenants have been described thus:- "A statutory tenant has no interest or estate in the premises occupied by him, and we are unable to hold that the legislature without making an express provision to that effect intended to invest him with power to induct into the premises in his occupation a person who would be entitled to claim the right and interest of the contractual tenant.......... The legislature has not made any such express provision, and no provision to that effect which makes the right of the landlord conferred by the Act to obtain a decree in ejectment against his tenant wholly illusory may be implied.” 15. It, therefore, follows that when Allen Berry served a notice that his tenancy would come to an end on 31st August, 1953 at 3.30 P.M., Allen Berry's occupation in the tenanted premises thereafter remained only personal and the ratio of Happy Home's case (supra) would apply to this case with all force. 16. The learned counsel for the appellant has placed reliance on case of Dhamadilal & Ors. vs. Paras Ram & Ors. (reported in AIR 1976 SC 2229 ) and Sm. Gain Devi Anand vs. Jeevan Kumar & Ors., (reported in AIR 1985 SC 796 ). These two cases relate to heritability of the interest of the statutory tenant and it was held that the legal representatives of the deceased tenant who were occupants of the premises, after the death of the original tenant, did inherit the tenancy rights. Gain Devi Anand vs. Jeevan Kumar & Ors., (reported in AIR 1985 SC 796 ). These two cases relate to heritability of the interest of the statutory tenant and it was held that the legal representatives of the deceased tenant who were occupants of the premises, after the death of the original tenant, did inherit the tenancy rights. The Supreme Court in case of Bhul Chand vs. M/s. Key Pee Cee Investments & Ors. (reported in AIR 1991 SC at page 2053) has distinguished Dhamadilal’s case and laid down as under:- “The observations made and the decisions rendered in Dhamadilal's case (supra) cannot, therefore, be construed as holding that a statutory tenant has a right to create a sub-tenancy during subsistance of statutory tenancy after expiry of contractual tenancy when Rent Acts give the same protection against eviction to the tenant except on one or more of the specified grounds. Obviously, the protection to the statutory tenant and the heritable nature of the statutory tenancy providing the same protection against evictions to tenant's heirs does not further require conferral of the right of inducting a sub-tenant which is not necessary for enjoyment of the tenancy and the protection given against the eviction given by Rent Acts.” 17. It has also been laid down by the Supreme Court in case of S.J. Pandey vs. P.K. Bala Krishnan (reported in AtR 1993 SC 2132), that unless there is a specific provision in the Rent Act putting a statutory tenant at par with contractual tenant, the licence created in favour of the licencee, by statutory tenant, under Bombay Rent Act could not create a valid licence within the meaning of the Act. 18. We, therefore, hold that the defendant did not acquire the right of a sub-tenant in the suit premises. 19. The next point for consideration is whether the defendant acquired the rights of a full fledged tenant by virtue of the terms of compromise petition, filed in the previous suit between plaintiff and Allen Berry? 20. The learned counsel for the appellant/defendant has urged that the compromise petition filed in the previous suit was not based on any of the grounds enumerated in s. 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The said decree for ejectment was not valid and hence Allen Berry continues to be a tenant in respect of the entire tenanted premises. The said decree for ejectment was not valid and hence Allen Berry continues to be a tenant in respect of the entire tenanted premises. According to appellant's counsel, a decree for ejectment of the tenant without proving any of the grounds under the Act could not have been passed in view of the law, laid down by the Supreme Court in Feroji Lal jain's case ( AIR 1970 SC 794 ). 21. We agree with the findings recorded by the Trial Court that the terms of compromise filed in the court was not an ejectment decree at all. It provided (1) the tenant had already delivered vacant possession of the premises to the plaintiff; (2) That the defendant has handed over to the plaintiff's representative a list of sub-tenants of the said premises No. 24/B, Park Street, showing the rents which were respectively paid by the said sub-tenants to the defendant each month; (3) That the defendant had also handed over to the representative of the plaintiff all correspondences that passed between the defendant and the said subtenants relating to the formation of the sub-tenancy; (4) That the defendant had 'issued necessary letters of attornment to the sub-tenants in favour of the plaintiff; (5) That the defendant confirms, through its director Sri S.K. Sanghi that the defendant has not accepted and will not accept any rent from the said sub-tenants since 1st March, 1955; (6) That the plaintiff would be at liberty to retain the sub-tenants as the tenants of the plaintiff or may take legal steps to eject such sub-tenants or any of them. 22. The learned counsel for the plaintiffs: has argued that since the defendant in this suit had no status as a sub-tenant his description as subtenant in the settlement application did not confer any rights on him. Hence, any reference to the defendant as sub-tenant in the compromise petition would not be deemed to be an admission made by the plaintiff. 23. The petition clearly says that it would be the sale choice of the plaintiff whether to retain the sub-tenants or to get them ejected through court. Hence, the compromise petition did not confer any tenancy rights on the appellant. 24. 23. The petition clearly says that it would be the sale choice of the plaintiff whether to retain the sub-tenants or to get them ejected through court. Hence, the compromise petition did not confer any tenancy rights on the appellant. 24. The learned counsel for the appellant has also urged that when the suit under appeal was instituted, West Bengal Act No. XII of 1956 had come into force and by virtue of s. 16(2), the defendant became a direct tenant under the plaintiff. Sub-sections (2) & (3) of s. 16 of W.B. Act No. 12 of 1956 read :- “(2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sub-let any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sub-let shall give notice to the landlord of such sub-letting in the prescribed manner (with six months) of the commencement of this Act and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination. (3) Where in any case mentioned in sub-so (2) there is no consent in writing of the landlord and the landlord denies that he give oral consent, the Controller, shall, on an application made to him in this behalf either by the landlord of the sub-tenant within two months of the date of the receipt of the notice of sub-letting by the landlord or the issue of the notice by the sub-tenant, as the case may be, by order declare that the tenant's interest in so much of the premises as has been sub-let shall cease and the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from the date of the order. Rents so fixed shall be deemed to be fair rent for purposes of this Act.” 25. Rule 4 of West Bengal Premises Tenancy Rule 1956 provides the manner of giving notice under s. 16 which is as below :– “4. Rents so fixed shall be deemed to be fair rent for purposes of this Act.” 25. Rule 4 of West Bengal Premises Tenancy Rule 1956 provides the manner of giving notice under s. 16 which is as below :– “4. Manner of giving notices relating to Sub-tenancies under s. 16-Notices of creation and termination of sub-tenancies under sub-so (1) of S. 16, and where before the commencement of the Act a tenant has sub-let any premises, notices of such sub-letting and the termination of such sub-tenancies under sub-s. (2) of that section shall be given by the tenant and the sub-tenant to the landlord by registered post with acknowledgment due and shall contain the following particulars, namely :– (a) location of the premises let to the tenant with description thereof sufficient for identifying the same (e.g. No. of the premises, name of the street, police station, etc.); (b) name of the tenant; (c) name of the sub-tenant; (d) details of the portion sub-let; (e) rent payable by the sub-tenant; (f) date of creation/termination of the sub-tenancy; and (g) any other relevant information.” 26. Admittedly after 30th March, 1956, the defendant/appellant did not give any notice in prescribed form to the plaintiff. 27. The learned counsel for the appellant has stated in paras 14 and 15 of the written statement (at page 12 of the paper book) that the plaintiff by virtue of being a sub-tenant has become a direct tenant of the plaintiff. Hence, this may be deemed as a sufficient notice for the purpose of this Act. 28. Neither defendant served any notice on the landlord nor did he request the original tenant Allen Berry to do so within 6 months of the coming into force of this Act, nor did he approach the Rent Controller for apportioning the rent and declaring him a direct tenant. Hence vague averments in the written statement cannot be termed as notice. Since the defendant's very induction did not confer any lawful sub-tenancy rights on the defendant he cannot be said to have acquired any rights in the suit premises. We hold that the defendant failed to avail of the opportunities available to him under s. 16 of the West Bengal Premises Tenancy Act, 1956, within a period of 6 months from the date of coming into force of this Act. We hold that the defendant failed to avail of the opportunities available to him under s. 16 of the West Bengal Premises Tenancy Act, 1956, within a period of 6 months from the date of coming into force of this Act. Hence, even if, it is held that he was lawfully inducted as a sub-tenant in the suit premises by Allen Berry & Co., he did not acquire the rights of a sub-tenant or tenant directly under the landlord. The plea of the defendant that the notice was not mandatory in view of cases reported in 64 CWN 284, 67 CWN 275 and 67 CWN 272, do not merit discussion in view of our findings recorded above. 29. The learned counsel for the appellant has invited our attention to the letter dated 15.6.1954, written by the plaintiff to defendant offering him to become a tenant directly under the original landlord. The defendant's reply to this letter is at page 477 of the paper book, whereby, the defendant wanted to have a copy of the plaint in the eviction suit filed against Allen Berry & Co. and wanted to know the present stage of the suit. Even when an offer was made by the plaintiff, the defendant evaded to become a tenant directly under him. Hence the defendant cannot claim to have attained the status of tenant or sub-tenant on any count. 30. The next point that has been urged by the learned counsel for the appellant is that when a decree for ejectment had been passed against the tenant, the same was binding even on the present defendant and the present suit would be barred under s. 47 of the Code of Civil Procedure. 31. This plea was never raised in the written statement and has been raised for the first time in appeal. Hence it does not merit any consideration. Even if this plea is allowed to be raised, it would suffice to say that since we have held that the defendant had not acquired the status of a lawfully inducted the sub-tenant, his position would be that of a mere tresspasser and the bar of s. 47 of the Code of Civil Procedure would not be attracted. 32. Even if this plea is allowed to be raised, it would suffice to say that since we have held that the defendant had not acquired the status of a lawfully inducted the sub-tenant, his position would be that of a mere tresspasser and the bar of s. 47 of the Code of Civil Procedure would not be attracted. 32. The learned counsel for the respondent has invited our attention to the cross-objection filed by him, wherein, the quantum mesne profits awarded by the Trial Judge has been challenged and it has been urged that the mesne profit should be based on the prevailing market rate of rent or it should be assessed on the basis of profits actually received by the defendant as an unlawful occupant. 33. ‘Mesne profit’ has been defined in s. 2(12) of the Civil Procedure Code as those profits which the person is in unlawful possession of suit property actually receives or might with ordinary deligence receive therefrom together with interest on such profits. Unfortunately the plaintiff in his amended plaint has claimed mesne profits at the rate of 40 rupees per day which comes to Rs. 1,200/- per month. The plaintiff cannot claim more than what he has claimed in the relief clause of the plaint. 34. We, therefore, hold that the Trial Court was justified in allowing the mesne profits at the rate of Rs. 1,000/- per month. The amount was being realised periodically by the Receiver and the same is being invested. 35. Consequently, the appeal deserves to be dismissed and is hereby dismissed. Cross-objection is also dismissed. The defendant shall suffer his own cost and shall pay that of the plaintiffs. Counsel's fee is quantified at 300 G. Ms. 36. Mr. Anupam Chatterjee, a member of the Bar, had been appointed a Receiver in the matter. He will be entitled to a further remuneration of Rs. 10,000/-. Mr. Chatterjee, the, receiver, will recover such amount from the deposits held by him. In view of our judgment Mr. Chatterjee, the Receiver, stands discharged from further acting as Receiver. Filing of accounts is dispensed with. After deduction of his further remuneration whatever sum will be lying in his hand as Receiver may be refunded to the decree-holder within a period of a fortnight from date. 37. Learned counsel for the appellant prays for stay of operation of this order. Chatterjee, the Receiver, stands discharged from further acting as Receiver. Filing of accounts is dispensed with. After deduction of his further remuneration whatever sum will be lying in his hand as Receiver may be refunded to the decree-holder within a period of a fortnight from date. 37. Learned counsel for the appellant prays for stay of operation of this order. Let there be stay of operation of this judgment and order for a period of a fortnight from date. 38. Reveiver and all parties are to act on a signed copy of the operative portion of this judgment and order on the usual undertaking. Prabir Kumar Majumdar, J : I agree. Appeal dismissed.