JUDGMENT 1. THIS revisional application under section 115 of the Code of Civil Procedure is at the instance of defendant no. 1 in a suit for eviction and is directed against Order No, 104 dated July 25, 1997 passed by the learned Munsif. 2nd Court, Alipore in Title suit No. 148 of 1984 thereby disposing of an application under section 17 (2) of the West Bengal Premises Tenancy Act filed by the petitioner herein. 2. THE opposite party no. 1 filed the aforesaid Title Suit No. 148 of 1984 for eviction of the present petitioner on the ground of default in payment of rent from April, 1982. In the said suit, the opposite party no. 2 was made a proforma defendant. According to the opposite party no. 1, the opposite party no. 2 was a tenant in respect of the suit property and the said opposite party no. 2 by a letter dated January 27, 1982 expressed his intention to surrender the tenancy on the expiry of January 31, 1982 and thereafter the petitioner was inducted in the suit flat from February 1, 1982. According to the opposite party no. 1, the petitioner failed to pay any rent from the month of April, 1982. 3. AFTER entering appearance in the suit, the present petitioner filed an application under Section 17 (2) of the West Bengal Premises Tenancy act thereby disputing relationship of landlord and tenant between the parties. According to the present petitioner although be agreed to take tenancy on payment of rent and amount of rent was paid for the month of February, 1982 and he also deposited certain an amount as security as the opposite party no. 2 did not vacate the suit flat. inspite of giving letter of surrender he never got possession of the suit flat. Therefore, according to the petitioner no tenancy ever commenced. 4. IT will not be out of place to mention here that the defendant no. 2 appeared in the said suit and filed an application under Section 151 of the Code of Civil Procedure before the learned trial Judge thereby stating that although he gave notice expressing his intention to surrender by January 31, 1982 but as he could not wind up his affairs in Calcutta by the end of January, 1982, he informed opposite party no. 1 that he would vacate the premises by the end of February, 1982 and the security deposit for one month rent should be adjusted towards rent for February, 1982. Subsequently, on March 1, 1982 the said opposite party no. 2 came to Calcutta to hand over possession of the tenanted portion to the opposite party no. 1 but he refused to accept possession from him. Thereafter, the said opposite party no. 2 by letter asked the opposite party no. 1 to take possession but the opposite party no. 1 refused to take possession. On such allegation, the opposite party no. 2 prayed before the learned trial Judge to pass a direction upon the opposite party no. 1 to take vacant possession of the premises from opposite party no. 2. It appears from Order No. 39 dated August 10, 1998 that the learned trial Judge disposed of the said application by permitting the opposite party no. 2 to deposit the key of the said premises in the court and the opposite party no. 1 was asked to take the said key without prejudice to the rights and contention in the suit. 5. BY the order impugned, the learned trial Judge has held that by agreement dated February 1, 1982 between the petitioner and opposite parry no. 1, a tenancy was created and that the petitioner was a defaulter in payment of rent from April, 1982 till August 10, 1998 when possession was taken by the plaintiff pursuant to the Order No. 39 dated August 10, 1998. Therefore, according to the learned trial Judge, the petitioner was entitled to suspension of rent from August 11, 1988. 6. BY the order impugned, the learned trial Judge directed the petitioner to pay a sum of Rs. 53,489/- as arrears with interest from April, 1982 till August 10, 1988. Being dissatisfied, the defendant no. 1 has preferred the instant revisional application. 7. MR. Mukherjee, the learned advocate appearing on behalf of the petitioner contends that in view of the application filed by the opposite party no. 2 stating that the key of the flat was with him and that the opposite party no. 1 never took possession from the opposite party no. 2, the learned trial Judge acted illegally and with material irregularity in holding that a tenancy was created in favour of the petitioner from February 1, 1982. 8. THE opposite party no. 2 stating that the key of the flat was with him and that the opposite party no. 1 never took possession from the opposite party no. 2, the learned trial Judge acted illegally and with material irregularity in holding that a tenancy was created in favour of the petitioner from February 1, 1982. 8. THE opposite party no. 1 has appeared in person and has supported the order passed by the learned trial Judge and has contended that in view of the signature of the petitioner on the counter foil of the rent receipt showing deposit of rent for the month of February, 1982 there was no mistake in the order passed by the learned trial Judge holding that a new tenancy was created with effect from February 1, 1982. The opposite party no. 1 contends that after February 1, 1982 although the wife of the opposite party no. 2 stayed in the suit property, she stayed as a guest of the present petitioner in view of the surrender letter given by the opposite party no. 2. According to the opposite party no. 1, mere handing over of key does not mean that possession was with the opposite party no. 2. After hearing the learned advocates for the parties and after going through the materials on record I find that the former tenant in this case having come forward and asserted that the opposite party no. 1 never took possession from him and having handed over the key of the flat before court, prima facie no tenancy can be created in favour of the petitioner merely because he Paid rent for the month of February 1982. 9. LEASE is a doctrine of separation of ownership and possession. By creating a lease, the owner of a property retains title with himself but hands over possession to the tenant. In the instant case although the petitioner agreed to accept tenancy and paid rent in advance that does not create tenancy unless it is established that he actually got possession of the property. In this case, the previous tenant has been made party and the said tenant himself has come before court and said that the landlord did not accept possession from him although he was ready to give possession. He has even admitted his liability to pay rent for the month of February, 1982. In this case, the previous tenant has been made party and the said tenant himself has come before court and said that the landlord did not accept possession from him although he was ready to give possession. He has even admitted his liability to pay rent for the month of February, 1982. Therefore, no tenancy can be created from the month of February. 1982 as alleged by the opposite party no. 1. 10. IN view of the fact that the landlord has already taken possession of the flat and the petitioner is also not claiming his right over the property as a tenant, in my opinion, only question which is left to be decided in the suit is whether the opposite party no. 1 had the liability to pay rent from February 1, 1982. Under aforesaid circumstances, in my opinion, no fruitful purpose can be served by separately disposing of the application under Section 17 (2) of the West Bengal Premises Tenancy Act inasmuch as the tenant is not willing to take protection against eviction. It is now established law that any decision passed on an application under Section 17 (2) of the Act is not final for the purpose of the main issue in the suit unless the said application under Section 17 (2) of the Act is decided along with the main issue as to the existence of relationship of landlord and tenant between the parties. In the instant case, the issue was not decided along with the application under Section 17 (2) of the Act. In view of my aforesaid finding, the order passed under Section 17 (2)of the West Bengal Premises Tenancy Act cannot be said to be a proper finding of fact. In arriving at such a finding the learned trial Judge failed to consider the impact of the application under Section 151 of the Code of Civil Procedure filed by the opposite party no. 2 and the essential ingredients of creation of a tenancy. 11. THEREFORE, the order impugned is set aside. I, however, direct the learned trial Judge to decide the issue as to relationship of landlord and tenant between the parties positively within a month from communication of this order after giving opportunities to the parties to lead evidence on the question. 2 and the essential ingredients of creation of a tenancy. 11. THEREFORE, the order impugned is set aside. I, however, direct the learned trial Judge to decide the issue as to relationship of landlord and tenant between the parties positively within a month from communication of this order after giving opportunities to the parties to lead evidence on the question. I make it clear that while deciding such issue the learned trial Judge will not be influenced by the order passed by this court while setting aside the order impugned and will decide the same on the basis of evidence that will be placed before him bearing in mind the principle of law that mere payment of rent cannot create any tenancy unless the tenant is given possession of the demised promises. 12. WITH the above observation the order impugned is set aside and the revisional application is allowed. In the facts and circumstances there will be however no order as to costs. Revision allowed.