JUDGMENT: BHASKAR BHATTACHARYA, J. (1.) These two appeals were heard one after the other as the learned Trial Judge had disposed of the two suits out of which these appeals arise by delivering a common judgment. (2.) The predecessor-in-interest of the appellant before us filed a suit being Ejectment Suit No. 182 of 1990 in the City Civil Court at Calcutta against Sankar Lal Singhania and four others, describing them to be the heirs and legal representatives of one Radha Kishan Agarwala, since deceased, for eviction on the ground of default in payment of rent from January, 1988 and for subletting to one Moni Debi after the promulgation of the West Bengal Premises Tenancy Act, 1956 without the previous consent of the plaintiff in writing. (3.) The case made out in the plaint of the said suit was that the plaintiff was the owner of the suit property and Radha Kishan Agarwala was tenant in respect of one flat in the first floor at a monthly rental of Rs. 135/- (exclusive of pump service charges of Rs. 20/-and proportioned corporation water-taxes) payable according to English calendar. According to the plaintiff, the said Radha Kishan Agarwala died leaving the defendants, the defendant Nos. 1 to 4 being his sons and the defendant No. 5 being his widow. In the said suit, Moni Debi, the alleged subtenant, was not made party. The said Moni Debi, the widow of one Chimanlal Agarwala, and her two children filed an application for being added as defendants in the said proceeding on the allegation that the Chimanlal Agarwala, their predecessor, was the real tenant and after his death, they were occupying the property as such. But the learned Trial Judge dismissed such application for addition of parties. (4.) Subsequently, Moni Debi and her two children filed a separate suit being Title Suit No.938 of 1990 in the City Civil Court at Calcutta for declaration of their tenancy right and for permanent injunction restraining the owner of the building from disturbing their possession in the suit property by virtue of any decree that might be passed against Radha Kishan Agarwala in the earlier suit filed by the owner of the building. (5.) The case made out by Smt. Moni Debi and others in the said suit was that their predecessor, namely, Chimanlal Agarwala, was inducted as a tenant in respect of the self-same suit property at a rental of Rs.125/-a month under a deed of lease dated 19th September, 1956 for a period of 21 years commencing from 1st Day of October, 1957 and since then the said Chimanlal Agarwala had been residing in the said flat. According to those persons, Chimanlal Agarwala died in the year 1974 leaving them as his sole heirs and legal representatives and they had all along been in possession of the flat in question. The specific case made by those heirs of Chimanlal Agarwala was that although the agreement for lease was executed by Chimanlal Agarwala as a lessee, the lessor, from the very beginning, issued the rent receipts in the name of Radha Kishan Agarwala notwithstanding the fact that the said Radha Kishan Agarwala at no point of time ever occupied or resided in the said flat. According to those three plaintiffs, the owner of the building by filing a suit against the alleged heirs of Radha Kishan Agarwala, a fictitious person, was trying to evict the heirs of the real tenant. Hence, the suit was filed for declaration of the tenancy right and permanent injunction against the landlord. (6.) The suit filed by the heirs of Chimanlal Agarwala was contested by the owner of the building thereby denying the material allegations made in the plaint and the defence taken by the owner was that although Chimanlal Agarwala was a tenant in respect of the suit property at one point of time, he surrendered the tenancy in the month of June, 1968 in writing and thereafter, from the month of July, 1968, Radha Kishan Agarwala became a new tenant and he went on paying rent till January, 1988; but thereafter, the heirs of Chimanlal Agarwala describing themselves to be the heirs of Radha Kishan Agarwala sent rent by money order which was refused by the landlord. According to the owner of the building, after the surrender of the tenancy by Chimanlal Agarwala sometime in the year 1988, his heirs were inducted as subtenants by Radha Kishan Agarwala and, therefore, there was no tenancy right subsisting in favour of the heirs of Chimanlal Agarwala. (7.) As indicated earlier, both the suits wore heard analogously. According to the owner of the building, after the surrender of the tenancy by Chimanlal Agarwala sometime in the year 1988, his heirs were inducted as subtenants by Radha Kishan Agarwala and, therefore, there was no tenancy right subsisting in favour of the heirs of Chimanlal Agarwala. (7.) As indicated earlier, both the suits wore heard analogously. The suit for eviction filed against the heirs of Radha Kishan Agarwala was heard ex parte, while the landlord contested the other suit for declaration of tenancy right filed by the heirs of Chimanlal Agarwala. (8.) As mentioned above, the learned Trial Judge, by the judgment and decrees impugned herein, decreed the suit filed by the heirs of Chimanlal Agarwala and ex parte dismissed the suit for eviction filed against Radha Kishan Agarwala. (9.) Being dissatisfied, these two first appeals have been preferred by the owner of the building, one against the dismissal of the suit against Radha Kishan Agarwala and the other, against the decree passed in favour of the heirs of Chimanlal Agarwala. (10.) Before us, none has appeared to contest the appeal preferred against the dismissal of the suit against the heirs of Radha Kishan Agarwala. We have first heard the appeal preferred against the decree passed in favour of the heirs of Chimanlal Agarwala and thereafter, the other appeal, by which the ex parte dismissal of the suit against Radha Kishan Agarwala has been challenged. (11.) First, we propose to deal with the appeal preferred against the judgment and decree passed in the Title Suit No.938 of 1990 filed by the heirs of Chimanlal Agarwala. (12.) Mr. De, the learned Advocate appearing on behalf of the appellant, has attacked the judgment and decree passed by the learned Trial Judge by contending that the learned Trial Judge, simply on the basis of rent receipts produced by the plaintiffs themselves, ought to have dismissed their suit for declaration of tenancy right. (12.) Mr. De, the learned Advocate appearing on behalf of the appellant, has attacked the judgment and decree passed by the learned Trial Judge by contending that the learned Trial Judge, simply on the basis of rent receipts produced by the plaintiffs themselves, ought to have dismissed their suit for declaration of tenancy right. Mr De points out that it was the specific case of the plaintiffs-respondents that although the tenancy in favour of their predecessor commenced in the year 1956, right from the start, the rent receipts were granted in the name of Radha Kishan Agarwala whereas they themselves have produced the rent receipts showing that up to month of June, 1968, the rent receipts were granted in the name of Chimanlal Agarwala and thereafter, the rent receipts were granted in the name of Radha Kishan Agarwala from July, 1968 till January, 1988. Mr. De further submits that even thereafter, the plaintiffs tendered rent by money order by falsely describing themselves to be the heirs and legal representatives of Radha Kishan Agarwala but such rent tendered through money order was refused. He further submits that it has been well established from the evidence that after the surrender of tenancy by the predecessor-in-interest of the plaintiffs, a new electric meter was taken in the name of Radha Kishan Agarwala and the same is still continuing. Mr De submits that merely because some documents have been produced showing that heirs of Chimanlal Agarwala were occupying the property even after 1968, for that reason, there cannot be any presumption of continuance of tenancy, when express surrender in writing by Chimanlal Agarwala has been proved. He, therefore, prays for dismissal of the suit. (13.) Mr. Sakti Nath Mukherjee, the learned senior Advocate appearing on behalf of the plaintiffs-respondents, has, on the other hand, supported the judgment and decree passed by the learned Trial Judge and has contended that simply because a letter of surrender was allegedly signed by his clients predecessor, such fact ipso facto cannot imply termination of the admitted tenancy unless the landlord establishes that pursuant to surrender, he got actual possession of the property in question. Mr Mukherjee assiduously contended before us that his clients had all along been in possession of the property from the year 1956 onwards as would be reflected from the voters list as well as from the other documents, namely, school register of the plaintiff No. 2. In other words, Mr Mukherjee submits that the plaintiff No. 2 was admitted in the school in 1964 giving the address of the suit property as her place of residence and she passed out from the said school long thereafter without changing the said address, whereas, it is the specific case of the landlord that sub-tenancy was created sometime in the year 1988. Mr. Mukherjee submits that once it is established that even prior to the year 1988, his clients were in possession of the property, it must be presumed that the old tenancy was continuing. Mr Mukherjee further submits that no document has been produced before the Court showing that at any point of time Radha Kishan Agarwala was in actual possession of the property. He, therefore, prays for dismissal of the appeal. (14.) After hearing the learned Counsel for the parties and after going through the materials on record, we find that the specific case made out by the plaintiffs was that although the tenancy in favour of their predecessor commenced in the year 1956, from the very beginning, the rent receipts were granted in the name of Radha Kishan Agarwala and, therefore, the tenancy from the very beginning was created in the name of a fictitious person. The landlord, on the other hand, has, however, produced document showing express surrender by Chimanlal in support of his contention that such assertion is wrong and such fact has further been proved to be wrong from the rent receipts produced by the plaintiffs themselves showing that till June, 1968 rent receipts were granted in the name of Chimanlal Agarwala. It is, therefore, apparent that the foundation of the plaint case is based on falsehood. We further find that the letter of surrender written by Chimanlal Agarwala was marked as exhibit and at the same time, induction of Radha Kishan Agarwala has been proved by the documentary evidence signed by Radha Kishan Agarwala himself. It has also been established that a new electric meter was taken in the tenanted portion after 1968. We further find that the letter of surrender written by Chimanlal Agarwala was marked as exhibit and at the same time, induction of Radha Kishan Agarwala has been proved by the documentary evidence signed by Radha Kishan Agarwala himself. It has also been established that a new electric meter was taken in the tenanted portion after 1968. We are unable to accept the contention of Mr Mukherjee that a new electric meter in the name of Radha Kishan Agarwala was taken at the instance of a fictitious person under the provision of the Electricity Act when according to him the flat was then in exclusive possession of his clients. The question, in that event, that would crop up in the mind of any prudent individual will be why should the plaintiffs or their predecessor, viz. Chimanlal Agarwala, permit the landlord to change the previous electric meter and install a new meter in the name of a fictitious person and at the same time, what was the reason that the original tenant who was in possession of the property as tenant would accept the rent receipts granted in the name of a fictitious person from July, 1968. (15.) In our view, the onus is upon the plaintiffs to answer those questions as both the rent receipts, i.e. those in the name of Chimanlal and as also the others in the name of Radha Kishan, were lying in their custody and those were not in dispute. If a person is recognised by the landlord as a tenant by grant of rent receipts there is no reason why such a tenant should accept rent receipts issued by the landlord in the name of a fictitious person when his tenancy is a secured one under the provision of the West Bengal Premises Tenancy Act. Similarly, there was no justification for installation of a new electric meter in the name of Radha Kishan Agarwala. We have already pointed out that the case pleaded in the plaint has been proved to be a false one as the rent receipts were never granted in the name of Radha Kishan Agarwala from the very beginning. At this stage, it will be pertinent to mention that the deed of 1956 in favour of Chimanlal Agarwala was not registered and therefore, the tenancy of Chimanlal before surrender was governed by the West Bengal Premises Tenancy Act, 1956. At this stage, it will be pertinent to mention that the deed of 1956 in favour of Chimanlal Agarwala was not registered and therefore, the tenancy of Chimanlal before surrender was governed by the West Bengal Premises Tenancy Act, 1956. (16.) The next question is in view of the fact that the possession of the plaintiffs in the property even before 1988 having been established whereas the landlord has alleged the sub-tenancy from or about 1988, whether for that reason, the suit filed by the plaintiffs should succeed. (17.) In our opinion, once surrender of tenancy of Chimanlal Agarwala has been proved and the case made out in the plaint that the rent receipts were all along granted in the name of Radha Kishan Agarwala has been proved to be a false one, even if it is established from the evidence that Chimanlal Agarwala or his heirs were found to be in possession of the property before 1988, the alleged time of induction of sub-tenancy by Radha Kishan given in the plaint, such fact is inconsequential for deciding whether the original tenancy was continuing. We have already pointed out that the surrender of tenancy of Chimanlal Agarwala has been proved. The induction of Radha Kishan Agarwala has also been proved by the documentary evidence and at the same time, installation of new electric meter in the name of Radha Kishan under the provision of the Statute by the statutory authority has been proved. In such circumstances, the presence of the plaintiffs even prior to 1988 is insignificant. If a landlord alleges subletting from a particular point of time but if it is established that the sub-tenancy continued prior to that date but after the surrender of the old tenancy in favour of Chimanlal and the creation of new tenancy in favour of Radha Kishan, for that reason, the allegation of subletting cannot be turned down. We similarly find no substance in the contention of Mr. Mukherjee that the recording in the inspection report of the Calcutta Corporation showing that Chimanlal Agarwala was in possession would in any way confer benefit upon his clients. Mere possession in the property after surrendering tenancy right cannot confer any right of tenancy unless fresh tenancy in favour of the plaintiffs or their predecessor is established. Such is even not the case of the plaintiffs. Mere possession in the property after surrendering tenancy right cannot confer any right of tenancy unless fresh tenancy in favour of the plaintiffs or their predecessor is established. Such is even not the case of the plaintiffs. (18.) We, therefore, find that the learned Trial Judge erred in granting a decree for declaration of tenancy right in favour of the plaintiffs in spite of overwhelming documentary evidence showing surrender of tenancy by Chimalal and falsifying the case made out in the plaint. Once the actual surrender of tenancy of Chimanlal and induction of Radha kishan in the suit property is proved, various decisions cited by Mr. Mukherjee that in order to prove express suffender of tenancy, the surrender of possession must be proved are of no avail to his clients. We accept the proposition of law laid down in those decisions but hold that case, actual surrender of possession by Chimanlal in the month of June, 1968 has been established. (19.) We, therefore, set aside the judgment and decree passed by the learned Trial Judge and hold that the plaintiffs had failed to prove that the tenancy created in favour of their predecessor continued even after June, 1968. The appeal is, thus, allowed. (20.) So far the other appeal preferred against the dismissal of the suit for eviction filed by the predecessor of the appellants is concerned, we find that there is no discussion at all by the learned Trial Judge and by simply relying upon the judgment passed in the other suit, he had dismissed the suit for eviction against the heirs of Radha Kishan. (21.) It has been well-established that Radha Kishan Agarwala was inducted in the property as would appear from the letter admitting induction and the rent receipts produced by the plaintiffs of the other suit establishes that he used to pay rent up to January, 1988 and, thereafter, defaulted in payment of rent. Similarly, ground of subtenancy has also been established as would appear from the fact that the heirs of Chimanlal were in possession in spite of having no right. Although, the sub-tenancy was allegedly created from the 1988, in evidence, it has been established that the subtenancy really started at an earlier point of time after the surrender of tenancy by Chimanlal Agarwala. The heirs of Radha Kishan Agarwala did not come forward to dispute allegations made against them. Although, the sub-tenancy was allegedly created from the 1988, in evidence, it has been established that the subtenancy really started at an earlier point of time after the surrender of tenancy by Chimanlal Agarwala. The heirs of Radha Kishan Agarwala did not come forward to dispute allegations made against them. In our view, the suit should be decreed on the ground of default and subletting. The heirs of Radha Kishan Agarwala did not avail of the provision of section 17 of the West Bengal Premises Tenancy Act. The notice of eviction has also been proved to be duly served and, thus, it is a fit case for grant of a decree of eviction against the defendants in the ejectment suit filed by the appellants. The judgment and decree passed by the learned Trial Judge dismissing the suit ex parte are set aside and in place of that we pass a decree for eviction against the heirs of Radha Kishan Agarwala on the ground of default in payment of rent and sub-tenancy. (22.) The other appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.