JUDGMENT Debangsu Basak, J. 1. The second appeal, at the behest of the plaintiff, was directed against a judgment of confirmation. A suit for ejectment on the ground of expiry of lease was dismissed by the Trial Court. The judgment of dismissal was upheld on appeal. 2. The Plaintiff No. 1 purchased the suit property. The original defendant was a lessee in the suit property at the time of purchase by the Plaintiff No. 1. A lease deed dated March 2, 1959 was executed by the original owner in favour of the original defendant. The lease was for a period of 21 years. During the subsistence of the lease the rent was increased from Rs.110 to Rs.150/- per month and thereafter from Rs.150/- to Rs.200/- per month. Subsequent the purchase, the Plaintiff No. 1 sold the suit property to the Plaintiff No. 2. The Plaintiff No. 2 subsequently amalgamated with the Plaintiff No. 3. 3. The original defendant filed written statement and took diverse defence. The principal defence of the original defendant which found favour with the Courts below was that, the initial tenancy existing in favour of the original defendant was not surrendered and, therefore, the lease deed dated March 2, 1959 was void ab initio. 4. The second appeal was admitted on March 29, 2000. Two substantial questions of law were framed on January 10, 2014. 5. Appearing in support of the appeal, Mr. Jiban Ratan Chatterjee, Senior Advocate, contended that the Courts below erred in holding that the earlier tenancy did not come to an end with the execution of the deed of lease on March 2, 1959 and that the deed of lease dated March 2, 1959 was void ab initio. He contended that, the Courts below failed to consider that, one Mr. M. L. Bose was a tenant in respect of the first floor and a garage and a room for the servant. On the death of Mr. M. L. Bose one Mr. Ashoke Bose, elder brother of the original defendant, became a tenant in 1955. The tenancy of Mr Ashok Bose was terminated and the original defendant became a tenant for a rent of Rs.140/- per month. The original defendant approached the Rent Controller for determination of fair rent and the Rent Controller fixed fair rent at Rs.88 per month. Ashoke Bose, elder brother of the original defendant, became a tenant in 1955. The tenancy of Mr Ashok Bose was terminated and the original defendant became a tenant for a rent of Rs.140/- per month. The original defendant approached the Rent Controller for determination of fair rent and the Rent Controller fixed fair rent at Rs.88 per month. Thereafter, the lease deed dated March 2, 1959 was executed and the rate of rent was fixed at Rs.110/-. By the deed of lease dated March 2, 1959 of the original defendant agreed to pay rent at the rate of Rs.110/- per month. The original defendant vacated the garage space. Under the lease deed dated March 2, 1959 the original defendant was required to pay a portion municipal tax. The original defendant, therefore, surrendered the tenancy and entered into a fresh lease. 6. It was contended on behalf of the appellant that, the Courts below failed to take into consideration the fact of surrender of tenancy by the original defendant when the original defendant entered into the deed of lease dated March 2, 1959. 7. On behalf of the appellants reliance was placed on All India Reporter 1969 Supreme Court page 1291 (Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr.); All India Reporter 1984 Calcutta page 194 (M/s. D.S. Commercial Pvt. Ltd. V. Shree Shewtambar Sthanakbasi Jain Sabha) and 2013 Volume 3 Calcutta High Court notes page 116 (Ferrazzini’s Bakery v. Amitava Mitter). 8. The facts of the case and the judgment under appeal would raise a substantial question of law as to whether or not the execution of a deed of lease subsequent to an existing tenancy would terminate the existing tenancy and bring about a new relationship between the parties in terms of the deed of lease. 9. Both the Courts below held that, the deed of lease was void ab initio. The Courts below were of the view that the original defendant did not surrender his tenancy when he entered into the deed of lease. In the judgment under appeal it was held that the lease deed itself did not specify that the earlier tenancy stood surrendered either explicitly or impliedly. The Courts below were of the view that the original defendant did not surrender his tenancy when he entered into the deed of lease. In the judgment under appeal it was held that the lease deed itself did not specify that the earlier tenancy stood surrendered either explicitly or impliedly. It was held that, the acceptance or payment of higher rent in terms of the lease deed or surrendering a portion of the tenanted premises at any point of time in favour of the landlord did not show clearly that there was implied surrender of the tenancy right and acceptance of the lease deed. 10. The original tenancy consisted of the first floor as well as the garage on the ground floor and a room over the garage. At the time of entering into the lease deed the original defendant gave up the possession of the garage. As a tenant the original defendant was paying Rs.140/- as rent. In 1956 of the original defendant applied under Section 9 of the West Bengal Premises Tenancy Act, 1956 to the Rent Controller for fixation of fair rent. Fair rent was fixed at the rate of Rs.88/- per month. The original defendant paid rent at the rate of Rs.88/- per month on and from February 1956. 11. In the written statement, apart from the aforesaid facts, it was pleaded that in March 1959 in order to settle the disputes with the landlord the original defendant surrendered the garage and entered into the deed of lease dated March 2, 1959. By such deed of lease rent was fixed at the rate of Rs.110/-. In 1970 at the request of the landlord the rent was increased to Rs.150/-. It was claimed by the defendant that rent was increased on the understanding that the original defendant would not be evicted during his lifetime. In 1977 rent was again increased to Rs.200/-. Under the terms and conditions of the deed of lease dated March 2, 1959 the original defendant was required to pay increase in Corporation taxes proportionately. 12. The facts of the case, therefore, established surrender of tenancy existing prior to the execution of the deed of lease dated March 2, 1959 by the conduct of the parties. The area of the tenancy underwent a change with the execution of the deed of lease dated March 2, 1959. The rate of rent underwent a change. 12. The facts of the case, therefore, established surrender of tenancy existing prior to the execution of the deed of lease dated March 2, 1959 by the conduct of the parties. The area of the tenancy underwent a change with the execution of the deed of lease dated March 2, 1959. The rate of rent underwent a change. An additional obligation on the part of the original tenant to be increase in the municipal taxes proportionately was imposed and accepted. All of these would establish that, the original tenancy was surrendered and a lease came into being on March 2, 1959. The Courts below erred by not taking these facts into consideration. The lease deed dated March 2, 1959 was held by the Courts below to be void ab initio since according to their finding the tenancy was not surrendered. That premise being no longer available, it could not be said that the lease deed dated March 2, 1959 was void ab initio. The lease deed was not found to be void ab initio on any other ground. The lease deed dated March 2, 1959, therefore, was valid and binding between the parties. The parties were governed by the terms and conditions of the deed of lease dated March 2, 1959. The deed of lease dated March 2, 1959 was for a period of 21 years. The lease expired by efflux of time. Inasmuch as the deed of lease dated March 2, 1959 was for a period of 21 years, the original defendant was not entitled to the protections under the West Bengal Premises Tenancy Act, 1956. The original defendant was, therefore, liable to be evicted from the suit property. 13. Mr. Jiban Ratan Chatterjee for the appellant cited Gappulal (supra), M/s. D.S. Commercial Pvt. Ltd. (supra) and Ferrazzini’s Bakery (supra) for the proposition that a mere increase or reduction of rent did not necessarily import the surrender of the existing lease and the grant of a new tenancy. By citing these two decisions Mr. Jiban Ratan Chatterjee was trying to meet the argument that rent was increased twice during the pendency of the lease thereby giving birth to a new tenancy. The facts of the instant case depicted that, rent was merely increased without the lease being surrendered or a new tenancy being brought about. By citing these two decisions Mr. Jiban Ratan Chatterjee was trying to meet the argument that rent was increased twice during the pendency of the lease thereby giving birth to a new tenancy. The facts of the instant case depicted that, rent was merely increased without the lease being surrendered or a new tenancy being brought about. Therefore, increase in the rate of rent between the parties did not lead to the surrender of the lease deed dated March 2, 1959. 14. In Gappulal (supra) the Supreme Court was of the view that a mere increase or reduction of rent did not necessarily import the surrender of the existing lease and a grant of a new tenancy. In M/s. D.S. Commercial Pvt. Ltd. (supra) the Division Bench of this Hon’ble Court held that, when there was a registered lease for a fixed term with no provision for any increase of rent during the lease period any subsequent enhancement of the rent without any intention to create new lease would not operate as an implied surrender. The Division Bench was concerned with a suit for recovery of rent and possession after efflux of time. The landlord was held not to be entitled to recover rent at the enhanced rent in absence of a registered deed varying the rate of rent. However, a suit for recovery of possession by efflux of time was held not to be barred. 15. In Ferrazzini’s Bakery (supra) it was held that mere acceptance of an amount equivalent to rent by the landlord from the tenant in possession after determination of lease by service of notice or efflux of time can be no evidence of new agreement of tenancy. Acceptance of rent cannot be taken as a ground to claim that a new tenancy came into being which was governed by the West Bengal Premises Tenancy Act, 1956. It was held that, after the tenant enjoyed the entire period of 21 years such tenant could not agitate that the lease was governed by the West Bengal Premises Tenancy Act, 1956 merely because the lease contained a sooner determination clause. 16. The plaint contained prayers for eviction as well as for mesne profit. The Courts below did not consider the mesne profit aspect at all since the Courts below found the appellant was not entitled to decree for eviction as prayed for. 16. The plaint contained prayers for eviction as well as for mesne profit. The Courts below did not consider the mesne profit aspect at all since the Courts below found the appellant was not entitled to decree for eviction as prayed for. The appellant being entitled to decree for eviction, there will be a decree in terms of prayer (a) of the plaint. 17. So far as the claim for mesne profit is concerned the same is remanded to the Appeal Court below for the purpose of determination of the same. Determination of the mesne profit by the Appeal Court below will not prevent the execution of the decree for eviction. The judgments of Courts below are set aside. 18. S.A. No. 290 of 2000 is allowed accordingly.