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Mr. Banerjee has contended that the surrender of tenancy can be effected by express surrender in writing or implied surrender by operation of law as per provision of Section 111 of the Transfer of Property Act. In the instant case, if it is considered as express surrender, then according to the provisions of Section 111 of the Transfer of Property Act, it must be in writing. But in the instant case, there is no written document in support of the claim of the plaintiff on express surrender. There is no implied surrender according to the provisions of Section 111(e) of the Transfer of Property Act. So, the surrender of tenancy on behalf of the tenant / petitioner herein has not been proved. He also contends that a Commission was held to know the actual possession of the premises in suit by an order of the Division Bench of this Hon'ble Court and the learned Commissioner, on inspection, found that the grill gate was under lock and key put by the plaintiff / landlord but the inner wooden door meant for entry in the premises in suit was opened by the tenant / petitioner herein with the key under his possession. This fact proves that the tenant did not surrender the tenancy, but he could not enter into the premises in suit inasmuch as the landlord had made obstruction for ingress and egress by putting a lock in the grill just before the entrance wooden door of the premises in suit. He also submits that as per inspection report, it is not the situation that small unused materials had been left by the tenant in the premises in suit at the time of alleged delivery of possession but the inspection report reveals that the materials essential for stay had been left in the premises in suit and those materials were full of dirty because of the fact that the tenant could not make entry in his tenanted premises. Such facts suggest that the tenant / petitioner herein is in possession of the premises in suit and the surrender of the tenancy had not taken place at all as alleged by the plaintiff / landlord.

Mr. Banerjee has also submitted that according to Section 19(2) of the West Bengal Premises Tenancy Act, 1956, the express surrender is to be proved. He has also contended that if the condition of express surrender is not engraved in the agreement of tenancy according to the decision of (2001)1 SCC 564 particularly paragraph no.20, the original provision of the Transfer of Property Act will govern. In the instant case, there is no scope of express surrender. So the tenancy continues, ultimately, Mr. Banerjee has submitted that the report of the learned Commissioner reveals that the husband of the plaintiff produced the key of the main entrance of the flat and opened the lock and the defendant produced the key of the wooden door of the main entrance. The unlocking of the main entrance would not enable the entry in the premises in suit until the wooden door of the main entrance was opened. The Special Officer found many articles, such as, electric fittings, almirah, kitchen utensils, gazettes, beddings etc. which could not be described as some scattered articles. Therefore, the tenancy subsists. So, the defendant may be permitted to open the premises in suit flat by reversing the order of status quo.

By referring to the decision of Venkita Pathi naidu v. Sethu Udayar & ors. reported in AIR 1974 Kerala 132, Mr. Banerjee submits that mere abandonment by a tenany of his possession will not amount to surrender. The abandonment must also be accompanied by acceptance on the part of the land. Even subsequent acceptance would be sufficient. So, the tenancy continues and the petitioner is entitled to get possession.

Mr. Banerjee has also referred to the decision of Indian Cable Company Ltd. v. Smt. Sumitra Chakraborty reported in AIR 1985 Calcutta 248 and thus, he submits that since there was no proof of express surrender as provided in Section 111 of the Transfer of Property Act and the tenant paid rent, according to this decision, the mandatory injunction could well be granted on an interlocutory application.