JUDGMENT
Narayan Chandra Sil, J.
1. The plaint case in brief is that Rabindra Nath Mukherjee and his brother Nemai Mukherjee being the owners of undivided one third share in premises No. 24/1A, Balaram Ghosh Street, Calcutta executed and registered a deed of lease on 25.7.1964 for a period of 21 years commencing from 1.7.1964 in respect of an open portion of the land measuring about three cottahs at the back side of the premises mentioned above in favour of the defendant for the purpose of business. In terms of that deed of lease defendant agreed to pay a monthly rent of Rs. 100/- and to make over and deliver up peaceful and vacant possession of the said land on the expiry of stipulated period of 21 years. Subsequently, on the request of the defendant a further additional space of about 30 sq. ft. was given to the defendant and the monthly rent thereby was increased from Rs. 100/- to Rs. 110/- per month. Thereafter in the year 1966 all the co-owners of the said premises sold the said premises to Nirmal Chandra Mitra, Amiya Kumar Ghose and Dr. Aloke Kumar Ghose for valuable consideration by several deeds. The defendant duly atoned his tenancy to the said purchasers. On 10.3.1984 Nirmal Chandra Mitra instituted a suit in this High Court being Suit No. 169 of 1983 against the other co-owners for partition of the said premises by metes and bounds. The suit was decreed on consent whereby the present plaintiff was appointed the Receiver in respect of the premises mentioned above and started realising rents, issues and profits from the tenants. As the deed of lease in question expired on 30.6.1985 the plaintiff by a notice called upon the defendant to quit, vacate and deliver up the vacant and peaceful possession of the land in his occupation. In reply to that notice, the defendant instead of vacating the suit premises claimed that by virtue of the provisions contained in the West Bengal Thika Tenancy and Bustee Improvement Act, 1982 the owners of the said premises had ceased to be the owners as the same vested in the State of West Bengal. The plaintiff thereafter issued further notice on 19.10.1989 asking the defendant to quit, vacate and deliver the peaceful and vacant possession of the premises on the expiry of the month of November 1989 which was duly received by the defendant on 24.10.1989 but the defendant failed to vacate the premises for which the present suit was filed by the plaintiff-learned Receiver.
2. The defendant has contested the suit by filing a written statement in which all the material allegations are denied and it is inter alia stated that the defendant is not a trespasser and as such he is not liable to pay any mesne profit. It is further stated that the land in question had already vested in the State of West Bengal and as such there is no question to vacate and deliver up the vacant and. peaceful possession of the land in question in favour of the plaintiff. It is also challenged in the written statement that the suit is not at all maintainable as the land and structures thereon are governed by the provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and Bustee Improvement Act, f982 and as the defendant is a thika tenant, the plaintiffs cannot be treated as the owners or as the landlords.
3. Upon the pleadings of the parties the following issues were framed:
1. Has the plaintiff cause of action to institute the instant suit against the defendants?
2. Is the suit legally maintainable in view of the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981?
3. Has defendant No. 1 Nemai Palit become the thika tenant under Netai Chandra Mukherjee and Rabindra Nath Mukherjee since registration of lease as alleged in para 2 of the written statement?
4. Has the suit property vested in the State of West Bengal under Section 5 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981?
5. Is the defendant No. 1 occupying the suit premises as trespasser on expiry of the period of lease?
6. Is the plaintiff entitled to get a decree for possession of the suit property covered by the lease?
7. Is the plaintiff entitled to get declarations in the manner as prayed for?
8. Is the plaintiff entitled to claim damages and mesne profits?
9. To what other relief, if any, is the plaintiff entitled?
4. Issue No. 1. This issue has not been challenged by the defendants at the time of arguments before me and as such the same is decided in favour of the plaintiff.
5. Issues Nos. 2, 3, 4 & 5. All these issues are taken up together for the sake of convenience and as they are interrelated to each other.
6. In fact, the fate of the suit hangs only on the question as to whether the defendant No. 1 is a thika tenant under the Calcutta Thika Tenancy Acquisition and Regulation) Act, 1981. And if the answer comes in the affirmative then there is no case for the plaintiff.
7. Mr. P.K. Das, learned counsel appearing for the plaintiff submits before me that the predecessors-in-interest of the plaintiff executed a registered deed of lease in favour of the defendant No. 1 on 25.7.1964 for a period of 21 years commencing from 1.7.1964 in respect of the suit premises on a monthly rental of Rs. 100/- to be paid by the defendant No; 1. Subsequently a further space of 30 sq. ft. of land was annexed to that leasehold property and the monthly rental was enhanced to Rs. 110/- from Rs. 100/- per month. In such circumstances, Mr. Das argues, unless it is proved that the defendant No. 1 is a thika tenant in terms of the provisions of Section 2(4a), 2(5) and 2(5)(b) of the Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as Act of 1949), he cannot be treated as a thika tenant under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (hereinafter referred to as Act of 1981). In this connection Mr. Das has referred to the ratio decided in the case of Sudhir Kr. Sarkar v. Bharat Steel Metal, 1998(2) CLJ 463. It was inter alia held in that case:
“In order to attract the provisions of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 specially, Sections 4, 5 and 19 thereof it has to be seen whether any thika tenancy was subsisting on the date of commencement of the said Act, as in Section 5 it is stated inter alia, that the land comprised in and/or appertained to a thika tenancy would vest in the State, and Section 19 of the said Act inter alia, states that all proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978 for ejectment of thika tenants, shall stand abated with effect from that date.”
8. Mr. Das has further argued that Thika Controller has no right to recognise anybody as thika tenant by way of accepting rents and in this connection he has referred to the ratio decided in the case of Shyamal Atta v. State of West Bengal, 1999(1) CLJ 250. It was held in that case that the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 does not give any power to the Thika Controller to adjudicate whether a person is a thika tenant or not, and thus the Thika Controller ought to have dismissed the application for recording the names of the applicants as thika tenants. Mr. Das has further referred to the ratio decided in the case of Radha Raman Jew v. Shaligram Karan Khemani, . It may be mentioned here that in the said case the learned Judge has relied on the ratio decided in the case of Sadhir Kr. Sarkar (supra).
9. Mr. Das then draws my attention to the evidence of Sudhakar Bhattacharya, DW 1 and it appears from the answer to question No. 15 that there is C.I. structure constructed by iron angle with tin shed and
brick wall on the suit premises. In this connection Mr. Das has referred to the ratio decided in the case of Sri Sri Satyanarayan and Ors. v. S.C. Chunder, 2001(3) CHN 641. It was held in that case, “The question which automatically comes to one’s mind is that if construction of any structure
make one a thika tenant, then there would be a duplication of rent laws, A tenant would be protected, if he constructs or obtains a permanent structure on land, both by the Thika Tenancy Laws and by the Rent Controller Legislation. However, this unwholesome anomaly has been avoided from the very beginning by means of judicial decisions whereby the words “any structure” in the Thika Tenancy Act have been consistently held to mean kutcha or temporary structure.” In arriving at that decision Their Lordships had relied upon a number of judicial pronouncements. Mr. Das has then
drawn my attention to the different photographs (Ext. ‘K’ series) of the suit premises and tries to impress upon me that structure appeared there is nothing short of pucca structure as opposed to any kutcha or temporary structure and as such the defendant No. 1 cannot claim to be a thika tenant under the Act of 1981.
10. Mr. Das has also argued before me that the rent receipts issued by the Thika Controller does not, ipso facto, establish the claim of the defendant No. 1 that he is a thika tenant. In this connection Mr. Das has drawn my attention to the answer given by the defendant No. 1 to question No. 262. In the said question some documents, may be the rent receipts, were shown to the defendant No. 1 (DW 1) by the learned advocate for the plaintiff at the time of cross-examination and the reply came in the affirmative to the question as under:
“I shall read it for your benefit because in the copy that had been supplied to us by the learned advocate Nemal Palit, the writing is very clear. It is written there on the rubber stamp “Accepted provisionally subject to (1) verification of tenancy and 2) necessary adjustment with the revenue to be finally determined under West Bengal Act 35 of 1981. Such acceptance of rent shall not create or establish any right or interest which is not legally in existence.”
11. Mr. Das has concluded his argument submitting the mesne profit claimed by the plaintiff may be granted at least on the basis of the rate of rent which is admittedly Rs. 110/- per month.
12. The State of West Bengal is the defendant No. 2 which was made party subsequently in the suit on the order of this Court. But nobody from the State of West Bengal as defendant No. 2 came forward to contest the suit.
13. Mr. P.N. Palit, learned counsel appearing for the defendant No. 1 submitted a written argument in which it is inter alia stated the case of both the parties in the pleadings, the evidence adduced by both the parties, the document produced by both the parties, issues settled by the Court and the like. And thereafter it is stated that from those facts and circumstances it is abundantly clear that the defendant No. 1 is a thika tenant and he is the owner of the structure by erecting the same at the material time and he was holder of a lease in subsistence. It is also slated that the defendant No. 1 got a C.I. structure constructed by iron angle with tin shed and brick wall on the northern side by his own money on the land in question. It is claimed in the said written argument that the defendant No. 1 initially took a lease of the vacant land and thereafter erected a structure and he was the owner of the said structure. It is pointed out there that in terms of the lease deed the lessee will be entitled to construct such shed on the demised premises with iron frame and pucca brick built wall for his own use and occupation and also for letting out to the tenants on rent after obtaining the sanction from the Calcutta Corporation with prior approval of the lessor in writing and such approval shall not be unreasonably withheld. It is also stated that by virtue of the provisions of Section 5 of the 1981 Act and in terms of the rent receipts (Ext. 1 collectively) issued by the Thika Controller the defendant No. 1 has become the thika tenant and the plaintiff has no right to institute the suit for recovery of possession of the land in question and this Court has also no jurisdiction to entertain the suit as the land in question has vested in the State of West Bengal in terms of Act of 1981. It is also pointed out that the plaintiff never challenged the Thika Controller as regards the right of the defendant No. 1 or the acceptance of rent by the Thika Controller.
14. In reply, Mr. P.K. Das, the learned counsel appearing for the plaintiff submits before me that although there is no issue framed on the notice under Section 80 of the Code of Civil Procedure, the plaintiff had served the same upon the defendant No. 2. Mr. Das also argued that although there is no issue framed as to whether any leave was obtained by the learned Receiver such a leave was, in fact, obtained and in this connection he has drawn my attention to the answers given by the PW 1 to question Nos. 226 to 235. It appears from those questions and answers that the leave was obtained to file the suit in terms of prayer No. (c) in particular. There appears no cross-examination on those points. Mr. Das then submits that he is not pressing for any damages.
15. Thus, from all above it appears that the vortex of the case lies in determination of the question as to whether the defendant is a thika tenant under the Act of 1981 or a lessee simpliciter. The admitted case of both the parties is that the defendant No. 1 came into possession of the suit property in terms of registered deed of lease for 21 years executed and registered on 25.7.1964 commencing from 1.7.1964. This shows that if the defendant No. 1 is to be treated as a thika tenant in respect of the suit property then he was also a thika tenant on and from 1.7.1964 that is to say before the commencement of the Act of 1981 and so under the Act of 1949. But in order to be a thika tenant under the Act of 1949 one is to come under the provisions of Section 2(5) of the Act of 1949. Clause (5) of Section 2 of the said Act defines the term “thika tenant” and the same reads as below:
“thika tenant” means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person-
(a) who holds such land under that no other person in perpetuity; or
(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or
(c) who holds such land under that another person and uses or occupies such land as a khattal.”
Thus, on plain reading of the above clause and Sub-clause (b) it is clear that the defendant No. 1 cannot claim himself to be a thika tenant under the Act of 1949 for the admitted fact that the lease was a registered one for more than 12 years on the strength of which the defendant No. 1 claims to be a thika tenant.
16. Now, in order to remove the doubt in this regard it is again required to explore the possibility of the defendant No. 1 to become a tenant under the Act of 1981 and for that purpose I may recall the ratio decided in the case of Sudhir Kr. Sarkar (supra) wherein it was specifically held by this Court that in order to determine the subsistence of a thika tenancy on the date of the commencement of the Act of 1981 it is to be seen whether or not the defendant was a thika tenant under the Act of 1949 but in the instant case it is clear from the provisions of Section 2(5)(b) of the 1949 Act that the defendant No. 1 was not a thika tenant on the date of the commencement of the Act of 1981 and as such the defendant No. 1 cannot be treated as a thika tenant under the Act of 1981.
17. Besides, the case of the defendant No. 1 is that he had constructed pucca structure on the suit property. The term “pucca structure” has been defined in Section 2(4a) of the Act 1949 and it reads as under:
“pucca structure” means any structure constructed mainly of brick, stone or concrete or any combination of these materials.”
18. Now, in view of the ratio decided in the case of Sri Sri Satyanarayan and Ors. (supra) by the Division Bench of this Court it is clear that such “pucca structure” is not something which was contemplated under the Thika Tenancy Act and it was rather what is called kutcha or temporary structure which is contemplated to be subject matter of thika tenancy under the Thika Tenancy Acts.
19. The other judicial pronouncements as has been discussed in the foregoing lines and also the endorsement made in the rent receipts issued by the Thika Controller do not establish any title of the defendant No. 1 as a thika tenant. Moreover, in the Act of 1981 it is provided that the land under the thika tenants has been vested in the State but here in the instant suit although notice under Section 80 of the Code of Civil Procedure was served, the State of West Bengal has not come forward to contest the suit. From all this I am to hold that the defendant No. 1 is not a thika tenant in respect of the suit property. Admittedly the notice to quit was served upon the defendant No. 1 by the plaintiff and the defendant No. 1 has not vacated the suit property.
20. Thus, all these issues are decided in favour of the plaintiff and against the defendants.
21. Issue Nos. 6, 7, 8 and 9. All these issues are taken up together for the sake of convenience and as they are interrelated to each other.
22. The plaintiff has shunned his claim for damages. That apart there is in fact no evidence adduced to substantiate the claim for damages made by the plaintiff. Thus, the plaintiff is not entitled to get any decree for damages.
23. In view of what has been discussed and decided in dealing with the other issues the plaintiff is entitled to get a decree of vacant and peaceful possession and mesne profit as well. But in view of the submission of the learned advocate for the plaintiff and the facts and circumstances of the case I think it will meet the ends of justice if the defendant No. 1 is directed to pay a sum of Rs. 110/- per month towards the mesne profit from 1st December, 1989 till recovery of possession.
All the issues are accordingly, decided.
It is, therefore,
ordered
that the suit is decreed with costs on contest against the defendant No. 1 and exparte without cost against the defendant No. 2.
The plaintiff do get a decree for vacant and peaceful possession in respect of the suit property and the defendant No. 1 is directed to deliver the vacant and peaceful possession of the suit property to the plaintiff within three months from this date after removing the structure thereon at his own costs.
The plaintiff do get a decree of mesne profit at the rate of 110/- per month from 1st December 1989 till recovery of vacant and peaceful possession of the suit property.