JUDGMENT
Chittatosh Mookerjee, J.
1. This Letters Patent Appeal is at the instance of the defendant. On August 9, 1954, Kali Charan Mitra and Shyama Charan Mitra, predecessors-in -interest of the plaintiff-respondents had granted a registered Indenture of lease in favour of the appellant in respect of a vacant land measuring more or less two collahas comprised in premises No. 32/2, Chakraberia Road for a term of twelve years certain with effect from 9th day of August 1954 at a monthly rental of Rs. 25/- only excluding all Corporation taxes payable on or before the 7th day of every succeeding month. The lessors and the lessee inter alia agreed that the lessee would be allowed to construct a two-storied masonary building with corrugated iron/absestos roof according to plan sanctioned by the Calcutta Corporation but no permanent structures would be raised. The lessors further allowed the lessee to construct a permanent privy with drainage system at his own cost according to Municipal rules, Under Clause 10 of the said Indenture of lease, the entire structures including privy, water taps, electricity connection if built by the lessee and if not removed by him within a reasonable time after the expiry of the lease, were to be treated as the property of the lessors, who in that case, before taking possession of the land and structures would have to pay an amount equivalent to the cost price of the structures privy, water taps, drainage, electricity connection and all developments made for the land after deducting depreciation of twenty per cent, of the costs. It is unnecessary for our present purpose to refer to the other provisions contained in the Indenture of lease.
2. It is not disputed that in view of the provisions of Section 2(5)(b) of the Calcutta Thika Tenancy Act. 1949, the above Indenture of lease in favour of the defendant appellant was not governed by the said Act, but it is admitted that after the expiry of the terms of the lease of 12 years certain provided in the said Indenture of lease, the defendant-appellant had held over and the lessors had assented to continuance of his possession. The plaintiff respondents in paragraph 6 of the plaint have themselves pleaded that after the expiry of the aforesaid lease, the defendant lessee had ‘held over’ within the meaning of Section 116 of the transfer of Property Act under the same terms and conditions. In the eye of law the said term ‘holding over’ after the expiry of the term of the lease created a new tenancy in favour of the defendant appellant.
3. It is settled law now that when a tenancy is created by holding over under Section 116 of the Transfer of Property Act, although the old possession may continue under the terms of the lease which had expired, in the eye of law a new tenancy arises.
See the cases of Bengal National Bank Ltd. v. Raja Janaki Nath Roy, 31 Cal WN 973 = (AIR 1927 Cal 725); Kai Khushroo Bezonjce Capadia v. Bai Jerbai Hirjibhoy Warden, 1949 FCR 262 = (AIR 1949 FC 124) and other cases considered by P. N. Mookerjee and T. P. Mukherji, JJ. in the case of Satadal Basini Dasi v. Lalit Mohan Dey, . It may be noted in the instant case the lease in favour of the appellant was not renewed in terms of any clause in the Indenture of lease providing for exercise of option of renewal.
4. The principal point in this appeal is whether or not the said tenancy of the defendant appellant would be governed by the provisions of the Calcutta Thika Tenancy Act, 1949. In the event the defendant appellant became a thika tenant after a new tenancy was created as a result of his holding over, then the suit for ejectment and for other reliefs brought by Kali Charan Mitra, since deceased, the predecessor in interest of the respondents was plainly not entertainable in civil court. On the other hand, if the defendant’s tenancy was not governed by the Calcutta Thika Tenancy Act the decree for eviction passed against him must be sustained.
5. M, M. Dutt. J. dismissed the second appeal of the defendant lessee, appellant before us because he felt himself bound by the observations of P. B. Mukherji, J. (as he then was) in the case of Annapurna Seal v. Tincowrie Dutt, reported in (1962) 66 Cal WN 338 at pp. 352-353.
6. We have given our anxious consideration to the matter but we are unable to hold that the decision in Annapurna Seal’s case (supra) has any manner of application to the facts of the present case. In Annapurna Seal v. Tincowrie Dutt, (1962) 66 Cal WN 338 (supra) originally in the year 1925 an indenture of lease had been granted in favour of the predecessor in interest of the lessees who were respondents in that appeal for a term of twelve years. In the year 1925-26 the lessees had built certain structures on the said land. After the said lease had expired, in the year 1937 a fresh lease was granted for another period of 12 years from 1st July, 1937. On these facts the question that arose for determination in the case of Annapurna Seal (supra) was whether the defendants under the second lease of 1937 could be called thika tenants within the meaning and interpretation of that expression under the Calcutta Thika Tenacy Act (vide the judgment of P. B. Mukherji, J. (as he then was), at page 342, right-hand column, second paragraph). Both P. B. Mukherji, J. (as he then was) and Bachawat. J. (as he then was) found that after the determination of the second lease of 1937 there was neither any holding over nor was there any renewal of lease. Their lordships further found that the second lease of 1937 was not only in respect of a bare land but the same included structures.
(See the judgment of P. B. Mukherji, J. at p. 352, second paragraph). Similarly, Bachawat, J., at page 359, of the Reports, left-band column, 4th paragraph, held that when the lease dated the 5th July, 1937 was executed the lessees had already built a two-storeyed building and structures with corrugated sheet roofing for residential and business purposes. Bachawat, J. agreed with the conclusion of P. B. Mukherji, J. (as he then was) that as the registered lease dated July 5, 1937 was for a term of 12 years certain the lessees were not thika tenants in view of Section 2 (5) (b) of the Calcutta Thika Tenancy Act. These findings accordingly were sufficient for disposal of the said case. Bachawat, J. did not consider the further question which appeared to be of an academic nature as to whether a person who was originally excluded under Section 2 (5) (b) from becoming a thika tenant, could claim to have become a thika tenant during the period he held over under Section 116 of the Transfer of Property Act.
7. Thus the passage quoted by the learned Judge sitting singly in his judgment under appeal (at page 8 of the paper-book) represented only the views of P. B. Mukherji, J. (as he then was) and it does not appear that Bachawat, J., had concurred with these observations. Further, having regard to the facts and circumstances of the case these observations appear to be in the nature of an obiter as they were not necessary for the determination of the points which arose before the Division Bench in the case of Annapurna Seal v. Tincowrie Dutt, (1962) 66 Cal WN 338 (supra). Further, we are inclined to think that P. B. Mukherji, J. in the above passage did not endeavour to lay down any general proposition of law inasmuch as he had clearly indicated that in the facts and circumstances of the said case it was impossible to discover how and by what legal process the respondent had become a thika lenant. We have already pointed out that in the said case the demise made in July, 1937 was not in respect of bare land but land adorned with structures. Secondly, the said lease itself was covered by Section 2 (5) (b) and the lessees were accordingly excluded from becoming thika tenants.
8. P. N. Mookerjee and T. P. Mukherji, JJ. in their judgment in the case of Satadal Basini Dasi v. Lalit Mohan Dey, (supra) (at p. 1041 of Cal WN) = (at p. 57 of AIR) had noticed the submission made before them that the two learned Judges who constituted the Division Bench in Annapurna Seal’s case, (1962) 66 Cal WN 338 (supra) had followed different lines of reasonings although they reached the same conclusion. The Division Bench in Satadal Basini Dasi’s case (supra) deemed it unnecessary to consider the said submissions regarding the apparent inconsistencies in the modes
of approaches of the learned Judges who decided Annapurna Seal’s case (supra).
9. In our view, in the facts and circumstances of the case the defendant, during the period he held over, ought to be considered a ‘thika tenant’ within the meaning of Section 2 (5) of the Calcutta Thika Tenancy Act. A person in order to establish thika tenancy must fulfil the following conditions :
(i) He holds under a registered lease or otherwise land. (ii) he has either erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purposes.
Section 2 (5) also makes thika tenancy heritable and transferable. Three categories of persons are expressly excluded from the ambit of definition of a ‘thika tenant’ viz. (a) person holding a lease in perpetuity, (b) a person holding under a registered lease for a duration expressly stated to be for a period of not less than 12 years and (c) a person holding land under another person and using and occupying the land as a khatal. Section 30 of the Act also bars application of the Act to certain lands.
10. In the instant case, after the term of the registered lease in his favour had expired the lessee admittedly held over. In other words, a new tenancy had been created in accordance with the provisions of Section 116 of the Transfer of Property Act. The said lease, it is not disputed, was from month to month. The defendant appellant also owned the structures which stood on the land in question. But he erected such structures during the currency of the registered lease in his favour and not after the date he began to hold over under Section 116 of the Transfer of Property Act. We are unable to hold that the defendant appellant cannot be considered a thika tenant merely because the structures were erected by him prior to the date of the commencement of his new tenancy by holding over. So long as the term of the registered lease subsisted. Section 2 (5) (b) of the Calcutta Thika Tenancy Act had precluded the present appellant from claiming the status of a thika tenant. But as already stated, after the expiry of the said registered lease a new monthly tenancy having arisen by holding over in his favour and he being still the owner of the structures erected by him he fulfilled all the necessary conditions of Section 2 (5). Thus he had become a thika tenant.
11. At this stage we may consider the submission of Mr. Bagchi, learned Advocate for the respondents, that these structures immediately after the registered lease expired by efflux of time had vested in the lessor. We have already referred to Clause 10 of the Indenture of lease under which the lessee was entitled to remove the structures privy, water tap and other installations erected by him
within a reasonable time after the expiry of the lease and only on his failure to do so the lessors would be entitled to claim rights over the same subject to the payment of an amount equivalent to the cost price of the said structures and other installations. In the instant case, presumably, immediately upon the determination of the registered lease, by efflux of time, a new tenancy by holding over was created in favour of the defendant-appellant as a result of payment and acceptance of rent. According to the plaintiffs themselves the said new tenancy was subject to same terms and conditions as those embodied in the said registered Indenture of lease. Accordingly Clause 10 was still applicable to the new tenancy. It may be pointed out that in the rent receipts granted during the said period the plaintiff-respondents described the defendant appellant as ‘thika proja’ (vide Exhibits (B1) and (B2) ). Further, it appears that Kali Charan Mitra, since deceased, the predecessor-in-interest of the respondents, in his application under Order 40 of the Code of Civil Procedure filed in Title Suit No. 34 of 1961 for partition with his co-sharer8 described the item of property No. 32/2, Chakraberia Road as under occupation of two thika tenants, according to the particulars, the present appellant was one of them (vide Exhibit ‘N’).
12. The learned Munsif in decreeing the suit out of which this appeal arises in favour of the plaintiffs directed the defendant to deliver vacant possession after removing the standing structures therein within two months from the date of the judgment. In case the defendant failed to remove the structures within the said period, then standing structures were to vest in the plaintiffs and the plaintiffs would be entitled to take possession of the same after payment of the cost price of the same less twenty per cent., as per lease deed dated August 9, 1954. Directions were given also regarding determination of the price. The plaintiffs did not prefer any appeal against the said part of the decree of the trial court and did not also file any cross-objection in the appeal preferred by the defendant appellant against the said decree for recovery of possession. For all these reasons we are unable to hold that immediately after the expiry of the term of the registered deed the structures which were admittedly erected by the defendant during the terms of the above registered lease had vested in the lessor. This was not the position under the general law of this country nor did the contract between the parties provide for the same. In the result, we hold that the defendant appellant must be considered to be the owner of the structures.
13. We have already observed that merely because the structures were erected by the defendant appellant during the term of the lease for twelve years and during the currency of which he was excluded from the
operation of the Calcutta Thika Tenancy Act, he was not precluded from claiming the status of thika tenant offer a new lease had arisen by operation of Section 116 and such new lease admittedly was not covered by Section 2 (5) (b) of the Calcutta Thika Tenancy Act. We find nothing in Section 2 (5) to indicate that in all cases of thika tenancy a person must first take lease of the land and only thereafter either erect the structures or acquire the same by purchase or gift. The law contemplates a thika tenant must be owner of the structures either by erecting them or by acquiring the same and at the same time must be holder of a subsisting lease of land other than lease covered by Clauses (a), (b) and (c) of Subsection (5). If it was held that only those who erected or acquired structures after obtaining a lease of the land would be thika tenants within the meaning of Section 2 (5), same would have the effect of excluding a large number of thika tenants who might otherwise fully satisfy the requirements of Section 2 (5) of the Calcutta Thika Tenancy Act and thereby ameliorative provisions of the Thika Tenancy Act would be unjustly denied to them. We are unable to read this statute in such a manner. The statute was enacted to give protection to a class of tenants of land who had erected structures but had only precarious right in land. This interpretation is likely to defeat the objects of this social legislation. It can be very well visualised that a person may first acquire structure by purchase from the owner and thereafter obtain a lease of the land. Similarly, in expectation of granting of a lease of the land, one may erect structures. But once lease of the land is granted in favour of a person who has acquired the structures by sale or gift or has erected the structures he would be clothed with all the rights of a thika tenant. Ownership of the structures unaccompanied by tenancy right in land would fall short of the definition of a thika tenant. Similarly, a tenancy right in bare land without ownership of the structures either by erection or by acquiring the same by sale or gift would not make a person thika tenant. But where both the conditions are present viz. tenancy of land and ownership of structures a person would be a thika tenant within the meaning of Section 2 (5) subject to exception in Clauses (a), (b) and (c). It is immaterial whether or not the act of obtaining such tenancy right preceded the erection of structures or acquisition of the same by purchase or gift.
14. For the aforesaid reasons we hold that the defendant appellant after he began to hold over in terms of Section 116 of the Transfer of Property Act, had become a thika tenant and, therefore, the instant suit brought in the civil court by the plaintiff respondents for recovery of possession was not maintainable and the civil court had no jurisdiction to pass any decree.
15. The orders passed in this proceeding, however, will not preclude the plaintiff-respondents from instituting proceedings, if any, under appropriate provisions of law and the decision made in this case would be without prejudice to the rights and contentions of the parties therein. It is, however, made clear that the status of the defendant appellant was that of a thika tenant and his tenancy was governed by the Calcutta Thika Tenancy Act.
16. Subject to these observations, we allow the appeal, set aside the judgment and decree passed in the second appeal and also those of the trial court and the lower appellate court. As the civil court has no jurisdiction, the plaintiff respondents would be at liberty to take back the plaint for filing a proper application in appropriate forum within a period of four months from the date of the arrival of the records in the trial court, in default of which the plaint shall stand rejected. The parties would bear their respective costs throughout.
S.K. Bhattacharyya, J. 17. I agree.
