BHIKAJI VISHNU KARMARKAR Vs. RAMCHANDRA KRISHNA PHATAK

JUDGEMENT

(1.) 1. This appeal arises out of a suit for possession of a demised land. The land is a piece of site measuring sixty by twenty-one cubits in Survey No.1, Falni No.1, of Rahatgar and it appears to have been in the occupation of one Balkrishna Bhide who had built a house on it. The appellant purchased it from him in 1894. The site admittedly belongs to the plaintiff and Bhide used to pay him Rs. 2-8-0 per year for swamitwa, and after it was sold to the appellant the appellant continued to pay that amount as rent or swamitwa to the plaintiff. On February 22, 1904, the appellant passed a rent note in favour of Vasudeo, who was the manager of the plaintiff's property for a period of thirty-five years. By that rent note the appellant agreed to pay Rs. 2-8-0 every year, and the relevant portion in it runs thus : You say that you will extend the period of the lease after the expiry of the present time limit. If it suits me I will continue ; otherwise, I will go away. In that case you should obtain a proper punch valuation of the structures on the land and pay the same to me or to my heirs and take possession of thekan together with all trees, structures etc. standing thereon.

(2.) THE period of the lease expired on February 22, 1939. THE plaintiff then gave a notice to the appellant on November 20, 1939, in which he alleged that as they did not agree to the terms of the continuation of the lease, he did not wish to continue the land with the appellant and wanted him to vacate. THE appellant gave a reply stating that the contents of the notice were perverse and not true and that the plaintiff had no right to demand possession of the site. THE plaintiff, therefore, filed this suit to recover possession on payment of the valuation of the structures as determined by panchas. THE defendant claimed that the plaintiff had no right to demand possession of the site, that he had purchased the site and the structures thereon from Bhide who was a permanent tenant, that the rent note passed by him in 1904 did not affect his right of permanent tenancy, and that when the period of the lease was about to expire he did intimate to the plaintiff that he was prepared to continue the possession of the site and pass a rent note for a permanent lease. Both the Courts below held that Bhide was not a permanent tenant and that in any case the rent note passed by the appellant negatived it and that under the terms of the rent note the appellant could not resist the plaintiff's claim for possession. A suitable decree for the determination of the value of the structures and the eviction of the appellant on the plaintiff's paying that amount was passed.

(3.) IN Manilal v. Nandlal (1919) 22 Bom. L.R. 133, certain lands were demised for a period of seven years in 1894 and the lease further provided that if the lessee wished to continue the lease he could take it on lease from the lessor on the same conditions. The lease expired in 1901 but nothing was done to renew it; and the lessee remained in possession. He, was sued in ejectment, and he contended that he was a permanent tenant of the lands. But it was held that whatever rights the lessee had between 1901 and 1908 to ask for specific performance of the agreement to extend the lease for another seven years, those rights came to an end after 1908, and that he continued thereafter as an annual tenant. IN that case the renewal clause specifically stated that the lease was to be continued on the same conditions if the lessee so wished, and it was held that it was the duty of the lessee to have the period of the lease continued before the original lease terminated.