RAMANI MOHAN BURMAN Vs. BENODE BEHARI DHUR

JUDGEMENT

(1.) The moot question raised in this appeal by Mr. S. P. Roychowdhury and opposed by Mr. S. Dasgupta, respective learned Counsel for the parties, is the question of ascertaining as to whether there was a new letting out superseding the lease for 25 years outside the purview of West Bengal Premises Tenancy Act, excepted by Section 3 and creating tenancy within the purview of the 1956 Act. The question traversed on a thin line of distinction as was ably argued by the respective learned counsel, which is not free from doubt But one thing is clear that from the materials on record it is to be found out as to whether there was an intention to create a new tenancy and that was there any implied surrender of the old tenancy. The change in identity of the properly or alteration of rent might be construed to presume an implied surrender and creation of new lease. But this distinction is based on facts and the law is to be applied having regard to the facts and circumstances brought out on record. The other question that was raised is with regard to the mesne profits, as to whether the court would refer the matter for a decision under Order 20 Rule 12 of the Code of Civil Procedure or a decision given by the Court determining the mesne profits would amount to fixation of the mesne profits leaving the determination of the amount under Order 20 Rule 12 of the Code of Civil Procedure without altering the finding about the rate of the mesne profits decided by the Court. Change of identity : Was there any ?:

(2.) In the present case, in the Deed of Lease, covered space was let. out It appears to us that the covered space was converted, into a room and thus there was a change in the identity of the property and thus by reason of change of identity, a new tenancy was created. Coupled with this, the enhancement of rent was also a ground seeking to add relief to the creation of a new tenancy. However, we will be examining the question of enhancement of rent at a later stage.

(3.) Now we may divert our attention to the question of enhancement of rent, which might be one of the factors to lead us to presume that there was a new letting. In the present case, the Deed of Lease, which is Ext. I, contains the measurement of the area leased out for 25. years admittedly outside the purview of the West Bengal Premises Tenancy Act. 1956. Clause 5 of the Deed of Lease provides that the lessee shall carry out all repair to the demised portion of the premises at his own cost during the period of this Lease. If, in the name of repair, the covered space was built as introduced and it is not objected to by the lessor, then it cannot be said that there was a real change in the identity of the property unless by reason of substantial enhancement of the utility of the property the rent is also enhanced. Clause 13 of the Deed of Lease provides that an the Municipal rates and taxes both owner's and occupier's shares was payable in respect of the demised premises by the Lessor, but in case the Municipality increases the valuation of the demised permoises the Lessee would be bound to pay the proportionate increase in both shares in addition to the monthly rents. In the plaint it is pleaded that the agreed rent stipulated in the Deed of Lease was Rs. 90/- and that there had been successive enhancement in the assessment of the valuation, which is apparent, from Ext. 3 series. It is contended that the rent also was increased from Rs. 90/- to Rs. 92/-, Rs. 95/- and ultimately to Rs. 116/-. there are sufficient materials to show that the valuation having been increased, the taxes were also increased and that the rent was also increased on the basts of enhancement in the taxes payable. Though there is nothing to show as to the extent of the share of the defendant payable on account of such increase, but still then if certain amount is agreed on account of such increase and is paid, in the event. it is nothing mere than the increase in the rent on account of the increase or enhancement of the valuation and taxes payable pursuant to the agreement contained in the Deed of Lease. Thus it was not the rent for a new letting, but it was an increase in the ratio of the rent pursuant to the agreement included in the Deed of Lease itself. Thus, having regard to the present facts and circumstances of the Case and the materials available on record, we do not think that the increase in the rent factor would lead us to presume a new letting. In case there is a change of identity and the utility of the property is substantially enhanced, then there must be an increase in the rent. If both the things are coupled together, then there can be presumption of a new letting. However, until and unless there is such material, it is very difficult to presume a new letting.