MADANLAL BHANARANKA Vs. HAMIRMALL CHAMPALAL

JUDGEMENT

(1.) This appeal by the defendant arises out of a suit for ejectment and for recovery of damages. The appeal is being contested by the substituted respondents who purchased the disputed property during the pendency of the appeal in this Court. The original suit was filed before the Munsif, 3rd Court, Alipore on 23-2-48. The suit was decreed on contest on 28-5-51 and the defendant was directed to vacate the suit land within 90 days. Mesne profits were also decreed in favour of the plaintiffs. There was an appeal by the defendant before the District Judge and this appeal was heard by a Subordinate Judge, Alipore who dismissed the same on 21-4-52. Thereupon the present appeal was preferred by the defendant before this Court on 16-5-52.

(2.) The plaintiffs' case is briefly that the defendant is a thika monthly tenant whose tenancy has been determined by notice. The notice was purported to have been served on 2-1-48 requiring the defendant to vacate the premises on the expiry of the same month. The defence inter alia was that the defendant had constructed substantial structures on the land, that the notice was illegal and insufficient and that the plaintiffs had granted a 20 years' lease in respect of the land in question. According to the defendant there was a registered agreement for a lease executed with the knowledge and consent of the plaintiffs. The defendant further set up a plea under Section 53-A, Transfer of Property Act. The defence contentions were, however, negatived by both the Courts below and the suit decreed in favour of the plaintiffs. The suit which hart been filed, as stated before, on 23-2-48 before the Thika Tenancy Act, 1949 or, for the matter of that, Ordinance 11 of 1948 came into operation, was tried by the learned Munsif according to the ordinary provisions of law and not under the provisions of the Thika Tenancy Act.

(3.) On behalf of the defendant appellant Mr. Banerjee contends that by reason of the enactment of the Calcutta Thika Tenancy (Amendment) Act, 1953 which came into force on 14-3-53 during the pendency of this appeal the defendant is entitled to the benefit of the provisions of that Act. His contention is that even according to the admissions of the plaintiffs as contained in the plaint the defendant is clearly a thika tenant according to the present definition of the term under the Thika Tenancy (Amendment) Act, 1953. That this is so, that the defendant is a thika tenant according to the present definition is clear enough and it was also the case of the plaintiffs in the plaint that the defendant was a thika tenant. Mr. Banerjee has not challenged the findings of the Courts below regarding the other aspects of the case. He has contended, however, that the defendant appellant is entitled to the benefit of the Thika Tenancy Act as amended and the argument before me relates only to ground No. 7 of the Memorandum of Appeal. That ground runs as follows: