SWAPNA GHOSH Vs. DILIP KUMAR DEY

JUDGEMENT

(1.) The factual background of this appeal is that the suit property appertaining to the premises No. 236, Kali Ghat Road, now re -numbered as 236A Kali Ghat Road, Calcutta, belonged to the predecessor -in -interest of the present Plaintiffs/Respondents from whom the predecessor -in -interest of the present Appellants took thika tenancy of the vacant land comprised therein at that time and the present Appellants had been in possession thereof including the structures raised thereby them which were partly pucca two -strayed structures along with toilets etc. The mother of the present Respondents for herself and as their legal guardian filed a suit for eviction against the present Appellants in the Court of the Third Additional Munsif Alipore being T.S. No. 112 of 1948 and obtained a decree for eviction. The said decree was put into execution in the Fourth Court of the Munsif, Alipore, being T. Ex. Case No. 6 of 1950. During the pendency of the said execution case the present Appellants filed a misc. case being No. 59 of 1950 in the above Court for rescinding the decree of eviction under the provision of the Calcutta Thika Tenancy Act, 1950. Sm. Susama Dey, the mother of the present Respondents, died during the pendency of the said proceeding and the present Respondents contested the same. The said proceeding was compromised between the parties with the permission of the Court and in terms of the compromise dated April 25, 1951, the decree obtained by the present Respondents against the present Appellants in T.S. No. 112 of 1948 became executable. In terms of the said 'solenama' dated April 25, 1951 a registered deed of lease 's between the present parties were executed and registered on the same date, i.e. April 25, 1951, in respect of the suit property. In terms of the said registered deed of lease dated April 25, 1951, (Ex. 1) the present Appellants were granted tenancy right for a fixed period of 22 years with effect from Baishak 1, 1358 B.S. till Chaitra 31, 1380 B.S. in respect of the suit property, i.e. 'ka' schedule land along with the pucca structures standing thereon described in 'kha' schedule at a monthly rental of Rs. 60. It was further provided in the lease deed that on the expiry of the period of tenancy on Chaitra 31, 1380 B.S., the Appellants would deliver khas possession of the disputed property described in schedule 'ka' and 'kha' provided that they would get as compensation 35 per cent of the market value of the structures as on the date of the expiry of the lease for which they would get interest at the rate of 6 per cent per annum till the payment of the said sum and the 'ka' and 'kha' schedule property would remain charged for the said amount till payment and that if the Appellant should fail to deliver khas possession of the disputed property amicably on the date of expiry of the lease, they would pay damages at the rate of Rs. 4 per diem to the Respondents till delivery of possession. It was also provided in the lease deed that on the expiry of Chaitra 31, 1380 B.S. the lease would automatically come to an end without requiring the lassoers to serve upon the lessees any separate notice and that on the expiry of the lease the Respondents would become absolute owners of the disputed properties along with the structures described in 'ka' and 'kha' schedule with all rights to sell, to lease or to transfer by way of gift etc. subject to the change created thereon. It is also on record that after the execution of the said lease deed and on its being acted upper by both the parties thereto the Plaintiffs/Respondents filed a suit for eviction of the present Appellants from the disputed property in the Fourth Court of the Munsif, Alipore, being T.S. 157 of 1963 on grounds of default of payment of rent, making unauthorised addition and alteration etc. and obtained a decree. But the said decree was set aside in appeal and the present Appellants obtained relief under Sec. 144 of the Transfer of Property Act being restituted to the suit property through the Court. Thereafter, the present Plaintiffs/Respondents on the expiry of the lease granted under Ex. 1 brought a suit for eviction in the Fourth Court of the Munsif, Alipore, being, T.S. 294 1977 on August 18, 1977, on ground of efflux of time.

(2.) It is needless to say that the tenancy as per Ex. 1 was admittedly not a thika tenancy to be governed by the Calcutta Thika Tenancy Act, 1949, but one governed by the general provisions of the Transfer of Property Act. In the instant suit being, T.S.294 1977 it has been specifically stated in the plaint that in terms of the lease the Plaintiffs/Respondents have become owners of the 'ka' and 'kha' schedule properties, i.e. the entire disputed property with effect from Baishak 1, 1381 B.S. corresponding to April 15, 1974. The suit was contested by the present Appellants but was decreed by the trial Court negative the objections taken by the present Appellant/Defendant regarding the validity of the leas deed. Besides the ground of efflux of time the trial Court also found that the Defendants -Appellants were defaulters in the matter of payment of rent and also they did not comply with other terms of the deed of lease as per Ex. 1. The present Appellants -Defendants preferred an appeal against the said judgment and decree date June 28, 1980, passed by the Trial Court being Title Appeal No. 66 of 1980 in the Fourteenth Court of the Addl. District Judge, Alipore, which was also dismissed on April 11, 1981. In the said appeal the present Appellants took the plea that they were actually thika tenants in respect of the disputed property, but the Ex. 1 was motivated done by the present Respondents so as to avoid the provisions of the Calcutta Thika Tenancy Act. In other words, as it appears from the First appear Court judgment and the materials on record the Appellants case before the lower Appellate Court was that their original thika tenancy in respect of the disputed property was continuing in spite of the execution of Ex. 1 which was an out and out lease of 'ka' and 'kha' schedule properties for a term of 22 years. The learned lower Appellate Court rejected such contention taken on behalf of the present Appellants. It has been found by the lower Appellate Court that the deed of lease as per Ex. 1 is a valid bilateral deed of lease without being tainted by any misrepresentation and coercion and was duly acted upon by the parties thereto. It has been observed by the First Appeal Court that after the execution of the deed of lease as per Ex. 1 in terms of the sole name filed in Misc. case No. 52 of 1950 in Title Execution Case No. 6 of 1950 in the Fourth Court of Munsif at Alipore arising out of a decree obtained by the present Respondents in, T.S. 112 1948 the Defendants -Appellants cannot be allowed to take the stand that they are still thika tenants in respect of the disputed property. The learned First Appeal Court has category -ally found that on the basis of Ex. 1, the admitted deed if lease, the status of the present Appellants -defendants in respect of the disputed property was changed from thika tenants to premises tenants with a tenure of 12 years and that the thika tenancy of the present Appellants in respect of the disputed property was extinguished by the deed of lease executed by the parties out of their free will and for consideration in terms of the sole name. The learned First Appeal Court affirmed the decree passed by the trial Court with some modifications.

(3.) In the present appeal this factual background and the findings of the Courts below are not challenged. Sri Roychowdhury appearing for the Appellants has submitted with all fairness that in the instant appeal there is no point in challenging the validity of the deed of lease as per Ex. 1. He has submitted that the rights and obligations of the parties after the execution and registration of the deed of lease as per Ex. 1 are not of any relevance at the present moment, more so, the present suit being based on the expiry of the term of the said lease and both the Courts having upheld the validity of the said lease, the rights of the parties will be governed by the law as on the date of the lease, the date of filing of the suit and also as on the date of hearing of the present appeal. Sri Roychowdhury has submitted in view of the tenure of the lease for 22 years as provided in Ex. 1 the tenancy in question in respect of the disputed property would not come within the ambit of the Calcutta Thika Tenancy Act, 1949, and the only Act which was applicable to it was the Transfer of Property Act. According to Sri Roychowdhury, after concurrent finding regarding the validity of the lease little defence is there to resist the Plaintiff -Respondent's claim. But, Sri Roychowdhury submits, the case of his clients in the present appeal is not, however, closed for ever before this Court in view of the enforcement of the Calcutta Thika Tenancy (Acquisition and Regulation Act, 1981, with effect from November 2, 1931. Sri Roy chowdhury has drawn my attention to Sec. 3(8) Calcutta Thika Tenancy (Acquisition and Regulation) Act, herein after referred to Act, 1981. In the definition of 'thik tenant' under the old Act of 1949 tenancy in respect c land under a registered lease for more than 12 year was left out from the operation of the said Act. under Sec. 3(8) of the new Act ' of 1981 the definition c thika tenant has been given a more liberal and broad connotation which, according to Sri Roychowdhury should bring the .tenancy created in favour of the present Appellant as per Ex. 1 to be governed by the new Act. In order to appreciate this contention of St Roychowdhury it would be helpful to quote the provision of Sec. 3(8) of the Act of 1981 which runs as follows: "thika tenant" means any person who occupies whether under a written lease or otherwise, lane 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 than another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors -in -interest of such person.