Asis Kumar Mukherjee vs Pratul Chandra Ghosh

Bagchi, J.—In this second appeal only one question of law is involving whether the Court of. Appeal below had rightly constructed two documents, Exs. A1 and B1, while holding that the Defendants could not substantiate that he was a thika tenant in respect of No. 2 Watkins Lane, Howrah. The matter arose like this:

The Plaintiff filed a suit being Title Suit No. 404 of 1954 against the Defendants for eviction from the premises No. 2 Watkins Lane, Howrah, on the expiry of the tenancy premises after due service of notice for eviction for recovery of arrears of rent for the period from February 1953 to September 1954, at Rs. 45 per month amounting to Rs. 900 and for mesne profits from October 1, 1954. The Plaintiff purchased that premises along with premises No. 3 Watkins Lane from the Administrator-General of Bengal, who sold the same as Executor to the estate of one George Jones on May 10, 1937, and became the owner thereof. The Plaintiff did not get vacant possession of the suit premises which was found in the occupation of late Bijay Gopal Mukherjee, the predecessor-in-interest of the Defendants, who was a monthly tenant in respect of the building at premises No. 2 Watkins Lane at a rent of Rs. 45 per month payable according to English calendar month. The tenancy originally stood in the name of F. Acerboni & Co. of which the said Bijay Gopal was the sole proprietor. By virtue of the Plaintiff''s purchase and the letter of attornment issued by his vendor the relationship of landlord and tenant was established between the Plaintiff and the late Bijay Gopal in respect of the suit premises. The Plaintiff realised rent from Bijay Gopal and from the Defendants by executing the decrees for rent obtained from Courts, The Plaintiff prays for recovery of rent from February 1953 to September 1954 in this suit. The Defendants'' as successor-in-interest of Bijay Gopal are in occupation of premises No. 2 Watkins Lane now in suit. The notice of eviction was served upon the Defendants whereby the tenancy was terminated with the expiry of September 1954. The Defendants did not vacate the premises. Hence the suit was filed.

The main contention of the contesting Defendant No. 1 was that their predecessor-in-interest was a thika tenant in respect of No. 2 Watkins Lane, Howrah, at a rental of Rs. 45 and not a tenant of that premises as is understood within the scope of Rent Control Act, 1950. The rent of Rs. 45 was payable as rent for the land of No. 2 Watkins Lane, Howrah, but not for the building standing on that land. The Defendants admitted the relationship of landlord and tenant between the Plaintiffs and the Defendants, the successors-in-interest of late Bijay Gopal, but denied the nature of the tenancy as alleged by the Plaintiffs. The Defendants contended that there was in fact a tenancy in respect of holdings Nos. 2 and 3 Watkins Lane respectively under the superior landlord Dighapatia Raj. Pucca structures were raised on the land of the holdings by the tenants. G.R. Jones was a tenant in respect of holding No. 2 Watkins Lane and F. Acerboni & Co. was a sub-tenant under Jones. The said F. Acerboni & Co. occupied the then existing pucca structures, now dilapidated, broken and rendered useless and also the open land of the said holding and carried on business in patent stone there. The Defendants constructed various sheds on the holding. In course of time, the said sub-tenancy of Acerboni & Co. somehow vested with the Administrator-General of Bengal, and Bijay Gopal, the predecessor-in-interest of the Defendants, purchased at a public auction the stock-in-trade, goodwill and all properties of the said firm including the sheds on November 16, 1917, and thereby became a tenant under G.R. Jones. After the tenancy of Jones vested with the Administrator-General of Bengal the Plaintiffs purchased the right, title and interest of the latter in the holding Nos. 2 and 3 Watkins Lane. Thereafter, Bijay Gopal took permanent lease in respect of the said two holdings from the superior landlord and filed the Title Suit No. 38 of 1938 against the Plaintiffs for eviction of the Plaintiffs on the ground that the tenancy which the Plaintiffs purchased was anon-permanent and non-transferable tenancy and that the Plaintiff acquired no title by his purchase. In that suit there was no denial by Bijay Gopal of the relationship of landlord and tenant between Plaintiffs and Bijay Gopal and, as such, there could be no forfeiture. The tenancy, now, in respect of No. 2 Watkins Lane is governed by the Calcutta Thika Tenancy Act, 1949, but not by the Rent Control Act, 1950. Previously, Bijay Gopal used to pay rent at Rs. 90 for the holding in suit to Jones and thereafter to the Administrator-General of Bengal. But subsequently when the only pucca structure over the holding No. 2 Watkins Lane became broken, dilapidated and useless, Bijay Gopal was successful in persuading his the then landlord, the Administrator-General of Bengal, to reduce the rent to bare ground rent only at Rs. 45 per month, and from that time Bijay Gopal occupied and thereafter the Defendants are occupying the suit holding as thika tenant by paying the ground rent at Rs. 45 per month. The predecessor of the Defendants made additions and alterations in the structures over the holding purchased by him and also made new construction over there. The structures belonged to the Defendants. The Defendants denied service of notice and challenged the validity and legality of the same.

Before the learned Munsif eight issues were raised of which issues Nos. 1 and 2 were the clinching issues over the dispute between the parties. The issue No. 1 was whether the suit was maintainable and issue No. 2 was whether there was any relationship of landlord and tenant between the parties to this suit and whether the tenancy was governed by the West Bengal Premises Rent Control Act? The learned Munsif discussed both the issues together in his judgment and found upon consideration of evidence, both oral and documentary, that there was no evidence on record to show that the lease of the premises was by any subsequent contract converted into a lease of land (p. 10 of the paper book). In the concluding portion of his judgment over the discussion on those two issues the learned Munsif found:

I uphold the Plaintiff''s contention that the Defendants were tenants in respect of the premises and not thika tenants in respect of the premises No. 2 Watkins Lane under the Plaintiff and that such the tenancy is governed by the West Bengal Premises Rent Control Act of 1950.

On other issues the finding of the learned Munsif was in favour of the Plaintiffs. Accordingly, the learned Munsif decreed the suit on contest against the Defendant No. 1 and ex parte against the rest and directed recovery of possession of the suit premises by the Plaintiffs and also decreed rent for the period from February 1953 to September 1954 at the rate of Rs. 45 per month amounting to Rs. 900 deposited in Court. There was also a decree, for mesne profits.

The Defendants being aggrieved by the judgment and decree passed by the learned Munsif went before the learned District Judge of Howrah in appeal. The appeal was heard by the learned Subordinate Judge, 3rd Court, Howrah. Before the learned Subordinate Judge the only contention of the Appellants centred round the question as to whether the Defendants-Appellants continued to be a tenant in respect of the house and the adjoining lands in the premises No. 2 Watkins Lane, Howrah, or whether the Defendants-Appellants got the premises tenancy converted into a land tenancy of thika character under a fresh contract entered into between them and the then landlord. So, it is to be decided whether the present tenant in suit is governed by the provisions of Rent Control Act, 1950, or by the Thika Tenancy Act of 1949. After elaborate discussion of the oral and documentary evidence the learned Subordinate Judge observed in his judgment at p. 22 of the paper-book:

But there is nothing to show that the Administrator-General ever agreed to reduce the rent to bare ground rent or that there was any modification of the tenancy from a tenancy of the house to that of land only.

Further down in the judgment at p. 23 of the paper-book the learned Subordinate Judge observed:

There is nothing to show that the Appellants took lease of the land or that by an agreement with the landlord the house tenancy was converted to a tenancy of land only. I, therefore, hold that the Defendants are tenants in respect of the premises and governed, by the West Bengal Premises Rent Control Act, 1950, and not by the Calcutta Thika Tenancy Act.

On the question of notice he found that it was served upon the Defendants-Appellants and was valid and sufficient in law. The further contention of the Defendants-Appellants alternatively was that the disputed premises was taken lease of for manufacturing purposes. This was also negatived by the learned Subordinate Judge. In conclusion the learned Subordinate Judge dismissed the appeal and affirmed the judgment and decree passed by the learned Munsif.

Against the judgment and decree passed by the learned Subordinate Judge the Defendants have come up in this second appeal which was argued by their learned Advocate Mr. Guha. He opened his arguments, submitted that he would not dispute the findings of facts made by both the Courts below upon appreciation of both oral and documentary evidence against his clients. But his main contention was that the Court of Appeal below while considering the two letters, Exs. A1 and B1 upon which the Defendants-Appellants based their claim for conversion of the house tenancy into a land tenancy, failed to make a proper legal inference and that the misconstruction of those two basic documents Exs. A1 and B1 by the Courts of Appeal below upon which the Appellants rested their claim for the tenancy in dispute being governed by the Thika Tenancy Act was an error of law. So, Mr. Guha submitted that this Court was entitled to examine the documents, Exs. A1 and B1, along with other evidence and to decide for itself upon construction of those two documents the legal implication of those documents so far as the Defendants-Appellants'' claim for the tenancy in dispute being governed by the Calcutta Thika Tenancy Act, 1949, was concerned. Alternatively Mr. Guha submitted that when the building over the land in premises No. 2 Watkins Lane, Howrah, became dilapidated and ultimately collapsed, the tenant approached the then landlord for reduction of rent of the premises tenancy and for conversion of the premises tenancy into a thika tenancy inasmuch as the original purpose for which the tenancy had been created stood frustrated following the dilapidation and collapse of the building. On that premises, Mr. Guha urged that following upon the collapse of the building there had been frustration of the original purpose for which the contract of lease had been entered into between the then landlord and the then tenant, wherefor the then tenant approached the then landlord for converting the premises tenancy without the building thereon into a bare ground tenancy in July 31, 1931, and that when the landlord thereafter accepted the rent at the reduced rate (at Rs. 45 per month) though the original rent was at Rs. 90 per month, the Court below should have made a legitimate inference that by acceptance of the rent at reduced rate following upon the tenant''s representation, the landlord agreed to the conversion of the premises tenancy into a thika tenancy in respect only of rent within the holding No. 2 Watkins Lane, Howrah Municipality. Mr. Guha, therefore submitted that the fact of acceptance of reduced rent following July 1931, together with the statements contained in Exs. A1 and B1, should have been considered by the Court below as sufficient to make a legal inference that the then landlord and the then tenant agreed to the conversion of the premises tenancy into a land tenancy of the thika character in regard to No. 2 Watkins Lane, Howrah.

In reply, Mr. Mitter, the learned Advocate for the Respondent-Plaintiff, first submitted that the two documents, Exs. A1 and B1, were only two pieces of evidence amongst other pieces of evidence and could never be considered as documents of title regarding the Defendants-Appellants'' alleged claim for conversion of the original premises tenancy, governed by the Premises Rent Control Act, 1950, into a land tenancy governed by the provision of the Calcutta Thika Tenancy Act, 1949. Mr. Mitter next contended that Exs. A1 and B1 considered with other oral and documentary evidence would clearly indicate that what had been stated in those two documents did. not represent the true state of affairs relating to the building on the land of the premises No. 2 Watkins Lane, Howrah. Next Mr. Mitter submitted that the Court of Appeal below made a correct appreciation of the effect of the two documents, Exs. A1 and B1, when it found that these two documents did not create an agreement upon which the theory of conversion of the premises tenancy into a land tenancy could rest. Mr. Mitter then urged that upon consideration of both oral and documentary evidence, within which Exs. A1 and B1 were included, the Court of Appeal below came to a finding of fact upon the entirety of the evidence that the Defendants-Appellants failed to prove that the then landlord had ever agreed to the conversion of the premises tenancy into a land tenancy. Mr. Mitter pointed out that the burden lay upon the Defendant-Appellants to prove either by oral or documentary evidence that, in fact, in July 193l the then landlord and the then tenant agreed not only to the reduction of rent but also to the conversion of the premises tenancy into a land tenancy in regard to premises No. 2 Watkins Lane, Howrah. The learned Court below, as Mr. Mitter submitted, upon consideration of the entire oral and documentary evidence found as a fact that the Defendants-Appellants failed to prove the agreement relating to the conversion of the premises tenancy into a thika tenancy. Mr. Mitter then submitted that the contention of Mr. Guha that upon alleged dilapidation and consequent collapse of the building standing on premises No. 2 Watkins Lane, Howrah, there had been frustration of the contract of lease of the building as originally entered into could not be entertained otherwise than under the provisions of Clause (e) of Section 108 of the Transfer of Property Act. According to Mr. Mitter the doctrine of frustration of contract that had developed in England could hardly be imported in India, in relation to a lease of land except to the extent as enjoined by Clause (e) of Section 108 of the Transfer of Property Act. In support of this contention Mr. Mitter referred to me a decision of my Lord Mr. Justice Chatterjee in the case of Jiwanlal and Co. v. Manot and Co. Ltd. (1960) 64 C.W.N. 932. In that decision my Lord very elaborately discussed the English doctrine of Frustration of Contract vis-a-vis the provision of Clause (e) of Section 108 of the Transfer of Property Act and laid down that if a house was destroyed wholly even then the lease does not stand determined unless the lessee exercises his option to avoid the lease. His Lordship went so far as to lay down that on the demolition of the entire house the lease would not stand destroyed or determined. Explaining the word ''any'' in Clause (e) of Section 108 of the Transfer of Property Act his Lordship laid down that that word may be understood in two senses--one in the restricted and the other in a more comprehensive sense, or in other words, the word ''any'' way mean ''any part of'' or ''the entire whole''. In his judgment his Lordship Mr. Justice Chatterjee followed the principles laid down by the Supreme Court in the case of Darshan Singh v. The State of Punjab (1953) S.C.A. 274 and the case of The State of Bombay Vs. Ali Gulshan, . Mr. Mitter, relying on the principles laid down in the decisions quoted above, submitted that beyond the provisions of Clause (e) of Section 108 of the Transfer of Property Act there could be no scope for application of the doctrine of frustration of contract in relation to a lease of a premises or land governed by the Transfer of Property Act. Section 108, Clause (e) of the Transfer of Property Act runs as follows:

In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:

A. Rights and liabilities of the lessor.

....

Clause (e): If by fire, tempest or flood, or violence of any army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void.

It is clear, therefore, from the provisions of Section 108, Clause (e) of the Transfer of Property Act that upon the happening of one of the contingencies as embodied in that Clause the option lies in the lessee himself to consider whether he would take the lease as void and on that score would quit the leasehold. So, as submitted by Mr. Mitter, the learned Advocate for the Respondent, that even if it be assumed that the building had collapsed, it was neither pleaded nor proved by the Defendants that the Defendants quitted and vacated the premises No. 2 Watkins Lane at any time and, therefore, there could be no room for consideration of the applicability of Clause (e) of Section 108 of the Transfer of Property Act in the present case. I agree with the submissions made by Mr. Mitter and I cannot accept Mr. Guha''s submission to the contrary. It was never pleaded in the written statement that after the building had collapsed the then tenant quitted the premises No. 2 Watkins Lane, Howrah. It was not proved, as not pleaded, that consequent upon the collapse of the building the then tenant quitted the building and, thereafter, entered into a fresh agreement with the then landlord on July 31, 1931, accepting the bare land only of premises No. 2 Watkins Lane, Howrah, as the subject of his tenancy at a rent of Rs. 45 per month. So, in exercise of his option within the scope of Clause (e) of Section 108 of the Transfer of Property Act the then tenant, the predecessor-in-interest of the Defendants-Appellants, did not consider the lease relating to the premises No. 2 Watkins Lane as void and did not vacate the tenancy as he should have done. So, the only legal inference that can be made is that, even if the building had collapsed, the lessee i.e. the then tenant Bijay Gopal should have exercised his option of avoiding the lease but did not exercise his option and, as such, neither he could nor his successors-in-interest can be heard to say that there had been frustration of the contract of lease following upon the collapse of the building as alleged. Accordingly, the original lease relating to the premises continued even after July 31, 1931. Mr. Mitter then submitted that having regard to some unimpeachable facts, as found by the learned Court of Appeal below as well as by the learned Munsif, there could be no scope for invoking the doctrine of frustration of contract of lease even Within the scope of Clause (e) of Section 108 of the Transfer of Property Act. It is an indisputable fact, as Mr. Mitter submitted, that Bijay Gopal, the predecessor-in-interest of the Defendants-Appellants, came as a tenant of the building in premises No. 2 Watkins Lane at a monthly rental of Rs. 90, the month of tenancy being governed according to the Gregorian calender. This happened long before July 31, 1931. Between April to July 1931 there came two letters, Exs. A1 and B1, the former being dated April 30, 1931, issued to Bijay Gopal by the then Administrator-General, Bengal. The latter Ex. A1 reads as follows:

As a portion of the above premises has recently fallen down and as other portion may fall down having regard to the dilapidated condition of the building, I hereby give you notice that should you choose to continue to occupy the premises as monthly tenants, you will do so at your own risk.

Bijay Gopal gave a reply to that letter which is Ex. B1 dated July 31, 1931, material portion of which reads as follows:

With reference to your letter No. 8845 dated July 23, 1931, regarding rent of the above premises from January 31 we would like to point out that a reduction of only Rs. 20 per month from the date of the collapse of the building seems to be inadequate, and considering the present abandoned state of the building no rent for the same can be assessed. So we would request you to reduce the rent to reasonable bare ground rent only. In this connection we would like to remind you of our letter No. 2702/35 dated the 4th June, 1931, and would request you to settle our claim as stated therein. The proper rent whatever will be due after reassessment may be deducted out from our claim of damages caused by the collapse of the building etc.

Now, it will naturally lead us to consider whether regarding the condition of the building, as stated in Exs. A1 and B1, the parties gave out true state of affairs. Assuming that Ex. A1, written by the then Administrator-General of Bengal to Bijay Gopal, depicted a true picture of the building, then in view of the provisions of Clause (e) of Section 108 of the Transfer of Property Act, Bijay Gopal was to have avoided the lease and quitted the leasehold. That he did not do will appear from the letter Ex. B1. So, he did not consider it proper on receipt of Ex. A1 that there had been frustration of the purpose for which the lease had been taken in respect of premises No. 2 Watkins Lane. He continued to occupy the premises. But, it must be observed that after July 1931 the then landlord began to accept rent at Rs. 45 per month from Bijay Gopal in respect of premises No. 2 Watkins Lane. It would appear from Ex. B1 that originally the rent was at Rs. 90, then it was reduced by Rs. 20 and became Rs. 70 per month and when Ex. B1 was written by Bijay Gopal he requested the then landlord in the following terms:

So we would request you to reduce the rent to reasonable bare ground rent only.

Mr. Guha emphasised on that expression appearing in Ex. B1. He submitted that as the building had collapsed no rent could be assessed for the building wherefor the tenant had to forward a proposal in terms of the following expression:

We would request you to reduce the rent to reasonable bare ground rent only.

Rent was reduced from Rs. 70 per month to Rs. 45 per month following that letter Ex. B1. Relying on the expression as aforesaid and on the fact of reduction of rent and acceptance of rent at Rs. 45 per month Mr. Guha contended that although there was no further exchange of letters between the then landlord and the then tenant regarding an agreement relating to the conversion of the premises tenancy into a tenancy for land of the thika character, inference would be drawn that there was an implied agreement between the then landlord and the then tenant following the letter Ex. B1 coupled with the fact of payment and acceptance of rent at reduced rate at Rs. 45 per month converting the premises tenancy into a land tenancy. Mr. Mitra, the learned Advocate for the Respondent-plain-tiff, repelled the argument of Mr. Guha. Reading the expression--

to reduce the rent to reasonable bare ground rent only,

occurring in Ex. B1, Mr. Mitter submitted that by that expression used in the letter Ex. B1 what, was intended was that rent should be assessed at a rate prevailing in the locality for land only since the building collapsed and the bare land remained within the premises No. 2 Watkins Lane. In interpreting the expression--

reduce the rent to reasonable bare ground rent only,

in the background of the fact of realisation of rent at Rs. 45 per month following July 1931, Mr. Mitter drew my attention to Ex.5 and to the evidence adduced in Title Suit No. 38 of 1938 that was fought out between the present Plaintiffs and the predecessor-in-interest of the present Defendants upto the Supreme Court in regard to the property in dispute. He submitted that the real intention of the parties in effecting the reduction of rent could be gathered from Ex. 5 as well as from the evidence adduced in Title Suit No. 38 of 1938. Exhibit 5 is the inspection report dated June 28, 1932. The then Deputy Administrator-General inspected premises No. 2 Watkins Lane on July 24, 1932. The letter Ex. A1 dated April 30, 1931, written by the officiating Administrator-General, gives an impression as if a part of the building had collapsed. Exhibit B1 dated July 31, 1931, written by the then tenant, to the then landlord, the then Administrator-General, gives an impression that the entire building of premises No. 2 Watkins Lane, had collapsed. When, on June 28, 1932, the then Deputy Administrator-General inspected premises No. 2 Watkins Lane (vide inspection report Ex. 5) in presence of Bijay Gopal, the predecessor-in-interest of the Defendants-Appellants, he found that the building had not collapsed but only its porch had collapsed. The main building remained in tact and was being used by the Defendants'' predecessor-in-interest Bijay Gopal. Only a few of the beams and rafters of some of the rooms of the building, as the report Ex. 5 shows, required testing with a view to determine whether those needed replacement. Therefore, what was written in Ex. A1 by the officiating Administrator-General was written upon information which was not true. But the predecessor-in-interest of the Defendants-Appellants Bijay Gopal who had been then occupying the holding while writing Ex. B1 asserted as if the building had totally collapsed in July 1931 (vide Ex. B1). But, on June 28, 1932 (vide Ex. 5) it was found by local inspection by the Deputy Administrator-General that the building was in tact, only its porch collapsed. On June 28, 1932, Bijay Gopal was occupying the rooms of premises No. 2 Watkins Lane. Exhibit 5 would show that before the Deputy Administrator-General Bejoy Gopal submitted that rent of premises No. 2 Watkins Lane should be reduced but not that the premises tenancy should be converted into a thika tenancy for bare land only. Bejoy Gopal wanted reduction of rent on the ground that the Railways had by that time built residential quarters in and around Howrah. Therefore, the private quarters occupied by private individuals were not much in demand and remained vacant causing reduction in the prevailing rate of rent of let-out houses in the locality. So, Bijay Gopal on that score wanted that the rent of the premises No- 2 Watkins Lane upon which the. building stood without the porch should be reduced. It is not known exactly when the rent of Rs. 45 was realised per month. But, it was realised after 1931. It is definite that in 1936 that rent was realised at Rs. 45 per month for premises No. 2 Watkins Lane as would appear from the counter-foil of the rent-receipts exhibited in this case. Bijay Gopal''s submission for reduction of rent was not accepted by the then Administrator-General. However, rent was reduced to Rs. 45 per month and rent at reduced rate was certainly accepted for premises No. 2 Watkins Lane at least on and from 1936. But, in fact, it was found that upto June 28, 1932, the building on the premises No. 2 Watkins Lane did not collapse and was in existence though its porch fell down. Rest of the rooms of the building were then being used as godown by Bijay Gopal. The paper-book in T.S. No. 38 of 1938 (Ex. 10) would show that the witnesses deposing in that suit admitted that upto 1942 an employee of Bijay Gopal used to reside in the rooms of the building standing on premises No. 2 Watkins Lane, Howrah. Therefore, from the materials on record, it can safely be said that between July 1931 to 1942 the main building on premises No. 2 Watkins Lane, Howrah, remained in tact, only its porch fell down. So, the expressions ''part of the building collapsed'' and ''the collapse of the building'' in Exs. A1 and B1 do not give a correct picture of the state of the building and of the land on premises No. 2 Watkins Lane during the period from July 1931 to 1942. Besides these two letters Exs. A1 and B1 there is no other document indicating that the tenant approached the landlord for conversion of the premises tenancy into a thika tenancy and the landlord ever agreed to such conversion of the premises tenancy into a thika tenancy. The very basis for the Defendants-Appellants'' contention regarding the alleged, agreement of conversion of premises tenancy into a land tenancy of thika character was found on Exs. A1 and B1. Those two documents as now found, and as was found by the learned Munsif, contained untrue statements of facts regarding the building on premises No. 2 Watkins Lane, Howrah, in 1931. There could be, therefore, no earthly reason why Bijay Gopal would approach the landlord Administrator-General for conversion of the premises tenancy into a land tenancy of the thika character. The documents Exs. A1 and B1 do not show that in terms of those two documents there was an agreement, whereby the premises tenancy was converted into a land tenancy of thika character. On the other hand, those two documents containing untrue statements of facts could not be made a basis for the lessor and the lessee to agree to the conversion of the existing premises tenancy into a tenancy for the land of thika character. So, Mr. Guha''s submission that on the evidence as adduced a legal inference should have been drawn on Exs. A1 and B1. to support the Defendants-Appellants'' contention regarding conversion of the premises tenancy into thika tenancy cannot stand in view of the facts found by both the Courts below and as reviewed by me. Mr. Mitter''s interpretation of the expression--

we would request you to reduce the rent to reasonable bare ground rent only,

in the Ex. B1 in the context of the facts and circumstances revealed in the evidence discussed above, is not only logical but consistent with the facts found by both the Courts below. As the Exs. A1 and B1 contained untrue statements of fact no agreement in terms of those documents could ever be founded. Both oral and documentary evidence as discussed by both the Courts below which has been reviewed by me clearly confirms that in July 1931 the building did exist without the porch. So, there could be no basis for the contention of the Defendants-Appellants regarding the conversion of the premises tenancy into land tenancy of thika character following July 1931. Acceptance of reduced rent of Rs. 45 per month in absence of proof of conversion of premises tenancy into thika tenancy cannot lead to an inference of an agreement between the then landlord and the then tenant converting the premises tenancy into a land tenancy of thika character. On the other hand, circumstances appearing in Ex. 5 amply explain the reason why the then landlord accepted rent for the premises No. 2 Watkins Lane with the building standing thereon at a reduced rent. Mr. Mitter pointed out another fact which the learned Munsif had observed that in 1936 when rent-receipts were being granted by the then landlord the Administrator-General of Bengal for premises No. 2 Watkins Lane and counterfoils of rent-receipts were then being maintained in the office of the Administrator-General. The entire counter-foil book (Ex.11) was shown to me by Mr. Mitter. In one of the counter-foils of the year 1936 the outer foil having had been issued to Bijoy Gopal in regard to premises No. 2 Watkins Lane, the word ''premises'' had been written, not ''land''. Mr. Mitter showed vat a number of counter-foils in the book Ex. 11 wherein ''landlord''--''agricultural'', ''non-agricultural'', ''ground'', ''house'', ''rooms'', ''flat'', ''premises'' have been used describing the character of the tenancy. So, Mr. Mitter pointed out that if the landlord agreed to and in fact allowed conversion of the premises tenancy of premise No. 2 Watkins Lane into a land tenancy of thika character in 1931 or thereafter, the counter-foils of rent-receipts as in Ex. 11 relating to the premises No. 2 Watkins Lane, Howrah, would certainly have contained the word ''ground'' but not the word ''premises''. About the genuineness of the counter-foil book (Ex. 11) none questioned. So, upto 1936 Bijay Gopal paid rent hot for the bare land of premises No. 2 Watkins Lane but for the building standing on the land of premises No. 2 Watkins Lane, Howrah. Upto 1942, the building stood on premises No. 2 Watkins Lane and the building has still been standing on No. 2 Watkins Lane. So, the whole basis of the argument relating to the frustration of the contract of lease sought to be based upon Exs. A1 and B1 cannot, in fact, be founded and I, therefore, refuse to accept such argument as advanced by Mr. Guha. I find that the learned Munsif and the learned Subordinate Judge rightly held that the premises tenancy in regard to premises No. 2 Watkins Lane was never converted into a land tenancy of thika character. Mr. Mitter rightly pointed out that if there was the frustration of the contract of lease regarding the building on premises No. 2 Watkins Lane, then under the provisions of Clause (e) of Section 108 of the Transfer of Property Act upon the basis of the statements of facts as made in Exs. A1 and B1 which, however, did not contain true statements of facts, the predecessor-in-interest of the Defendants-Appellants i.e. the then tenant was required to avoid the lease of the premises No. 2 of Watkins Lane by quitting the premises. But, he continued to occupy the premises No. 2 Watkins Lane. So, Mr. Mitter rightly submitted that the Defendants-Appellants'' story that Bijay Gopal approached the then landlord and prevailed upon him to agree to the conversion of the premises tenancy of premises No. 2 Watkins Lane into a tenancy of bare land of thika character would be much big a pill to swallow. I fully accept his argument. By Ex. A1, as I find, shows that the landlord wanted the tenant to exercise his option of avoiding the lease. But Ex. B1 would show that the tenant did not avoid the lease. He continued to occupy the premises. The Defendants-Appellants and their predecessor-in-interest Bijay Gopal took upon themselves the burden of establishing the agreement whereby the then landlord agreed to the conversion of the premises tenancy into a thika tenancy in regard to the premises No. 2 Watkins Lane. They attempted to discharge this burden relying on Exs. A1 and B1 which, as I have found, did not contain true statements of fact regarding the building on premises No. 2 Watkins Lane during April to July 1931. Therefore, on the basis of those two letters, Exs. A1 and B1, neither parties could be ad idem for the formation of the alleged agreement converting the premises tenancy into a tenancy of bare land of thika character in respect of No. 2 Watkins Lane, Howrah. The Defendants-Appellants have been still in occupation of the building in premises No. 2 Watkins Lane and surreptitiously constructed some structures on the vacant land of premises No. 2 Watkins Lane. So, upon a consideration of the arguments of the learned Advocates for the Appellants and the Respondent and upon reviewing the facts and circumstances relied upon by both the Courts below in coming to their findings of facts and law, I hold that the Defendants-Appellants have failed to substantiate their grounds in appeal preferred against the judgment and decree of the learned Subordinate Judge, passed in the Court of Appeal below. Accordingly, I affirm the judgment and decree, passed by both the Courts below, and dismiss the appeal. The Respondent shall get cost of hearing of this appeal.