Baijnath Bajoria vs Sk. Md Mateen and Others

Harries, C. J.

This is an appeal from a judgment and decree of P. B. Mukharji, J., dated December 2, 1949, by which he decreed the Plaintiff''s claim for possession of certain property together with mesne profits. The predecessors in title of the Plaintiff Respondent granted a lease to the Defendant-Appellant on November 29, 1943, of a piece of vacant land known as No. 83, Lower Circular Road, having an area of 3 bighas and 14 cottahs. The lease was for a term of three years from December 1, 1943. The rent payable was Rs. 500 per manses.

By the terms of the lease the lessee was entitled to erect structures upon the land and further he was entitled to remove all structures erected by him on the expiry of the period of lease.

On May 4, 1946, the lessors transferred the reversion to Respondent No. 1. At the termination of the lease on December 1, 1946, the Plaintiff-Respondent demanded possession, but the Defendant-Appellant refused to vacate. Hence the suit for ejectment and mesne profits.

The only defence put forward was that the Defendant was a Thika tenant and his possession, therefore, was protected by the Calcutta Thika Tenancy Act of 1949 (West Bengal Act II of 1949).

The learned Judge came to the conclusion that the Defendant had failed to establish that he was a Thika tenant as defined in that Act and, therefore, no question of special protection under that Act could arise In the view of the learned Judge it was an ordinary case of a lessor claiming possession, at the expiry of the period of a lease of vacant land.

Whether the Defendant was entitled to the protection given by the Calcutta Thika Tenancy Act of 1949, must depend upon whether the lease created a Thika tenancy as that term is denned in the Act.

The term "thika tenant" is defined in sec. 2 (5) of the Calcutta Thika Tenancy Act, 1949, in these terms:

Thika tenant'' means any person who under the system commonly known as ''thika'', ''thika masik utbandi'', ''thika masik'', ''thika bastu'' or under any other like system holds, whether under a written lease or otherwise, or has been recorded in any record-of-rights as holding, under the title ''dakhal basatkar'' or other like appellation, land 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 such other person and has erected any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such persons

The Defendant called evidence in the Court below with a view to showing that he was a Thika tenant. But the learned Judge was not satisfied that he was thika tenant as defined in the Act. All that the Defendant could show was that he held under a lease for three years which provided for the payment of rent at a monthly rate and further that he had erected a structure for a manufacturing or business purpose upon the land. That, it was said, made the lessee a thika tenant within the meaning of the term as used in the Calcutta Thika Tenancy Act. The learned Judge, however, pointed out that not only must a person, who claims to be a thika tenant, show that he holds under a written lease or otherwise certain property at a rent and that he has erected structures on the property, but he must also show that he holds under the system commonly known as ''thika'', ''thika masik'', ''thika masik utbandi'', ''thika bastu'' or under any other like system. Unless the tenant shows that he holds under one of those systems, his tenancy cannot be described as a thika tenancy within this Act. Merely to show that he held under a written agreement at a monthly rent and that he had erected structures is merely to show part of what is necessary to constitute him a thika tenant. He must further show that he holds the land under one of these systems.

The matter was considered by a Bench of this Court in the case of Sm. Hira Devi Vs. Ram Grahit Singh . After citing earlier cases decided by single Judges, T observed at page 186:

Both these cases make it clear that the person seeking the protection of the Ordinance must show that his tenancy is under one of these various systems. There is no evidence at all as to whether this tenancy is covered by any of these systems and therefore, I think Banerjee, J., was right in holding that the Ordinance gave no protection to the Appellant.

The Ordinance to which I made reference has now been replaced by the Thika Tenancy Act. This Bench case is clearly binding on us and should be followed.

It appears that in a later case P. B. Mukharji, J., appears to have thought that there was no system such as ''thika'', ''thika masik utbandi'' ''thika masik'' or ''thika bastu'' known in Calcutta. Be that as it may, the Act clearly only applies to a person holding a tenancy under such a system. If there is no such system then the Act can have no application to tenancies in Calcutta.

On behalf of the Appellant it was urged that as it could not be established that the Appellant held under any such system the Court should hold that as he complied with the remainder of the definition he was a thika tenant. We cannot accede to such a contention. Unless the Defendant-Appellant comes within the definition of a thika tenant as given in the Act he cannot claim the protection given by that Act. We cannot overlook the fact that the word "thika" has a variety of meanings. Frequently it is used to cover a lease granted to a farmer of rents. It seems to me that in the Calcutta Thika Tenancy Act a thika tenant is a very special form of tenant and as the Appellant has failed to show that he is such a tenant he had no defence to this claim. That being so, the suit was rightly decreed and the appeal must be dismissed with costs. The Appellant must vacate the premises within fourteen days of today. The Respondent will be entitled to execute the decree of this Court after the expiry of fourteen clays.

S.N. Banerjee, J.

I agree.