Ballabhram Badrinarayan Ltd. vs Debi Prasad Soni Khettri

P.B. Mukharji, J.—In this suit the Plaintiff company claims recovery of possession of land measuring 4 cottas and a half at 58, Upper Chitpur Road, Calcutta, said to be in the possession of the Defendant and for mesne profits at the rate of Rs. 10 per day from Ashwin 1, 1355 B.S. The suit was filed on September 25, 1948.

The Plaintiff''s case is that, by an order dated January 30, 1948, made by this Court in Suit No. 1171 of 1943 Sukumari Dasi v. Durlabh Das Basak, Mr. Sudhirendra Nath Ghosh was appointed Commissioner of Partition and Special Referee, with liberty to sell by public auction or by private treaty the said land at 58, Upper Chitpur Road. The Plaintiff company purchased the said land on April 24, 1948, at an auction-sale. By conveyance, dated August 6, 1948, the Plaintiff-company claims to be the owner of the said land. The Defendant is said to have been a monthly tenant, until the expiry of Bhadra 31, 1355 B.S., according to the Bengali calendar, in respect of the southern portion of the said land, measuring about 4� cottas at a rent of Rs. 68 per month in addition to his share of the Corporation rates and taxes amounting to Rs. 86 per quarter. Particulars of the area occupied by the Defendant are set out in para. 4 of the plaint. The Defendant attorned to the Plaintiff company as a tenant as from Sraban 21, 1355 B.S., corresponding to August 6, 1948, being the date of the said conveyance. The Defendant is alleged to have sublet, without the consent in writing of the Plaintiff company or its predecessor-in-interest. The Plaintiff company, by a notice dated August 30, 4948, determined the said tenancy, but the Defendant is alleged to be still in occupation wrongfully, although the notice called upon the Defendant to vacate by the end of Bhadra 31, 1355 B.S., corresponding to September 16, 1948.

The written statement of the Defendant was filed on January 10, 1949 and was amended by an order dated August 23, 1949. By the amendment the Defendant pleads--

"Defendant" has also erected valuable structures on the said land for residential and business purposes and has, since July 24, 1931, held the said land under a system commonly known as "Thika tenancy" and is still so holding (incorrectly described the said building) the same.

It is also pleaded in the written statement that this Court has no jurisdiction to entertain the suit. The service of notice to quit is denied and it is pleaded that the Defendant sublet the premises with the consent and approval of the Plaintiff company and the previous owner of the said premises.

Mr. E.E. Meyer, with Mr. Gouri Mitter, appeared for the Plaintiff and Mr. Sankar Banerjee, with Mr. Rahman, appeared for the Defendant.

Mr. Rahman on behalf of the Defendant raises the following issues:

Is the Defendant a thika tenant under the Calcutta Thika Tenancy Act?

(a) Has the notice to quit been served on the Defendant?

(b) If so, is it valid?

To what reliefs, if any, are the Plaintiff entitled?

Learned Counsel on behalf of the Plaintiff company accepts those issues.

Many witnesses have been called on behalf of the Plaintiff company and the Defendant.

* * * * *

Issue No. 1. It is now well settled law that, in order to show that the Defendant is a thika tenant under the Calcutta Thika Tenancy Act, it has to be proved by evidence that the tenant holds land under a particular system mentioned in Section 2(5) of the Calcutta Thika Tenancy Act or under a similar system. It is essential, therefore, that a system has to be proved. It is not enough that a tenant takes a vacant land and then builds structures on it. That cannot make him ipso facto a thika tenant under the Calcutta Thika Tenancy Act : Murari Mohan Mukherjee v. Prokash Chandra Chatterjee (1949) 53 C.W.N. 640 approved by the Court of appeal in Suraj Jan Bibee v. Banku Behary Saha (1949) 84 C.L.J. 183 and Shaikh Mohammed Mateen v. Baijnath Bajoria (1949) 54 C.W.N. 287.

On behalf of the Plaintiff, the evidence under this issue is this. Makhan Lal Banerji is the main witness on the point. This witness is a clerk to Mr. S.N. Rudra, Barrister-at-law, the Commissioner of Partition and Special Referee and he worked in the estate of Basaks for over twenty years. This particular property was a part of the Basak estate. His evidence is that the tenant was a monthly tenant and he made the bills and collected rents. According to him, the Defendant was a monthly tenant. At first the rent was settled at Rs. 72 per month, which was reduced to Rs. 68 per month. Exhibit G is the bill-book in respect of the rent-bills issued to the Defendant and is contained in the bill-book relating to Calcutta properties. These counterparts do not disclose the fact that the Defendant is a thika tenant at all and show that no Calcutta tenant is described as a thika tenant. It appears from the other bill-books, relating to properties outside Calcutta, such as Baranagar and Kamarhati, that the tenants in respect of these mofussil properties are described as thika tenants. Exhibits H and I are the bill-books relating to outside properties and a perusal of them shows that these mofussil tenants are regarded and described as thika tenants. All these bill-books, Exhibits G, H and I, have been duly proved by this witness. It is clear, therefore, that the Basak estate made, a difference between those who were thika tenants and those who were not. The bill-books show that of the tenants in respect of properties outside Calcutta, like Baranagar and Kamarhati, were described as thika tenants, but the rent-bill book relating to the Calcutta tenants shows that such tenants are not regarded and described as thika tenants. When the receiver took possession of the Basak estate I find the same difference maintained. Exhibit K is a rent-bill issued by the receiver in respect of the Calcutta tenants and they were not described as thika tenants, whereas Exs. 1 and M, which are rent-bills in respect of properties outside Calcutta issued by the receiver described the tenants as thika tenants. On the documentary evidence, therefore, I am convinced that the Calcutta tenants of the Basak estate, including 58, Upper Chitpur Road, which is a property in suit, are not to be regarded as thika tenants.

Mr. Banerjee''s cross-examination of this witness has been on the line that the incidents of the tenancy are the same whether the tenants were in respect of properties at Baranagar and Kamarhati and other places outside Calcutta, or in respect of Calcutta properties and that is the suggestion that he has made to this witness. The witness''s appreciation of the legal position is to my mind immaterial on this question. The fact to be proved is that a tenant holds land and that such holding is under the system mentioned in the Calcutta Thika Tenancy Act or any other like system. The evidence makes it clear to me, beyond doubt, that, at any rate, so far as the Calcutta tenants are concerned, the Basak estate or the receiver did not consider them to be thika tenants. It also appears to me from the evidence that there is such a system which prevails outside Calcutta, but not in Calcutta. Otherwise, I cannot see why, in respect of tenants in respect of mofussil properties outside Calcutta, the description was clearly given as thika tenants, whereas with regard to tenants of the Calcutta properties of the same estate, there would be the singular and uniform omission to describe them as thika tenants. Mr. Banerjee''s case was that whoever takes a vacant land and builds structures on it and who pays monthly rent and is liable to be ejected on reasonable notice and whoever pays municipal rates are always to be regarded as thika tenants under the Calcutta Thika Tenancy Act. Neither the language of the Calcutta Thika Tenancy Act, nor the evidence justifies such a conclusion.

The Defendant''s evidence on this point appears to me entirely unconvincing. He describes himself to be a thika tenant and his reasons are two-fold : (i) that it is a tenure of land without any ''terms and (ii) that he has to leave on reasonable notice to quit. In my opinion, these reasons are not enough to make him a thika tenant under the Calcutta thika Tenancy Act. He must establish that (i) "holds" land and (ii) that under a system, within the meaning of the Act.

The evidence of Makhan Lal Banerji is clear that he had at first a talk with the Defendant before tenancy was given to the Defendant (Q. 26). It is not established that there was any agreement that the Defendant was to become a thika tenant. In fact, this witness, who has a large experience, extending over twenty years, of properties both in Calcutta and outside, such as Kamarhati and Baranagar, has been frank to say (Q. 138) that, even with that large experience, he does not know the meaning of "thika". I do not blame him and appreciate his candour. I have been trying in these Courts for sometime to find out what are the tangible features of this species of tenancy called the "system "of thika tenancy" or "any other like system" and my attempts so far have remained a pursuit of a mirage. The evidence of Makhan Lal Banerji, at any rate, makes this quite clear that thika tenancy does not prevail in Calcutta, but is a practice which may be found outside Calcutta. It is important in this context to set out, in his own words, the answers he gave to the Court to Qs. 139 to 145:

Q. 139. To Court : But they are known as thika tenants?

The usual practice was to write thika tenant in respect of the tenants at Kamarhati and when I came into service, I followed that practice; here in Calcutta the tenants were not called thika tenants and I observed the same practice here also.

Q. 140. In fact, Kamarhati tenants were described thika tenants 7 That is so.

Q. 141. But that is not the practice in Calcutta?

That is so.

Q. 142. As far as you know, the Calcutta tenants are not thika tenants, or they are not called thika tenants?

That is so.

Q. 143. To Mr. Banerjee : In answer to his Lordship, when you say the Calcutta tenants are not thika tenants, you mean tenants on the lands in suit?

Yes.

Q. 144. When you used the word "practice" in answer to His Lordship''s question, you mean the practice in your employer''s estate?

Yes.

Q. 145. To Court : When you say tenants, do you realise that they are tenants of the estate?

Yes.

I accept without hesitation the evidence of Makhanlal Banerji, not only because he impressed me as a witness of unimpeachable credit by his candour and demeanour, but also because of his large experience of tenancies in and outside Calcutta, which, in my view, lends additional weight to his evidence.

The evidence of the Defendant himself, is, in my opinion, entirely insufficient and inadequate to establish that he is a thika tenant under the Calcutta thika Tenancy Act. According to him, a person is a thika tenant, who has no terms of tenancy (Qs. 27-31). In my judgment, that is not enough to prove "system" of thika tenancy or any "other like system" within the meaning of the statute.

On the facts, therefore, of the particular case relating to the Defendant and in respect of the portion occupied by Defendant, in 58, Tipper Chitpur Road, I hold, that the Defendant is not a thika tenant under the Calcutta thika Tenancy Act.

I propose, however, to discuss evidence relating to other, persons and other tenancies and in respect of other premises. That evidence was offered on behalf of the Defendant with a view to establish a "system." The essential predicate of a system is uniformity comprehending a plurality of situations from which could be deduced an invariable method. The result of this evidence is remarkable in many ways. In the same bustee land at No. 102, Mechuabazar Street, some tenants are described as thika tenants while others are not said to be thika tenants. Exhibits 6 and 7 tendered by witness Md. Roshandin prove, if anything, not the system, but the lack of any system. Ex. 6 is the receipt granted to the witness''s wife Sadagar Bibi, described only as a tenant by the landlord, Tarakeshwar Basak and Ex. 7 is the receipt granted to witness''s brother-in-law, Gul Muhammad, described as monthly thika tenant by landlord, Radhanath Basak, but they both relate to different portions of the same land at No. 102, Mechuabazar Street. Another witness, Ahmat Din, from 108, Mechuabazar Street bustee tendered Ex. 8, which is the rent receipt. But the rent-receipt does not describe him as a thika tenant at all. He says he is an ordinary monthly tenant and the receipt describes him as only a tenant. Nur Mahammad, another witness from the bustee at 48, Zakariah Street tendered two rent receipts marked Ex. 9. These receipts are granted to Zaitun Bibi and describe the tenant as a monthly tenant at will (shechchadhin masik praja). The statute does not say all tenants at will are necessarily thika tenants. These receipts, therefore, do not establish or prove any system of thika tenancy or similar system. Exhibit 10 is another rent-receipt produced by witness Sri Earn Sahu. But this receipt is an ancient one, more than four years old and belongs to his aunt. His aunt has not given any evidence. Although this receipt describes his aunt as a monthly thika tenant, this witness in evidence says (Q. 31) that she is an ordinary monthly tenant. The Court of appeal has held that an ordinary monthly tenant is not necessarily a thika tenant. See Suraj Jan v. Banku (supra). In any event I am not prepared to find a system from this evidence. Only two other witnesses have spoken of thika tenancy. They are Barada Charan Chakrabarti and Md. Badaruddin. Barada has tendered rent-receipts, marked Ex. 4, which describe him as a monthly thika tenant of bustee land at No. 3B, Nundaram Sen Street. He is a Homeopath doctor. His evidence in examination-in-chief is that he is a monthly thika tenant and the contract between him and the landlord is that he will pay rent at the rate of Rs. 12 per month per cottah and when the landlord would want him to go away he would be given a reasonable notice which will be about a month (Q. 17). He took 13/4 cottas of vacant land and built structures on it. He contradicts that evidence in cross-examination and admits that he is only an ordinary monthly tenant, whose tenancy is determinable by a notice of one month (Qs. 72-73). His evidence therefore fails to establish or prove a system within the meaning of the Calcutta thika Tenancy Act. He also attempted to prove a system regarding other tenants, but his evidence was entirely hearsay (Qs. 45-46) and therefore, to be discarded as unreliable, but even there he finally admits that the system is no other than an ordinary monthly tenancy (Q. 74). Witness Md. Badaruddin produced three rent-receipts, marked Ex. 5, describing him as a "monthly thika tenant" in respect of a portion of a basti at 106, Mechuabazar Street. But here again this witness says there are no terms of tenancy between him and the landlord (Q. 8 and Q. 66 and Qs. 57-72), although he gives his own idea and describes himself as a thika tenant (Q. 11). On the notice to quit required he gives various answers, but ultimately he says approximately two or three years'' notice is required to determine his tenancy. On the basis of his evidence relating to his tenancy in respect of 106, Mechuabazar Street, I cannot hold that the present Defendant before me is a thika tenant under his landlord within the Calcutta thika Tenancy Act, 1949, in respect of 58, Upper Chitpore Road.

The evidence necessary to establish that a tenant is a thika tenant within the meaning of the Act must (i) first prove the terms of the particular tenancy of the Defendant and that is clear from the word "holds" in Section 2(5) of the statute, (ii) secondly, a system within the meaning of Section 2(5) of the Calcutta thika Tenancy Act, 1949 and which must be either "the "commonly known system" mentioned therein or "any other "like system" and (iii) thirdly, that his own terms of tenancy correspond with such system. These are three essential considerations from the point of view of evidence.

So far as the first consideration is concerned, the evidence is that the Defendant is only an ordinary monthly tenant. The Court of appeal has settled the law on the point in Suraj Jan Bibee v. Banku (supra) and approved an earlier decision of mine and at p. 187 says that an ordinary monthly tenant is not necessarily a thika tenant under the statute. In the first test of proof, the Defendant, in my judgment, fails.

So far as the second consideration is concerned, I allowed the Defendant to call evidence to prove, if possible, the system, with a view to enable the Defendant every facility to show from a number of instances the common characteristics of a thika tenancy under the "commonly known system" or "any other "like system". In my opinion, such evidence is admissible u/s 13 of the Evidence Act read with Section 9 thereof, inasmuch as this is a question relating to the existence of a "right" within the meaning of that section. Such words as "right" and "transaction", in my judgment, should be given a wide and liberal interpretation and this view finds support from the observations of the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani (1901) ILR 29 Cal. 187 : L.R. 29 IndAp 24 where Lord Lindley makes the following observation:

These words are very wide. Althouth such evidence of other tenancies in respect of other lands is admissible on the question of a system, the value of weight to be given td such evidence is necessarily determined by the nature of that evidence given in a particular case. It is also to be observed that such evidence does not ipso facto prove that the particular Defendant is also within such system which has also to be proved and established.

By this second test also the Defendant has, in my judgment, on the evidence before me, failed to establish the system.

The question of Defendant satisfying the third consideration, I have mentioned, does not, therefore, arise.

Mr. Sankar Banerjee has contended before me that the Calcutta thika Tenancy Act applies to any tenant holding any busti land. I am unable to accept this general claim for busti lands. The Calcutta thika Tenancy Act, 1949, does not say so and avoids all reference to the word busti. I have been asked by Mr. Banerjee to refer to the speech of the Hon''ble Minister introducing the Bill in the Legislature, with a view to see that the Act was intended for the protection of busti tenants. I am unable to construe the Calcutta thika Tenancy Act by reference to such a speech. If the intention was what Mr. Banerjee suggests, then all that I can say is this that the statute has remarkably and very successfully avoided that intention by the words that it has chosen to employ and I have come across no better example of a statute failing so completely to carry out the purpose, for which I am told it was passed. I will only repeat what I said in another case Shaikh Mohammed Mateen v. Baijnath Bajoria (supra) in answer to this argument:

It seems to me a common impression with the public and the litigants that the Calcutta thika Tenancy Act is a Charter of Rights for the busti dwellers of Calcutta. The intention of a statute is to be gathered from the language used in the statute read as a whole including its preamble and this Court does not deal with the problem from the point of view of what should have been expressed in the language, but, in fact, is not. I do not find any reference to busti dwellers in the Calcutta thika Tenancy Act. If it were intended to protect them, there was nothing to prevent the legislature from saying so, because it would not have been either difficult or impracticable to define what a busti in Calcutta is. In fact busti has been defined under the Calcutta Municipal Act. The sine qua-non of a good legislation is that those responsible for making the law should know (a) the subject matter of the legislation thoroughly and adequately and (6) how to express their knowledge and intention in reasonably and tolerably clear language. Hasty legislations have become far too frequent and still hastier and constant amendments which they often inspire are not conducive to security or social order.

It is necessary to observe that the Defendant has called no one from the busti at 58, Upper Chitpore Road, or even from the neighbouring lands, although witnesses have been called from Mechuabazar busti and other bustis.

Mr. Meyer has submitted before me that the whole defence of thika tenancy is a mere after-thought, inspired, not by fact, but by the statute and is not a bona fide defence at all. The suit was filed on September 24, 1948, and in an application for final judgment under Chapter XIIIA of the Original Side Rules of this Court, the only defence taken was about the notice to quit. On January 10, 1949, the written statement was filed and no defence of thika tenancy was taken, although the thika Tenancy ordinance was in force. On July 23, 1949, an order was made directing the suit to appear on the peremptory list for disposal within a week. On August 5, 1949, an application was made to amend the written statement by taking the plea of thika tenancy and the order was made on August 23, 1949. I am inclined to accept the submission of Mr. Meyer, having regard to the history of this suit.

One more feature of the defence calls for comment. The amendment that was made in the written statement stated that the said land was held under the "commonly known system" of "thika tenancy" and not "any other like system." The amendment also states that it is so held since July 24, 1931, which is the date of the conveyance. Then again the pleading in the written statement is that the Defendant built structures on the land, but the conveyance states that he purchased the same.

Mr. Banerjee has contended that whoever takes on rent vacant land and builds structures on it becomes a thika tenant. Nothing would have been easier and simpler for the statute to say so, if that was what was meant by the commonly known system of thika tenancy or any other like system. I maintain the view that I expressed in Shaikh Md. Mateen v. Baijnath Bajoria (supra).

When a tenant takes a vacant land and then builds structures thereon he does not ipso facto become a thika tenant under the Calcutta thika Tenancy Act. If that were so, every lessee under an ordinary building lease whereby he takes a vacant land and agrees to build on it would become a thika tenant under the Act. Neither the express language nor the intention of the Act justifies such a conclusion. A thika tenant under the Act must prove (i) a system, which is either the "commonly known system" or a "similar" system and (ii) that he holds under that system.

The question of thika tenancy is constantly coming up before the Courts. Time has come to express this Court''s views on the species of tenancy contemplated by the statute and to say this species is unknown in Calcutta, as a commonly known system or any other system. I do not know of any case succeeding in this Court in establishing a thika tenancy within the meaning of the Calcutta thika Tenancy Act, 1949. In my opinion, the legislature and the draftsman of this statute did not know what thika tenancy was when defining it in the language they employed in Section 2(5) of the Act. Sarada Charan Mitra J., than whom there was hardly any greater authority on the land-laws of Bengal, observes in his Tagore Law Lectures on the "Land Law of Bengal, Bihar and Orissa", 2nd Ed. at p. 230:

Temporary leases of immoveable property are known in the Bengal Provinces by various names, the term ijara being the most common and the term "thika" being generally used in Bihar The word "thika in Bengal has not always the same significance, it being used in some districts, as in Twenty-four-Parganas, for permanent raiyati interest and in others for temporary raiyati leases.

This passage shows that the notion of thika tenancy is associated with raiyati interest which again relates to agricultural lands. The words and expressions used in Section 2(5) of the Act are words and expressions associated with agricultural tenures under the Bengal Tenancy Act and the same idea is solemnly put by Section 2(6) of the Act by saying that words and expressions used but not defined have the same meaning as in Bengal Tenancy Act. A little reflection could have shown that the scope of operation of such a statute in Calcutta will be either nil or negligible. The framers of Calcutta thika Tenancy Act were, therefore, putting a law on the statute book, which, by its very nature and definition, could not be applicable to Calcutta. Absurdity and ineptitude could not, in my view, go further. For all practical purposes, the Calcutta Thika Tenancy Act, 1949, in its present state, must remain a dead letter and a prolific source of useless litigation instigating dishonest pleas and defences.

I hold that the Defendant is not a thika tenant within the meaning of the Calcutta thika Tenancy Act and answer the issue in the negative.

Issue No. 2(a) and (b). After evidence has been led on this issue, learned Counsel for the Defendant abandoned this issue. As the evidence is complete on the point, I might as well record my finding on this issue.

The evidence of Manindra Kumar Bhowmik, Secretary and Principal Officer of the Plaintiff Company, proves Ex. A, the peon-book entry. Ex. B the copy of the letter or the notice to quit, Ex. C the postal acknowledgment of the letter or notice sent by registered post. Ex. 1 is the copy, the original having been lost. The only criticism made is that the peon-book entry does not mention the name of the peon. But this witness personally delivered the letter to the Defendant and his evidence is that the Defendant said as he did not know to sign and Ambuja, a relation of the Defendant, signed. The relationship between Ambuja and the Defendant is that Ambuja''s father and the Defendant married two cousins and Ambuja lives in the same premises as the Defendant and Ambuja''s father is an employee of the Defendant.

The postman himself, Amal Kumar Biswas, who delivered the registered notice, also gave evidence. He was the postman of Barhabazar Post Office. He identified the Defendant in Court and proved Ex. F the original signed receipt. He also said that, on the first day, he could not serve the letter and the next day Jugal Kishore Khettri brought the Defendant to the post office.

L.P. Parasramka Agarwalla, solicitor of the Plaintiff Company, also gave evidence and said that Ex. B, the copy of the notice, was drafted by him and personally handed over to Bhowmik, the Secretary, for delivery to the Defendant, as it was a responsible work. Mr. Agarwalla was formerly a director of the Plaintiff company and now its legal adviser.

Bijay Sankar Prasad was another witness. He is a student with excellent behaviour and gave his evidence with remarkable candour. He proved that Ambuja signed rent receipts for the Defendant and proved Ex. D being the receipt granted to his father who is a tenant at 58, Upper Chitpur Road and with whom he lives. He also identified Ex. A, the peon-book entry as the signature of Ambuja. That Ambuja used to sign for the Defendant is also proved by the evidence of witness, Indradeb Singh, who said that Ex. E the letter of attornment was delivered against the receipt or signature of Ambuja.

I have no hesitation in accepting all this evidence as the most conclusive proof of the service of the notice to quit.

The Defendant''s denial was obviously evasive and his prevarication in the witness-box about Ambuja collecting rents and having any authority from the Defendant gave me the impression that he was an unreliable witness. Compare Defendant''s Qs. 47-50 and Qs. 132-33 and finally Qs. 173-179. The point is important. The case for the Plaintiff company is that Ambuja signed receipt for the Defendant for the delivery of the notice to quit. Ambuja''s father Parameshwarlal is an old employee of the Defendant for the last fifteen years. Defendant''s Qs. 42-6. Defendant admits that Ambuja lives at 58, Upper Chitpur Road (Q. 47) and yet the Defendant has not called him to deny this evidence. Defendant says he does not even know Ambuja''s signature (Q. 50). In this context I am not prepared to accept the denial of the Defendant as against what I consider overwhelming proof of the service of the notice to quit given on behalf of the Plaintiff company. It must be remembered that evidence of Bhowmik is that he personally handed the notice to the Defendant. I unhesitatingly accept Mr. Bhowmik''s evidence.

The copy of notice to quit, proved as Ex. B in this suit and dated August 30, 1948, is, in my judgment, a legally valid notice to quit.

I, therefore, answer issue 2(A) and (b) in the affirmative.

Issue No. 3. The reliefs follow from the above findings.

There will be judgment for possession in favour of the Plaintiff company in terms of prayer (a) of the plaint and for mesne profits at the rate of Rs. 96 per month (calculated on the-basis of rent and rates) from Ashwin 1, 1355 B.S., corresponding to September 17, 1948, until delivery of possession and for costs.