Jitendralal Dattaroy and Another vs Bharat Loan Co. Ltd.

Deka, J.—This appeal is on behalf of the plaintiffs who brought a suit for eviction against the defendant on the allegation that one Kandarpalal Chaudhari took settlement of the land in suit by a registered lease, dated 21-12-36, wherein it was stated that the lease would run for ten years from 17-9-36 to 16-9-46, at an annual rental of Rs. 10/-, as a tenant-at-will without acquiring any jote right thereto.

In terms of the contract, Kandarpalal possessed the land and resided thereon till sometime in 1941 when, the defendant Company, in execution of a money decree against Kandarpalal, acquired jote right of the land with the hutments thereon and began to occupy the same, without coming into any arrangement with the plaintiffs; nor did the defendant pay rent to the plaintiffs after it came into occupation of the land covered by the lease.

The lease expired, according to the contract, on 16-9-46, but the defendant not having vacated the land, the plaintiffs served a notice terminating the tenancy by 16-6-49, and the suit was instituted on 29-7-49 for eviction of the defendant Company. The defendant is limited Company running under the name and style of Bharat Banking Company Ltd. (now Bharat Loan Company Ltd.), and it resisted the plaintiffs'' claim on the grounds inter alia that the suit was bad for non-joinder of parties.

It was stated in the written statement of the defendant, in para 5, that the defendant Company was ever ready to come to some settlement with the plaintiffs in respect of the disputed land, but the plaintiffs gave no settlement on delaying tactics. The defendant further pleaded that no proper notice of eviction was served.

The defendant categorically objected to the maintenance of the suit on the ground that the subsequent transferee from the defendant, namely, one Gajendra Chandra Datta, was not made a party to the suit.

Though nothing was definitely pleaded by way of defence as to the right of renewal accruing under the ordinal deed of settlement in favour of Kandarpalal Chaudhuri, an issue was framed in the following manner:

Did the predecessor-in-interest of the defendant hold the lands in suit under a lease, dated 21-12-36, with a renewal clause?

The learned Munsiff decided all the issues in favour of the plaintiffs and found that there was no holding over after, the expiry of the original lease, and he further found that the lease was determined by efflux of time and no notice was required under the terms of the lease, but a notice had actually been served terminating the tenancy by the end of the month or year of tenancy.

He further considered the right of renewal accruing under the lease and found that the defendant had failed to issue notice to the lessor for renewal of the lease either on the expiry of the lease or within a reasonable time thereof. He found that the defendant did nothing to show his willingness to renew the lease & accordingly he held that the defendant was not entitled to a renewal of the lease.

The learned Munsiff further found that Gajendra Chandra Datta, though on the land, was not a necessary party, since, the defendant transferred its interest to him after the institution of the suit by the plaintiffs. It was not contended in the trial Court that Kandarpalal Chaudhuri, the original lessee, was a necessary party.

On appeal, the learned Subordinate Judge, Upper Assam Districts, reversed the decree passed by the learned Munsiff on the ground that Kandarpalal Chaudhuri and Gajendra Chandra Datta were necessary parties to the suit. It is clear from the facts of the case that Kandarpalal Chaudhuri has no subsisting interest in the tenancy, his rights being completely acquired by the defendant, nor is he in possession.

Therefore, in no case he is a necessary party in whose presence the case should have been decided. Gajendra Chandra Datta is a subsequent transferee from the defendant and, therefore, his rights are hit by the doctrine of lis pendens, and any decree that is passed against the defendant, will be binding against him. In my view, therefore, the learned Subordinate Judge was wrong in holding that the suit was defective for not adding any of these parties.

The third point, namely, as to whether the-right of renewal subsisted in favour of the defendant, is the only material point that has to be considered. The learned Subordinate Judge held in so many words that the lessors were bound to issue a notice on the defendant to exercise their option of renewal before the Institution of the suit. He further thought that the notice should have been issued only on the original lessee, and not on the person whom the plaintiffs wanted to evict.

I find no support for such a proposition in law. The learned Subordinate Judge proceeded on the presumption that it was the duty of the lessor to give the defendant a chance in all cases to exercise its option irrespective of the terms as to renewal. The terms occurring in the lease would indicate that, subject to some conditions, the lessee would be entitled to get a fresh settlement on the expiry of the term of the original lease. The material portion in the document, as translated, runs as follows:

But after the expiry of the period of settlement, if I (the Second Party) want to take settlement again on payment of the enhanced rate of rent commensurate with the raising of revenue or on payment of rent at the rate prevalent in respect of the lands of other neighbouring mirasdars, you, the first party, or your representative or successors-in-interest shall be bound to give settlement to me, the second party, or my representatives or my successors-in-interest.

As I have already indicated, the learned Subordinate Judge construed the passage to indicate as if the duty was on the plaintiffs to offer settlement on the conditions as prescribed, whereas the passage as read or translated, would only indicate that if the, lessee or his successors, etc., desired, then and then only the plaintiffs would be bound to renew the lease for another term, on satisfaction of other conditions.

The word occurring in the lease in Bengali is ''chahile'' meaning �if wanted''. Therefore, the option was with the lessee.

It appears from the circumstances of the case and from the evidence on record that the defendant, though, by virtue of purchase in auction-sale through Court in 1941, got into possession of the land, it has neither attorned nor paid any rent to the lessor.

One of the employees of the defendant Company was examined as a witness on behalf of the defendant, who deposed to the effect that the defendant wanted to take settlement of the suit land from the plaintiffs but they did not grant any lease. Rent were also offered, but were refused.

No document or correspondence however, has been produced or proved to show that there was any offer of rent to the plaintiffs by the defendant Company and it had been refused. There is no indication either as to when there was a talk of taking settlement and between whom.

The Witness is a mere employee of the defendant Company, and not its Secretary, and it is doubtful what personal knowledge he had as to the affairs between the authorities of the Company and the plaintiffs.

The learned Munsiff disbelieved that there was any offer on behalf of the lessee for the renewal of the lease, and the witness for the defendant is completely silent on the point. The conduct of the defendant shows that it had never attorned to the plaintiffs, and it is doubtful whether it made any attempt at all for renewal of the lease.

Mr. Dam, appearing for the plaintiffs-appellants, has placed reliance on the case reported in-- Banshidhar Durga Das Dutta Vs. Ishan Chandra Chatterji, and contended that it was for the tenant to exercise his option of taking a new settlement when the term of the original lease expired and that option ought to have been exercised within a reasonable time.

This case supports the appellants contention that the responsibility was on the lessee to ask for a fresh renewal of the lease. Much, however, depends on the wording of the terms of the contract of renewal inserted in the lease. In the above case, the wording was on the expiration of the term written in this patta, you will take a new settlement.

On this wording, it was construed that it was fort the lessee to ask for a renewal of the lease, and that within a reasonable time, which proposition has support from the case reported in--''Jaggi Lal v. Sir W.E. Cooper'' 27 All 696 (B).

In the case of Banshidhar Durgadas Datta, some months elapsed between the expiry of the original lease and the institution of the suit. Mr. Dam relied upon another case reported in Mahendra Nath Srimani Vs. Kailash Nath Das and Others, where it was held that a covenant for renewal of the entire lease does not operate as a present demise, but is a mere contract which can only be given effect to in case of refusal to perform it by the lessor, by enforcing specific performance of the contract by the lessee.

In other words, this covenant does not form part of the demise itself, as the contract of the lease and the covenant for renewal are two separate contracts.

Construing the words occurring in the lease as to renewal, the option was with the lessee to ask for a renewal, if he so desired, and it was not for the plaintiffs to offer settlement on fresh terms on the expiry of the original lease.

Mr. Bhattacharjee for the respondent has argued with force that in case the lessee continues in possession, two things are bound to be assumed

(1) that there was holding over after the termination of the original lease, and

(2) that the defendant, by its conduct, implied that it was ready to take renewal of the lease, and in support of his contention, he has relied upon-- Tellicherry Pichi Naidu Vs. C. Jefferson,

There, in a suit for specific performance oil the contract for renewal of a lease, it was held that though the lessee had not asked for renewal of the lease for eight years after the expiry of the lease, he had not lost his right of renewal by laches, since he continued to be in possession and operated the mine for which the lease was created. Mr. Bhattacharjee''s argument is that a period of eight years was condoned in the Madras case referred to above, whereas, in the present case the period of lapse was much lesser, and since the defendant continued to be in possession, it ought to have been construed in law that it asked for it fresh renewal of the lease by its conduct.

If the facts were identical, I would have no hesitation in accepting Mr. Bhattacharjee''s contention, but here, what appears from the record is that the defendant had developed an attitude of hostility to the plaintiffs, and at no time appears to have offered them any rent, though it continued in possession from the year 1941 or there about, and subsequently transferred the leasehold'' to another person, Gajendra Chandra Datta, without any notice whatsoever to the lessor.

What is contained in the lease is that after the expiry of the period of settlement, the second party was bound to vacate the land described in the schedule in favour of the first party lessor, without raising any claim for jote right, and would give up possession without any notice, and, if there was a transfer during the pendency of the lease, the lessee could do so only with the consent of the landlord, which was not done in this case. It cannot, therefore, be assumed that the defendant, on its own behalf, wanted an extension of the lease or wanted to continue in possession.

Mr. Bhattacharjee has relied upon ''two more cases:-- Hemanta Kumari Debi Vs. Sefatulla Biswas, which says that when the original lease contains a renews clause, with no term fixed, and the lessee continues in, possession after the expiry of the original term, the mere fact that the original term has expired, in the absence of any circumstance suggesting a waiver or refusal, ought not to be regarded as determining the relationship between the parties.

In the present case, except by the operation of law, no relationship of landlord and tenant existed between the parties since 1941, and, therefore, the question of holding over after the expiry of the lease, does not arise, nor can the defendant''s possession be construed to be bona fide, possession in assertion of the right of a lessee.

Under these circumstances, I do not think the case cited has any application to the facts of this case. The other decision relied on by Mr. Bhattacharjee is-- Maharaja Bahadur Sir Prodyot Coomar Tagore Vs. Maynuddin Mia and Others, The facta there are different from what we find in the present case, and that case can be easily distinguished.

As I have already indicated, much would depend on the wordings of the term of renewal as occurring in the lease, which is a contract binding the parties. I have already adverted to the terms and shown that the responsibility for asking for renewal was on the defendant, and not on the plaintiffs, as held by the learned Subordinate Judge. In these circumstances, I do not find sufficient substance to support the judgment of the learned Subordinate Judge on this point.

The last argument addressed by Mr. Bhattacharjee is as to the retrospective effect of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (XII/55), which came into effect from 1-8-55. He contended that the Act has retrospective effect and the defendant, as a lessee in possession, is entitled to continue as such under the provisions of the Act.

In the present case, the position is that the defendant ceased to be a tenant with effect from the efflux of the first lease on 16-9-46, and its possession has ever since been that of a trespasser. I have further found that the defendant has not excised the right of renewal. In these circumstances, I do not think that the provisions of this Act (Assam Act 12 of 1955) have application to the facts of the present case. I accordingly overrule this objection.

The appeal is accordingly allowed with costs, and the decree of the lower appellate Court is set aside.

Leave for Letters Patent appeal is refused