Santilata De vs Saraju Bala Devi and Others

Bachawat, J.—This revisional application arises out of (Title Suit No. 255 of 1951) suit for ejectment '' instituted by the petitioner before us against the opposite parties in the Court of First Additional Munsiff, Alipore. The plaintiff seeks to eject the opposite parties from municipal premises No. 32|A, Mahanirban Road, with the rooms and structures thereon. The plaintiff alleged that the tenancy of defendant No. 1 had been terminated by notice to quit, that the defendants 2 to 10 are sub-tenants under the defendant No. 1 and that the plaintiff required the premises for her own residence and that rent of the premises was in arrears. Non-payment of rent was expressly taken as a ground of ejectment. The plaintiff claimed ejectment and recovery of arrears of rent. The defendants filed written statements and took inter alia the plea that the defendant No. 1 was a thika tenant. The defendant No. 1 filed a petition praying for determination of the question whether the suit was governed by the provisions of the Calcutta Thika Tenancy Act. The learned Munsiff tried the question as a preliminary issue. He came to the conclusion that the defendant No. 1 was a thika tenant. Accordingly he allowed the petition of defendant No. 1 on contest and directed the parties to write to the District Judge for transfer of the suit to the file of the local Munsiff, 1st Court, as he had no jurisdiction to try the suit. On appeal, the learned Additional District Judge agreed with the view that the defendant No. 1 was a thika tenant and accordingly dismissed the appeal.

At the outset, it must be pointed out that the order directing the parties to write to the District Judge for transfer of the suit is, in any event wrong and cannot be supported. The suit was instituted after the commencement of the Thika Tenancy Act and section 29 of the Act which has since been repealed had no application. Assuming that the defendant No. 1 was a thika tenant and also assuming that the suit was barred by section 5 of the Calcutta Thika Tenancy Act, 1949, there is no provision of law under which the suit could be transferred. If the suit, so far as it asked for ejectment of the Thika tenant was barred by section 5, the suit to that extent had to be dismissed on the ground that the Court had no jurisdiction. The suit, as far as it asked for recovery of rent, however, could not be dismissed on the grounds of want of jurisdiction. Evert assuming that the defendant No. 1 was a thika tenant, the learned munsif was bound to try the suit as far as it asked for recovery of arrears of rent.

The more important question in this case is whether the defendant No. 1 is a thika tenant. It is common case that the predecessor in interest of the defendant No. 1 was inducted as a tenant by virtue of a written lease, dated the 28th April, 1939. On a perusal of the lease, we are clearly of the opinion that the lease was a lease of the land in premises No. 32|A, (formerly No. 30|1A) Mohanirban Road together with the building and structures situated thereon. The lease is expressly described to be a lease of the land with the buildings, etc, situated thereon. The schedule to the lease also gives the same description of the demised property. Clause 3 of the lease gives the lessee right to enjoy the existing room with pucca walls and tin-shed together with the dalan and the pucca privy. By clause 2 of the lease Rs. 16/- per month was fixed as the rent of the "Jami" or land. In the context of the lease, it is clear that the word "Jami" is used as an abbreviated expression for the land together with the buildings, etc., situated thereon. The rent fixed by clause 2 is clearly payable for the land together with the buildings. We are satisfied that the lease is a lease of the land as also of the building existing thereon at the time of the lease. By section 105 of the Transfer of Property Act a lease of immovable property is a transfer of the right to enjoy such property. We are satisfied that the right to enjoy the existing structures on the land was transferred by the lease.

Under the liberty given to the lessee by clause 3 of the lease the predecessor in interest of the defendant No. 1, built 4 additional rooms on the land for residential purposes. The leasehold land and building was subsequently conveyed to the defendant No. 1, who subsequently constructed 10 more rooms on the land for such purposes. The defendant No. 1 has been recognized as a tenant by the plaintiff landlord. The position therefore is that the defendant No. 1 holds under the plaintiff land for which he is liable to pay rent to the plaintiff at a monthly rate and has erected as also acquired by purchase structure on such land for residential purposes. The term of the written lease dated the 28th April, 1939. expired on the 30th April, 1948, but after such expiry the defendant No. 1 held over as a tenant. The question is whether in these circumstances the defendant No. 1 is a thika tenant within the meaning of the Calcutta Thika Tenancy Act, 1949.

Sub-sections (3) and (5) of section 2 of the Calcutta Thika Tenancy Act. 1949, define ''Thika Tenant" and "holding".

An essential characteristic of a thika tenant is that he is a person or the successor in interest of a person, who holds land under another person and has erected or acquired any structure on such land. The holding of the thika tenant is the parcel or parcels of land held by him under one lease or under one set of conditions.

The word "land" may mean land together with structure situated on the land. It may also mean the bare land. the ground, the soil or the site of the land exclusive of such structures. We are of the opinion that the word "land" in sub-sections (3) and (5) of section 2 of the Calcutta Thika Tenancy Act, 1949, mean the bare land exclusive of structures situated thereon. The thika tenant must be a person or the successor in interest of a person, v/ho hold bare land under another person. A holding of both land and structures situated thereon is not a holding of bare land and is not a thika tenancy.

The Calcutta Thika Tenancy Act, 1949, generally uses the word "land" in the sense of bare land not including the structures thereon. The expression "the structure and land" is used in the proviso to section 3(v) of the Act because land by itself does not include structures.

The Act clearly contemplates that the thika tenancy is a holding of bare land and that the landlord as such does not own the structures standing upon such land. Section 10(1) of the Act provides for the vesting of such structures in the landlord on the determination of the interest of the thika tenant clearly on the assumption that such structures did not belong to the landlord as such before such determination. Were it possible for the landlord as such to own any part of the structures standing on such land, section 10(1) of the Act would have been differently worded.

The word "land" is not defined in the Calcutta Thika Tenancy Act, 1849. There is also no definition of the word "land" in the Bengal General Clauses Act, 1899 (Act I of 1899 and the General Clauses Act X of 1897). We are aware that there are certain statutes which define land as including the houses and buildings situated thereon. Section 3 of the English Interpretation Act, 1889, define land as including houses and buildings. By section 1 of the Bengal General Clauses Act, 1867 (Act V of 1867) which came in force on the 1st June, 1867, "land" was defined as including houses and buildings. The definition applied to Bengal Acts passed after the 1st June, 1867, unless there was anything repugnant in the subject or context. Inspite of this general definition we find "land" is expressly defined in several Bengal Acts passed between 1867 and 1899. In the Bengal Estates Partition Act (Act V of 1897) and the Cess Act (Act IX of 1880), "land" is defined as not including houses or buildings. On the other hand, in the Bengal Embankments Act (Act IV of 1882) and the Calcutta Survey Act (Act I of 1887), ''land'' is defined as including things attached to the earth. In this state of affairs, the Bengal Legislature passed the Bengal General clauses Act of 1899 (Act I of 1899) repealing the Bengal General Clauses Act V of 1867; section 5 of the Bengal General Clauses Act of 1899 provides that in all Bengal Acts made between the first day of June 1867, and the commencement of that Act, unless there was anything repugnant in the subject or context, land included houses and buildings. In other words, it confirmed the operation of the Bengal General Clauses Act, 1867, (Act V of 1867) in so far as the Act applied to Acts passed between the first day of June 1867 and the commencement of Act I of 1899. At the same time, it is important to observe that the Bengal General Clauses Act, 1899 (Act I of 1899) did not define the word "land" for the purposes of Acts passed after its commencement. In other words, the meaning of the word "land" was left at large and is to be gathered from the subject and context of every Act passed since the commencement of the Bengal General Clauses Act 1899 (Act I of 1899).

Section 2(6) of the Calcutta Thika Tenancy Act 1949. provides that "all words and expression used but not defined in this Act and used in the Transfer of property Act. 1882, or the Bengal Tenancy Act 1885, have the same meanings as in those Acts. The word "land" though used in the Transfer of property Act 1882 and the Bengal Tenancy Act 1885 is not defined in either of the two Acts. We think that in the Bengal Tenancy Act 1885 the word ''land'' may possibly include structures standing thereon and that a person holding both land and structures exclusively for agricultural purposes may be a tenant within the meaning of that Act, We are satisfied, however, on a close reading of the Calcutta Thika Tenancy Act 1949 that in the subject and context of that Act the word "land" as used in section 2(5) of the Act, means bare land, that is to say, the ground or the soil exclusively of the structure standing thereon.

The preamble of the Calcutta Thika Tenancy Act 1949 recites that "it is expedient to make better provision relating to the land of landlord and tenant in respect of thika tenancies in Calcutta". The object of the Act is to give protection to thika tenants in Calcutta against arbitrary eviction and enhancement of rent, as the existing law of landlord and tenant viz., the Transfer of Property Act 1882 and the West Bengal Rent Control Temporary Provisions Act, 1950, did not give them such protection.

The West Bengal Premises Rent Control Temporary Provisions Act, 1948, gave protection to tenants of premises in Calcutta against arbitrary eviction and enhancement of rent. "Premises" were defined to mean any building or part of a building or any hut or part of a hut let separately and including the gardens, grounds and outhouses if any appertaining thereto. The West Bengal Rent Control Temporary Provisions Act, 1950 continues to give such protection to tenants of premises in Calcutta and "premises" are similarly defined in that Act.

Premises are let when a building or a hut together with the grounds if any appertaining thereto are let. Where contiguous land and building are let together in Calcutta the land very often appertains to the building and in such cases the letting of the land and building is a letting of premises.

Tenants in Calcutta holding building and land appertaining to such building under one lease were already protected by special legislation against arbitrary eviction and enhancement of rent and continue to be so protected and it was not necessary to give them such protection by the Calcutta Thika Tenancy Act, 1949.

If the word "land" in the Calcutta Thika Tenancy Act, 1949, is read as including structures standing thereon the Act would apply to a tenant holding land and structures standing thereon and therefore to a tenant of structures and land appertaining thereto, i.e., to a tenant of premises and accordingly in many cases tenants would be both thika tenants as also tenants of premises and governed by the provisions of both Calcutta Thika Tenancy Act, 1949, and West Bengal Rent Control Temporary Provisions Act, 1948 and 1950. It is impossible to impute such intention to the legislature. These consequences are avoided by reading the relevant word "land" in sub-sections (3) and (5) of section 2 of the Calcutta Thika Tenancy Act as meaning bare land exclusive of the structures standing thereon. In our opinion the word "land" should be so read.

The provisions of the two Acts with regard to jurisdiction of courts, grounds of ejectment, deposit of arrears of rent, restoration of possession of tenants and conversion of tenants of the first degree into tenants of the second degree are materially different. u/s 5 of the Calcutta Thika Tenancy Act applications for ejectment of a tenant are to be made to the Controller whereas u/s 16 of the West Bengal Rent Control Temporary Provisions Act, 1950, suits for ejectment of tenants lie only to certain specified courts. u/s 3 of the former Act the tenant is liable to ejectment on the ground that he refuses to agree to pay rent enhanced u/s 25 of the former Act whereas he must not be ejected on that ground u/s 11 of the latter Act. Instances may be multiplied and sections (a) 6, (b)7, (c) 10(2) and (d) 17, 18, 19, 20, 21, of the Calcutta Thika Tenancy Act 1949 may be contrasted and compared with the parallel Sections (a) 14(b) 15, (c) 1-3(2) and (d) 19 of the West Bengal Rent Control Temporary Provisions Act 1950. It is impossible to apply the parallel provisions of the two Acts to the same tenancy at the same time. If the two Acts apply to the same tenancy then one of the Acts must be held to have effected an implied repeal of the others, There is every presumption against implied repeal. In our opinion the two Acts relate to separate classes of tenants and they co-exist and operate in different fields.

In Newkins v. Yathercole (1) (6 De M & Y 31) Turner, L.J., approved and followed the following observations in an old case, "A special statute does not derogate from a special statute without express words of abrogation"

In Mery Sewrl v. The Owner of Vera Cruz (2) (10 A.C. 59) the House of Lords decided that section 7 of the Admiralty Act, 1861, giving to the admiralty Court "jurisdiction over any claim for damages done by any slip" did not give jurisdiction over claims for loss of life under Lord Campbell''s Act. The Earl of Selborne, L.C, observed: "Now if anything be certain it is this that where there are general words in a later Act capable of a reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words without any indication of a particular intention to do so".

The Calcutta Thika Tenancy Act, 1949, itself indicates that a tenancy governed by that Act is not at the same time governed by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Section 3(v) of the Calcutta Thika Tenancy Act, 1949. provides that a Thika tenant liable to ejectment on the ground mentioned therein, may continue to be in possession of that part of the structure and land which he himself uses or occupies and shall then be deemed to be a tenant within the meaning of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. By a plain implication until the termination of the thika tenancy on the ground mentioned, the thika tenant is not a tenant within the meaning of the West Bengal Rent Control Temporary Provisions Act, 1950.

We are of the opinion that defendant No. 1 is not a thika tenant within the meaning of the Calcutta Thika Tenancy Act, 1949. Accordingly the suit is not barred by the provisions of the Calcutta Thika Tenancy Act, 1949.

We must make it clear that we do not decide the question whether or not the defendant No. 1 is a tenant of "premises" within the meaning of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950. The letting of the land and building by one lease is a letting of premises if the land is appurtenant to the land so let.

We are, therefore, of opinion that the lower courts were in error in holding that the learned Munsiff had no jurisdiction to try the suit. The learned Munsiff has failed to exercise jurisdiction vested in him by law.

We. therefore, pass the following order:

We make the rule absolute, set aside the order of the learned Additional Dist. Judge as also of the learned Munsiff. We direct the learned Munsiff to proceed with the case and to decide the same according to law.

Each party will pay and bear its own costs in this court. The suit should be heard and disposed of as expeditiously as possible.

Guha Ray, J.

I agree.