Swapna Ghosh vs Dilip Kumar Dey

Sudhendu Nath Mallick, J.—The factual background of this appeal is that the suit property appertaining to the premises No. 236, Kali Ghat Road, now re-numbered as 236A Kali Ghat Road, Calcutta, belonged to the predecessor-in-interest of the present Plaintiffs/Respondents from whom the predecessor-in-interest of the present Appellants took thika tenancy of the vacant land comprised therein at that time and the present Appellants had been in possession thereof including the structures raised thereby them which were partly pucca two-strayed structures along with toilets etc. The mother of the present Respondents for herself and as their legal guardian filed a suit for eviction against the present Appellants in the Court of the Third Additional Munsif Alipore being T.S. No. 112 of 1948 and obtained a decree for eviction. The said decree was put into execution in the Fourth Court of the Munsif, Alipore, being T. Ex. Case No. 6 of 1950. During the pendency of the said execution case the present Appellants filed a misc. case being No. 59 of 1950 in the above Court for rescinding the decree of eviction under the provision of the Calcutta Thika Tenancy Act, 1950. Sm. Susama Dey, the mother of the present Respondents, died during the pendency of the said proceeding and the present Respondents contested the same. The said proceeding was compromised between the parties with the permission of the Court and in terms of the compromise dated April 25, 1951, the decree obtained by the present Respondents against the present Appellants in T.S. No. 112 of 1948 became executable. In terms of the said ''solenama'' dated April 25, 1951 a registered deed of lease�s between the present parties were executed and registered on the same date, i.e. April 25, 1951, in respect of the suit property. In terms of the said registered deed of lease dated April 25, 1951, (Ex. 1) the present Appellants were granted tenancy right for a fixed period of 22 years with effect from Baishak 1, 1358 B.S. till Chaitra 31, 1380 B.S. in respect of the suit property, i.e. ''ka'' schedule land along with the pucca structures standing thereon described in ''kha'' schedule at a monthly rental of Rs. 60. It was further provided in the lease deed that on the expiry of the period of tenancy on Chaitra 31, 1380 B.S., the Appellants would deliver khas possession of the disputed property described in schedule ''ka'' and ''kha'' provided that they would get as compensation 35 per cent of the market value of the structures as on the date of the expiry of the lease for which they would get interest at the rate of 6 per cent per annum till the payment of. the said sum and the ''ka'' and ''kha'' schedule property would remain charged for the said amount till payment and that if the Appellant should fail to deliver khas possession of the disputed property amicably on the date of expiry of the lease, they would pay damages at the rate of Rs. 4 per diem to the Respondents till delivery of possession. It was also provided in the lease deed that on the expiry of Chaitra 31, 1380 B.S. the lease would automatically come to an end without requiring the lassoers to serve upon the lessees any separate notice and that on the expiry of the lease the Respondents would become absolute owners of the disputed properties along with the structures described in ''ka'' and ''kha'' schedule with all rights to sell, to lease or to transfer by way of gift etc. subject to the change created thereon. It is also on record that after the execution of the said lease deed and on its being acted upper by both the parties thereto the Plaintiffs/Respondents filed a suit for eviction of the present Appellants from the disputed property in the Fourth Court of the Munsif, Alipore, being T.S. 157 of 1963 on grounds of default of payment of rent, making unauthorised addition and alteration etc. and obtained a decree. But the said decree was set aside in appeal and the present Appellants obtained relief u/s 144 of the Transfer of Property Act being restituted to the suit property through the Court. Thereafter, the present Plaintiffs/Respondents on the expiry of the lease granted under Ex. 1 brought a suit for eviction in the Fourth Court of the Munsif, Alipore, being T.S. 294 1977 on August 18, 1977, on ground of efflux of time.

It is needless to say that the tenancy as per Ex. 1 was admittedly not a thika tenancy to be governed by the Calcutta Thika Tenancy Act, 1949, but one governed by the general provisions of the Transfer of Property Act. In the instant suit being T.S.294 1977 it has been specifically stated in the plaint that in terms of the lease the Plaintiffs/Respondents have become owners of the ''ka'' and ''kha'' schedule properties, i.e. the entire disputed property with effect from Baishak 1, 1381 B.S. corresponding to April 15, 1974. The suit was contested by the present Appellants but was decreed by the trial Court negative the objections taken by the present Appellant/Defendant regarding the validity of the leas deed. Besides the ground of efflux of time the trial Court also found that the Defendants-Appellants were defaulters in the matter of payment of rent and also they did not comply with other terms of the deed of lease as per Ex. 1. The present Appellants-Defendants preferred an appeal against the said judgment and decree date June 28, 1980, passed by the Trial Court being Title Appeal No. 66 of 1980 in the Fourteenth Court of the Addl. District Judge, Alipore, which was also dismissed on April 11, 1981. In the said appeal the present Appellants took the plea that they were actually thika tenants in respect of the disputed property, but the Ex. 1 was motivated done by the present Respondents so as to avoid the provisions of the Calcutta Thika Tenancy Act. In other words, as it appears from the First appear Court judgment and the materials on record the Appellants case before the lower Appellate Court was that their original thika tenancy in respect of the disputed property was continuing in spite of the execution of Ex. 1 which was an out and out lease of ''ka'' and ''kha'' schedule properties for a term of 22 years. The learned lower Appellate Court rejected such contention taken on behalf of the present Appellants. It has been found by the lower Appellate Court that the deed of lease as per Ex. 1 is a valid bilateral deed of lease without being tainted by any misrepresentation and coercion and was duly acted upon by the parties thereto. It has been observed by the First Appeal Court that after the execution of the deed of lease as per Ex. 1 in terms of the sole name filed in Misc. case No. 52 of 1950 in Title Execution Case No. 6 of 1950 in the Fourth Court of Munsif at Alipore arising out of a decree obtained by the present Respondents in T.S. 112 1948 the Defendants-Appellants cannot be allowed to take the stand that they are still thika tenants in respect of the disputed property. The learned First Appeal Court has category-ally found that on the basis of Ex. 1, the admitted deed if lease, the status of the present Appellants-defendants in respect of the disputed property was changed from thika tenants to premises tenants with a tenure of 12 years and that the thika tenancy of the present Appellants in respect of the disputed property was extinguished by the deed of lease executed by the parties out of their free will and for consideration in terms of the sole name. The learned First Appeal Court affirmed the decree passed by the trial Court with some modifications.

In the present appeal this factual background and the findings of the Courts below are not challenged. Sri Roychowdhury appearing for the Appellants has submitted with all fairness that in the instant appeal there is no point in challenging the validity of the deed of lease as per Ex. 1. He has submitted that the rights and obligations of the parties after the execution and registration of the deed of lease as per Ex. 1 are not of any relevance at the present moment, more so, the present suit being based on the expiry of the term of the said lease and both the Courts having upheld the validity of the said lease, the rights of the parties will be governed by the law as on the date of the lease, the date of filing of the suit and also as on the date of hearing of the present appeal. Sri Roychowdhury has submitted in view of the tenure of the lease for 22 years as provided in Ex. 1 the tenancy in question in respect of the disputed property would not come within the ambit of the Calcutta Thika Tenancy Act, 1949, and the only Act which was applicable to it was the Transfer of Property Act. According to Sri Roychowdhury, after concurrent finding regarding the validity of the lease little defence is there to resist the Plaintiff-Respondent''s claim. But, Sri Roychowdhury submits, the case of his clients in the present appeal is not, however, closed for ever before this Court in view of the enforcement of the Calcutta Thika Tenancy (Acquisition and Regulation Act, 1981, with effect from November 2, 1931. Sri Roy chowdhury has drawn my attention to Section 3(8) Calcutta Thika Tenancy (Acquisition and Regulation) Act, herein after referred to Act, 1981. In the definition of ''thik tenant'' under the old Act of 1949 tenancy in respect c land under a registered lease for more than 12 year was left out from the operation of the said Act. u/s 3(8) of the new Act� of 1981 the definition c thika tenant has been given a more liberal and broad connotation which, according to Sri Roychowdhury should bring the .tenancy created in favour of the present Appellant as per Ex. 1 to be governed by the new Act. In order to appreciate this contention of St Roychowdhury it would be helpful to quote the provision of Section 3(8) of the Act of 1981 which runs as follows: "thika tenant" means any person who occupies whether under a written lease or otherwise, lane 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 than another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person.

Sri Roychowdhury has further drawn my attention to Section 4 of the Act 1981 which says that the provision of the new Act will have overriding effects in respect of any other law for the time being in force or custom or usage or any decree or order or authority. Sri Roychowdhury''s further contentions are as follows: Although the Appellants have suffered two decrees in respect of the suit property passed by the trial Court and by the First Appellate Court respectively they are entitled to get benefit of the change of law which has come into force after the First Appeal decree was passed but during the pendency of the instant Second Appeal. It has been submitted by Sri Roychowdhury that an appeal is a continuation of a suit, and as such if during the continuance of suit by way of appeal there has been a statutory intervention, full effect must be given to the provisions of law as would be available on the date of hearing of the appeal although such a right or relief was not available to his clients on the date of the suit or on the date of passing of the decree passed in the suit or in the First Appeal. In this regard he has relied upon a decision of the Supreme Court in Lakshmi Narayan Guin and Others Vs. Niranjan Modak, The second contention of Sri Rovrhowdhury is that the Act 1949 and the Act 1981 are beneficial legislations for the tenants and are restrictive of the rights of the landlords and, as such, in view of the definition of thiks tenant as given in the new Act the Appellants should be declared as thika tenants in respect of the disputed property directly under the State although the trial Court and a First Appellate Court have passed the decree of eviction. According to Sri Roychowdhury the 1981 Act being a beneficial legislation the provision of which confers amenity to the tenant though prospective in form should be interpreted to take away the vested right in the landlord by a decree of Court unless there is express provision or clear implication to the contrary. In this regard he has relied upon decisions of the Supreme Court in Mani Subrat Jain Vs. Raja Ram Vohra, ; H. Shiva Rao and Another Vs. Cecilia Pereira and Others, and Lakshmi-Narayan Guin v. Niranjan Modak (Supra)

Sri Roychowdhury has further submitted that the State of West Bengal is a necessary party to the suit and relying on a Bench decision of this High Court in Mrs. Gaiser Jahan v. Mohammad Yawoob 1982 (2) C.L.J. 143 submits that there being a question in this Appeal as to whether the Appellants are thika tenants as defined in the Act or are lessees holding land under the Respondents in perpetuity or under a registered lease for a period not less than 12 years, and there being a question about the application of Section 5 of the Act 1981 in the present case the trial Court should be directed to frame an issue to that effect after giving the Plaintiffs-Respondents an opportunity to add the State of West Bengal as a Defendant in the suit and thereafter should dispose of the disputed issue as a preliminary one. Sri Roychowdhury has also referred to a decision of the Supreme Court reported in Haji Sk. Subhan Vs. Madhorao, and or our High Court in Benode Behari Ghosal v. Shew Kamal Singh 1983 (1) C.L.J. 340 to show that Courts have not hesitated to give effect to a statute which has been enacted during the pendency of a suit or appeal or even in execution holding clearly that any ''order'' or decree in favour of a person whose subsisting interest has been taken away, but the Court in an ignorance of such a law had passed or maintained a decree are nothing but a nullity. According to Sri Roy Chowdhury, he has been compelled to take these points before this Court in the Second Appeal for the first time due to change of law in the mean time after the decree of eviction was passed by the trial Court and affirmed by the First Appellate Court. Sri Roychowdhury has also referred to a decision of a Special Bench of this High Court in Lakshmimoni Das and Ors. v. State of West Bengal 1987 (2) C.L.J. 53 to emphasize the impact of the provisions of the new Act of 1981. I will consider the above contentions with reference to the reported decisions relied upon by Sri Roychowdhury after taking note of the submissions of the Learned Counsels appearing for the Respondents Nos. 1 and 2. Sri Bagchi appearing for the Respondent No. 1 has contended that none of the reported decisions relied upon by Sri Roychowdhury are of any help to him for bringing home the point that by virtue of the definition of thika tenant in the new Act 1981 the disputed premises is governed by the provisions of the new Act and that the disputed tenancy which long time ago expired due to efflux of time as per terms of Ex. 1 is a thika tenancy and not governed by the provisions of the Transfer of Property Act. It is contended by Sri Bagchi that the possession of the Appellants in respect of the disputed property after the expiry of the lease was that of trespassers, that the Respondents became the absolute owners of the ''ka'' and ''kha'' schedule property long before the enforcement of the new Act 1981 and that there was no subsisting relationship of landlord and tenant not to speak of landlord and thika tenant between the parties in respect of the disputed property after the expiry of the lease with effect from Chaitra 31, 1380 B.S. There was no liability on the part of the Appellants to pay rent at any rate or for any period after the expiry of the lease and on the date by promulgation of the new Act 1981. It is further contended by Sri Bagchi that the new Act of 1981 cannot have any retrospective effect to nullify a decree of a Court of law as the said Act 1981 is taking away the right to property of the landlords. According to Sri Bagchi the new Act of 1981 cannot be said to be a beneficial legislation and that the decision in Mrs. Qaiser Jahan v. Mohammad Yawoob (Supra) has no manner of application to the present case as in the above reported case the new Act came into operation during the period of tenancy subsisting at the material time. According to Sri Bagchi, the new Act is not retrospective in nature as there'' is no specific provision therein. Even if it is assumed that the Act of 1981 has any retrospective effect, it has no application in the present case in view of ''object and reason'' and Sub-sections (3)(A) and (8) of Section 3 of the said Act. According to Sri Bagchi, the Act 1981 does not apply to the pending proceeding for eviction and mesne profits on the ground of expiry of lease when the deed of lease expired long before the Act came into force, the provisions of the Act do not apply to the eviction proceeding under the general law and that the Legislature did not think it prudent and wise to make the Act retrospective in its application to the proceeding based on the expiry of the lease. Sri Bagchi further submits that Sri Roychowdhury''s clients cannot claim any benefit under the provisions of Section 19 of the Act of 1981. It may be noted that Sri Roychowdhury also has not relied upon the provisions of Section 19 of the Act 1981 to bring home his point. Sri Bagchi has further contended that Section 5 of the Act 1981 does not affect or control the provisions of the registered lease as per Ex. 1 which expired long before the commencement of the said 1981 Act with effect from January 18, 1982. The sum and substance of Sri Bagchi''s argument is that at the time of commencement of the Act of 1981 there was no subsisting interest of thika tenant in respect of the disputed property with the present Appellants and, as such, the question of giving any benefit on the basis of the definition of thika tenant as per Section 3(8) does not arise at ail. In this connection Sri Bagchi has relied upon a decision of the Calcutta High Court in Jatadhari Daw v. Sm. Radha Debi 1986 (1) C.H.N. 21 . He has further stated that the case law in Mrs. Qaiser Jahan v. Mohammad Yawoob (Supra) as relied upon by Sri Roychowdhury has no application to the present case as it was a case of forfeiture. Sri Bhaskar Bhattacharjee appearing for the Respondent No. 2 has adopted the line of argument as advanced by Sri Bagchi. Sri Bhattacharjee has, however, submitted: hat u/s 19 of the Act 1981 the claim of the present Appellants is absolutely barred.

Now let us conclude the respective submissions of the learned Advocates with reference to the point in issue in this Appeal, i.e. whether the Appellants are entitled to any benefit so as to claim thika tenancy in respect of the disputed property in view of the introduction of the Act 1981.

Coming to the above submissions made by Sri Roychowdhury it must be noted that both the parties have sought to make out their respective cases in respect of the suit property on the basis of the admitted deed of lease Ex. 1 dated April 25, 1951 which was executed on the basis of a compromise in a legal proceeding between the parties in respect of the selfsame property. According to Sri Roychowdhury, the present Appellants have got to be treated as thika tenants in respect of the suit property under the definition of thika tenant provided in Section 3(8) of the Act of 1981. We have quoted Section 3(8) of the 1981 Act. Under the definition of thika tenant in the new Act as well as in the old Act ''thika tenant'' means any person who occupies land under another person on payment of monthly or periodical rent and has erected or acquired by purchase or gift any structure of such land for residential manufacturing or business purpose. In this connection Sri Roychowdhury has also drawn my attention to the provisions of Section 4, Section 5 and Section 6 of the Act of 1981. Sri Roychowdhury has, however, made it clear that Section 19 of the new Act is not applicable to the present case. In order to succeed in the present Appeal on the basis of Sri Roychowdhury''s submissions as noted above it has to be proved that as per Ex. 1 which is an admitted document of lease between the parties in respect of the suit property the Appellants and thika tenants in respect of the land. I have carefully gone through the contents of Ex. 1 the registered of lease. Although there is reference to land in some parts of the said deed it is quite clear from a careful reading of the entire document that the subject-matter of the lease was land along with structures including pucca structures* described in ''ka'' and ''kha'' schedule therein. It is on record that prior to the execution of Ex. 1 the Appellants were thika tenants in respect of the land described in ''ka'' schedule on Ex. 1 on which they raised some structures, but this position was changed by an agreement between the parties subsequently as per Ex. 1. The rent was fixed at the rate of Rs. CO per month for the leased out property described in ''/far'' and ''kha'' schedule. In view of the structures standing thereon as described in ''kha'' schedule there could not be any separate existence of the land underneath as described in ka'' schedule so as to entitle the Appellants to be treated as thika tenants thereof. The right of ownership in respect of the structures described in ''kha'' schedule was not retained by the present Appellants. On the other hand, as per conditions Nos. 5 and 6 the Appellants were under obligation to keep the structures in good repairs and had no right to alter the same in any way. It was further provided in Ex. 1 that on the date of expiry of the lease with effect from Chaitra 31, 1380 B.S. the Respondents would become the absolute owner of the structures standing thereon as described in ''kha'' schedule and the Appellants should have right to get compensation at the rate of Rs. 35% and the property shall remain charged for the same till such payment. So, all these conditions and the conduct by the parties acting upon Ex. 1 clearly show that the Appellants on the basis of Ex. 1 became tenants in respect of the disputed property described in ''ka'' and ''kha'' schedule of Ex. 1 and as described in the plaint for a period of 22 years on payment of monthly rent of Rs. 60 per month. Under such circumstances the contention of Sri Roychowdhury that the applicants are thika tenants within the definition of Section 3(8) and Section 5 of the new Act of 1981 must be overruled. One cannot get the support of law unless he is supported by the facts and circumstances to which such law is applicable. Law is not blind to reality, nor it should be interpreted in such a way so as to make it blind to the facts on record. In this position there is no scope for invocation of Sections 4 and 6 of the 1981 Act so as to give any benefit to Sri Roychowdhury''s clients. Sri Roychowdhury has referred to a decision of this High Court reported in Mrs. Qaiser Jahan v. Mohammad Yawoob (Supra). I have gone through the said reported decision and it does not appear to me that this case has any application to the present one. It has been held there as follows:

If in a suit, a question as to the applicability of the provisions of Section 5 of the 1981 Act is raised, then the Court should frame an appropriate issue in that regard after giving the Plaintiff an opportunity to add the State as a Defendant in the suit and thereafter dispose of the disputed issue. The said issue should be decided as a preliminary issue in the presence of the parties including the State, if it chooses to contest.

The question of applicability of Section 5 of the 1981 Act does not arise here as it is seen from Ex. 1 that the tenancy in question was never accepted as thika tenancy by any of the parties at the time of execution of Ex. 1 or at any point of time subsequent thereto. Furthermore, the above reported decision was in respect of a case initiated on the ground of forfeiture, but in the instant case the suit was filed by the Plaintiffs-Respondents on ground on efflux of time as per Ex. 1. Sri Bagchi appearing for the Plaintiffs-Respondents has rightly submitted that even if it is assumed for argument''s sake that the tenancy in question was thika tenancy, it has got to be proved that the Appellants have subsisting interest in the same so as to get the benefit of Section 3(8) read with Section 5 of the 1981 Act. Admittedly, the suit was brought against the present Appellants on the expiry of the period of lease. It is no good logic to say that as per Ex. 1 the lease was a period of 22 years it would necessarily be governed by Section 5 of the 1981 Act. Under the circumstances on due consideration of the contention of Sri Roychowdhury with reference to the different provisions of the 1981 Act vis-a-vis the old Act and the evidence on record and the Court decisions relied upon by him I am of opinion that no case has been made out that the Appellants are or were thika tenants in respect of the disputed property as per Ex. 1 and, as such, they are entitled to get some protection under the provisions of the 1981 Act although they have suffered two decrees of ejectment in the Court below. The change of law in the domain of thika tenancy does not ipso facto bring any benefit to the present Appellants or give them protection against the eviction decreed under the general law by the Courts below. In this position none of the case laws relied upon by Sri Roychowdhury as noted in earlier paragraphs apply to the present case for the purpose of treating them as thika tenants under the 1981 Act. Sri Roychowdhury has emphatically argued that the 1981 Act is a beneficial legislation and, as such, his clients must get its protection. But this aspect of the matter, in my opinion, need not be gone into in view of my finding that the Appellants are not thika tenants and cannot be treated as such under the provisions of the 1981 Act. That exercise would be a pointless one in the present state of the things. Sri Roychowdhury has also made submissions on the point of retrospective application of the 1981 Act, but this question is also not necessary to be looked into in the present Appeal in view of the reasons given above.

Under the above circumstances I do not find any substance in the present Appeal which must fail. There s no legal infirmity in the judgment and decree passed Roy the First Appeal Court affirming the judgment and decree of the trial Court with certain modifications. As 3 result, the instant Second Appeal stands dismissed on contest with costs. The impugned judgment decree sassed by the First Appeal Court stand affirmed. All interim orders are vacated. The L.C.R. be sent down at once.