JAJNESWAR MAJUMDAR v. PANCHANAN POREY — 1963 DIGILAW 5 (CAL)

S. K. SEN, J. ( 1 ) THIS Revisional application is by the landlord and is directed against the orders of the Courts below, dismissing the petitioner's prayer for ejectment of the opposite parties who are thika tenants under him. The opposite parties executed a registered lease (Ext. 1) on 31. 7. 51 providing for a Thika tenancy for a term of three years at the monthly rent of Rs. 9/- for 5 cottahs and odd land described in the lease deed. The tenancy expired on the last day of Asar 1361 B. S. corresponding to the middle of July 1954. The petitioner landlord Jajneswar Majumdar filed an application for ejectment on 20. 2. 57 claiming that he was entitled to ejectment under Section 39vi) of the Thika Tenancy Act, which provides that when the thika tenant holds the land comprised in the holding under a registered lease, he shall be liable to ejectment on the ground that the term of the lease has expired. ( 2 ) THE tenant opposite parties contested the application contending that they were already thika tenants living on the land from long before the execution of the registered lease, Ext. 1, and that after the passing of the Calcutta Thika Tenancy Act, 1949 they were compelled to execute the registered lease under coercion and undue influence by the landlord petitioner, Jajneswar Majumdar, and that, therefore, the registered lease deed was not binding on them. It was further urged that the provisions of the lease deed being contrary to the provisions of the Thika Tenancy Act, the lease was void under Section 31 of the Thika Tenancy Act. ( 3 ) THE learned Munsif acting as the Controller under the Thika Tenancy Act, accepted the defence that the lease deed had been executed as a result of coercion and undue influence on the part of the landlord and so held that the lease was void. That being so, the learned Munsif as the Controller dismissed the application for ejectment. There was an al which was heard by Shri T. P. Mukherjee, Subordinate Judge, Alipore. That being so, the learned Munsif as the Controller dismissed the application for ejectment. There was an al which was heard by Shri T. P. Mukherjee, Subordinate Judge, Alipore. The learned Subordinate Judge held that the lease contravened the terms of the Thika Tenancy Act regarding payment of compensation to the thika tenant and was to that extent void, and that the lease was also void to the extent that it saddled the tenant with a liability for ejectment on the ground contained in Section 3 (vi) of the Thika Tenancy Act, in other words, the learned Subordinate Judge agreed with the finding of the Controller that the registered lease deed was void. The learned Subordinate Judge also found an additional point in favour of the Thika tenants, namely, that there had been creation of a new tenancy by holding over, because the landlord had allowed the tenants to remain in possession of the demised land for two years and 7 months after the expiry of the lease and before the institution of the suit. Accordingly the learned Subordinate Judge dismissed the appeal. ( 4 ) AGAINST the decision, the landlord as petitioner, has filed this revisional application. Mr. P. K. Roy appearing for the petitioner, has urged that the Courts below did not apply their minds to the question what constitutes 'coercion' under the law and that therefore, their finding that the lease is bad on the ground of coercion cannot be sustained. He has referred us to Section 15 of the Indian Contract Act, which provides that 'coercion' is the committing or threatening to commit any act forbidden by the Indian Penal Code or the unlawful detaining, or threatening to detain any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. In the present case it is not alleged that there had been any commission of an offence or threatening to the commission of an offence by the landlord in order to induce the tenants to execute the registered lease. It is also not alleged that there was unlawful detaining of any property or threatening to detain any property by the landlord petitioner with the same intention. The only thing that appears from the recitals of the registered lease, Ext. It is also not alleged that there was unlawful detaining of any property or threatening to detain any property by the landlord petitioner with the same intention. The only thing that appears from the recitals of the registered lease, Ext. 1 and the only thing that was alleged by the tenant opposite parties is that the landlord had ejected a number of tenants who held other plots of lands under similar lease and had also served notice determining the tenancy on the tenant opposite parties and was about to institute an ejectment suit in which the landlord was likely to succeed, and that in the circumstances the tenants had been advised, after consulting their lawyers, to execute the registered lease so that they might remain on the land without a threat of ejectment for the term contained in the lease i. e. , a period of three years. It cannot be said that the threat of ejectment suit or institution of such a suit amounts to coercion within the meaning of Section 15 of the Contract Act. ( 5 ) MR. Bhattacharya, appearing on behalf of the tenant opposite parties, has urged that apart from coercion or undue influence the lease must be deemed to be bad because it took away certain rights which the tenants had already acquired under the Thika Tenancy Act, which had come into force before execution of the registered lease and that, therefore, the lease deed is bad under Section 31 of the Thika Tenancy Act. Section 31 provides that 'nothing in any contract between a landlord and a thika tenant made after the commencement of this Act shall take away or limit the rights of such tenant as provided for by this Act and any contract which is made in contravention of or which is inconsistent with any of the provisions of this Act shall be void and without effect to the extent of such contravention or inconsistency'. Mr. Mr. Bhattacharjee has urged that by executing the contract the tenants loss the right to compensation to which they might otherwise be entitled in an ejectment suit under Section 4, proviso (ii) of the Act and that further, executing the registered lease, they became liable to ejectment on the expiry of the lese under clause (vi) to Section 3 without any notice whereas if they had not executed such a registered lease the landlord would be required to serve a notice of ejectment giving at least one month's time in a case coming within clause (i), (ii), (iii) or (v) to Section 3 and three months' time in a case coming under clause (vi) to Section 3. But it must be pointed out that nothing in the contract i. e. , in the new lease, took away the rights mentioned above. By the very act of being a party to the registered lease deed the tenant opposite parties lost the right they might otherwise have of receiving compensation under Section 4, proviso (ii) and of receiving one or three months' notice of ejectment under Section 4. Mr. Bhattacharya has urged that there are certain provisions in the lease deed itself which contravened the provisions of the Thika Tenancy Act, e. g. , the provisions for enhancement of rent to Rs. 36/- per month on renewal, whereas under Section 25 of the Act the maximum enhancement that the landlord may obtain is 12 p. c. of the previous rent. But this would only make the provisions as to enhancement of rent beyond the limit of Section 25 invalid. Such a provision would not make the whole lease invalid. There is nothing in Section 31 that prohibits a thika tenant who was holding without any written lease from entering into a written lease or bars the landlord from taking such a lease deed. We must, therefore, hold that Section 31 of the Thika Tenancy Act does not make the lease deed, Ext. 1 altogether void, although it might affect the terms contained therein as to the enhancement of rent in case of renewal of the tenancy. ( 6 ) AS to the finding of the learned Subordinate Judge as to holding over, Mr. We must, therefore, hold that Section 31 of the Thika Tenancy Act does not make the lease deed, Ext. 1 altogether void, although it might affect the terms contained therein as to the enhancement of rent in case of renewal of the tenancy. ( 6 ) AS to the finding of the learned Subordinate Judge as to holding over, Mr. Roy has referred us to the terms of Section 116 of the Transfer of Property Act, which provides that if a lessee or under-lessee remains in possession after the determination of the lease and the lessor or his representative accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is renewed from year to year or month to month as the case may be, in other words, there is lease by holding over; but two conditions must be satisfied firstly, that the lessee must remain in possession and secondly the landlord or his representative must accept rent or otherwise assent to the lessee continuing in possession. In the present case, there is no allegation that the lessor received any rent after the expiry of the term of the lease, and there is no suggestion of the landlord otherwise assenting to the tenants' continuing in possession. There was only a delay of two years and 7 months before the institution of the suit. This delay was not such a long delay as would indicate consent. The learned Subordinate Judge referred to the case of Ram Hari Singh v. Tirtha Pada Misra (1) reported in 60 CWN 39, in which case on cannot of long delay on the part of the landlord in instituting an ejectment suit, assent to the lessee continuing in possession was inferred. In that case, however, there was a delay of over 12 years and in the meantime the tenant had been allowed to construct pucca structures and mutates his name in the municipal assessment registers. Moreover it was found that the landlord deliberately withheld the collection papers and the Court held that it would not be wrong to infer that there had also been payment of rent by the tenant who claimed to hold over. The principle of that decision therefore, does not apply to the fact of the present case. Moreover it was found that the landlord deliberately withheld the collection papers and the Court held that it would not be wrong to infer that there had also been payment of rent by the tenant who claimed to hold over. The principle of that decision therefore, does not apply to the fact of the present case. As held by the Federal Court in Kai Khushroo Bezonjee Capadia v. B. J. H. Warden (2) (53 CWN 73 F. R.) when a tenant continues in possession after the term of the lease has come to an end, he is a tenant on sufferance until the landlord either accepts rent or otherwise shows his assent to the tenant continuing to be on the land, when he becomes a tenant by holding over. Unless there is acceptance of rent or assent of the landlord is otherwise indicated to the tenant continuing to remain in possession of the land, tenancy by holding over cannot be claimed. In this respect it must be held that the learned Subordinate Judge was clearly wrong. ( 7 ) THE order dismissing the application for ejectment was not, therefore, in accordance with the law. This Rule must, therefore, be made absolute. Mr. Bhattacharjee has represented to us that a great hardship would be suffered by his clients if they are compelled to vacate the land which they have been occupying for many years as their place of residence. There can be no doubt that the tenant opposite parties will suffer hardship but if they are liable to ejectment in accordance with the law, an order for ejectment cannot be withheld from the landlord. Mr. P. K. Roy on behalf of the landlord petitioner, has however, stated before us that the landlord is willing, in spite of the provisions of Section 10 of the Thika Tenancy Act, to allow the tenant opposite parties to remove all their structures from the demised land provided they do it within a period of three months and he has also stated that the landlord is willing to pay a compensation of Rs. 500/- to the tenant opposite parties in view of the hardship they would be suffering. ( 8 ) ACCORDINGLY, we make the Rule absolute and set aside the orders of the Courts below and direct that application under Section 5 for ejectment of the Thika Tenants opposite parties be allowed. 500/- to the tenant opposite parties in view of the hardship they would be suffering. ( 8 ) ACCORDINGLY, we make the Rule absolute and set aside the orders of the Courts below and direct that application under Section 5 for ejectment of the Thika Tenants opposite parties be allowed. We also order by consent on the part of the landlord that the tenant opposite parties may remove their existing structures from the land within a period of three months and that they will receive Rs. 500/- as compensation from the landlord petitioner. If, however they fail to remove the structures within the period of three months, the provisions of Section 10 of the Thika Tenancy Act will become operative and the tenant opposite parties will lose their right to the existing structures on the land and they will also lose the rights to receive the compensation mentioned above. ( 9 ) IN view of the circumstances it is ordered that the parties will bear their own costs throughout. Revisional application allowed.