Mehrotra, C.J.- This is defendant's appeal arising out of a suit for ejectment. The plaintiff s case as set out in the plaint is that the plaintiff is the owner hi possession of the disputed land. The suit relates to a land measuring 17 lechas covered by dag No. 1086. The defendants are alleged to have taken this land on lease with effect from 13th July 1943 for seven years on payment of a sum of Rs. 85/- per year. After the expiry of the lease on the 13th July, 1950 the defendants continued in possession and did not deliver possession to the plaintiff. The plaintiff gave two notices to the defendants one on the 21st November 1951 and the second one on the 4th December 1951. But in spite of the notices the defendants did not deliver possession to the plaintiff. On these allegations the plaintiff brought the .present suit for recovery of possession by removal of the constructions and for Rs. 625/- as compensation for wrongful use and occupation. The suit was contested by the defendants. (2) Mainly the points taken before the courts below were first that there was a renewal clause in the lease of 1943 and unless the appellants were given notice to exercise their option to get resettlement of the land, no suit could be brought for ejectment of the defendants. The second point taken with regard to which an issue was framed subsequently was that the defendants are protected from ejectment under Section 5 of the Assam Non-agricultural Urban Areas Tenancy Act - Assam Act 12 of 1955. Another point has been taken before us for the first time to the effect that as in the year 1931 the defendants purchased certain house on this land the lease of 1943 did not relate to the land on which fee house stood. This point was never taken before any of the courts below and we cannot allow the party to raise this point at this stage. It requires investigation of facts. (3) The first point taken by the appellants is that in view of the renewal clause in the lease the plaintiff could not bring the suit for ejectment without giving them a notice to exercise their option of renewal.
It requires investigation of facts. (3) The first point taken by the appellants is that in view of the renewal clause in the lease the plaintiff could not bring the suit for ejectment without giving them a notice to exercise their option of renewal. The terms of the deed as translated by the Subordinate Judge are as follows: "After the termination of the period of the lease, the 2nd party would deliver possession of the demised land to the 1st party or 2nd party would make a fresh Bandobust with the 1st party." No objection has been taken as to the correctness of this translation. At the first instance under this clause the second party the lessee had to deliver possession of the land to the lessor. In case the second party wanted to take the fresh settlement they could take fresh settlement of the lease. But in our opinion on the plain reading of this clause there is no renewal clause and no first option of refusal has been given to the present appellants. After the expiry of the lease the appellants could take fresh settlement of the land. In the event of their act taking settlement either after the expiry of the lease or within a reasonable time thereafter the second party were to deliver possession to the lessor, and it cannot be said that the clause gives the second party a right of first refusal. As has been pointed out by the courts below, the second party neither delivered possession, nor did the second party take any steps to take fresh settlement of the land. It was only after the notice terminating the tenancy of the second party was given to them which was a step taken by the landlord to recover possession that the defendants offered to take fresh settlement. They continued in possession in spite of the expiry of the terms without expressing any intention within a reasonable time to take fresh settlement and thus the possession of the defendants was that of a lessee who was holding over without taking fresh settlement and were liable to be evicted.
They continued in possession in spite of the expiry of the terms without expressing any intention within a reasonable time to take fresh settlement and thus the possession of the defendants was that of a lessee who was holding over without taking fresh settlement and were liable to be evicted. Reliance has been placed on the case of 'Hemanta Kumari Debi v. Sefatulla Biswas, reported in AIR 1933 Cal 477 in which it was held that when, the original lease for a fixed period contains a renewal 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 and the lessor before he makes a fresh settlement is bound to give notice to the original lessee about the issue of leases. What this case lays down is that mere continuance of the possession of the defendant after the expiry of the lease and the mere fact that the term of the original lease has expired by itself does not mean that the defendant has waived his right to get a fresh settlement. The clause there, was to the effect that the defendant lessee will be given the first right of refusal and it was held on the circumstances of that case that mere expiry of the lease was not enough to raise a presumption that the option of first refusal was exercised by the defendant. The same view is followed in the case of Girindra Chandra Das v. Kamini Nath Roy, reported in AIR 1949 Assam 78. It should be pointed out that each case will depend upon its own terms. All the circumstances will have to be taken into consideration to find out whether the defendant who had a right to claim the first settlement has failed to exercise that right or not. Moreover, it is not a case where the first option of refusal was given to the defendants in which case the question of waiver could not arise unless the landlord offers him a chance to exercise his option of refusal.
Moreover, it is not a case where the first option of refusal was given to the defendants in which case the question of waiver could not arise unless the landlord offers him a chance to exercise his option of refusal. But in a case where the two alternatives are open to the lessee either to deliver possession or to take resettlement, if he fails to exercise his option within a reasonable time, there can be a legitimate inference that he waived his right to get a fresh settlement. In the case of Firm Bunshidhar Durga Das Dutta v. Ishan Chandra Chatterji. reported in 33 Cal WN 365: (AIR 1929 Cal 407 (1)) the term of the lease was that on the expiration of the term written in the patta the lessee will take a new settlement, but if for any reason a new settlement be not possible the lessee shall at his expense remove the rooms etc. On these terms it was held by the Calcutta High Court that the plaintiff was entitled to get a decree for ejectment and the defendant who did not take fresh settlement within a reasonable time and only expressed his desire to take settlement after notice was given, is not entitled to set up that as a defence against a suit for ejectment. In our opinion, therefore, there is no force in the first contention. (4) The next point urged is that the defendants are protected under section 5 of the Assam Non-agricultural Urban Areas Tenancy Act, 1955 (hereinafter called 'the Act'). The argument is that in the year 1931 the defendants had taken lease of the land. They had made permanent constructions within five years of the said lease and therefore they are entitled to protection from eviction on the expiry of the lease of 1943 on the ground that they had made permanent constructions within five years of the lease. In fact the contention is that as the lease continued, they can on the plain reading of section 5 of the Act take advantage of the constructions made within five years of the earlier lease and are protected from ejectment. Secondly it is urged that only materials were purchased by the present appellants and if they utilised the materials and made constructions, it cannot be said that they did not make permanent constructions within five years.
Secondly it is urged that only materials were purchased by the present appellants and if they utilised the materials and made constructions, it cannot be said that they did not make permanent constructions within five years. The second question would not arise unless the defendants can be allowed to take advantage of constructions made by them within five years of the earlier lease in the suit based on the lease of 1943. This court has held in a number of cases that if the structures are in existence at the date of the lease, then the tenant cannot take advantage of such consructions. What is contemplated under section 5 of the Act is that the constructions are made within five years of the contract of lease on the expiry of the terms of which the present suit is based. When both the clauses of section 5(1) are read together, it is abundantly clear that the constructions should be made within five years of the contract of the current lease. The only difference between the two clauses is that in the first clause there is a term in the lease itself which authorises the tenant to make construction and in pursuance of that he makes constructions whereas in the second clause there is no such clause in the contract itself but in fact he makes constructions. Nonetheless either of the clauses will be attracted if the constructions are made after the lease in question and not after any other lease made earlier. Reference may be made to this court's unreported decision of Gaya Ram Mistri v. Kanayalal Tulsian, Second Appal No. 130 of 1957 D/- 31-3-1959. There is thus no force in this appeal and it is dismissed with cost. AH/K/D.V.C. Appeal dismissed. ---------------------