JUDGMENT 1. THIS appeal is at the instance of the defendant Purushottam Das Murarka and it arises out of a suit for ejectment. 2. THE property in suit is a plot of land measuring bigha 15 cottahs comprised in premises No. 234/4, Prafulla chandra Road, Calcutta previously numbered as premises No. 234/2, Upper Circular Road, Calcutta. The suit property belonged to one Dinanath Das father of Debendra Nath Das. Dinanath settled the suit property with one Surendra Kumar by a registered deed dated August 4, 1929. Surendra used to carry on a business of mustard oil by erecting structures in the said premises. One Jatindra Mohon Seal purchased the interest of Surendra from his executors on May 9, 1936. One satya Narayan Murarka purchased the interest of Jatindra Mohon Seal and his co-sharer in the suit property on September 6, 1949. Debendra brought suit for ejectment against Satya Narayan and Jatindra. The suit was decreed on compromise and Debendra granted a lease of the suit property to satya Narayan by a registered deed of lease dated December 5, 1952 for five years commencing from January 1, 1952 and terminating on the last day of december 1956. Clause (1) of the lease is as follows : "the term of the lease would be for five years commencing from the 1st day of January 1952 and terminating on the last day of December 1956 without notice from the Lessor and the Lessee will deliver khas possession on the expiry of the lease failing which the Lessor will be entitled to take legal action for the recovery of possession without any notice. Provided that the Lessor shall grant a fresh lease for a term of seven years at a rate then prevailing for such lands if the Lessee so desired and if the parties fail to come to any agreement in respect of the prevailing rate, the same shall be determined by reference to two arbitrators one being the nominee of the Lessor and the other of the Lessee. " The lessee Satya Narayan Murarka possessed the suit property up to december 31, 1956 and requested the lessor Debendra Nath Das to grant to the appellant Purushottam Das Murarka, his cousin, a fresh lease of the suit property for a further term of seven years. Pending the negotiation of a fresh lease in favour of the appellant. " The lessee Satya Narayan Murarka possessed the suit property up to december 31, 1956 and requested the lessor Debendra Nath Das to grant to the appellant Purushottam Das Murarka, his cousin, a fresh lease of the suit property for a further term of seven years. Pending the negotiation of a fresh lease in favour of the appellant. Debendra Nath Das died on December 26, 1957, and the respondent was appointed the administrator pendente lite to the estate of Debendra in Probate case No. 3 of 1958. As per request of satya Narayan Murarka, the respondent granted a lease to the appellant by a registered lease dated September 17, 1959, for a term of seven years with effect from January 1, 1957 and terminating on December 31, 1963 at a monthly rent of Rs. 735/- according to English calendar month, besides payment of owner's and occupier's share of the municipal tax. By a letter dated December 16, 1963, the respondent asked the appellant to vacate the suit property on and from January 1, 1964 by removing all his structures, plants, machineries etc. The appellant not having vacated the suit property, the respondent instituted the present suit for recovery of khas possession of the suit property by evicting the appellant therefrom and for demolition and removal of the structure, plants, machineries etc. within the time to be fixed by the Court ; in default, it was prayed, the same would vest in the plaintiff. The respondent also prayed for a decree for damages at the rate of rs. 50/- per diem from January 1, 1964 till delivery of possession in due course of law. 3. THE appellant has contested the suit and his case is that the lease dated december 5, 1952, though it was in the name of Satya Narayan Murarka as lessee, the consideration therefore was equally shared by four persons including Satya Narayan Murarka and the appellant. They became owners by purchase of the structures, plants, machineries etc. lying on the leasehold land from Jatindra Mohon Seal and entered into a partnership by a deed dated October 21, 1949. Of the said four persons, three retired from the partnership, whereupon the appellant alone became the owner of the structures, plants, machineries etc. lying in the premises in suit, and he has been running the oil mill under the name and style of "shiva Gouri Oil Mill". Of the said four persons, three retired from the partnership, whereupon the appellant alone became the owner of the structures, plants, machineries etc. lying in the premises in suit, and he has been running the oil mill under the name and style of "shiva Gouri Oil Mill". The retirement of the partners is evidenced by a deed of dissolution of partnership dated February 17, 1961 by which the partnership stood dissolved with effect from November 21, 1956. The principal defence of the appellant is that he is a thika tenant and, as such, the present suit is not maintainable and the civil Court has no jurisdiction to pass a decree for ejectment of a thika tenant The appellant has also challenged the legality any sufficiency of the notice to quit. 4. THE learned Subordinate Judge, 10th Court, Alipore has come to the findings that the appellant is not a thika tenant that in view of section 2 (5) (b) of the Calcutta Thika Tenancy act, 1949 the tenancy of the appellant is outside the purview of the Act and that the Civil Court has jurisdiction to try the suit. Further, he has found that the notice to quit is legal and valid. Upon the said findings, he has decreed the suit and has allowed mesne profits against the appellant at the rate of rent plus interest at the rate of 6 percent per annum. Hence this appeal. It is contended by the learned Advocate General appearing on behalf of the appellant that neither the original lease dated December 5, 1952 (Ext. 1. nor the lease dated September 17, 1959 (Ext. 1/1), being a lease for a period of twelve years, the appellant is a thika tenant and does not come within the mischief of section 2 (5) (b) of the Act. He submits that the lease, Ext. 1/a is a new lease and not the continuance of the old lease for, in the first instance, the parties are different and, secondly, it contains certain new terms. It is contended that even assuming that by virtue of Ext. He submits that the lease, Ext. 1/a is a new lease and not the continuance of the old lease for, in the first instance, the parties are different and, secondly, it contains certain new terms. It is contended that even assuming that by virtue of Ext. 1/a the original lease was extended for a further period of seven years, and the cumulative effect of these two leases was that the same lease continued for a period of twelve years, still section 2 (5) (b) will not apply, for in either of the leases the duration of the lease is not expressly stated to be for a period of not less than twelve years. He submits that the appellant being a thika tenant, the Civil court had no jurisdiction to try the suit and to pass a decree for ejectment. 5. ON the other hand, Mr. Saktinath mukherjee, learned Advocate appearing on behalf of the plaintiff respondent submits that the lease Ext, 1/a having been executed pursuant to the exercise of the option of renewal by the lessee for a further term of seven years as provided for in the original lease, Ext. 1 it is the original lease with an extended term of seven years. In other words, the further period of seven years is an accretion to the original lease, and both the leases should be regarded as one and the same. It is urged that in any event, the commencement of the lease, Ext. 1/a relates back to that of Ext. 1 so that it is a lease in which the duration is expressly stated to be for a period of twelve years and comes within section 2 (5) (b. He submits that Ext. 1/a does not contain any new term and that the parties are not different, as contended on behalf of the appellant. Lastly it is urged that on the date of execution of the lease, Ext. 1/a, the demised land having consisted of pucca structures the appellant could not be a thika tenant, for existence of pucca structures is opposed to the concept of thika tenancy as contemplated by the Act. Lastly it is urged that on the date of execution of the lease, Ext. 1/a, the demised land having consisted of pucca structures the appellant could not be a thika tenant, for existence of pucca structures is opposed to the concept of thika tenancy as contemplated by the Act. Section 2 (5) (b) of the Act is as follows: - " (5) "thika tenant" means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person- (b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years ;" 6. UNDER clause (b) of section 2 (5), a person who holds land under another for a period of not less than twelve years under a registered lease is not a thika tenant and the Act is not applicable to him. But the question is whether or not such period must be under one and the same title ; in other words, whether or not it shall be the term of the same instrument. It is clear from section 2 (5) (b) that it shall be the terms of the same lease. The words 'in which' are significant and they dispel any doubt about the same. These words refer to the preceding words 'a registered lease'. The plain meaning of section 2 (5) (b) is that if the duration of the lease is expressly stated in the registered lease to be for a period of not less than twelve years, then the person who holds land under that registered lease is not a thika tenant. In our opinion, there is no ambiguity in the language of section 2 (5) (b), and there is no scope for any argument that the period of not less than twelve years may not be the term of the same instrument but may be the cumulative effect of the terms of more than one instrument. In our opinion, there is no ambiguity in the language of section 2 (5) (b), and there is no scope for any argument that the period of not less than twelve years may not be the term of the same instrument but may be the cumulative effect of the terms of more than one instrument. In support of his contention that for the purpose of section 2 (5) (b) of the Act the cumulative effect of the terms of both the leases should be taken into consideration, Mr. Mukherjee has placed strong reliance on an English decision in Re Nos. 38, 39 and 40 Wind mill Street, (1950) 1 All. E. R, 59. In that case, the definition of the term 'short tenancy' as given in the War damage Act, 1943 came up for consideration in connection with the right to receive value payment under the said Act. Section 12 (a) of the said act, inter alia, provides that if at the material time the only proprietary interest subsisting in the heriditament was a fee simple in the whole of the heriditament, the right to receive the payment shall vest in the person who was at the material time the owner of the proprietary interest. Clause (b) of section 123 defines "proprietary interest" in relation to any heriditament as any tenancy of that land other than a short tenancy, and a "short tenancy" has been defined as "a tenancy granted for a term of seven years or less". The facts of the case are that by a lease dated April 8, 1931 the owners of certain heriditaments demised these heriditaments to William Hensman, for a term of five years. Before the expiry of the lease, the lessee died, and by a deed dated December 3, 1935 executed by and between the lessors and the legatee of the lessee under his will, the lessors agreed to demise the said heriditaments to the legatee "for the further term of seven years to commence on June 24, 1936". On November 15, 1940, the heriditaments suffered war damage and were rendered a total loss. The question was whether or not the tenancy was a 'short tenancy' or a proprietary interest within the meaning of section 123 (b) of the said Act. On November 15, 1940, the heriditaments suffered war damage and were rendered a total loss. The question was whether or not the tenancy was a 'short tenancy' or a proprietary interest within the meaning of section 123 (b) of the said Act. It was held that the period of seven years mentioned in the definition of proprietary interest was not necessarily a term of seven years in one and the same instrument, but it might be such a term subsisting under the combined effect of two or more instruments. Upon a construction of the deed of December 3, 1935, it was held that the said deed extended the original term granted in 1931 and did not constitute a new lease ; and, therefore, on the material date the lessee was in possession of a term granted for twelve years and not under a "short tenancy", with the result he had a proprietary interest within the meaning of section 123. 7. IN our view, the above English case is distinguishable from the present case. In that case, there is no indication in the definition of the term "short tenancy" that the term of seven years must necessarily be the term of the same instrument, and it was also held that it was not to be the term of the same instrument. Under section 2 (5) (b) of the Act, as held by us, the period mentioned therein, must be the term of the same registered lease and, accordingly, the English decision does not render any help to the respondent. If under the English decision it was decided that the term of seven years must be the term of the same instrument, the theory of the combined effect of the two leases would have to be excluded, as we have to in the present case. 8. IN the instant case, the lease was initially for a period of five years, and thereafter it was renewed for a further term of seven years. As, in neither of the two leases, the duration is expressly stated to be for a period of not less than twelve years, section 2 (5) (b) is not attracted, although the original lease was renewed and the further term of seven years was an accretion to the original lease, as contended on behalf of the respondent. We are rot impressed with the contention of the respondent that is Ext. We are rot impressed with the contention of the respondent that is Ext. 1/a, the duration is expressly stated to be for a period of not less than twelve years. It is argued that the date of commencement of Ext. 1/a relates back to the date of commencement of Ext. 1, for it refers to the renewal clause of Ext. 1 and has been executed in renewal of the original lease. Paragraph 1 of Ext. 1/a clearly states that the term of the lease shall be for 7 years commencing from January 1, 1957 and terminating on December 31, 1963. In view of the clear statement about the commencement of the lease in Ext. 1/a, it is difficult to accept the contention that the date of commencement should be the date of Ext. 1, and that it should be held that in Ext. 1/a, the duration of the lease is expressly stated to be for a period of not less than twelve years. It is not disputed that, apart from anything else, by Ext. 1 a thika tenancy was created. What was renewed by Ext. 1/a was the original lease ext. 1 whereby a thika tenancy was created. There can be no doubt that when a lease is renewed the status of the tenant or the nature of the tenancy is not changed. It is difficult to hold that on the execution of the lease Ext. 1/a, the lessee ceased to be a thika tenant and he acquired a different status. Mr. Mukherjee has placed reliance on a Bench decision of this court in Satadal Basini Dasi v. Lolit mohon Dey, 68 C. W. N. 1036. In that case, it has been held that when a tenant under a twenty years' lease, with a renewal clause, continues in possession after the expiry of the said lease, his continuance of possession would be deemed to be under the renewal clause though there may not be any express exercise of the said renewal ; that his rights in the leasehold land would be deemed to have flowed from the registered lease for twenty years and that. such cases will be outside the mischief of clause (b) of section 2 (5) of the act. In Satadal Basini's case, under the original lease, the tenant was not a thika tenant, for the lease was for a period of more than twelve years. such cases will be outside the mischief of clause (b) of section 2 (5) of the act. In Satadal Basini's case, under the original lease, the tenant was not a thika tenant, for the lease was for a period of more than twelve years. After the expiry of the term of twenty years the continuation of possession of the tenant was held to be under the renewal clause and not by way of holding over, inasmuch as his rights in the leasehold land would be deemed to flow from the registered lease for twenty years. As soon as it was held that the tenant continued under the renewal clause, he could not be said to be a thika tenant, for initially he was not a thika tenant, as the lease was for a period of more than twelve years. In our view, this case does not support the contention of the respondent. In the instant case, under the original lease, Ext. 1, the appellant or his predecessor was a thika tenant and. his continuance in possession under the lease Ext. 1/a which was executed under the renewal clause, was as a thika tenant. The appellant's rights under the renewed lease flowed from the original lease and, if under the original lease his right was that of a thika tenant, that right continued under the renewed lease. 9. WE may now consider the last contention of the respondent. It is argued that on the day the lease, Ext. 1 was executed, the demised land having consisted of pucca structures the respondent could not be a thika tenant, for the existence of pucca structures is opposed to the concept of thika tenancy as contemplated by the Act. It has been held in Manmatha Nath Mukherji v. Banarashi and ors. 63 C. W. N. 824 that the expression 'any structure' in section 2 (5) of the Calcutta Thika tenancy Act, means any structure other than the type of structure referred to in section 108 (p) of the transfer of Property Act, the construction whereof is prohibited under the latter section, and that 'any structure' in section 2 (5) does not include a permanent structure. A similar view has been expressed in Annapurna Seal v. Tincowrie Dutt 66 C. W. N. 388. A similar view has been expressed in Annapurna Seal v. Tincowrie Dutt 66 C. W. N. 388. In annapurna Seal's case, it has been further held that if there be pucca structures on the demised land on the date of the lease, the tenant cannot be a thika tenant. But there cannot be any doubt and it is also not disputed on behalf of the appellant that, if during the pendency of his lease, a thika tenant constructs or attempts to construct pucca structures on the demised land without the permission of the landlord, he does not cease to be a thika tenant. The landlord will have the right to bring an action against the thika tenant for the purpose of restraining him from constructing a pucca structure on the demised land or a mandatory injunction directing the tenant to demolish the pucca structures which he has constructed during the pendency of his lease without the consent of the landlord. 10. LET us now consider whether there was existence of pucca structures on the date, Ext. 1 was executed. It may be stated here, that this point was not raised by the respondent in the Court below and, consequently, no issue was raised in that regard. We have allowed the respondent to raise the point before us, as it has been submitted that the materials on record would show that there were pucca structures on the date the first lease was granted in favour of Satya Narayan murarka. In order to show that the demised land consisted of pucca structures, our attention has been drawn to ext. 'b', which is a registered conveyance dated May 9, 1936 whereby the executors of the will of Surendra kumar sold the interest of Surendra in the demised land including "all those brick-built structures and kutcha structures and corrugated rooms and sheds and other immovable and movables now lying and standing on the premises no. 234/2 and 233/1, Upper Circular road more particularly described in the schedule below. " Premises No. 234/2, upper Circular Road is the premises in suit which has been re-numbered as 234/4, Upper Circular Road. The Schedule referred to in Ext. 'b', is as follows: - " (1) One pucca corrugated iron shed with three apartments and pucca walls. (2) Seven small corrugated sheds. " Premises No. 234/2, upper Circular Road is the premises in suit which has been re-numbered as 234/4, Upper Circular Road. The Schedule referred to in Ext. 'b', is as follows: - " (1) One pucca corrugated iron shed with three apartments and pucca walls. (2) Seven small corrugated sheds. (3) One pucca privy with tanks, cistern and other fittings, all standing on a piece or parcel of tenanted land whereon and on part whereof the same are erected and built being premises No. 234/2 and 233/1, upper Circular Road within the municipal jurisdiction of the Corporation of Calcutta etc. " It thus appears from Ext. 'b' that Surendra Kumar was a lessee in respect of the suit property being 234/4, upper Circular Road, as also premises no. 283/1, Upper Circular Road. It does not appear from Ext, 'b' whether the structures were in the premises No. 224/2 or in the premises No. 233/1 or in both. It appears from Ext. B/1, the registered deed of conveyance dated september 6, 1949, executed by Jatindra mohan Seal and his co-sharer in favour of Satya Narayan Murarka that they were tenants of the suit property under debendra Nath Das, as also of land of premises No. 233/2/1c, Upper Circular road under one Bikash Chandra Mitra, and the interests of Jatindra and his cosharer were transferred by the said conveyance to Satya Narayan Murarka. Ext. B (2), the registered deed of dissolution of partnership between Satya narayan Murarka and others dated february 17, 1960, also shows that the murarkas had the tenancy in respect of the suit property and also in respect of the land of premises No. 233/2/1c, upper Circular Road, Calcutta. In the written statement of the appellant, it has been stated that the Murarkas including the appellant "became owners by transfer of the structures, machineries, accessories, fittings, fixtures lying on the leasehold land adjoining and/or amalgamating thereto which the said Murarkas obtained by way of transfer from Jatindra Mohan Seal. " in his evidence, the appellant Purushottam Das Murarka says that the shiva Gouri Oil Mill stands on two premises, namely premises No. 234/2 (now re-numbered as 234/4) and 233/1c, upper Circular Road. Further, he says that Bikash Chandra Mitra who was the landlord of premises No. 233/1c, Upper circular Road leased out the same to surendra Kumar who had taken lease of 234/2, Upper Circular Road from Dinanath Das. Further, he says that Bikash Chandra Mitra who was the landlord of premises No. 233/1c, Upper circular Road leased out the same to surendra Kumar who had taken lease of 234/2, Upper Circular Road from Dinanath Das. It is his positive evidence that premises No. 233/1c and premises No. 234/2 are adjacent premises. He has also said that the structures were originally constructed by Surendra Kumar and improvements and extensions were made by Satya Narayan Murarka and also by him. Further, his evidence is that the leasehold interest of Surendra kumar including the structures were purchased by Jatindra Mohan Seal who sold the same to Satya narayan Murarka, P. W. 2 Harendra krishna Mukherjee, who has been examined on behalf of the respondent has not been able to say whether or not surendra Kumar took lease of premises no. 233/1c, Upper Circular Road. He does not even know the said premises. It is true that there were certain pucca structures on the date, Ext. 1 was executed, but it is not known whether the structures were in premises No. 233/1c, upper Circular Road or in premises no. 234/2 (now re-numbered as 234/4)Upper Circular Road. As this point was not raised by the respondent, no evidence has been adduced that the suit property consisted of pucca structures at the time the lease was granted in favour of Surendra Kumar or in favour of the appellant. In these circumstances, it will not be proper for us to assume that there were pucca structures in the property in suit on the date of the execution of the lease, Ext. 1 and to hold that no thika tenancy was created in favour of the appellant by ext. 1/a. In the Schedule to Ext, 1, the property has been described as 1 bigha 15 cottahs of. rent free land being premises No. 234/2, Upper Circular Road, calcutta. The schedule does not refer to any structure in the said premises nor is there any mention of any structure in the body of the document. It may, therefore, be reasonably inferred that if there had been any structure on the demised land it would have been mentioned in the lease, Ext. 1. 11. OUR attention has also been drawn to paragraph 5 of Ext. It may, therefore, be reasonably inferred that if there had been any structure on the demised land it would have been mentioned in the lease, Ext. 1. 11. OUR attention has also been drawn to paragraph 5 of Ext. 1/a in which it has been stated inter alia as follows: - "the Lessee hereby puts on record that his predecessor has built on western side of the demised premises pucca structures without any notice to or consent of the Lessor. The Lessee will not claim any permanent right because of such pucca construction and in case the lessee fails to pull down these structures and remove the materials before vacating the land they will vest in the Lessor and the lessee shall not claim any sum for the value of these structures. " 12. THE statement in paragraph 5 referred to above, shows that certain pucca structures were constructed by satya Narayan Murarka on the suit property during the pendency of his lease without the consent of the Lessor. It has been already observed that if a thika tenant constructs pucca structures during the pendency of his lease he will not cease to be a thika tenant but the landlord will have the right to get the structures demolished in accordance with law. Accordingly, Satya narayan did not cease to be a thika tenant. Ext. 1/a has been executed by virtue of the renewal clause in Ext. 1 and, as such, it is the continuation of the same lease. The structures having been constructed during the continuation of the lease, the lessee did not cease to be a thika tenant. Moreover, in paragraph 5 of Ext. 1/a, the pucca structures have been declared to be unauthorised and the lessee does not claim any permanent right because of the said pucca structures. In our view, therefore, the construction of the pucca structures by Satya Narayan Murarka will not bring him or the appellant under the mischief of clause (b) of section 2 (5) of the Act. The respondent has failed to prove that at the time Satya narayan took the lease of the demised land, there were pucca structures and, accordingly, the contention in that regard must be rejected. Before we part with this case, we may record that we are not impressed with the contention made on behalf of the appellant that the lease, ext. The respondent has failed to prove that at the time Satya narayan took the lease of the demised land, there were pucca structures and, accordingly, the contention in that regard must be rejected. Before we part with this case, we may record that we are not impressed with the contention made on behalf of the appellant that the lease, ext. 1/a is a fresh lease and not a lease executed by virtue of the option clause in Ext. 1; nor are we impressed with the contention that the appellant purshottam Das Murarka is a stranger and not the successor-in-interest or the assignee of Satya Narayan Murarka. On his own case, the appellant is either the assignee or the successor-in-interest of the lessee Satya Narayan Murarka, and by the lease, Ext. 1/a, the original lease, Ext. 1 was renewed. Further, we are of the view that there is no substance in the contention of the appellant that as certain new terms have been incorporated in Ext. 1a, which are absent in Ext. 1, Ext. 1/a is a new lease and not executed by virtue of the renewal clause. No other point has been urged on behalf of either party to the appeal. 13. FOR the reasons aforesaid, we are unable to agree with the findings of the learned Subordinate Judge that the appellant was not a thika tenant and that the Civil Court has jurisdiction to try and pass a decree for ejectment. In the result, the judgment and decree of the learned Subordinate judge are hereby set aside and the suit is dismissed. The appeal is allowed but in view of the facts and circumstances of the case, we direct each party to bear his own costs both in this court and in the Court below.