Pravash Chandra Dalui v. Biswanath Banerjee — 1979 DIGILAW 341 (CAL)

Judgment Chakravorti, J. This is an appeal by the defendants against the judgment and decree paned in Title Suit No. 80 of 1965 of the 4th Court of Subordinate Judge at Alipore. 2. The suit was instituted by the plaintiff Biswanath Banerjee against the defendants, Debendra Chandra Dalui and Prabhash Chandra Dalui for recovery of arrears of rent with interest thereon. The simple case of the plaintiff is that the disputed property was leased out to the defendants by a registered deed of lease dated 26th, September, 1946 which was to take effect from 1st April, 1946. It was a lease initially for a term of 10 years reserving a monthly rent of 200/-. The lease contained clauses for further extension of two more terms of five years each at enhanced rate of Rs.250/- and 300/- respectively. The defendants failed to pay rent for a long time the total period of arrears being from April, 1959 to March, 1961 at the rata of Rs.250/- per month and from April 1961 to December, 1965 at the rate of Rs.300/- per month. Total claim was laid at Rs.15,671 with interest at 12%. 3. The defendant contested the suit mainly on the plea that they were Thika tenants under the Calcutta Thika Tenancy Act and as such the enhanced rent claimed by the plaintiff being not in conformity with the provisions of the Thika Tenancy Act was not maintainable. They also questioned the validity of the claim of interest at the rate of 12% per annum. 4. The learned Subordinate Judge by his judgment and decree dated 21.3.67 decreed the suit in part for Rs.1100/- with interest at 6¼% in a preliminary form. The structures raised on the disputed land remained charged for the payment. The defendant also took a plea that the plaintiff's predecessor in interest namely Narendra Nath Mukherjee had earlier instituted a Misc. case being Misc. Case No. 74 of 1958 under Section 5 of the Calcutta Thika Tenancy Act for eviction of the defendants. The plaintiff being a trnsferee from Nareneda Nath Mukherjee was substituted in that proceeding. The defence case, therefore also is that the plaintiff cannot now say that the defendants are not Thika tenants. 5. On an appeal against the decision this Court in F.A. No. 287 of 1968 set aside the decree and sent back the suit on remand. The plaintiff being a trnsferee from Nareneda Nath Mukherjee was substituted in that proceeding. The defence case, therefore also is that the plaintiff cannot now say that the defendants are not Thika tenants. 5. On an appeal against the decision this Court in F.A. No. 287 of 1968 set aside the decree and sent back the suit on remand. During the hearing of that appeal a question was railed whether in view of the earlier proceeding under section 5 of the Calcutta Thika Tenancy Act which ended in a compromise it was any longer open to the plaintiff to contend that the defendants were not Thika Tenants. It was held that though the plea of resjudicata was incidentally taken in the suit, no specific issue on the point was raised. On behalf of the plaintiff it was contended that the compromise decree was a nullity inasmuch as the status of the defendants was to be construed on a true and proper interpretation of the deed of lease itself and that the parties could not by consent, agree to a status under the Thika Tenancy Act which the lease itself did not create. However in view of such rival contentions two additional issues were framed to the following effect:- (1) Is the claim of the plaintiff that the defendants are not thika tenants, barred by waiver, estoppel or by the principles of resjudicata or analogous principles in view of the order of the Court in the proceeding in Misc. Thika Case No. 74 of 1958 before the Thika Controller, namely 4th Munsif at Alipore. (2) Whether the decree in the aforesaid case and the proceeding should be treated as a nullity as contended by the plaintiff-appellant. 6. The decree palled by the learned Subordinate Judge was set aside and the suit was remanded back to the Court below with a direction to decide the aforesaid two issues along with the issues already on record in accordance with law and in the light of the observations made in the judgment. Thereupon the suit was heard a fresh and decreed against defendants for a sum of Rs.8,000/- with interest at 12%. The defendant have preferred the present appeal. The plaintiff also has filed a cross objection. 7. Thereupon the suit was heard a fresh and decreed against defendants for a sum of Rs.8,000/- with interest at 12%. The defendant have preferred the present appeal. The plaintiff also has filed a cross objection. 7. In the Court below the defendants case was that on the expiry of the forst term of 10 years under the registered lease the defendants did not exercise their option of renewal on payment of rent at an enhanced rate but were merely holding over within the meaning of section 116 or the Transfer of Property Act at the old rental of Rs.200/-. It was also their contention that the defendants being thika tenants the provision for enhancement of rent in phases are inapplicable in view of the provisions of sections 24 and 25 of the Calcutta Thika Tenancy Act. The learned Subordinate Judge therefore felt and we think rightly that the decision of the suit lay on a correct interpretation of the terms of the lease. He found that the lease Ext. 1 is for a term of 20 years and that the defendants could not be treated as Thika tenants under sub-section 5(b) of section 2 of the Calcutta Thika Tenancy Act. Upon such a finding and after calculation of the amounts due and paid by the defendants the learned Subordinate Judge found that the plaintiff was entitled to a decree for Rs.8,000/- towards the arrears of rent plus interest at the rate of 12% per annum. 8. The main point urged on behalf of the defendants in the appeal is that the lease deed Ext. 1 creats a lease for a term of 10 yean only and therefore in view of the provisions of section 2 sub-section 5(b) the defendants must be deemed to be thika tenants. The cross-objection filed by the plaintiff related to the amounts of arrears calculated by the learned Subordinate Judge. 9. As it will be seen from the facts hereinbefore stated that the principal point of difference between the parties is as to the status of the defendants namely whether they are governed by the Calcutta Thika Tenancy Act or not. For a proper appreciation of the point at issue it may be useful to bear in mind the relevant provision of the Calcutta Thika Tenancy Act and the various clauses in the registered deed of lease. For a proper appreciation of the point at issue it may be useful to bear in mind the relevant provision of the Calcutta Thika Tenancy Act and the various clauses in the registered deed of lease. Section 2, sub-section 5(b) of the Calcutta Thika Tenancy Act reads as follows:- "(5) Thika tenant means any person who holds, whether under a written lease or otherwise, land under another person and but for a special contract would be liable to pay, as a monthly or at 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 – (a) who holds such land under another person in perpetuity; or (b) who holds such land under that person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than 12 years; or." 10. The relevant clauses of the deed of the lease Ext. 1 are clauses 9, 11, and 12. They are reproduced below:- 9. If the Second Party Lessee let in arrear rent for two months at a time or makes any breach of any rule of this deed or does not do his duty within seven days of service of warning notice or does not cease to do wrongful act or he is declared insolvent then this leases i.e., the tenancy of the Second Party lessee will be cancelled and will become extinguished even though the period of this lease remain unexpired and the First Party Lessee shall be entitled to take khas possession of the said property and any plea or objection to that by the Second Party Lessee shall not be entertained. 11. 11. At the first instance, the period of the lease is made ten years from 1st April, but if the Second Party Lessee, does not all along within this period, in accordance with the aforesaid rules, pays the assessed rent to the First Party Lesser regularly, pays the rates and taxes to the Municipality and does not fail to do his own duty, then at the expiry of the period of the said ten years the period of this Lease shall be extended for a further period of five years i.e. upto 31st March, 1961 and the assessed rant will be Rs.250/- Rupees two hundred fifty per month in place of the rent of Rs.200/- Rupees two hundred per month to run under the aforesaid rules and the rules mentioned in the aforesaid paragraph 1 to 10 will remain wholly reimposed during this extended period and the Second Party Lessee shall remain bound by these and all those rules shall remain fully in force, only the monthly rent is assessed at Rs.250/- (Rupees two hundred fifty) In place of Rs.200/- Rupees two hundred. 12. If the Second Party Lessee act all along in accordance with the aforesaid rules within the last mentioned five yean and observe the rules regularly pays the assessed rent of Rs.250/- per month to the First Party Lessor and pays the rates and tax of the Municipality then on the expiry of the said five years the period of this Lease will be extended for a further period of five years that is upto 31st March 1966 at a monthly rent assessed at Rs.300/- Rupees three hundred only in place of Rs.250/- Rupees two hundred fifty under the rules mentioned in the aforesaid paragraphs 1 to 10 and during this last mentioned extended period also the Second Party Lessee will be wholly and absolutely bound by the aforesaid rules and all those rules will remain fully in force, only the monthly rent will be Rs.300/- Rupees three hundred only in place of Rs.250/- Rupees two hundred fifty only. 11. 11. Clause 13 of the lease says that if during the pendency of the aforesaid period, the lease be not determined due to breach of any of the rules, then on the expiry or the said period mentioned in this deed i.e. on 1st April, 1966 then the Second Party Lessee will pay the due of the First Party Lesser due to this demised premises and will make over khas possession of the said land to the First Party. But if the Second Party Lessee act all along within the aforesaid period of 20 years in accordance with the aforesaid rules and duly obeys the same and duly obeys the assessed rent etc. the Second Party, if he so wishes shall send a written notice to the First Party before the expiry of the aforesaid period of 20 years and shall be entitled to obtain an extension for a further maximum period of one year at a rent assessed at Rs.500/- per month in place of Rs.300/- per month. These are all the relevant clauses which shall be necessary to be considered to find out the real intention of the parties and the status of the defendants created thereunder. 12. Mr. Banerjee appearing in support of the appeal referred to a decision reported in (1) 37 CLJ 475 (Faizuddin v. Asrab Ali). It has been observed in this case that in the determination of the question whether a lease is for a term of year or not, the test to be applied is whether there is a present demise for a year only, or for a period of more than one year, where there is no demise for a longer period than one year, the fact that the tenant has the option at the end of the term of one year to continue his tenancy does not make the lease, a lease for a longer term than one year. Mr. Banerjee therefore argued that the original term of the lease in the instant case being for 10 years the subsequent provisions for renewal would not make it a lease having a duration of 20 years. 13. The next case referred to by Mr. Banerjee (2) P.D. Murarka v. B.K. Mukherjee, 79 CWN 852 relates to a case arising out of the Calcutta Thika Tenancy Act. 13. The next case referred to by Mr. Banerjee (2) P.D. Murarka v. B.K. Mukherjee, 79 CWN 852 relates to a case arising out of the Calcutta Thika Tenancy Act. In that case the relevant clause of the lease was as follows: "The term of the lease would be for 5 years commencing from 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 7 years at a rate then prevailing for such lands if the lessee so desire find if the parties fail to come to any agreement in support 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." It was held that in that case the lease will initially for a period of 5 years, and thereafter it wan renewed for a further term of 7 years. It was held in the circumstances that the lessee was not a thika tenant since the duration of the lease as expressly stated in the instrument was for a period of not less than 12 years. 14. Mr. Banerjee argued on the authority of these decisions that in the instant case also the duration of the lease as expressly stated is 10 years and not 20 years as contended by the other side. In our opinion the contention does not appear to be correct in view of the language used in the instrument of lease. In the first place in Clause 9 of the lease there are provisions regarding re-entry by the lessor under certain circumstances. In Clause 11 it is stated that the period of the lease is the first instance shall be for 10 years with effect from 1st April, 1948. In the first place in Clause 9 of the lease there are provisions regarding re-entry by the lessor under certain circumstances. In Clause 11 it is stated that the period of the lease is the first instance shall be for 10 years with effect from 1st April, 1948. It then goes on to say that if during this period the lessee pays the rates and taxes and does not fail to perform his during then after expiry of the period of the said 10 years the period of this lease shall be extended for a further period of 5 years i.e. upto 31st March, 1961. In Clause 12 again it is stated that if the lessee regularly pays the assessed rent and otherwise fulfils his obligations then on the expiry of the said 5 years "the period of this lease will be extended for a further period of 5 years i.e. upto 31st March, 1966. It is significant to note that in none of there two clauses there is reference to any renewal of the lease at the option of the lessee. What these clauses provide for is that on the expiry of the period of the lease and the lease having not been forfeited on any around of breach of any conditions, the lease shall automatically extended for two further periods of 5 years each. Consequently it seems to us that this is not a case where it can be said that the duration of the lease is expressly stated to be of less than 12 years. This conclusion of ours finds support from the provisions in Clause 13 of the lease. There it is stated that if during the pendency of the aforesaid period the lease be not determined due to breach of any of the rules then on the expiry of the said period mentioned in this deed i.e. on 1st April, 1966, the lessee shall be entitled to obtain a further renewal for a maximum period of one year at an enhanced rate of rent. The date of expiry of the period as mentioned in this clause is 1st April, 1966. The lease commenced from 1st April, 1946. It is thus clear that the period of 20 years was treated as the period of the lease. The date of expiry of the period as mentioned in this clause is 1st April, 1966. The lease commenced from 1st April, 1946. It is thus clear that the period of 20 years was treated as the period of the lease. It is also significant to note that the parties did not say in this document that the duration of the lease comprised of three periods-one of 10 years and the other two of 5 years each. But they referred to only one period commencing from 1st April, 1946 and ending with 1st April, 1966. Therefore in our view, this is a lease in which the duration is expressly stated to be for a period of not less than 12 years. 15. In the instant case the extensions after the first phase of 10 years were automatic. The lessor could not during the period of 20 years reenter if the conditions were fulfilled. The period of the lease cannot be determined with reference to a possible breach of any of the conditions of the lease that may subsequently lake place. In the case of a lease for any 15 years the lease may be determined by reason of breach of some conditions within the said period, but that would not render it a lease for a unspecified period or even for a period upto the date when the breach was committed resulting in forfeiture of the lease. 16. The case of (3) Satadal Basini v. Lalit Mohan 68 CWN 1036, referred to by the learned Judge in the Court below appears to be somewhat different on facts. There it has been held that there is a fundamental distinction between a tenancy by holding over and a tenancy or right under a renewal clause. In the latter case it has been held that the continuance of possession is under the original lease, which has not expired or determined but survived by reason of its renewal clause. In the instant case before us we have observed that this is not a case where the period of 20 years can be computed by taking recourse to adding up any period by means of renewal. On the contrary we have held that the period of the lease is 20 years even though the period has been divided into three phases. On the contrary we have held that the period of the lease is 20 years even though the period has been divided into three phases. There is no question of exercising the right of renewal and consequently the question of effect of such renewal it immaterial. Similar was the finding in the case of (4) Syad Ali Kaiser v. Ayesha Begum, 1977 (1) CLJ 345 . 17. Mr. Chatterjee in opposing the appeal contended that the mere fact that there is a forfeiture clause in Clause 9 of the deed of lease the lease does not lose its character as a lease for specified period of 20 years. In support of this contentions reliance was placed on the case of Meghlal v. Raj Kumar (I.L.R. 34 Calcutta p. 358). This was a case of a lease in perpetuity with a forfeiture clause entitling the lessor to reenter and put an end to the lease. It was held that the provisions for the forfeiture of lease for non payment of rent are intended merely as a security for the payment of the rent. Inspite of the forfeiture clause it was held that the lease was in its essence a permanent lease held at a rent fixed in perpetuity. This case was also followed in a recent decision in the case of (5) Saffiuddin v. G.C. Banerjee, 69 CWN 842. The case of (6) Manindra Nath v. Ashalata, A.I.R. 1975, Calcutta, 429 referred to by Mr. Banerjee does not seem to have any bearing to the facts of the case. In that case after the term of the recognized lease had expired the lessee admittedly held over which means a new tenancy was created in accordance with the provisions of section 116 of the T.P. Act. Consequently that was a case where a new tenancy was created and not that the old tenancy was continued. 18. The language of the Thika Tenancy Act in section 2 subsection 5(b) clearly excludes a person from the category of thika tenants if such person holds land under another under a registered least in which the duration of the lease is expressly stated to be for a period of not less than 12 years. It does not seem necessary that the particular period must be expressly stated. It does not seem necessary that the particular period must be expressly stated. What is required to be seen is whether there is express reference in the document as to duration which is not of less than 12 years. 19. In the instant case before us the question of the duration of the lease would certainly have assumed a different complexion had the instrument contained provisions for renewals. Under most convenants and options for renewal, the lessee is bound to give notice of his desire to renew. The terms of the lease in this case are such that there is no question of the lessee expressing any desire to renew the lease after the expiry of the period of 10 years. If the lease is forfeited by reason of any breach occurring in the meantime, and the lessor exercising his right of reentry on that basis, the lease automatically gets extended. There is therefore, no question of renewal of the lease. The lease continues on its own and all the periods taken together should therefore be treated at the period of the lease. In that view of the matter we are of the opinion that the lease in this case is for a period of 20 years and that there is express reference of such duration in the lease itself. Such being our view the first point urged by Mr. Banerjee must necessarily fail. 20. Mr. Banerjee also took a point though not very seriously that the case is barred by waiver, estoppel, resjudicate or principle analogous thereto. The argument is based on the feet that there was previously a Misc. case being case no. 74 of 1958 filed by the plaintiff's predecessor for eviction of the defendants under sec. 5 of the Calcutta Thika Tenancy Act. The plaintiff being a subsequent purchaser was substituted in that case. It was therefore argued that the plaintiff cannot now say that the defendants are not thika tanants. In the case of (7) P.D.M. Reedy v. P.A. Row (AIR 1974 SC 2809) it has been held that the essential element of waiver is that there must be a voluntary choice in the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right is question. In the case of (7) P.D.M. Reedy v. P.A. Row (AIR 1974 SC 2809) it has been held that the essential element of waiver is that there must be a voluntary choice in the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right is question. In the instant case there can be no question of giving a status under the Thika Tenancy Act when in the facts of the case such a status is not available. The Supreme Court says that the principal is that neither estoppel nor resjudicata can give the court jurisdiction under the acts which those acts say it is not to have consequently this point also must fail. 21. We were not addressed as to the correctness of the calculation made by the learned Court below regarding the amount of arrears and we find no reason to interfere with the findings in that regard. The cross objection was not pressed. The appeal accordingly fails and is hereby dismissed. The cross objection also stands dismissed. Parties to bear their own costs. Sen, J.: I agree.