JATADHARI DAW, GRANDSONS v. RADHA DEBI — 1985 DIGILAW 361 (CAL)

DIPAK KUMAR SEN, J. ( 1 ) THE material facts not in dispute are, inter alia, that Radha Devi, the respondent, as the owner of premises No. 210, Chittaranjan Avenue, Calcutta, (hereinafter referred to as the said premises), executed an indenture of lease on the 9th November, 1954 demising in favour of the Burma Shell Oil Storage and Distributing Co. of India Ltd. (hereinafter referred to as the company) the said premises for a period of 20 years on and from the 1st September, 1954 in consideration of a premium of Rs. 10,000/- and rent of Rs. 900/- per month on, inter alia, the following terms and conditions :-A) The Company would be at liberty to excavate a tank and construct of erect buildings, pumping plants and accessories in the said premises for carrying on trade in petroleum, petroleum products, oil and motor accessoriesb) The existing tanks, structures, plants and outfit in the said premises as shown in the plan annexed to the deed of lease were recorded as belonging to the company absolutely and the respondent would have no claim thereto or to any additional structures or equipment that may be erected or brought in the said premises by the company. C) On the expiration of the lease or determination thereof earlier the company would deliver possession of the said premises to the respondent and remove therefrom with reasonable dispatch all buildings structures, plants and other property of the company therein and would restore the land to its original condition at its own cost and expenses. D) The company would be at liberty to underlet the said premises or any part thereof to any local dealer or agent for all or any of the purposes of trade as aforesaid without the consent of the respondent. Jatadhari Daw and Grandsons, a firm (hereinafter referred to as the dealer), was in possession or occupation of the said premises during the currency of the said lease. ( 2 ) THE said lease expired by efflux of time on the 31st October, 1974. Successive notices were issued by and on behalf of the respondent on the 6th March, the 27th July, the 3rd September, and the 9th October, 1974 respectively calling upon the company to vacate the said premises and to deliver vacant possession thereof to the respondent on the expiry of the said lease. Successive notices were issued by and on behalf of the respondent on the 6th March, the 27th July, the 3rd September, and the 9th October, 1974 respectively calling upon the company to vacate the said premises and to deliver vacant possession thereof to the respondent on the expiry of the said lease. ( 3 ) THE company and the said dealer did not deliver up vacant possession of the said premises to the respondent on the expiry of the said lease and have continued in possession thereafter. ( 4 ) ON or about the 11th October, 1974, the respondent instituted a suit against the company and the said dealer claiming, inter alia, a decree for possession of the said premises and mesne profits, alternatively, an enquiry into mesne profits and a decree of such sums as may be found due and payable by the company and the said dealer. ( 5 ) IT was alleged in the plaint inter alia, that the dealer was claiming to be in possession of the said premises under an agency granted to them by the company to run a petrol pump in the said premises and that after the expiry of the said lease the respondent had neither accepted any rent nor assented to the continuance in possession of the said premises by the company or the dealer. ( 6 ) IT was further alleged that the company and the dealer were continuing in possession of the said premises wrongfully and without any right. The suit was started to be valued at over Rs. 51,000/- and it was contended that the same came within the pecuniary jurisdiction of this Court. ( 7 ) THE company filed its written statement in the suit on or about the 18th April, 1975 alleging, inter alia, that the dealer had been granted an agency by the company to run a petrol pump at the said premises and that after expiry of the said lease the company was continuing in possession of the said premises, on the terms and conditions, same as those in the lease as a monthly tenant. ( 8 ) ALTERNATIVELY, it was contended that the company was a statutory tenant within the meaning of the West Bengal Premises Tenancy Act, 1956 and was entitled to the protection provided therein. ( 8 ) ALTERNATIVELY, it was contended that the company was a statutory tenant within the meaning of the West Bengal Premises Tenancy Act, 1956 and was entitled to the protection provided therein. ( 9 ) THE dealer also filed its written statement in the suit on or about 21st January 1975 alleging, inter alia, that it had been carrying on business as dealer of petrol and automobile parts in the said premises from 1942 till the 9th November, 1954 and that the said lease was executed in favour of the company with all standing structures and fittings acquired by the plaintiff from her predecessor in title. ( 10 ) IT was alleged that the said lease was in renewal of an earlier lease and that the dealer and its predecessors in interest have been in occupation of the said premises as a tenant of the company since 1942, paying quarterly rent. It was contended that the company had become a statutory tenant in the said premises after the 31st August, 1974 and that the dealer had become a lawful sub-tenant of the company with the written consent of the plaintiff or her predecessors in title. ( 11 ) IT was contended that the suit could not be valued at Rs. 50,000/- as the stipulated rent payable under the lease is only Rs. 900/- per month. ( 12 ) UNDER the Burmah Shell (Acquisition of Undertaking in India) Act, 1976 promulgated on or about the 24th January, 1976 and notification dated the 24th January, 1976 issued thereunder the right, title and interest of the company in its undertaking in India were acquired and stood transferred to and vested first in the Central Government and thereafter to Burmah Shell Refineries Ltd. , a Government company. ( 13 ) ON or about the 12th February, 1976, the name of Burmah Shell Refineries Ltd. , was changed to Bharat Refineries Ltd. ( 14 ) ON applications of the plaintiff made in the suit Burmah Shell Refineries Ltd. , and Bharat Refineries Ltd. , were successively substituted in the suit as defendants in place and stead of the company. ( 15 ) ON a summons dated the 1st September 1977, the dealer made an application in the suit for leave to amend its written statement. ( 15 ) ON a summons dated the 1st September 1977, the dealer made an application in the suit for leave to amend its written statement. By the proposed amendments the dealer attempted to raise new contentions to the effect that the vesting of the right, title, interest and the liabilities of the company in its undertaking in India to the Burmah Shell Refineries Ltd. and the Notification providing for such vesting were illegal, invalid, ultra virus and Burmah Shell (Acquisition of Undertaking in India) Act, 1976 and null and void. The Union of India was a necessary party to the suit and the same could not determined in the absence of the Union of India. ( 16 ) AMENDMENT was also sought to bring on record allegations that a number of valuable structures had been constructed in the said premises worth more than Rs. 25,000/- apart from other underground constructions and structures, built by the company in the premises. The dealer, it was contended, was entitled to remove the said structures, erections and constructions from the said premises or alternatively, were entitled to claim the value thereof from the respondent assessed at Rs. 16,000/ -. ( 17 ) BY a judgment and order dated the 13th September 1977 the said application of the dealer was dismissed. ( 18 ) AN appeal numbered as Appeal from Original Order No. 542 of 1977 was preferred by the dealer from the said judgment and order dated the 13th September 1977. ( 19 ) SOMETIME in 1978, the suit came up for trial when the dealer and Bharat Refineries Ltd. , the defendants, raised an issue whether this Court had pecuniary jurisdiction to try the suit. A the instance of the defendants the trial Court determined the said issue as a preliminary issue postponing the settlement of other issues. ( 20 ) BY a judgment dated the 8th February 1978 the said preliminary issue was answered by the trial Court in favour of the respondent. A the instance of the defendants the trial Court determined the said issue as a preliminary issue postponing the settlement of other issues. ( 20 ) BY a judgment dated the 8th February 1978 the said preliminary issue was answered by the trial Court in favour of the respondent. It was held that the defendants could be deemed to be trespassers in the said premises, that under S 7 of sub-rule (6) of the West Bengal Court Fees Act, 1970 the plaintiff had the liberty and could exercise option to value a suit of the nature in the manner it was done and that the valuation made by the plaintiff would determine the jurisdiction of the Court trying the suit. ( 21 ) THE defendants have preferred an appeal from the said judgment and order dated the 8th February 1978 being the above Appeal from Original Order No. 53 of 1978. ( 22 ) THEREAFTER, when the suit again appeared for hearing, by a notice of motion dated the 28th March 1978 the dealer made a further application, again seeking amendment of its written statement. ( 23 ) BY the amendments as proposed the dealer sought to raise a new plea to the effect that under another Indenture of lease executed earlier on the 23rd August 1945 by the respondent or her predecessor in interest, by which the said premises were demised in favour of the company, a valuable statutory right accrued to the dealer under the Calcutta Thika Tenancy Act, 1949 by operation of law, as the company erected structures, constructed as underground oil tank and inducted the dealer or their predecessors in interest as a tenant or Bharatia or a sub-tenant in the said premises during the currency of the earlier lease, and that by the subsequent lease neither the respondent nor the company could deprive the dealer of its vested statutory right in the said premises. ( 24 ) BY a judgment and order dated the 3rd April 1978, the trial Court dismissed the said application holding that the said application was mala fide, that it was made with a view to delay the hearing of the suit, that an entirely new case was being sought to be introduced by way of the proposed amendments contrary to or inconsistent with the original defence and that there had been inordinate and unexplained delay in making the said application. ( 25 ) AN appeal has been preferred from the said judgment and order dated the 3rd April 1978 being Appeal from Original Order No. 238 of 1978. ( 26 ) THE trial of the rest of the suit commenced sometime in May 1978. The following further issues were raised and settled for determinations :-1. (a) Did the lease dated 9th November 1954 expire by efflux of time on 31st August 1974 ? (b) Is the defendant No. 1 a statutory tenant under the West Bengal Premises Tenancy Act, 1956 as alleged in paragraph 7 of its written statement ?2. Is the plaintiff entitled to mesne profit ? If so, at what rate ?3. Is the notice dated October 9, 1974 void, inoperative and of no legal effects alleged in paragraph 5 of the written statement of the defendant No. 2 ?4. To what relief if any, is the plaintiff entitled ? ( 27 ) THE only witness of the respondent at the trial was Kiran Chandra Pal, a consulting engineer and surveyor, who deposed that the said premises, presently, could be expected to yield rent at the rate of 6 annas per square feet. He substantiated his evidence by his report dated the 8th November 1968 which was tendered. ( 28 ) THE only witness for the defendants was Kamal Kumar Dawa, a partner of the dealer. His evidence was that the dealer and its predecessors in interest had been carrying on business the said premises since 1942 and that the dealer paid rent to the defendant No. 1 at the rate of Rs. 2250/- per quarter. He admitted that the said premises was in the exclusive possession of the dealer. He stated further thatpresently, the dealer was the tenant under the respondent paying rent to the latter through the company. ( 29 ) THE suit was deposed of by a judgment dated the 5th June 1978. It was held by the learned trial Judge that the dealer, the defendant No. 2, did not have any right to remain in possession of the said premises after the expiry of the lease on their own right and that the submissions made contrary thereto constituted a complete departure from their pleadings. The case of the dealer that it was a thika tenant in the said premises was also rejected on the ground that such thika tenancy was neither pleaded nor proved. The case of the dealer that it was a thika tenant in the said premises was also rejected on the ground that such thika tenancy was neither pleaded nor proved. The contention that the company and the dealer had become statutory tenants was also not accepted. It was held that in view of the period of demise, the West Bengal Premises Tenancy Act, 1956 or the earlier Rent Acts did not apply. It was also held that the rights of the company under the earlier lease, if any, had merged with the subsequent lease. All the issues were answered in favour of the respondent. A decree was passed for eviction and for mesne profits at the rate of Rs. 900/- per month from the 1st September 1974 with interest thereon at the rate of 6% per annum. ( 30 ) THE above Appeal from decree No. 239 of 1978 has been preferred against the said judgment and decree. ( 31 ) AT the instance of the parties the above two appeals being Appeal from Original Decree No. 239 of 1978 and Appeal from the Original Order No. 53 of 1978 have been heard together. ( 32 ) AT the hearing, the appellants sought to raise a further new plea. They contended, that under the Calcutta Thika Tenancy (Acquisition and Regulations) Act, 1981 which came into force during the pendency of the above appeals the said premises had vested in the State of West Bengal and that under the said Act, the appellants would be deemed to be tenants directly under the State which must be deemed to be their landlord. ( 33 ) IT was submitted that this change of law took place after the date of the judgments under appeal and as such the same could not have been agitated before the trial Court. It was submitted that the facts and evidence on record would be sufficient for the appeal court to adjudicate on this new controversy. ( 34 ) IT has been laid down by the Supreme Court, in State of Haryana v. Chaman Mull reported in AIR 1976 SC 1954 that a Court is bound to take judicial notice of any amended law and that a party is entitled to place its point of view consequent upon changes in law during the pendency of the proceedings. This would not amount to permitting the raising of a new plea. ( 35 ) IT is also well settled that an appeal Court can take notice of relevant facts, which came into existence subsequent to the conclusion of the proceedings from which the appeal arose to adjudicate and determine the real controversy between the parties thereby avoiding multiplicity of proceedings. ( 36 ) FOR the reasons above we permitted the appellants to raise the new plea. It appeared that this new plea could be decided properly and effectively only in the presence of the State of West Bengal, a necessary party. On notice issued by the appellants as directed, the State of West Bengal appeared, and we gave leave to the State to intervene in the appeals. ( 37 ) THE main submission of the appellants before us was that this Court did not have pecuniary jurisdiction to entertain and try this suit. ( 38 ) LEARNED Counsel for the appellants submitted that the suit was for recovery of immovable property by the respondent from her tenant. The company and, thereafter, its successors in interest were admittedly the lessees and as such were tenants under the respondent. Even though the said lease stood determined by efflux of time, the company and its successors would be deemed to be tenants and not trespasser in the context of the suit. ( 39 ) IT was submitted further that the dealer was a sub-lessee or a licencee of the company and its successors and a decree against the latter would be binding on the dealer. The dealer was not a necessary party to the suit. By impleading the dealer the nature and the character of the suit could not be changed and it cannot be held that the suit was for recovery of an immovable property from a trespasser. The dealer was not a necessary party to the suit. By impleading the dealer the nature and the character of the suit could not be changed and it cannot be held that the suit was for recovery of an immovable property from a trespasser. ( 40 ) LEARNED Counsel drew our attention to section 8 of the Suits Valuation Act, 1887 which reads as follows :-"court fee value and jurisdictional value to be the same in certain suits - Where in suits other than those referred to in the Court Fees Act, 1870 (7 of 1870), S. 7, paragraphs (v), (vi) and (ix) and paragraph (x), clause (d), court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same. " ( 41 ) LEARNED Counsel next drew our attention to the relevant parts of S 7 of the West Bengal Court Fees Act, 1970, which reads as follows :-"computation of fees payable in certain suits - The amount of fees payable under this Act in the suits next hereinafter mentioned shall be computed as follows :- (xiii) In the following suits between landlord and tenant ??????????. (d) For the recovery of immovable property from a tenant including a tenant holding even after the determining of a tenancy ??????. . "according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint. " ( 42 ) CONSTRUING the above sections, learned Counsel submitted that the court fees payable on this suit would be on 12 months rent of the said premises under the lease at the rate of Rs. 900/- per month i. e. Rs. 10,000/ -. The mesne profit claimed in the plaint at the rate of Rs. 150/- per day for 19 days was Rs. 5850/ -. The aggregate value of the suit for the purpose of court fee and also for jurisdiction would come to Rs. 16,650/ -. ( 43 ) LEARNED Counsel submitted that under S (2) of The Calcutta City Civil Court Act, 1950 as amended in 1969, the City Civil Court, Calcutta had jurisdiction to try all civil suits, the value not exceeding Rs. 5,000/- and the High Court did not have jurisdiction to try such suits. 16,650/ -. ( 43 ) LEARNED Counsel submitted that under S (2) of The Calcutta City Civil Court Act, 1950 as amended in 1969, the City Civil Court, Calcutta had jurisdiction to try all civil suits, the value not exceeding Rs. 5,000/- and the High Court did not have jurisdiction to try such suits. ( 44 ) THEREFORE, the valuation of the suit in the instant case being Rs. 16,650/- this Court had no pecuniary jurisdiction to entertain and try the same. ( 45 ) LEARNED Counsel also submitted that even if the dealer is deemed to be a trespasser in the said premises, the cause of action of the respondent against the dealer could not be combined with the cause of action of the respondent against the company and its successors for enhancing the valuation of the suit by aggregation. He drew our attention to Order 11 Rule 3 of the Code of Civil Procedure, the material part whereof is as follows :-"3 (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly ;?????? (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount of value of the aggregate subject matters at the date of instituting the suit". ( 46 ) IT was submitted that the words "save as otherwise provided" would prevent the respondent in combining the two different causes of action. ( 47 ) LEARNED Counsel drew our attention to S. 21 of the Code of Civil Procedure as it stands after the amendment in 1976. The relevant amendment provides as follows :-" (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. " ( 48 ) IT was submitted that the amendment came into effect in 1976 whereas the suit was filed in 1974. The respondent, it was submitted, would not be entitled to claim the benefit of the amended section. " ( 48 ) IT was submitted that the amendment came into effect in 1976 whereas the suit was filed in 1974. The respondent, it was submitted, would not be entitled to claim the benefit of the amended section. ( 49 ) IN support of the above contentions Learned Counsel cited the following decisions : (A) Govind Kumar Sur and Ors. V. Mohini Mohan Sen and Ors. reported in AIR 1930 Cal. 42. Here a suit for ejectment of tenants and a sub-tenant was valued at Rs. 456/- being the rent for 12 months payable by the tenants. It was contended that the suit was under-valued as before filing the suit the tenancies had been terminated by a notice to quit. A Division Bench of this Court considered and construed the relevant clause of S. 7 of the Court Fees Act 1870 and observed as follows :-"this clause contemplates a suit by the landlord against a tenant. The words "including a tenant etc. " after the word "tenant" amplify the meaning of the term "tenant" rather than restrict it. " "so long as a person remains a tenant, the landlord has no right to recover immovable property from him. His right to do so arises only when the relationship between him and the tenant has ceased and the tenant has lost his right to remain in possession of the property. I can conceive of no case in which the landlord can recover immovable property from the tenant qua tenant i. e. when the tenancy subsists. " (B) The Bengal and North Western Railway Co. Ltd. v. Sadaram Bhairodam and Anr. reported in 27 CWN 83. In this case goods consigned to a steamer company for being carried and delivered to a Railway station. The consignee sued both the Steamer Company and the Railway company for the value of the goods in the Original Side of this Court. It was contended by the Railway company that no part of the plaintiff's cause of action against them having arisen within the jurisdiction of this court, the suit as against them could not be proceeded with. The consignee sued both the Steamer Company and the Railway company for the value of the goods in the Original Side of this Court. It was contended by the Railway company that no part of the plaintiff's cause of action against them having arisen within the jurisdiction of this court, the suit as against them could not be proceeded with. On these facts a Division Bench of this Court held that this Court was not competent to try the suit against the Railway Company and that by a joinder of the defendants under Order 1 Rule 3 of the Code of Civil Procedure the jurisdiction of the Court could not be enlarged to include the cause of action against the Railway Company, which had arisen wholly outside such jurisdiction. (C) Karim Singh and Ors. v. Kunwar Sen and Ors. , reported in AIR 1942 Allahabad 387. In this case it was held by a Division Bench of the Allahabad High Court that where possession of two different properties were being claimed from two different sets of defendants the two causes of action could not be said to have arisen out of the same series of acts or transaction and Order 1 Rule 3 of the Code of Civil Procedure would not be applicable. (D) Jnanendra Nath Bose and Ors. v. Syshil Kumar Sapui reported in AIR 1967 Cal. 317 . Here the suit was filed for recovery of possession, mesne profit and damages by the owner of a property against a licence. The licence was revoked on or about the 12th February , 1955 but the suit was filed on the 5th May, 1965. It was held by the first Court that, in view of the revocation of the licence long before the suit was filed, the status of the valuation of the suit under S 8c of the Court Fees Act was directed. The matter came up on revision before a Division Bench of this Court. It was held that no distinction could be made between a suit filed immediately after the revocation of the licence and a suit filed long thereafter. It was held further that continuance in wrongful possession of an ex-licencee would not affect the nature of the suit, as long as the suit when filed was not barred by limitation. It was held that no distinction could be made between a suit filed immediately after the revocation of the licence and a suit filed long thereafter. It was held further that continuance in wrongful possession of an ex-licencee would not affect the nature of the suit, as long as the suit when filed was not barred by limitation. It was also held that S 7-VA (b) of the Court Fees Act should be construed in a practical manner. The value of a suit failing under the said section would be determined according to the amount of the licence fee of the property payable for the year next before the date of presenting the plaint. This would be deemed to mean the amount which is payable for the year before the revocation of the licence. ( 50 ) LEARNED Counsel for the respondents contended on the other hand that the company and its successors have continued in wrongful occupation of the said premises after expiry of the period of their lease without assent or consent of the respondent and thus were or would be deemed to be trespassers on the said premises at the time of the filing of the suit. There was no termination of the tenancy by the respondent on a permissible ground by a notice and the tenant was not entitled to statutory protection under the Rent Control Acts. In this case it would not be necessary for the court to adjudicate upon validity of the termination of the tenancy. ( 51 ) IT was next contended that the suit had been filed also for the eviction of the dealer who has, in fact, continued in actual occupation of the said premises. The dealer did not prove its sub-tenancy but on the contrary set up an independent title to the premises claiming to be a direct tenant of the respondent. The dealer therefore, in any event, was or would be deemed to be a trespasser in the property. ( 52 ) IT was submitted that the respondent was entitled to combine her cause of action against the company and its successors with her cause of action against the dealer under Order 2 Rule 3 of the Code of Civil Procedure and the value of the suit would be aggregate value of the reliefs claimed under the two causes of action. ( 53 ) LEARNED Counsel relied on sub-s (vi) of S-7 of the West Bengal Court Fees Act, 1970 which reads as follows :"7. Computation of fees payable in certain suits - The amount of fees payable under this Act in the suits next hereinafter mentioned shall be computed as follows : (vi) In a suit for recovery of possession of immovable property from - (a) a trespasser, where no declaration of title to property is either prayed for or necessary for disposal of the suit - according to the amount at which the relief sought is valued in the plaint subject to the provisions of S 11. " ( 54 ) IT was submitted that this suit was valued and court fees were paid on the basis of the above provisions and sub-s. (xiii) of S-7 of the said Act was not applicable to the suit. The suit had been valued correctly and properly and this Court had jurisdiction to entertain and try the suit. ( 55 ) IT was contended further that even if it was now held that the trial court had assumed pecuniary jurisdiction wrongly in trying the suit, the judgment of the trial court could not be reversed on that ground alone. The appellant still had to establish that there has been a failure of justice by reason of such erroneous assumption of jurisdiction. The appellants did not attempt to impugn the decision of the trial court on any other ground and could not establish that there has been any failure of justice by reason of the assumption of jurisdiction by trial court. ( 56 ) IN any event, the trial court could not have dismissed the suit on the ground of its lack of pecuniary jurisdiction. Under S. 14 of the Calcutta City Civil Court Act, the trial court would be required to return the plaint for being filed in the City Civil Court, Calcutta. If the plaint is now returned for being tried afresh in the City Civil Court after a lapse of 11 years there would be failure of justice so far as the respondent was concerned. If the plaint is now returned for being tried afresh in the City Civil Court after a lapse of 11 years there would be failure of justice so far as the respondent was concerned. ( 57 ) IN support of his submissions learned Counsel relied on S 21 of the Code of Civil Procedure and also S 11 of the Suits Valuation Act, 1887 the relevant part whereof if as follows :"8 (1) Notwithstanding anything in S 578 of the Code of Civil Procedure (now S 99 of the Code of Civil Procedure, 1908 (Act 5 of 1908 and objection that by reason of overvaluation ???? of a suit a Court of first instance ??????? which had not jurisdiction with respect to the suit ????. . exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless - (a) the objection was taken in the court of first instance at or before the hearing at which issues were first framed and recorded ??????. , or (b) the Appellate Court is satisfied, for reasons to be recorded by it is writing, that the suit was overvalued and that overvaluation thereof has prejudicially affected the disposal of the suit ???. on its merits. (2) If the objection was taken in the manner mentioned in clause (a) of sub-s. (1), but the Appellate Court is not satisfied as to both the matters mentioned in clause (b) of that sub-section and has before it the materials necessary for determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the court of first instance. " ( 58 ) IN support of his contentions learned Counsel for the respondents cited the following decisions : (A) Reajuddin Patwari and Ors. v. Syed Abdul Jabbar, reported in AIR 1924 Calcutta 445. This decision of a Division Bench of this Court was cited for the following observation : "it is now well settled that there is no such thing as tenancy on sufferance in this country, and the result, therefore, is that the defendants must be held to be trespassers after the expiry of their lease in 1910. " (B) Pramatha Nath Ganguly and Ors. v. Amiradhi Shek and Anr. reported in 24 Calwn 151. " (B) Pramatha Nath Ganguly and Ors. v. Amiradhi Shek and Anr. reported in 24 Calwn 151. Here, in a suit for recovery of possession of immovable properties with arrears of rent and damages where court fees were paid on the basis of the annual rent of the properties, two of the defendants denied that they were tenants of the plaintiffs and claimed that they held the property under a third party. The plaintiffs failed to establish that the said defendants were their tenants. It was held by the District Court that the question of title to the property could not be adjudicated on the suit as framed and on the court fees as paid. The decision of the District Judge was upheld on appeal by a Division Bench of this Court. (C) Kai Khushroo Benzonjas Capadia v. Bai Jorbai Hirjibhoy Warden and Anr. reported in AIR 1949 F. C. 124. This decision of the Federal Court was cited for the following observation from the judgment of B. K. Mukherjee J. in the context of S. 116 of the Transfer of Property Act :-"on the determination of a lease it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord ?????" (D) Kiran Singh and Ors. v. Chaman Paswan and Ors. reported in AIR 1954 SC 340 . In this case the Supreme Court construing S 11 of the Suits Valuation Act 1887 observed as follows : "with reference to objections relating to territorial jurisdiction, S. 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in S. 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. It is the same principle that has been adopted in S. 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy under lying Ss 21 and 99, C. P. C. and S. 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reserved purely on technical grounds unless it has resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court unless there had been a prejudice on the merits. " (E) Jiban Ram Agarwalla v. Union of India reported in 69 Calwn 692. In this case a Division Bench of this Court sitting in appeal rejected an objection that the suit was filed in a court lacking territorial jurisdiction and observed as follows :-we have been referred to S. 21 of Code of Civil Procedure ??????. Under that section no objection to the place of suing will be entertained by any appellate or revisional court unless the following two conditions exist - (1) that the objection is taken at the earliest opportunity and (2) that there has been a consequent failure of justice. In the present case the objection, no doubt, was taken in the written statement itself; therefore the first condition has been fulfilled. But it cannot be said that the second condition has been fulfilled. The question whether trial in the wrong court has led to a failure of justice must be answered on a consideration of the merit of the case. In the present case there is nothing to show that the defendant has been in any way prejudiced, either in the matter of adducing evidence or in any other way by reason of the case being tried by the court of the Subordinate Judge, Jalpaiguri. Moreover, the defendant says that the Jalpaiguri Court has no territorial jurisdiction to try the suit; he does not say that there is inherent lack of jurisdiction so far as the Jalpaiguri Court is concerned. Therefore we think that the objection to territorial jurisdiction should not be entertained by us sitting in appeal having regard to the facts and circumstances of the case. " (F) M. C. Chockalingam and Ors. Therefore we think that the objection to territorial jurisdiction should not be entertained by us sitting in appeal having regard to the facts and circumstances of the case. " (F) M. C. Chockalingam and Ors. v. Manickavasagam, reported in AIR 1974 SC 104 . In this case Supreme Court construing Rule 13 of the Madras Cinemas (Regulation) Rules 1954 as follows : "the fact that expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it ??? "we are clearly of opinion that judicial possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession. " (G) Sm. Sukla Chowdhury v. Manjolyn Tweedie and Anr. reported in AIR 1975 Cal 427 . Here in a suit to evict two monthly tenants, the plaint was amended and three other persons were impleaded as defendants and possession of the premises was sought to be claimed also from them on the ground that they were wrongfully and illegally occupying a portion of the premises as trespassers. On an application for return of the plaint for presentation to the proper court on the ground that this Court had no jurisdiction to entertain the suit, valued on the basis of 12 months rent, Sabyasachi Mukherji, J. as his Lordship then was, held that the joinder of the two causes of action by the plaintiff, o e against the tenants and the other against the trespassers was permissible as the same were based on the same set of facts. The aggregate value of the reliefs claimed and the subject matter was sufficient to give jurisdiction to this Court. The aggregate value of the reliefs claimed and the subject matter was sufficient to give jurisdiction to this Court. ( 59 ) ON the question of jurisdiction the following decisions were also cited at the Bar : (A)annapurna Seal v. Tincorrie Dutt and Anr reported in 66 CWN 338. (b)apaya Dundyappa and Ors. v. Gobind Dattatraya and Ors. reported in AIR 1956 Bombay 626. (c)baherein Petroleum Co. Ltd. v. P. J. Pappu and Anr. reported in AIR 1966 SC 634 (d)official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr. reported in AIR 1966 SC 634 (e)anil Kumar Ray v. Manasnath Shaw reported in AIR 1975 Cal. 293 . (f) Sardar Balbir Singh v. Atma Ram Srivastava reported in AIR 1977 Allahabad 211. ( 60 ) LEARNED Additional Advocate General appearing for the State of West Bengal submitted that the tenancy in the instant case came within the mischief of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and by the operation of the said Act, the said premises stood vested in the State. The State stood subrogated in the place of the respondent, the landlord and the appellants, by operation of law, became the tenants in the said premises under the State. ( 61 ) RELYING on the preamble of the said Act, he submitted that the Act was promulgated for acquisition of all land let out under thika tenancy and also those demised in perpetuity or under registered lease for a period of not less than 12 years or under monthly or periodical tenancies. Section 5 of the Act provided for vesting of all such land in the State free from encumbrances and under S 6 every thika tenant or other tenant occupying such land on the date of the commencement of the Act would occupy the same directly under the State and the State would be deemed to be the landlord in respect of such land. Under S 4, the Act would have effect overriding all other law or any decree or order of any court. Under S 4, the Act would have effect overriding all other law or any decree or order of any court. ( 62 ) LEARNED Counsel for the appellant adopted the contentions of the State and submitted further that the said premises should be deemed to be vacant land inasmuch as all structures and buildings therein at the commencement of the lease and on the date of the filing of the suit had been constructed by and belonged to the company and its successors. The company and its successors had and have a right to dismantle the said structures and building and remove it from the land. ( 63 ) ONLY the land had been let out under the successive leases and all the incidents of a thika tenancy followed such letting out in favour of the appellants. ( 64 ) LEARNED Counsel for the respondent contended on the other hand that the appellants were not thika tenants under the Thika Tenancy Act of 1949 or the present Act of 1981 and the said premises were not held under a thika tenancy. The admitted position was that a petrol pump and service station, permanent and 'pucca' structures, had been constructed and were still standing on the said premises. ( 65 ) UNDER S. 2 (5) of the Thika Tenancy Act of 1949 a thika tenant was one who has erected any structure on the land under tenancy. The expression "any structure" had been judicially interpreted to mean a temporary or 'katcha' structrure and not a permanent or "pucca structure". In S. 3 (8) of the Act of 1981 a thika tenant has been defined to be a tenant who has erected or acquired any structure on the land under tenancy. It was contended that under the accepted rule of interpretation when words in an earlier statute have been judicially interpreted and are repeated in a later statute it should be presumed that legislature intended to give the said words the meaning as judicially interpreted in the earlier statute. ( 66 ) LEARNED Counsel next submitted that on a proper construction of the preamble and object of the Act of 1981 and S. 5 thereof it is clear that the object of the Act was to acquire bustees and khatals and not lands with permanent structures not used as khatals. ( 66 ) LEARNED Counsel next submitted that on a proper construction of the preamble and object of the Act of 1981 and S. 5 thereof it is clear that the object of the Act was to acquire bustees and khatals and not lands with permanent structures not used as khatals. ( 67 ) LEARNED Counsel for the respondent cited Monmatha Nath Mukherjee v. Sm. Benarasi and Ors. reported in 63 CWN 824. Here in a suit for permanent and mandatory injunctions, filed by a landlord against his tenant, it was contended by the tenant that under the Calcutta Thika Tenancy Act, 1949 a thika tenant was entitled to erect any structure including a permanent structure. ( 68 ) A learned Judge of this Court construing the scheme of the Calcutta Thika Tenancy Act, 1949 held that the words "any structure" in S. 5 (5) of the Act did not include a permanent structure. ( 69 ) LEARNED Counsel also cited Tribhuban Prakash Nayyer v. The Union of India, reported in AIR 1970 SC 540 , where the Supreme Court laid down as to when recourse to the preamble of a statute should be had for interpretation of the sections. ( 70 ) IT is undisputed that this suit was filed to recover possession of the said premises, from the successor in interest of the company and dealer, after the said lease stood terminated by efflux of time. It is not the case of the defendants that after the termination of the lease the respondent had accepted rent from the company or assented to the continuance of possession of the said premises by the company otherwise and that the company held over as a tenant within the meaning of S. 116 of the Transfer of Property Act. ( 71 ) THE period of the demise under the lease being 20 years the company could not acquire the status of a statutory tenant under the Rent Control Act after the expiry of the lease. ( 72 ) ON the date of the filing of the suit the contractual relationship of landlord and tenant between the respondent and the company had come to an end but the company refused to quit and vacate the said premises in spite of demands. ( 72 ) ON the date of the filing of the suit the contractual relationship of landlord and tenant between the respondent and the company had come to an end but the company refused to quit and vacate the said premises in spite of demands. It follows that the company at the material time had no legal right to possess the property and the continued possession of the said premises by the company was unlawful. ( 73 ) IF the principles laid down in Reajuddin Patwari and M. C. Chockalingam (supra) are applied the company was a trespasser in the premises and the suit for recovery of possession of the said premises would be against a trespasser. ( 74 ) IT is possible to make a distinction between a case where a tenancy stands terminated automatically e. g. by efflux of time and a case where a tenancy is terminated by a positive act on the part of the landlord e. g. by a notice determining or forfeiting a lease. In the latter cases it is open to the tenant to dispute the factum, validity and receipt of the notice. The existence of preconditions for forfeiture can be disputed and an waiver can also be set up as a defence. Till such disputes are adjudicated the tenancy cannot be said to be finally determined. In cases where the lease stands terminated automatically, no particular adjudication is necessary to determine the status of the tenant. ( 75 ) IT is no doubt possible for a person whose tenancy has terminated by efflux of time to placed a new tenancy or to set up a case of holding over. In the instant case no such defence of holding over or a new tenancy have been raised. The only defence on merits is that the company had become a statutory tenant. This defence is ex facie misconceived and was never pressed. ( 76 ) WE do not see any reason as to why in the facts of this case the respondent could be precluded from suing the company as a trespasser without claiming any declaration of title and value the suit accordingly. The decisions in Jnanendra Nath Bose and Govinda Kumar Sur (supra) relied on by the appellant can be distinguished on the above basis. The decisions in Jnanendra Nath Bose and Govinda Kumar Sur (supra) relied on by the appellant can be distinguished on the above basis. ( 77 ) IN Govinda Kumar Sur it was observed by the Division Bench as follows :-"it will be disastrous if the law is held to be that the landlord, whenever his tenant refuses to vacate, has to bring a suit for declaration of title and possession for in that view a person as owner will be involved in constant litigation with his tenants refusing to vacate. " ( 78 ) BUT then S. 7 (vi) (a) of the Court Fees Act contemplates a suit against a trespasser where no declaration of title to property is either prayed for or is necessary for disposal of the suit. ( 79 ) HOWEVER, we do not express a final opinion on the point inasmuch as it is possible for us to dispose of the appeal on the other grounds. ( 80 ) AT the instances of the appellant the plea that the said premises has vested in the State of West Bengal under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 was permitted to be raised and has been adjudicated in the presence of the State of West Bengal. ( 81 ) AS such, this suit has ceased to be a suit by a landlord for recovery of possession of immovable property from a tenant simpliciter. Title to property having been disputed and adjudicated, the suit cannot be valued on the basis of 12 months rent payable under the expired lease. The City Civil Court, Calcutta would have no pecuniary jurisdiction to adjudicate on the title to the said premises in view of the valuation given in the plaint. ( 82 ) FURTHER, assuming that the trial Court did not have the pecuniary jurisdiction to entertain and try the susit, the suit having been disposed of by the trial Court on merits, under the amended S. 21 of the Code of Civil Procedure it is to be decided in these appeals whether this objection of the appellant as to the pecuniary jurisdiction of this court shall be allowed to be raised. Objection as to the pecuniary jurisdiction was taken in the written statements filed in the suit and a preliminary issue as to jurisdiction was raised before settlement of other issues. Objection as to the pecuniary jurisdiction was taken in the written statements filed in the suit and a preliminary issue as to jurisdiction was raised before settlement of other issues. Even then such objection cannot be allowed to be raised in the appeal till the appellant satisfies this Court that by reason of lack of pecuniary jurisdiction there has been a failure of justice. ( 83 ) NO submission was made on behalf of the appellant on this aspect. The only Courts where the suit could be tried are the City Civil Court, Calcutta and this Court in their respective original jurisdictions. Both the Courts are situated in the same city and it is not the case of the appellant that he has been prejudiced in any way by the trial of the suit in this Court. From either trial Court an appeal would lie to a Division Bench of this Court. ( 84 ) THE contention of the appellant that the amended S. 21 of the Code of Civil Procedure would not be applicable in this case as the amendment was effected in 1976 and the suit was filed in 1974 has little substance. Sub-section (2) of Section 21 of the Code applies only to appeals and revisions. The present appeals were filed in 1978, after sub-s (2) was introduced in S. 21 by amendment. Even assuming the provisions of sub-s (2) are merely procedural and will have prospective operation, the same must apply in the appeals. ( 85 ) WE hold that by reason of the trial of the suit in the original jurisdiction of this Court there has been no failure of justice so far as the defendants are concerned and we disallow the appellant from raising objection as to the pecuniary jurisdiction of the trial Court. ( 86 ) THE respondent was present in Court during the hearing of the appeal. We are told that she has attained the age of 94 years. We would be denying justice to the respondent if we return the plaint to the City Civil Court, Calcutta for a new trial. The respondent has waited long and is entitled at least to have a glimpse of the fruits of her litigation. We are told that she has attained the age of 94 years. We would be denying justice to the respondent if we return the plaint to the City Civil Court, Calcutta for a new trial. The respondent has waited long and is entitled at least to have a glimpse of the fruits of her litigation. ( 87 ) THE question which remains to be considered is whether the said premises has vested in the State of West Bengal under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and whether the successor in interest of the company, the substituted defendant no. 1 has become a tenant under the State of West Bengal. ( 88 ) THE Calcutta Thika Tenancy Act, 1981 came into force on the 18th January, 1982. The said Act of 1981 repealed the earlier Calcutta Thika Tenancy Act of 1949. When the suit was instituted and the appeals were filed the Act which was in force was the Calcutta Thika Tenancy Act, 1949. Under S 2 (5) of the Calcutta Thika Tenancy Act, 1969 a thika tenant did not include a person who held land from another person under a registered lease when the duration of the lease was expressly stated to be a period of not less than 12 years. ( 89 ) THE lease in the instant case was for a period of 20 years. Therefore, the company could not claim to be a thika tenant under the respondent under the Calcutta Thika Tenancy Act, 1949 at the date of the filing of the suit. Further, S 2 (5) of the Act, 1949 defined a thika tenant to be a person who had erected or acquired by purchase or gift any structure on the land under thika tenancy. The expression "structures" in the statute has been construed by this Court in Monmatha Nath Mukherjee (supra) and it was held the word 'structures' did not include a permanent structure. In the instant case it is not a dispsute that permanent structures were existing and had been erected in the said premises and that at the commencement of the lease there were permanent structures existing in the said premises as would appear from the map or plan annexed to the lease. In the instant case it is not a dispsute that permanent structures were existing and had been erected in the said premises and that at the commencement of the lease there were permanent structures existing in the said premises as would appear from the map or plan annexed to the lease. ( 90 ) ON this ground also it cannot be said that the company was a thika tenant under the respondent within the meaning of the said Act of 1949. ( 91 ) IT is now to be considered whether the Thika Tenancy Act of 1981 which came into force in 1982 would have any application in the facts or the case. Sub-section (4) of S. 3 of the Act of 1981 defines a landlord as follows :-"landlord means any Corporation, institution or person, who, for the time being is entitled to receive or but for a special contract, would be entitled to receive, the rent of any land comprised in a thika tenancy and includes any corporation, institution or person having any superior interest in such thika tenancy. "sub-SECTION (8) of S. 3 defines a thika tenant as follows :-"thika Tenant" means any person who occupies, 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 at any other periodical rate, for that land that 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 successor-in interest of such person. " ( 92 ) IN 1982, when the Act came into force there was no relationship of landlord and tenant between the respondent and the company. There was no subsisting contract between the parties under which the company could be required to pay and the respondent would be entitled to receive any rent. ( 93 ) UNDER sub. s. (3) of S. 3 of the said Act a holding has been defined as follows :-"holding" means a parcel or parcels of land occupied by any person as a thika tenant under one lease or one set of conditions where such tenant has been occupying the land from or before the commencement of this Act. s. (3) of S. 3 of the said Act a holding has been defined as follows :-"holding" means a parcel or parcels of land occupied by any person as a thika tenant under one lease or one set of conditions where such tenant has been occupying the land from or before the commencement of this Act. " ( 94 ) IN the facts of this case it cannot be said that the company was occupying the said premises as a thika tenant before or at the commencement of the Act of 1982. Sections 5 and 6 of the said Act reads as follows :-SECTION 5 : with effect from the date of commencement of this Act, lands comprised in thika tenancies and other lands held under any person in perpetuity or under registered lease for a period of not less than twelve years or held in monthly and periodical tenancies far being used or occupied as Khatals along with easements, customary rights common facilities and such other things in such thika tenancies and Khatals Attached to or use in connection with such thika tenancies, and Khatals and the right, title and interest of landlords in such lands shall vest in the State free from all encumbrances. Provided that the easements, rights, common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any person under registered lease for a period of not less than twelve years or a Khatal in Khas lands of the landlords shall not be affected in any way by such vesting. SECTION 6 : (1) Subject to the provisions of the Urban Land Ceiling and Regulation Act, 1976 and the provisions of this Act, every thika tenant and any tenant, in respect of other lands which vest under S. 5, occupying any land under a landlord on the date of commencement of this Act, shall occupy such land, on such terms and conditions as may be prescribed directly under the State as if the State had been the landlord in respect of that land. (2) Subject to the provisions of S. 26 of this Act, every thika tenant and other tenants occupying land directly under the State under sub. (2) Subject to the provisions of S. 26 of this Act, every thika tenant and other tenants occupying land directly under the State under sub. s (1) shall be liable to pay to the State an amount of revenue determined in accordance with the provisions of the West Bengal Land Holding Revenue Act, 1979 and for this purpose such tenant shall be deemed to be a raiyat under that Act : provided that the revenue payable by the tenant shall not be less than what he was paying to the landlord before the coming into force of this Act. ( 95 ) IN the facts of this case, keeping in view the provisions of the Act of 1982, it also appears to us that neither the company nor the dealer can be held to be thika tenants within the meaning of the Act of 1982 nor the respondent can be held to be a landlord within the meaning thereof. It is also clear that the land in dispute cannot be held to be a holding within the meaning of S. 3 (3) of the said Act. ( 96 ) IT remains to be considered whether in view of the wide language of S. 5 of the Act noted earlier, it can be held that the land in dispute being a land held by the company under the respondent under a registered lease for a period of not less than 12 years has vested in the State free from all encumbrances. ( 97 ) ON a plain reading it appears to us only two types of land come within the mischief of S. 5, namely, (a) land comprised in thika tenancy and (b) other lands. The expression "other land" is qualified in the section as follows :-"other lands held under any person in perpetuity or under registered lease for a period of not less than 12 years or held in monthly or periodical tenancy for being used or occupied as khatals. " ( 98 ) IT appears to us that the words "for being used or occupied as Khatals" qualify the expression "other lands" whatever be the period or nature of the tenancy. This is borne out by the frame of the later part of the section where the expressions "thika tenancies" and "khatals" have been used in conjuction. " ( 98 ) IT appears to us that the words "for being used or occupied as Khatals" qualify the expression "other lands" whatever be the period or nature of the tenancy. This is borne out by the frame of the later part of the section where the expressions "thika tenancies" and "khatals" have been used in conjuction. The expression "other lands" do not appear in the later part of the section prior to the proviso. ( 99 ) AS we read S. 5, a land held under any tenancy except a thika tenancy will come within the mischief of the section only when the land is being used or occupied as a khatal and not otherwise. ( 100 ) IF we accept the construction as suggested on behalf of the State of West Bengal then all land in the City of Calcutta and its neighbourhood whether built up or vacant or whether used as a Khatal or not will be held to have vested in the State. It does not appear that the object of the Act of 1981 was as wide as that ( 101 ) WE accept the contention of the respondent and hold that the Calcutta Thika Tenancy Act, 1981 has no application in the facts and circumstances of this case. ( 102 ) FOR the reasons above the appeals are dismissed with costs. It is certified that this was a fit case for engagement of two learned Advocates apart from the Advocate-on-Record. ( 103 ) LEARNED Counsel for the appellant prayed for a stay of the operation of this judgment and order. We were prepared to grant such a stay on the undertaking of the appellant to commence dismantling of the structures in the said premises which were being claimed by the substituted defendant no. 1 and the dealer, Learned Counsel was unable to give such undertaking on behalf of the appellant and did not press further for stay. G. N. Ray, J. I agree. Appeal dismissed