Judgement This is a suit for recovery of possession from the defendant and for decree of mesne profits. The plaintiff states as follows : By an Indenture of Lease dated December 1, 1961 executed by one Madan Lal Lohia, since deceased and Karam Chand Thapar & Bros. Pvt. Ltd., the defendant, the said Karam Chand Thapar and Bros. Pvt. Ltd. became a tenant to the said Madan Lal Lohia, since deceased, in respect of 8 rooms in the ground floor of premises no. 13, India Exchange Place, Calcutta covering approximately 3300 sq.ft. together with all rights and appurtenances whatsoever belonging to the said premises (fully described in the schedule A) to the plaint for a term of 21 years commencing from December I, 1960 and ending with November 30, 1981 at a monthly rent of Rs. 2,000/- payable by the 10th of each and every succeeding month. A copy of the said Indenture of Lease is annexed with the plaint as annexure 13' to this plaint. 2. By the said Indenture of Lease, the defendant agreed peacefully to deliver up the vacant possession of the said demised premises unto the said Madan Lal Lohia, since deceased, on the expiration of the said term of lease together with all electrical installations and appliances, fixture, and fittings together with the additional structures that might be made by the said Karam Chand Thapar & Bros. Pvt. Ltd. in good condition. On or about May 1, 1976 the said Karam Chand Thapar & Bras Pvt. Ltd. became a public limited company by virtue of the provisions of s. 43A of the Companies Act, 1956. 3. On or about July 13, 1980 the said Madan Lal Lohia died intestate leaving himself surviving the plaintiff as his only heir and legal representative under the Hindu Succession Act 1956 and the right, title and interest of the I said Madan Lal Lohia under the said Indenture of Lease devolved upon the plaintiff and the plaintiff became the successor-in-interest of the said Madan Lal Lohia and the defendant has accepted the plaintiff as such. The said term expired on 30th November, 1981 but the defendant failed and/or neglected to deliver up of possession of the said demised premises to the plaintiff as promised in the said Indenture of Lease and continued in wrongful occupation thereof. The said term expired on 30th November, 1981 but the defendant failed and/or neglected to deliver up of possession of the said demised premises to the plaintiff as promised in the said Indenture of Lease and continued in wrongful occupation thereof. By reason of the premises, the plaintiff lost the right to the use and possession of the premises demised and the defendant became liable to pay the plaintiff mesne profits at the rate of Rs. 36,300/- per month from December 1, 1981 till the delivery of possession is given up to the plaintiff by the defendant. Upto the date of falling of the suit, i.e. August 15, 1%3 the said mesne profits have amounted to Rs. 7,44,150/-. The plaintiff has claimed mesne profits for the further period till vacant possession of the said demised premises is given up by the defendant to the plaintiff at the rate of Rs. 35,300/- or at such other rates as the court may think fit and proper. The plaintiff therefore files this suit for recovery of the possession of the defendant and for decree of mesne profits for Rs. 7,44,150/-. Upto the date of filing of the enquiry to mesne profits and the from the date of institution of this suit until possession of the said demised premises subject to the Indenture of Lease is given by the defendant to the plaintiff with such interest to the plaintiff as the court may think fit and proper. 4. The defendant contested the suit by filing a written statement. In the said written statement it is contended that the said 'defendant has come to learn the following facts for the first time subsequent to the institution of the suit and prior to notice of the same : a) The suit property is a part or portion of premises no. 13, India Exchange Place, Calcutta; b) The said premises originally belonged to one Rai Bhupati Nath Deb Bahadur, since deceased, being the son of late Anath Nath Deb of 33/1, Nayan Chand Dutt Street, Calcutta. c) The said Rai Bhupati Nath Deb Bahadur died long ago after having made and published his registered will dated 20th December, 1957. By and under the said will the said testator bequeathed all his properties including the said premises no. 13, India Exchange Place, Calcutta to his son Tulshi Charan Deb and to his daughter Sm. c) The said Rai Bhupati Nath Deb Bahadur died long ago after having made and published his registered will dated 20th December, 1957. By and under the said will the said testator bequeathed all his properties including the said premises no. 13, India Exchange Place, Calcutta to his son Tulshi Charan Deb and to his daughter Sm. Madhuri Bala Badalia in equal shares and the said two persons were by the said will appointed the executor and executrix respectively to the estate of the said Rai Bhupati Nalh Deb Bahadur, deceased. d) The said will was duly probated by an order passed by this High Court in its Testamentary and Intestate Jurisdiction and under the circumstances at all material times the said Tulshi charan Deb and the said Sm. Madhuri Bala Badalia were and still are (he joint owners of the premises no. 13, India Exchange Place, Calcutta to the exclusion of all other persons and are entitled to the rents, issues and profits thereof. e) The plaintiff's father, Madan Lal Lohia, since deceased, purported to take a lease of the said premises No 13, India Exchange Place, Calcutta for a period of 31 years with effect from 1.3.1960 from Kamal Kumar Deb and other persons none of them had any right title and interest in any part or portion of the said premises inasmuch as the said premises belonged to the said two persons mentioned above in equal shares. viz. Tulsi Charan Deb and Sm Madhuri Bala Balalia. f) Under the circumstances the purported lease dated 5th March 1960 which the said Madanlal Lohia, since deceased, took from the said Kamal Kumar Deb and eight other persons did not and could not create any right, title and interest in respect of the said premises in favour of the said Madan Lal Lahia, since deceased. The said document being void ab initio and of no effect, the said Madan Lal Lohia, since deceased, had no right to create any further demise with regard to t he said premises or any portion thereof. The lease dated 1st December, 1960 which is the subject matter of the instant suit have been granted by Madanlal Lohia, since deceased, in favour of the defendant was and is void and voidable, unlawful. inoperative and not binding on the defendant. The lease dated 1st December, 1960 which is the subject matter of the instant suit have been granted by Madanlal Lohia, since deceased, in favour of the defendant was and is void and voidable, unlawful. inoperative and not binding on the defendant. (g) In the facts and circumstances stated there was nor, nor could there be, any lawful contract or transfer of property between the said Kamal Kumar Deb and other persons of the one part and the said Madan Lal Lohia, since deceased of the other part, nor could there be any lawful contract or transfer of property between the said Madan Lal Lahia, and the defendant with regard to any part or portion of the said premises. Neither the said Madan Lal Lohia, since deceased, had any lawful right, title or interest in the said premises nor could any lawful right, title or interest devolve on the plaintiff. Accordingly the question of making over possession of any part or portion of the said premises by the defendant in favour of the plaintiff cannot and does not arise. (h) The aforesaid facts were not known to the defendant upto the date of institution of the above suit and the defendant only came to learn of the same subsequent to the filing of the suit, from the said Tulshi Charan Deb and/or his servants or agents and by reason thereof prior to receipt of such information the defendant was not in a position to rely on the aforesaid facts in support of the defence of the defendant to the unlawful claim made herein by the plaintiff. 5. By reasons of the facts stated in the above, the defendant states that the plaintiff or his alleged predecessor-in-interest had no right, title and interest in the said property or any part thereof and accordingly the plaintiff has no locus standi to institute the present suit or to make any claim with regard to the suit property or any part thereof. The alleged lease in favour of the plaintiff's predecessor-in-interest is laid lib initio and the plaintiff is disentitled to recover possession of the suit property from the defendant. The alleged lease in favour of the plaintiff's predecessor-in-interest is laid lib initio and the plaintiff is disentitled to recover possession of the suit property from the defendant. However, the defendant has also contended that should it be held and/or contended that the purported lease dated 5th March 1960 between Kamal Kumar Deb and 8 others and Madan Lal Lohia was and/or is lawful and valid and further that the plaintiff is the sale heir and legal representative of Madan Lal Lohia then in such event the defendant would claim and contend that on or about 19th November 1981 there was an agreement by and between the plaintiff and the defendant to the effect that the defendant would continue and a lease thereof for a further period of 9 years commencing from 1st December 1981 on the same terms and conditions as that of the Indeuture of lease dated Ist December l960 save that the defendant to pay rent at the rate of Rs. 3,000/- per month as against Rs. 2,000/- per month and that the defendant would further pay to the plaintiff a sum of Rs. 10.000/- on account of costs, charges and expenses for renovation of and repairs to the suit premises for which the plaintiff would grant a receipt to that effect and further that the plaintiff would execute in favour of the defendant a lease on the aforesaid terms and conditions and register the same in accordance with law. In view- of the wrongful and illegal repudiation of the said agreement the defendant has been compelled to institute a suit against the plaintiff in, the City Civil Court at Calcutta in which the defendant has claimed for a decree or specific performance of the agreement dated 19th November, 1961 and for a mandatory injunction. In view- of the wrongful and illegal repudiation of the said agreement the defendant has been compelled to institute a suit against the plaintiff in, the City Civil Court at Calcutta in which the defendant has claimed for a decree or specific performance of the agreement dated 19th November, 1961 and for a mandatory injunction. The defendant has also contended that it is entitled to protection under the provisions of the West Bengal Premises Tenancy Act that the artificial and/or arbitrary protection or exemption granted to lease for non-residential purposes which are for a period of more than 20 years and those which are for a period of less than 20 years under-so 3 of the West Bengal Premises Tenancy Act 1956 is without any lawful or justifiable or reasonable basis and is ultra vires the Constitution of India and offends Articles 14 and 31 of the said Constitution There is no lawful and valid reason why the legal protection granted by the West Bengal Premises Tenancy Act 1956 to lessees having a grant of less than 20 years, viz., right to continue as statutory tenant fixed by the lease should not also be available to lessees having a grant in their favour for more than 20 years. Such difference or distinction is without any reasonable or rational basis and by virtue of the provisions contained in Articles 14 and 31 of the Constitution, the same is liable to be quashed and struck down and declared illegal and void Section 3 is repugnant to the provision of the Constitution. 6. By amending the written statement it is also contended that the plaintiff Madan Lal Lohia or his predecessor-in-interest had no right, title and interest in the said property even before the commencement of the defendant's tenancy and the defendant, therefore states further and/or in the alternative and/or in any event that by reasons of the facts and circumstances stated above, the purported right, title and interest of the plaintiff lessors or of his predecessor-in-interest of the suit property came to an end and/or stood terminated subsequent to the creation of the defendant's tenancy and/or such purported right, title and interest has ceased by imposition of statutory right, title and interest of the paramount title holder, that is, the right, title and interest of the said Tulshi Charan Deb and Sm. Madhuri Bala Badalia, the owners of the suit property. Madhuri Bala Badalia, the owners of the suit property. The instant suit is therefore not maintainable. 7. From the pleadings the following issues have been framed. ISSUES 1(a) Does the plaintiff have any right, title or interest in the suit premises? 1(b) Is the defendant estopped from challenging the landlord's title in view of s. 116 of the Evidence Act? 2. Was the lease dated 1.12.1960 between Madanlal Lohia and the defendant valid? 3. Is the suit bed for non-joinder of parries as alleged in paragraph 12 of the written statement ? 4. Did the interest of the Lohias in the suit property cease or stood terminated by the imposition of the superior right of the paramount title holder as alleged in paragraph 3A of the Written Statement ? 5. Are the provisions of s. 3 of the West Bengal Premises Tenancy Act, 1956 violative of Articles 14 and 31 of the Constitution of India as alleged in paragraph 11 of the Written Statement? 6. Is the plaintiff entitled to a decree for eviction of the defendant? 7. Is the plaintiff entitled to mesne profit as claimed in paragraph 5 of the: plaint? 8. To what relief, if any, the plaintiff is entitled? Issue No.3: This is a suit filed by the successor-in-interest of the lessor of the defendant praying for recovery of possession of the lease-hold premises on the ground that the terms of the lease has expired. Even though the defendant prayed for adding Shri Tulshi Charan Deb and Sm. Madhuri Bala Badalia as defendants the prayer has been rejected and the same has been upheld Upto appellate court. The learned Advocate for the defendants does not now press this issue, namely, that the suit is ball for non-joinder of necessary parties. It is also submitted that as the vires of s. 3 of the West Bengal Premises Tenancy Act has been challenged the Advocate General, West Bengal has been served with a notice. 9. Even though notice that was originally served was defective, the defendant in course of argument has served such a notice to Advocate General who at one time appeared to make his submission in support of the vires of the s. 3 of the West Bengal Premises Tenancy Act, 1956 but did not ultimately make his submission. 10. 9. Even though notice that was originally served was defective, the defendant in course of argument has served such a notice to Advocate General who at one time appeared to make his submission in support of the vires of the s. 3 of the West Bengal Premises Tenancy Act, 1956 but did not ultimately make his submission. 10. However, it is now clear that notice has been served on the Advocate General and both the parties have been heard on the point. Therefore the Issue No.3 is disposed of with this finding that the suit is not bad for non-joinder of necessary parties. 11. Issue Nos. 1, 2 and 4: All these issues being inter-connected are taken up together for reasons of convenience. 12. It is not disputed that the defendant entered into possession of the ground floor of the premises no. 13, India Exchange Place, Calcutta, by virtue of the registered deed of lease 'executed by Madanial Lohia in favour of the defendant dated ht December 1960. The lease was for a period of 21 years and expired on the expiry of 30th November 198!. The defendant paid rent to Madanlal Lohia till hi, death and after his death to the plaintiff. The plaintiff issued him the notice to give up possession on the expiry of the lease but the defendant continued on possession. The defendant took the plea among others that there was an agreement for renewal of the lease for a period of 9 years under the same terms and conditions but on a higher rent of Rs. 3000/- per month and on payment of Rs. 10,000/- towards repairs. The defendant has also filed a suit for specific performance of that agreement but did not proceed with that suit. The defendant has not also at the time of the trial press this point. The defendant has now taken the plea that Madan Lal Lohia did not acquire any right, title and interest in premises no. 10,000/- towards repairs. The defendant has also filed a suit for specific performance of that agreement but did not proceed with that suit. The defendant has not also at the time of the trial press this point. The defendant has now taken the plea that Madan Lal Lohia did not acquire any right, title and interest in premises no. 13, India Exchange Place by virtue of the deed of lease of 31 years dated 5th March ]960 executed by Sripati Nath Deb and others claiming to be nephews and heirs of Bhupati Nath Deb the original owner of the property because Sripati Nath Deb and others not being the legal representative of Bhupati Nath Deb had no legal right to grant such lease, It is also contended that Shripati Nath Deb left a Will bequeathing his properties including No 13, India Exchange Place, Calcutta to his son and daughter, Tuhhi Charan Deb and Sm. Madhuri Bala Badalia, that Tulsi Charan and Sm. Madhuri obtained Probate of the Will and they are the right full owners of the property and that the interest of the plaintiff and his predecessor-in-interest lease stood termined by the imposition of the superior right of the paramount title holder as alleged in para 3A of the Written Statement. It is, therefore, urged by the defendant that the plaintiff cannot get recovery of possession from the defendant by filing this suit. On behalf of the plaintiff it is urged that Madanlal Lohia took the lease of the premisess from his lessons who were in occupation of the premises and could deliver him possession of the premises on execution the lease, that Madanlal Lohia being in possession of the premises delivered possession to the defendant executing the lease dated 1st December, 1960, that Mr. Khusiram Gupta, the defendant’s witness has admitted that fact in answer to question no.28, that the defendant having obtained possession form the lessor and continuing in possession till the date of expiry of lease is estopped from challenging the title of the lessor, the defendant also admitted the plaintiff to be the successor-in-interest of the original lessor and paid rent to him and that s. 116 of the Evidence Act is a complete bar to the defendant in challenging the landlord’s title by the tenant at the commencement of the tenancy and that it is also not a case in which the landlord has at any time subsequent to the date of commencement of the tenancy has ceased to have any interest in the property, that the lessor all along realized rent from the defendant and consequently the defendant’s contention that the lessor had no valid right to grant that lease as he did not acquire any valid lease holder interest in the property from his head lessor, namely, Sripati Nath Deb and this cannot be raised in this suit as he is completely debarred from denying the landlord’s title. 13. There is no dispute that under s.116 of the Evidence Act the lessee is estopped from challenging the title of the lessor form whom he obtained possession and enjoyed peaceful possession, paid rent and agreed to yield up possession on expiry of the term of the lease. 14. Law on this point is well settled. Even though Mr. Bhabra on behalf of the plaintiff has referred to me several decisions there is no much scope to discuss this settled proposition of law. However, the decisions referred to by him are mentioned below: 64 IA 311 at page 317. AIR 1987 SC 2192 at page 2195 (para 5) AIR 1987 SC 1658 para 11. (1968) LR 3 QB Cases 658 at page 667. 15. It is also urged that as the defendant has accepted the succession of Mahabir Prasad Lohia and he has attorned to Mahabir Prasad and has paid rent it is also estopped on the general principle of estoppel vide 14 IA page 311 at page 317. Mr. (1968) LR 3 QB Cases 658 at page 667. 15. It is also urged that as the defendant has accepted the succession of Mahabir Prasad Lohia and he has attorned to Mahabir Prasad and has paid rent it is also estopped on the general principle of estoppel vide 14 IA page 311 at page 317. Mr. Das, learned Counsel appearing for the defendant has submitted that in view of the recent trend of Supreme Court decisions of Al R 1987 SC 2192 and Tej Bhan v. Additional District Judge, reported in AIR 1988 SC 1413 = (1988) 3 SCC 137 it is not the law that under no circumstances tenant cannot challenge the title of the landlord. The latest decisions of the Supreme Court lay down the following proportions of law on the subject – (a) The law as to the estoppel of a tenant under s. 116 of the Evidence Act is a recognition and statutory assimilation of the equitable principles underlying estoppel in relation to tenants. The section is not exhaustive of the law of estoppel. b) The Section, infer alia, predicates that no tenant of immovable property shall during the continuance of tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy the title to such property c) The estoppel of a tenant is primarily in relation to his landlord who had let him into possession and that, accordingly Such tenant is not precluded from questioning the alleged derivative title of a person claiming to be the successor or assignee of the reversion, for want of proof of the vestitive facts on which the claim for attornment is based. d) The rule of estoppel does not also preclude a tenant from contending that the landlord's title has since terminated by transfer or has been lost or defeated by title paramount. e) It is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which he would otherwise be subject, by proof that, when he so attorned, he was 1abouring under a mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person. f) There can be a denial of the title of his landlord without the tenant renouncing his character as such where for instance he sets up a plea of jus terfii. 16. Even if for the sake of argument it can be held that the defendant can challenge the title of the lessor prior to the commencement of the tenancy yet the defendant's contention in this respect is devoid of merits. Kamal Kumar Deb and others who granted the lease of premises no. 13, India Exchange Place were in possession of the property when on 5th March, 1960 they granted the lease of the same to Madan Lal Lohia. This fact the defendant could not dispute. Madan Lal Lohia also obtained possession from them with effect from 5th March, 1960 and thereafter while in possession demised the ground floor to the defendant in December 1960 and also demised the other portions to other lessees. He all along exercised his possession till his death. After his death the plaintiff exercised such possession. 17. It is, however, revealed from the documents produced that the original owner left a will by which he bequeathed his properties including no.13 India Exhange Place to Tulshi Charan Deb and Sm. Madhuri Bala Badalia, They applied for probate in 1963 in Testamentory Suit no.1 of 1963 and obtained it on 14th February, 1966. That probate suit was contested by the lessors of Madanlal Lohia. After the grant of probate the appeal was preferred by Sm. Baruna Mallick and others. That appeal has only been dismissed on 23rd June, 1988 by affirming the grant of probate. After the disposal of the appeal Mr. K.K. Boral has served a notice upon the plaintiff, Ext. 5, directing the plaintiff to vacate the suit premises. 18. Mr. Das urges that alleged lessors of Madanlal Lohia were trespassers and as trespassers they could not transfer the property to Madanlal Lohia and the lease dated 5th March, 1960 is thus a void document. But it is urged on behalf of the plaintiff that Kamal Kumar Deb and others had the pessessory title over the property and that possessory title is valid and a suit can be filed against any person on the basis of such possessory tile against any person other than the lawful owner. But it is urged on behalf of the plaintiff that Kamal Kumar Deb and others had the pessessory title over the property and that possessory title is valid and a suit can be filed against any person on the basis of such possessory tile against any person other than the lawful owner. In Somnath v. Raju, AIR 1970 SC 146 the Supreme Court has held that possessory title is enough to bring a suit against everybody except the lawful owner. On the basis of such possessory title the lessors inducted Madanlal Lohia to the premises and Madanlal inducted the defendant and the defendant was in uninterrupted possession during the whole period of 21 Years of the lease hold period. The defendant not being lawful owner of the property cannot challenge the title of the lessors of Madanlal Lohia and he is consequently estopped from challenging and landlord’s title and s.116 of the Evidence Act completely debars the defendant from challenging the title of the lessor form the persons holding possessory title which was valid against everybody except the lawful owner. 19. The present lawful owners have not served a notice upon the plaintiff. They can bring a suit for recovery of possession and can successfully recover possession and if in the meantime the defendant is evicted and the vacant possession is obtained this will enure to the benefit of the lawful owners. Therefore, only because a notice has been served upon the plaintiff to vacate the suit premises can the defendant say that he is not liable to deliver possession to the lessor as there was threat of eviction by the title paramount? 20. The defendant contends that there was threat of eviction by the holder of title paramount. In support of this proposition Mr. Das has referred to me the decision of Supreme Court in AIR 1987 SC 2192 D. Salyanarayan v. P. Jagadish. The Division Bench of Supreme Court in that decision has held that even though under s. 116 of the Evidence Act the tenant is not permitted to deny the landlord's title yet the rule does not apply when the tenant is under the threat of eviction by person claiming paramount title. In AIR 1987 SC 2192 one Krishnamurthy was the head lessor who granted the tenancy in respect of a Kiosk to a tenant and the tenant sub-let it to defendant sub-tenant. In AIR 1987 SC 2192 one Krishnamurthy was the head lessor who granted the tenancy in respect of a Kiosk to a tenant and the tenant sub-let it to defendant sub-tenant. The head lessor served a notice of eviction on the tenant terminating the tenancy as well as the sub-tenancies on the ground that the sub-tenancies were illegal. The defendant-respondent, one of the sub-tenants was constrained to attorn it in favour of the head lessor Krishnamurthy and became a direct tenant under the head lessor. Thereafter the tenant filed 'a suit for eviction against the said sub-tenant on the ground that he defaulted in paying rent and had denied the title of the landlord. The Supreme Court has held that the tenant was competent to deny the title of the landlord as there was a threat of eviction by the head lessor and under such threat accepted the head lessor as the landlord and as such the sub-tenant was not estopped from denying landlord's title because it is an exception to the rule of estoppel of the tenant under s. 116 of the Evidence Act as the tenant was evicted by the title paramount and was under threat of eviction when the sub-tenant attorned to the paramount title holder by an agreement under threat. The facts of this case are entirely different from those of above decision of Supreme Court. In this case the defendant all along was in peaceful possession during the whole period of tenancy and never had any threat of eviction by any title paramount nor did it under any such threat attorn the tenancy to any such paramount title holder. The defendant in the written statement has admitted that it had no knowledge at any 1ime during the lease period that the real owners of the property we're Tulshi Charan Deb and Sm. Madhuri Baja Badalia and came to know of it after the lease period had expired. Such a lessee cannot deny the title of the lessor on the ground that the lessor having taken lease from the persons who were not lawful owners held no valid leasehold interest to demise the premises to the defendant. Madhuri Baja Badalia and came to know of it after the lease period had expired. Such a lessee cannot deny the title of the lessor on the ground that the lessor having taken lease from the persons who were not lawful owners held no valid leasehold interest to demise the premises to the defendant. The fact that long after the filing of this suit and only in 1988 a notice was served upon the plaintiff to vacate by the rightful owners will nor alter the position and the case of the defendant does not come within the exception contemplated by the Supreme Court in AIR 1987 SC 2192 . 21. The other decision on which the defendant has placed reliance is AIR 1988 SC 1413 Tekbhan v. Additional District Judge &. ors. In that decision the Supreme Court actually upheld the eviction of the tenant under the U. P. (Temporary) Control of Rent and Eviction Act, 1947 on the ground of denial of landlord's title. In that case the tenant attorned the tenancy to a purchaser who did not have full title and paid rent to him. When the person to whom the tenant had attorned sold the property to a third person and asked the tenant to attorn to such third person, the tenant denied the title to whom the tenant had attorned. The Supreme Court has held that what the appellant did, indeed amounted to a denial of title and that the appellant was precluded from doing so on the general principles of essoppel between landlord and tenant. So, it was a clear case to attract s. 3(1) of the U. P. Act for eviction. It is true that in that decision the Supreme Court has laid down the rule of estoppel between landlord and tenant and has also specified the exception to such rule. But the decision fully supports the plaintiff's case. In this case also the defendant attorned to the plaintiff after his father'" death and paid rent and on the basis of this decision of Supreme Court, it can be held that the defendant is estopped from challenging the title of the plaintiff also on the general principles of estoppel between landlord and tenant. 22. In view of the above, I answer all the issues under consideration against the defendant and in favour of the plaintiff. 23. 22. In view of the above, I answer all the issues under consideration against the defendant and in favour of the plaintiff. 23. Issue No.5: The defendant has also challenged the vires of s. 3 of the West Bengal Premises Tenancy Act (hereinafter referred to as Act). Even though in the written statement it is alleged that the s. 3 of the Act is violative of Articles 14 and 31 of the Constitution yet at the time of the hearing it is only challenged as discriminatory inasmuch as there is no intelligent differentia for giving protection from eviction of the leases upto 20 years and not giving such protection to leases exceeding 20 years i.e. 21 years and more and consequently such exemption granted to leases of 21 years and more is arbitrary and is liable to be struck down under Article 14 of the Constitution. 24. Section 3 of the West Bengal Premises Tenancy Act as amended by the West Bengal Act XXIX of 1956 reads thus" 3(1) The provisions relating to rent and the provisions of ss. 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian Registration Act, 1908, where (a) such lease has been entered into on or after the 1st December, 1948, and (b: such lease is for a period of not more than 20 years and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years. (2) Notwithstanding anything to the contrary contained in sub-s. (1) but subject to sub-s. (3) of S.1, this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1956 : Provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of ss. 31 and 36, shall apply to any premises held under such lease," 25. 31 and 36, shall apply to any premises held under such lease," 25. Analysis of s. 3 clearly indicates as follows: (1) The Act shall apply to all leases for less than 15 years (2) For leases for 15 years or more, if for residential purpose and entered into after 1.12.1948 but before 24.8.1965, only some provisions of the Act will apply, viz., provisions relating to rent and ss. 31 and 36. (3) For leases for 15 years or more up to 20years executed between 1.12. 1948 and 24.8.1945, if for non-residential purpose, this Act will not apply. (4) This Act will not apply to leases for more than 20 years if executed between 1.12.1948 and 24.8.1965. (5) This Act shall apply to all leases executed after 24.8.1965 terminable at the option of the lessor or lessee. (6) This Act shall apply to leases executed after 24865 for a period of less than 20 years, whether terminable or not before the expiry of the period at the option of landlord or tenant. (7) To leases executed after 248.65 for a period of not less than 20 years not terminable before its expiration at the option of the landlord or tenant, only some provisions of the Act will apply, i.e. the provisions relating to rent and ss. 31 and 36". 26. Mr. Das appearing for the defendant urges that s. 3 of the Act makes an artificial and/or unreasonable classification between leases of a duration of more than 21 years and less than 21 years and such classification is not reasonable. My attention has been drawn to the following principles laid down in Ram Krishna Dalmia's case, AIR 1958 SC 538 (a) It is well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. (b) In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, firstly that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and secondly that the differentia must have a rational relation to the object sought to be achieved by the statute in question (c) The classification may be founded on different basis, namely, geographical or according to the objects or occupation or the like. (d) What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. (e) It is also well-established by the decisions that Article 14 condemns discrimination not only by a substantive law but procedure." 27. According to Mr. Das applying the above tests, it cannot but be held that artificial distinction sought to be made by s. 3 of the Act in between long term and short tam lease is discriminary, irrelevant and has no nexus to the object of the Act. He has also drawn by my attention to two decisions of Supreme Court in AIR 1986 SC 1444 and All 1984 SC 121, one decision of Bombay High Court reported in AIR Bombay page 10 and the Special Bench decision of Calcutta High Court 1987 (2) CLJ page 53 at page 124 and has urged that in a number of decisions the Supreme Court and High Courts have struck down similar provisions in Tenancy Legislations which seek to make artificial distinction on the basis of either rental value or age of the building in question or such other matters on the ground that the same are discriminatory. Mr. Bhabra, learned counsel appearing for the plaintiff has submitted that apart from the allegations made in para 11 of the written statement there is no other evidence or facts placed before the Court to support the contention as to 'why the classification of lease of 21 years and more and less than 21 years is not reasonable It is further submitted that under s. 3 there is a classification or premises for non-residential purposes held under leases for not less than 15 years and the premises held under lesses for period for less than 15 years. Mr. Bhabra submits that such classification of leases held under lease for more than 15 years and less than 15 years is reasonable, that it must be presumed that the legislature correctly understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds and that the legislature is free to recognize the degrees of harm and may continue its restrictions to those cases where the need is deemed to be clearest. 28. 28. I have no doubt that there is always a presumption in favour of the constitutionality of a statute or enactment and the burden is upon him who attacks it as unconstitutional. In order to sustain the constitutionality of a provision the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. It is to be presumed that while introducing a particular provision in the legislature the legislature has the knowledge as to what premises are to be given protection and what premises are not to he given protection and the legislature knows the interest of the landlord and that of the tenant and is to harmonize them. 29. In Mohinder Kumar v. State AIR 1986 SC page 144 at para 12 the Supreme Court states as follows: "It is for the legislature to decide the period exemption that may be allowed and to fix the dare from which the date of exemption should run. This will ordinarily be a matter of Legislative policy and the court will not normally interfere unless the court is of the opinion that the period of exemption or the date from which exemption is to operate is unreasonable and arbitrary." 30. Similarly in AIR 1987 SC page 2117 (Prabhakaran Nair v. State of Tamil Nadu) in para 27 the Supreme Court lays down as follows: "the nature, the form and the extent of restrictions to be imposed on the landlord's right and the consequent extent of protection to be given to the tenants is a matter of Legislative policy and judgment. It is inevitably bound to vary from one State to another depending on local and peculiar circumstances prevailing in the State and the individual State's appreciation of the needs and problems of its people." 31. The preamble of the W. B. Premises Tenancy Act, 1956 Act states as follows: "An Act to provide for the regulations of certain incidents of tenancy of premises in Calcutta and some other areas in West Bengal." 32. The preamble of the W. B. Premises Tenancy Act, 1956 Act states as follows: "An Act to provide for the regulations of certain incidents of tenancy of premises in Calcutta and some other areas in West Bengal." 32. The statement of objects and reasons of the Act indicate that to meet the situation brought 'by acute shortage of housing accommodations in urban areas in consequence of the last world war and to prevent rack-renting and arbitrary eviction of tenants in respect of premises several temporary enactments were made and these continued for over 13 years. It is realised that these temporary enactments which have already remained in force for over thirteen years have stood in the way of more investment on buildings and a better relationship between a landlord and tenant. Accordingly it is proposed to enact a permanent measure for regulation of incident of tenancies in respect of premises in Calcutta and some other areas of West Bengal and to provide for certain matters including the protection from eviction of tenancies etc. 33. Before these rent restrictions laws were enacted the monthly tenancies were terminable by a service of notice of a period of 15 days expiring with the month of the tenancy under the T. P. Act. As there was acute shortage of accommodations the rent restriction legislations in our country had the primary object to restrict such eviction and to give protection to such monthly tenancies from eviction except under the circumstances stated in the Act which would have the effect of tenant losing protection. The legislation by enacting s. 3 extended such protection to premises held under registered lease also upto period of less then 15 years. Non-residential leases for 15 years and more was not considered fit for protection of the Act. 34. In my view the provision is quite reasonable. The non-residential leases for fifteen years and more enjoy the protection from eviction by terms of the lease deed itself. Such a lease cannot be forfeited under the Transfer of Property Act unless there is any breach of the condition of the term of the lease. Such leases enjoy the protection of the full period and is only terminated by efflux of time. The object of the Act is to harmonise the interest of both landlord and tenant. Such a lease cannot be forfeited under the Transfer of Property Act unless there is any breach of the condition of the term of the lease. Such leases enjoy the protection of the full period and is only terminated by efflux of time. The object of the Act is to harmonise the interest of both landlord and tenant. Regard being had to the purpose of the Act such exemption of the leases of non-residential purposes of 15 years and more from the provisions of the Act appear to be quite reasonable. The legislature is the best judge to decide as to what leases would get the protection or what leases should not get protection. Unless Such classification. on the face of it is arbitrary the Court cannot and should not sit in judgment over the Legislative wisdom of the Legislature. I do not find any arbitrariness in the provision regarding the exemption of lease for non-residential of 15 years and more from the purview of the Act. The defendant has cited before me four decisions. But in my view none of them has any application to the facts of the present case. 35 The first decision is AIR 1986 SC 1444 (Ratan Arya v. State of Tamilnadu.) In that case the classification of tenants of non-residential buildings fetching a rent of over Rs. 400/- per month into a distinct class for the purpose of depriving them of the benefits of the Act was held to be without any basis and, therefore, s. 30(ii) was held violative of Article 14. It should be noted that in that case the object of the Act was three fold-the regulation of the letting of residential as well as non-residential building, the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom. Prior to s. 30(ii) of the Act Tamil Nadu holdings (Lease & Rent Control) Act, 1960 was enacted, there was no exception from the preview of the Act in respect of any class of residential and non-residential buildings based on rent. By s. 30(ii) for the first time the Act excepted from the application of the Act, residential buildings which fetched a rent of more than Rs. 250/- per month and non-residential buildings which fetched a rent for more than Rs. By s. 30(ii) for the first time the Act excepted from the application of the Act, residential buildings which fetched a rent of more than Rs. 250/- per month and non-residential buildings which fetched a rent for more than Rs. 400/- entered in the property Register or Assessment Book of the Municipality In 1964 he provision relating to the exception made in the case of non-residential buildings fetching a rent of more than Rs.400/- per month was deleted with the result that tenants of non-residential buildings was entitled to the protection affected by the Act irrespective of rent paid by them. This was writ petition and the State tried to justify there provisions which were not found to be satisfactory by the Court. 36. This case has no relevance to the facts of this case. In s. 3 no distinction is made of leases on the basis of the rental. So this decision has no application to the present case. 37. In AIR 1984 SC 121 (Motor General Traders v. State of A.P.) Classification of tenancies in Hyderabad City by age has been struck down to be arbitrary. In s. 3 no such classification on the basis of the age of the building has been made. So this decision has also no relevance. 38. In Bhadekarn Sangh v. Stale, AIR 1987 Bombay Page 10, C. P. and Berar Rent Control Act was held to be discriminatory on the ground that the class which has been selected for the beneficial treatment is too small compared with the large majority which has been excluded and even persons similarly situated have been excluded. So, according to Bombay High Court there is no rational basis for the same. 39. Special Bench judgement in Lakshmimani Das & ors v. State of West Bengal 1987 (2) Cal. LJ page 53 has dealt with the vires of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. The lands comprised in thika tenancy as well as the land held in perpetuity or under registered lease for not less than 12 years have vested to the State under s. 5 of the Act, but not the land under registered lease for less than 12 years. The Special Bench did not find any intelligent differentia in between land held under a lease for 12 years and more and that held under a lease for less than 12 years. The Special Bench did not find any intelligent differentia in between land held under a lease for 12 years and more and that held under a lease for less than 12 years. When the intention of the legislation was to vest even long term leases and lease in perpetuity, then there was no nexus between the object of the Act and the exclusion of land of short term lease, of Jess than 12 years. On the similar ground s.5 and 8 (2) of Calcutta Thika Tenancy (Acquisition and Regulation) Act 1981 has been struck down in 1988 (2) CLJ 314. The West Bengal Premises Tenancy Act is not an Act for vesting of any estate to the State. Its object is to protect tenants d certain tenancies. The main object is to protect the monthly tenancies which did not have any protection from eviction under the Transfer Property Act under which by determining the tenancy by service of a valid notice under s. 106 of the Transfer of Property Act the same could be determined. The legislature in its wisdom has intended to extend the protection of the Act to short term leases of less than 15 years also. I have already indicated that the long term leases have been protected from eviction for the whole period of lease unless there is any breach of covenant. So there was adequate projection and the legislature did not think it fit to give such long term leases any further protection. 40. The leases for period of 15 years and more were not included in the purview of the Rent Control Act of 1950 which was a temporary Act. Such provision with certain modification has been introduced in the West Bengal Premises Tenancy Act, 1956 Act which is a permanent Act. The fact that such provision has remained for so many years without challenge and the defendant has for the first time challenged its vires only in 1983 clearly indicates the number of such long term tenancies are not very much in number and lessees of these tenancies have also no grievance because the Act has not protected such leases. The defendant under the terms of the lease got protection from eviction for 21 years but further protection of the Act would affect adversely the landlord and the object of this Act is to harmonize the interest of both landlord and tenant. The defendant under the terms of the lease got protection from eviction for 21 years but further protection of the Act would affect adversely the landlord and the object of this Act is to harmonize the interest of both landlord and tenant. In the Act itself not only tenants have been protected but the interest of the landlord have also been safeguarded by introducing the provision of s. 17 by which the tenant has the obligation to pay rent month by month during the pendency of the eviction proceeding and to deposit the arrears of rent with interest within one month of the service of summons. 41. In that view of the matter, I am unable to hold that the s. 3 of the West, Bengal Premises Tenancy Act, 1956 is Ultra vires or that it violates the Article 14 of the Constitution. 42. They issue no. 5 is thus answered in the negative. Issue ons. 6, 7 and 8: In view of my above finding, I allow the plaintiff's prayer for recovery of possession of the suit premises from the defendant. 43. The plaintiff has also claimed mesne profits from 1st December 1981 till the date of filing' of the suit i.e. 15th August 1983 at the rate of Rs. 36,000 per month totaling Rs. 7,44,150/-. The defendant has seriously challenged the quantum. 44. The total area in occupation of the defendant is 3300 sq. ft. The plaintiff has proved two letters purported to have received from Mongturam & Co. offering Rs. 10 per sq. ft. and Jyoti Properties offering Rs. 13 per sq. ft. as rental for the suit premises. 45. Mr. Bhabra, however, has in his argument submitted that regard being had to the recent trend in the locality of rental value increasing the Court can reasonably assess the rental value per. ft. at Rs. 166 per sq. ft. 46. From the evidence of both Mahabir Prasad Lohia the plaintiff and Khusiram Gupta, the witness for the defendant it is gathered that the following tenants occupying the premises are paying rent for the area in their occupation: Tenant's Name Rent Area 1. Mahabir International Rs. 1,400/- p.m. 1,000 sft. 2. Jugal Kishore Periwalla Rs. 151/- p.m. 800" 3. Sikal Pvt. Ltd. Rs. 1,500/- pm. 130" 4. Dhukania Engg. Pvt. Ltd. Rs. 3,500/- p.m. 3,000" 5. Ranjit Shipping Co. Rs. 2,000/- p.m. 1,200" 47. Mr. Mahabir International Rs. 1,400/- p.m. 1,000 sft. 2. Jugal Kishore Periwalla Rs. 151/- p.m. 800" 3. Sikal Pvt. Ltd. Rs. 1,500/- pm. 130" 4. Dhukania Engg. Pvt. Ltd. Rs. 3,500/- p.m. 3,000" 5. Ranjit Shipping Co. Rs. 2,000/- p.m. 1,200" 47. Mr. Bhabra has submitted that taking the quantum of rent paid by Ranjit Shipping Co. as the basis the rental per square ft. would come to Rs. 166 per sq. ft. Mr. Das appearing for the defendant has urged that rental per. sq, ft. would not exceed Rs. 1.50 per sq. ft. 48. On considering the whole evidence on record, I am of the view that the reasonable rental value for the premises in question would be Rs. 150 per sq. ft. So the mesne profit per month shall be assessed at Rs. 4950/-. 49. So the total mesne profit upto the date of the suit would amount to Rs. 1,01 ,475/-. 50. The plaintiff shall also get mesne profits on the above rate from the date of the filing of the suit till the date of recovery of possession, final decree for which shall be passed after the defendant delivers possession. 51. It is hereby decreed that the plaintiff shall get recovery of possession of the suit premises from the defendant. The defendant is given two months time to quit and vacate failing which the plaintiff shall recover the premises from the defendant by executing this decree. 52. The plain tiff shall get Rs.1,01,475/- as mesne profits from Ist December, 1981 till the filing of the suit. The plaintiff shall also get mesne profits at Rs. 4950/- per month from the date of suit till the date of delivery of possession for which the final decree shall be passed after delivery of possession. The plaintiff shall get costs of the suit. The learned counsel appearing for the defendant prays for stay of operation' of this judgment and order and such prayer is refused. Suit decreed.