Amiya Kumar Mukherji, J.
1. This Rule was obtained by the tenant and it is directed against an order of eviction of the petitioner passed by the appellate authority in a proceeding under Section 5 of the Calcutta Thika Tenancy Act.
2. The facts that lie in a short compass may be stated as follows :--
The predecessor-in-interest of the petitioner Lakshminarayan Joardar. tooksettlement of a portion, of Debuttar land situated at No. 17-A, Nimtolla Ghat Street, Calcutta, as a 'thika tenant'. The petitioners as heirs and legal representatives of the said Lakshminarayan, since deceased, have been continuing to enjoy the said tenancy under the landlord deity Shri Radhakrishna Jew. Sometime in 1965, the p. Party, Ila Mukherjee, started a proceeding under Section 5 of the Calcutta Thika Tenancy Act before the Thika Controller, Calcutta for eviction of the petitioner on the ground that she required the suit land for her own occupation and for the purpose of building thereon or otherwise developing the said land by its continuing letting to thika tenants. The said opposite party claimed her leasehold interest with respect to the suit land on the basis of a registered deed of lease obtained from the landlord deity. Both the tribunals below concurrently found that the opposite party required the suit land for erection of a building for her own use and occupation and passed an order of ejectment against the petitioner. The petitioner being aggrieved moved this Court on an application under Article 227 of the Constitution and obtained the present Rule.
3. Mr. Mitter, the learned Advocate for the petitioner, contended that as the original landlord deity was not in possession of the property when the lease with respect to the disputed property was executed in favour of the opposite party, the said lease would take effect from the date the lessor gets back the property. In the instant case as the petitioner was in possession of the property, therefore the lessee could not evict the petitioner in terms of the aforesaid lease. In support of his contention Mr. Mitter referred to a Bench decision of this Court Indraloke Studio Ltd. v. Santi Debi, reported in : AIR1960Cal609 .
4. The argument advanced by Mr. Mitter seems to be interesting, but it has no foundation. Under Section 105 of the Transfer of Property Act. delivery of possession of property demised is not a condition precedent for coming into operation of a lease. Where, therefore, a lessee obtains under the deed of lease an interest in the property leased, he is entitled to sue for the possession of the same on his own right, if there is no other legal impediments.
5. The decision referred to by Mr. Mitter does not lay down any such proposition as urged by Mr. Mitter. In that case, there was an express covenant in the lease itself, that lease would commence on the date on the derequisition of the demised premises by the military authorities. Until derequisition, lessee's interest under the lease was acontingent interest. Contingent interest is property and it is clearly transferable. P. N. Mukherjee J. held such a lease was perfectly valid and operative. It was not transfer of non-existent property in the eye of law. I am unable to follow how that decision would help Mr. Mitter's client.
6. Mr. Mitter next contended that the opposite party being a lessee under the original landlord deity, her possession was of a tenant of the first degree and as such she could not bring any ejectment proceeding against the petitioner a tenant of the second degree.
7. It appears that the opposite party took settlement of the entire Bus-tee premises No. 17-A Nimtolla Ghat Street, Calcutta, for a term of 51 years with an option to renew the lease for a further period of 21 years. Under Section 2(5) of the Calcutta Thika Tenancy Act, to acquire a right of thika tenancy one must be a tenant of the land under another and on the land, one must have one's own structure either erected or acquired by purchase, succession or gift. The opposite party cannot be a thika tenant under the definition of Section 2 (5) of the Act as stated above, because, she has neither constructed any structure on the land nor acquired any structure standing on the land by purchase, succession or Rift. Moreover, under proviso (b) to Section 2 (5) of the Calcutta Thika Tenancy Act, a thika tenant does not include a person who holds such land under another person under a registered lease, in which the duration of the lease is expressly stated to be for the period of not less than 12 years. It is not disputed that the opposite party's lease is for a period of more than 51 years. So, she cannot be called to be thika tenant under the Calcutta Thika Tenancy Act. Therefore, the question of starting a proceeding for eviction by a tenant of first degree against the second does not arise in the present case.
8. Lastly, Mr. Mitter contended that under the various ordinances of the Calcutta Thika Tenancy Act, there was a stay of ejectment proceedings from 1967 right upto the passing of the Act 29 of 1969 which came into force on 30th October 1969, so in any view of the case the petitioner ought to be given protection under the amended Act.
9. It appears that the petitioner's appeal before the appellate authority was disposed of on 29th of June, 1967, so the petitioner's appeal was not pending when the amended Act came into force. The petitioner could have taken recourse to Section 7-A corresponding to Section 8 of the Amending Act More-over, it is not the petitioner's case that the grounds upon which the order of eiectment had been passed, has since been deleted by the Amending Act. So this point also is of no substance.
10. In the result, this Rule fails and it is discharged. But there will be no order for costs.