1. This appeal is directed against a judgment and decree dated June 16, 1972 passed by Hazra, J. against the appellant. By and under the decree Hazra, J. directed the appellant, inter alia, to pay arrears of rent mentioned in paragraph 10 of the plaint, deliver up possession of the premises Nos. 15/2 and 15/3, Armenian Street, Calcutta and also pay mesne profits in respect of the aforesaid two premises from 1st Magh, 1367 B. S. corresponding to January 15, 1961 at the rates of Rs. 42/6/- and Rs. 42/8/- permonth respectively until delivery of possession is made over by the appellant to the respondent of the said two premises.
2. The appellant was a monthly tenant under the plaintiff as per the Bengali calendar in respect of the said two premises, namely, 15/2 and 15/3, Armenian Street, Calcutta, fully described in the Schedule to the plaint at rents of Rs. 42/6/- and Rs. 42/8/-respectively per month. The said two premises as described in the Schedule to the plaint are plots of land containing 2 cottahs 12 chittacks and 1 cottah respectively more or less. The case of the respondent in the plaint was that the appellant failed to pay any rent in respect of the said two several premises since Karlick, 1366 B. S. corresponding to October 39, 1959. The appellant further by two several letters both dated January 30, 1961 claimed title in himself of the said two properties and renounced his character as tenant in respect thereof. By two several letters both dated November 29, 1961 the respondent gave notice to the appellant of his intention to determine the tenancy in the said two premises and called upon the appellant to deliver up possession thereof to him. As the appellant failed and neglected to deliver up possession of the said two properties, the respondent filed the suit claiming, inter alia, possession thereof, arrears of rent and mesne profits. The respondent also claimed a declaration that he was the owner of the said two properties.
3. The appellant filed his written statement which appears at page 10 of the paper book. In paragraph 3 of the said written statement the appellant denied that the plaintiff was the owner of the properties in suit. In paragraph 4 of the written statement the appellant stated that if at any time the respondent had title in the said two properties he had lost his right, title and interest in the premises in suit by adverse possession by the predecessor-in-interest of the appellant as well as by that of the appellant. In paragraph 5 of the written statement the appellant denied that he was a monthly tenant under the plaintiff in respect of the premises in suit and stated that he had become the owner of the premises in suit by purchase in 1945 and by possession thereof by mutating his name in the Collectorate of Calcutta and the Corporation of Calcutta. The appellant in paragraph 6 of the written statement filed by him stated that he was not liable to pay any rent to the plaintiff in respect of the premises in suit and denied that he was a tenant under the res-pondent. In the written statement the appellant further stated that by the above-mentioned letters dated January 30, 1961 he had only asserted his right as owner of the said premises. The whole tenor and purport of the written statement was that the appellant was the owner of the premises in suit and that the respondent had no right, title or interest therein.
4. It should however be noted here that in paragraph 15 of the written statement the appellant pleaded as follows, to wit:
'Without in any way waiving or giving up any of the contention or legal right this defendant states that if the plaintiff claims the determination of any thika tenancy over the land at the said premises and possession thereof, then this Hon'ble Court has no jurisdiction to try this suit. Only Thika Tenancy Controller has jurisdiction for the same.'
5. At the time of hearing of the suit the counsel for the appellant raised the following issues which were settled by the learned Judge:
1. Is the plaintiff owner of two plots of land being premises No. 15/2, Armenian Street and 15/3, Armenian Street, Calcutta.
2. Was the defendant a tenant under the plaintiff as claimed in paragraph 2 of the plaint?
3. (a) Has the plaintiff lost his title to the land in suit by adverse possession as alleged in paragraph 4 of the Written Statement?
(b) Did the defendant acquire any title by purchase as stated in paragraph 5 of the Written Statement?
4. Is the plaintiff entitled to claim the sum of Rs. 1,273.12 p. or any sum as arrears of rent as alleged in paragraph 10 of the plaint?
5. Is the plaintiff entitled to mesne profits as alleged in paragraph 11 of the plaint?
6. Is the suit barred by the law of limitation?
7. Is the plaintiff entitled to possession or any other relief as claimed in the plaint?
6. The learned trial Judge at the time of the raising and settling of issues pointed out to the counsel for the appellant that if he wanted to take up the plea or to raise any pica that the appellant had been a Thika Tenant under the respondent suitable pleadings to that effect had to be made by the appellant. The counsel for the appellant although at one time wanted to have the written statement amended did not ask for the adjournment of the suit for amending the written statement to plead that the appellant was a Thika Tenant in respect of the suit premises under the respondent. In fact it appears to us that the said plea would have been totally inconsistent with the plea made by the appellant in the written statement that he had been the owner of the premises in suit.
7. At the trial the plaintiff examined himself and proved that he was the owner of the premises Nos. 15/2 and 15/3, Armenian Street which devolved upon him upon the death of his father Upendra Nath Mallick in March 1922. The plaintiff further proved that the appellant became a tenant under him and paid rent to him in respect of the premises in suit. On behalf of the appellant three witnesses were examined, one was Syed Amjad Ali, a Retired District Judge. The others were one Sudar-san Singh, a Durwan of the appellant and Abul Hassan Julfikar Hyder the brother of a daughter-in-law of the appellant. The appellant who mostly lives in Chittaganj was in Calcutta at the time of the hearing of the suit but did not choose to come forward to adduce any evidence.
8. Before us the counsel for the appellant urged two points. He challenged the decree on the ground this Court had no jurisdiction to entertain and try this suit inasmuch as the appellant was a Thika Tenant in respect of the suit premises. Secondly he submitted that the two several notices dated the 29th November, 1961 whereby the respondent gave notice of his intention to determine the tenancy of the appellant in the premises in suit stood waived because the respondent asked the appellant to quit and vacate the premises in suit on the expiry of the last date of his next month of tenancy from November 29, 1961. Thereby it appears, the counsel for the appellant wanted to urge that the forfeiture of the tenancy caused by renouncing the character as tenant by the appellant was waived by the respondent. In regard to the plea of waiver, it must be noted that the said plea involves a mixed question of law and fact. The said plea not having been taken in the written statement nor having been raised by way of an issue at the trial we do not think that we should allow the appellant to raise the said plea for the first time before us in the appeal.
9. By the said letters dated 29th November 1961, the plaintiff gave notice of his intention to determine the lease of tenancy in respect of the said two properties in suit because of renouncement by the appellant of his character as tenant in respect of the said properties and claiming title of ownership thereto. The portions of the notice whereby the said forfeiture of tenancy was urged by Mr. Mullick to have been waived by the landlord were in the following terms :
'I hereby call upon yon forthwith to quit, vacate and make over quiet vacant and peaceful possession of the premises No. 15/2, Armenian Street, Calcutta as described below on the expiry of the last date of your next month of tenancy. You are also requested to remove the structures standing upon the said properties.....'
The other notices in regard to the premises No. 15/3, Armenian Street, Calcutta were also in identical terms. Even if it is held that the forfeiture of the tenancy was waived by the landlord by asking the tenant to continue in possession as a tenant until the last date of the next month of his tenancy the above mentioned portion of the said notice in any event seems to us to have determined the tenancy of the appellant because of the provisions of Section 106 of the Transfer of Property Act. We are however not called upon to decide the said question in the instant appeal and do not express any opinion on the said question.
10. The main contentions of Mr. Mullick before us were that the trial Court should have held that the appellant was a tbika tenant and as such this Court had no jurisdiction to entertain or try the suit. In support of his contention Mr. Mullick relied on the description of the property set out in the Schedule to the plaint appearing at page 9 of the Paper Book, paragraph 15 of the written statement which according to Mr. Mullick was a plea of thika tenancy and the respondent's Solicitor's letters appearing at pages 205 and 207 of the Paper Book wherein the appellant was described as 'a monthly thika tenant in respect of the above land.' By 'above land' in the said two notices dated 5th December, 1960 the respondent's Solicitor meant the premises Nos. 15/2 and 15/3, Armenian Street, Calcutta.
11. Mr. Mullick contended that it was the duty of the learned trial Judge to raise an issue as to the thika tenancy and the jurisdiction of this Court to entertain or try the suit in view of the above mentioned facts. Mr. Mullick submitted that the provisions of Rules 1 to 4 of Order 14 of the Civil P. C. enjoin upon the Court to frame issue on thika tenancy inasmuch as issue can be raised not only on the basis of pleadings filed by the parties but also on the basis of the correspondence passed between the parties and even on the basis of a statement of an Advocate from the Bar. Mr. Mullick submitted further that inasmuch as the most material issue as to the thika tenancy was not raised by the Court we should in exercise of our inherent power remand the instant case back to the trial Court again for raising an issue as to the thika tenancy and trying the same. Mr. Mullick in support of his contentions relied on various authorities to which we shall advert later.
12. From a perusal of the pleas pleaded by the appellant in the written statement as quoted in the earlier part of the judgment it appears that the plea of the appellant in the suit as and by way of defence to the action filed by the plaintiff was acquisition of title by purchase and/or by adverse possession. The appellant throughout in the written statement has denied that he was a monthly tenant under the respondent or anybody else. The case of the appellant in the written statement was that he was the owner of the premises. In the two letters written by the appellant's solicitor dated January 30, 1961 appearing at pages 209 and 211 of the paper book the solicitor asserted that their client was the owner of the premises Nos. 15/2 and 15/3, Armenian Street, Calcutta, respectively and he had been occupying and enjoying the said properties as such owner openly and peaceably for many years. The appellant's solicitor further asserted in the said letters that in the records of the Corporation of Calcutta as also in the Register D Part I of Revenue Paying Lands of the Government the appellant was recorded as owner and permanent tenure holder of the properties in suit.
13. In the two letters dated 28th February, 1962 written in reply to the hind-lord's letters dated 29th November, 1961 the said solicitors of the appellant again asserted that their client was the sole and absolute owner and occupier for many years of the land and building in the premises Nos. 15/2 and 15/3 Armenian Street, Calcutta. The solicitors went so far as to assert that the respondent had been falsely representing himself as owner and thus wrongfully realised rent from the appellant's agent. The said solicitors called upon the respondent to pay and refund all the monies realised as rent in respect of the said properties from the appellant's agents with 12 per cent, interest as damages.
14. Amjad Ali, the witness called on behalf of the appellant at the trial deposed that the appellant was the owner of the premises in suit. See questions and answers 20 to 30, 49, 56 to 61 and 127 to 132 of Amjad Ali.
15. By reason of the premises it is abundantly clear that from the very beginning and throughout the appellant's case consistently in the correspondence, in the written statement as well as in the deposition adduced at the trial was that the appellant was and is the owner of the premises in suit. The said plea was and is totally inconsistent with the plea of Thika Tenancy. Thika Tenancy as defined in Sub-section (5) of Section 2 of the Thika Tenancy Act is:
'(5) 'thika tenant' means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person-
(a) who holds such land under that another person in perpetuity; or
(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or
(c) who holds such land under that another person and uses or occupies such land as a khattal.'
It is abundantly clear, therefore, that in view of the abovementioned case of ownership of the defendant in respect of the properties in suit the counsel for the defendant did not want to amend the written statement when an opportunity was given to him by the learned trial Judge.
16. In Margaret Gomes v. Kanupada Bhowmfck a Division Bench of this Court consisting of G. K. Mitter and Bijoyesh Mukherji, JJ., (1966) 70 Cal WN 949 considered the question whether the Court had jurisdiction to entertain or try a suit filed against an allegedthika Tenant. Their Lordships were of the opinion that such question of jurisdiction would depend upon evidence of the fact as to whether the tenant was a Thika Tenant within the meaning of Sub-section (5) of Section 2 of the Thika Tenancy Act. In the said case it was held that the tenant claiming to be a tenant in perpetuity albeit in the alternative and thereafter consenting and submitting to a decree for ejectment abandoned the defence of Thika Tenancy and was precluded from raising the said point at a subsequent stage of the suit.
17. In the instant case the tenant never pleaded the defence of Thika Tenancy at all as already noted in the earlier part of the judgment. The plea in Paragraph 15 of the written statement is not a plea of Thika Tenancy. Moreover by refusing to amend the written statement and incorporate the plea of Thika Tenancy therein and continuing to assert the claim of ownership in respect of the properties in suit the tenant appellant in the instant case refused to claim Thika Tenancy as defence to the suit and cannot now be allowed to urge the said point.
18. From the very beginning as noted by us the defence of the appellant in correspondence, in the written statement as well as at the hearing of the suit was the ownership of the premises in suit. In the premises there was no occasion for the Court to raise the issue as to thika tenancy or as to jurisdiction of the Court. In Apaya v. Rama, (1879) ILR 3 Bom 210, it was observed by a Division Bench of the Bombay High Court inter alia that.....
'It is indeed a part of the duty of the Judge who settles the issues to ascertain as clearly as he can on enquiry of the parties or their pleadings the real points in dispute between them, those points being often missed or obscured by the infelicitous mode of drawing pleadings.'
19. In the instant case the learned Judge did ascertain, in our opinion the real disputes in controversy between the parties. The said disputes as submitted before the learned trial Judge by the respective parties was as to the ownership of the premises in suit. Thus ratio decidendi in (1879) ILR 3 Bom 210 does not apply to the facts of the instant case.
20. In Vine v. National Dock Labour Board, 1956 All ER 1 Jenkins, L. J. noted the different paragraphs of the plaint and came to the conclusion that the purported termination of the plaintiff's employment was illegal, ultra vires and invalid as pleaded by the plaintiff in the plaint and that was the essence of the case. The consequences of the illegal termination were matters of law. Jenkins, L. J. continued to observe.
'If they were in some respects imperfectly stated in the pleading as originally delivered, I do not think that the plaintiff should be prejudiced by that. It would be a sad day if litigants were bound hand and foot byevery ill-advised phrase or argument or submission that may find its way into their pleadings as settled by counsel.'
21. In the instant case as we have endeavoured to show contrary to the vehement contentions of the counsel for the appellant, it was not a case of imperfect pleading at all. It was a case of not pleading the case sought to be urged now before us. It was further refusal to plead the said case as suggested by the learned trial Judge. The counsel for the appellant contended that we should remand the case back to the learned trial Judge for framing issues relating to the thika tenancy of the appellant as well as the jurisdiction of the Court to try or entertain the suit. The counsel for appellant submitted further that apart from the provisions contained in Rules 25 to 27 of Order 41 of the Code of Civil Procedure we have inherent power to remand a case under Section 151 of the Code of Civil Procedure.
22. The counsel relied on Umesh Narayan Chowdhury v. Secretary of State, AIR 1925 Cal 1157 wherein it was held that the powers of the Court to remand a case were not circumscribed by Rules 25 to 27 of Order 41 of the Civil P. C. There cannot be any dispute with the said proposition. But in view of facts stated earlier why should we remand the instant case for the purpose suggested by the counsel for the appellant. The counsel also relied on the said decision for the purpose of supporting his contention that the Court might frame an issue by reference to matters other than pleadings but then the said case also decided that if parties go to trial on issues raised by them and delivered by them the Court should not direct the amendment of an issue on the ground that the same was an imperfect one. The case of Vinode Kumar v. State of Himachal Pradesh, : AIR1959SC223 relied on by the counsel for the appellant laid down that issues should be framed upon proper appreciation of pleadings.
23. In the instant case as we have already noted that the only case that defendant made out was the case of ownership even up to the time of hearing of the suit. The said case was stated in the letters written by the defendant's solicitors and also was made out in the written statement. In the background of these facts we do not think that there was any lack of appreciation of the case made out by the defendant at the trial nor was there any omission on the part of the learned trial Judge to settle any issue. The case of Snow White Food Product Pvt. Ltd. v. Sohanlal Bagla, : AIR1964Cal209 approved of the provision in Rule 3 of Order 14 of the Civil Procedure Code that an issue might be raised on the statement of a counsel appearing for a party.
24. The ratio in said case was followed in : AIR1970Cal292 . Neither the appellant nor his counsel ever asserted that the appellant was a thika tenant in respect of the premises in suit at the trial. Nor did the witnesses produced by the appellant say so. The above mentioned cases are quite irrelevant to the issues in controversy before us. Thika tenancy as already noted is not a pure question of law which may be raised even at the appellate stage under the provisions of Rule 2 of Order 41 of the Code as stated by the Supreme Court, in Keshavlal Lallubhai Patel v. Lalbhai Trikumlal Mills Ltd., : 1SCR213 thus the said case in our opinion is not of any assistance to the appellant.
25. For the reasons stated hereinbefore we are of the opinion that the appellant has failed to make out any case to enable us to interfere with the judgment and decree under appeal. In the premises this appeal must fail and is dismissed with costs.
B.C. Mitra, J.
26. I agree.