Padma Khastgir, J.
1. This suit has been filed by the plaintiff against the defendants for a decree for Rs. 3615/-, possession of a portion of premises No. 7, Nawab Lane, Calcutta; alternatively an enquiry into damages etc.
2. The plaintiff's case is that by a conveyance dated 29th of December, 1962 the plaintiff purchased premises No. 7, Nawab Lane, Calcutta and became full owner thereof. According to the plaintiff, on April 15, 1959 the original defendant, Jyotindra Nath Nundy and the defendant No. 2 wrongfully entered into and trespassed in the said premises. The plaintiff had been successful in getting part possession of a portion of the premises after the said purchases. But the portion now under the possession of the defendants as trespassers is required to be recovered from the defendants by obtaining a decree to the effect in this suit. On 26th of August, 1963 the plaintiff called upon the original defendant and the defendant No. 2 to quit, vacate and deliver up vacant possession of the said portion to the plaintiff and also claimed damages at the rate of Rs. 15 per diem. But in spite of such demands the defendants or either of them have failed and neglected to quit, vacate and deliver up vacant possession. Hence the present suit has been filed.
3. The case of the defendants is that the plaintiff by such indenture dated 29-12-1962 could not purchase the building situated on premises No. 7, Nawab Lane, Calcutta as the plaintiff's Vendor, Sachindra Nath Mukherjea who happened to be the father-in-law of the plaintiff could only purchase the land measuring about 2 cottahs comprised in premises No. 7, Nawab Lane, Calcutta and not building and structures standing thereon, by the conveyance dated 28th of March, 1962 from the Manager of the Murshidabad Nawab Estate as the building and/or structures thereon belonged at all material times and still belong to the defendants. As the plaintiff's Vendor, Sri Sachindra Nath Mukherjee was not the owner of the building and/or structures as such he could not have transferred such building and structures in premises No. 7, Nawab Lane, Calcutta to the plaintiff by conveyance dated 29th of December, 1962. By a deed of conveyance dated September 19, 1884 the Nawab of Murshidabad let out the estate, now known as premises No. 7, Nawab Lane, Calcutta being brick built one and two storied building for a period of 21 years at a rent of Rs. 40 to the grandfather of the present defendants. The defendants' case is that one Beharilal Nandy, since deceased, the grandfather of these defendants obtained a lease by way of Bengali deed (Kabuliat) dated 15th of November, 1909 for a period of 21 years in respect of the land only comprised in premises No. V, Nawab Lane, Calcutta and before the expiry of the previous lease it is stated in the said lease that Beharilal Nandy was the owner of the existing brick built structures standing on the land and he was given liberty to raise further structures on the existing structures belonging to him and to let them out to the various tenants and on expiry of the said lease he would have to remove the structures and deliver vacant possession of the bare land to the Manager of Murshidabad Nawab Estate.
4. The land was held by Behari Lal Nandy under a lease but the premises was purchased by Behari Lal Nandy being a three storied pucca house at promises No. 7, Nawab Lane, Calcutta for a consideration of Rs. 5000/-. On 15th of June, 1951, the Manager, Nawab Estate, Murshidabad by a registered deed of lease granted a lease of the land at premises No. 7, Nawab Lane, Calcutta to Jyotindra Nath Nandy and Santosh Kumar Nandy, tha grandsons of Behari Lal Nandy, for a period of 10 years with effect from 13th of April, 1949. Thereafter the lawyer of Nawab Estate, Murshidabad called upon the said Jatindra Nath Nandy and Santosh Kumar Nandy by notice to give peaceful and vacant possession of the land only on the premises No. 7, Nawab Lane, Calcutta on March 18, 1959 and on 25th of April, 1959 invited for an offer from the said Nandys regarding the rent they were prepared to pay for the said land, Thereafter an offer was given to the Nandys to purchase the said land by the Manager, Murshidabad Estate. Thereafter on May 1st, 1960 the Manager, Murshidabad Estate published an advertisement in daily Amrita Bazar Palrika inviting offers for sale of the land only in respect of premises No. 7, Nawab Lane, Calcutta. Thereafter on March 28, 1962 by a registered deed of conveyance pursuant to that advertisement, land of premises No. 7, Nawab Lane Calcutta was sold by the Manager to Sachindra Nath Mukherjee, father-in-law of the plaintiff herein. Thereafter Sachindra Nath Mukherjee wrongfully tried to collect rent from the tenants stating therein that he has purchased not only the land but also the premises. As a result, Jatindra Nath Nandy and Santosh Kumar Nandy through their Solicitor wrote a letter dated 27th of August, 1962 denying and disputing the right of Sachindra Nath Mukherjee over the said building and/or structures. Thereafter there was a letter from S. N. Sen & Company on behalf of the plaintiff demanding possession from the defendants and the present suit has been filed on December 4, 1963.
5. Mr. Panja appeared with Mr. Gour Roychowdhury on behalf of the plaintiff. Mr. Lala appeared with Mr. Ranajit Mitra for the defendants. After hearing the parties the following issues were raised.
1. Is the lease dated 13-4-1949 valid or binding?
2. Is the defendant a statutory thika tenant in respect of premises No. 7, Nawab Lane, Calcutta?
3. Is the suit maintainable?
4. Has this Court jurisdiction to entertain, try and determine the suit?
5. To what relief, if any, the plaintiff is entitled?
6. At the time of hearing Mr. Panja did not press issue No. 1. As preliminary issues were raised regarding jurisdiction of this Court to entertain and try this suit and also regarding the maintainability of the suit Mr. Lala made his submissions on behalf of the defendants. According to Mr. Lala, the defendants are not trespassers but they are thika tenants in respect of the premises, Hence this Court has no jurisdiction to entertain and/or try this suit and it is the jurisdiction of the Thika Tenancy Controller to entertain such a claim. From the various conveyances that have been disclosed in this proceeding it would appear that the defendant's predecessor-in-interest was a tenant in respect of the land as also the structures and thereafter further structure and building was built by Behari Lal Nandy. Thereafter Behari-Lal Nandy purchased the structure and/or building but remained a tenant in respect of the land comprising premises No. 7, Nawab Lane, Calcutta for a period of 21 years. Thereafter the lease was also extended for a further period of 21 years and ultimately the defendants had a lease executed in their favour for a period of 10 years. From the facts as stated above it would appear that land at all material time belonged to Nawab of Murshidabad Estate but the structure was owned by Beharilal Nandy. Thereafter the land had been purchased by the father-in-law of the plaintiff from the Nawab of the Murshidabad Estate and thereafter by subsequent deed of conveyance it has been transferred in favour of the plaintiff. It is the definite case of the defendants that the plaintiff is the owner of the land only but with an alterior motive she claims the structure also over which she had no right, title and interest,
7. Mr. Lala referred to Section 2 (5) of the Calcutta Thika Tenancy Act, 1949 and submitted that this Court has no jurisdiction to entertain this suit, In that respect he craved reference to a Full Bench decision of the Calcutta High Court reported in : AIR1961Cal505 . According to Mr. Lala, after the expiry of the said lease for ten years, the defendants are still in possession and they have become statutory tenants under the Calcutta Thika Tenancy Act, 1949, He further submitted that under Section 20 of the Murshidabad Administration of Estate Act, 1933 the Manager had full power end authority to grant lease and in fad while granting such lease for ten years in favour of the defendants not only the Manager had put his signature but also the said deed of lease had been executed under due authority of the Government of West Bengal.
8. Mr. Panja on the contrary submitted that it is not a case governed by the Calcutta Thika Tenancy Act, 1949 but it is a plain and simple case of trespass; as such this Court has ample jurisdiction to try the present suit. He further submitted that Behari Lal Nandy was not a Thika Tenant; as such his successors cannot be taken to be thika tenants as Behari Lal Nandy did not construct the structure on the land taken on lease but he has taken possession of partly two storied building and thereafter he made additions and alterations to the said building. Hence he cannot be held to be a thika tenant as, according to Mr. Panja, a thika tenant is a person who after taking lease of premises builds his own structures which is not the position in the present case.
Secondly he submitted that there cannot be any holding over in cases of thika tenancy. After the expiry of the lease the defendants cannot be taken to be statutory tenants. According to Mr, Panja, the definition as given under Section 2 (5) is not attracted in the present case as, according to the said definition, neither the defendants nor the said Behari Lal Nandy can be taken as a thika tenant; neither of the defendants nor the said Behari Lal Nandy had erected or acquired by purchase or gift any structure on such land nor the defendants can be held to be successors-in-interest of such person. Hence the definition of thika tenant as given under Section 2 (5) is not satisfied in the present case. When Behari-Lal Nandy had taken the lease of the premises with a structure he could not be treated as thika tenant as the lease was not in respect of vacant plot of land but with the structure thereon. Mr. Panja further submitted that a lease for 21 years could not come under the Thika Tenancy Act as it was for a period beyond 12 years. If Behari Lal Nandy himself could not become a thika tenant the defendants cannot claim themselves to be successors of such interest of a thika tenant Mr Panja referred to a case reported In (1949) 53 Cal WN 640 and submitted that the burden of proof is on the defendants to show that they are thika tenants. He further referred to cases reported in : AIR1965Cal55 ; 0043/1955 : AIR1955Cal169 .
9. In the case reported in 1975 (1) Cal LJ 440 a Division Bench of this High Court held that 'in respect of registered lease of vacant piece of land for a period of 12 years the defendants raised non-permanent structure on the land during the currency of the said lease. The lease in due course expired by efflux of time. But in spite thereof, a tenant remained in occupation by holding over. The lessor has assented to the continuance of his occupation of the land by acceptance of rent from him. Thereafter the question arose whether tenancy of the defendant would be governed by the provisions of the Calcutta Thika Tenancy Act, 1949 and in the event the defendant would be held to be thika tenant after the new tenancy was created as a result of his holding over, then the suit in question would fail because such suit would not be entertainable by any Civil Court. There the learned Judges came to the conclusion that on the expiry of the lease by efflux of time the defendant lessee held over. The defendant was also the owner of the structure on the land which were raised by him during the currency of the prior lease under the registered deed and not during the currency of the present tenancy. On the expiry of that lease, a new tenancy was created by holding over in favour of the tenant and he still being the owner of the said structure on the land, he fulfilled requirement of Section 2 (5) of the Act and became a thika tenant. The learned Court further held that 'where the tenant satisfies both the conditions i.e., tenancy of the land and ownership of the structure, he is a thika tenant within the meaning of Section 2 (5) of the Act and it is wholly immaterial whether or not the act of obtaining such tenancy right preceded the erection of the structures or acquisition of the structure on the land by purchase or by gift. Inasmuch as the defendant was a thika tenant at the relevant time for his eviction, a suit in the Civil Court was not entertainable.'
10. The similar points involved in this case were also in dispute in the case referred to above and after considering facts and various decisions including the judgment of P. B. Mukharji, J, delivered in Annapurna Seal v. Tinkari Datta reported in (1962) 66 Cal WN 338 the learned Judges came to the conclusion that where both the conditions are present, such as, tenancy of the land and ownership of the structure, a person would be a thika tenant within the meaning of Section 2 (5) of the Calcutta Thika Tenancy Act, 1949 and it is wholly immaterial whether or not the act of obtaining such tenancy right preceded the erection of the structure or acquisition of the same by purchase or gift.
11. The points taken and submissions made by Mr. Panja are fully covered and decided by the case reported in 1975 (1) Cal LJ 440.
12. In the case reported in : AIR1961Cal505 a Full Bench of this High Court had to consider the position of a statutory tenant and came to the conclusion that a tenant under the Act includes an ex-tenant, i.e., a tenant whose contractual tenancy has come to an end but who is still in possession -- actual or constructive -- of the particular premises. It has been further held that 'the Rent Control and the Tenancy Act create a special world of their own. They speak of a life after death. The statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy. The contractual tenant may die but the statutory tenant may live long thereafter. The statutory tenant is an ex-tenant and yet he is a tenant. Mr. Janah described him as a phantom tenant. However described, the statutory tenant is a real person having real rights. He is neither a contractual tenant nor a trespasser. He is a person having special rights and bearing the special name of a statutory tenant. We cannot ignore him. We must grapple with him as a reality and look at the Act under which he claims protection to find out what his rights are.'
13. In the case reported in (1958) 62 Cal WN 319 it has been held 'The Calcutta Thika Tenancy Act makes provisions for creation of a statutory tenancy which continues even after the landlord has determined tenancy after service of the notice to quit just as West Bengal Premises Rent Control Act provides. Therefore, in the matter of waiver by accepting rent or amount equivalent to rent after determination of the tenancy by notice to quit the possession under the Calcutta Thika Tenancy Act cannot be any different from the possession under the West Bengal Rent Control Act and the corresponding English Act.'
14. In the case reported in (1961) 65 Cal WN 255 it has been held that 'Section 5 of the Calcutta Thika Tenancy Act took away the jurisdiction of the Civil Court in the matter of eviction of thika tenants. Deprived of the jurisdiction to evict thika tenants and also deprived of the power to remit ejectment suits to the Controller, the Civil Court is powerless to pass any order or decree for eviction in ejectment suit against thika tenants. Suits for eviction of tenants become thus infructuous before Civil Courts.'
15. From the facts as indicated above, it would appear that the defendants definitely were thika tenants in respect of the land situate at 7, Nawab Lane, Calcutta after the expiry of the lease for 10 years after becoming statutory tenants under the Calcutta Thika Tenancy Act. The defendants are still in possession and still are the owners of the building situate at No. 7, Nawab Lane, Calcutta. Hence they satisfy the definition as laid down under Section 2 (5) of the Calcutta Thika Tenancy Act, 1949. So from whichever angle the case is tested the defendants fall into the category of thika tenants under the Calcutta Thika Tenancy Act, 1949. From the various correspondences written by the Manager, Murshidabad Nawab Estate it would appear that in a letter written on behalf of Nawab Estate by a lawyer it has been mentioned that the defendants have been given possession of the land measuring about 2 cuttahs 1 chittacks 12 sq. feet at premises No. 7, Nawab Lane, Calcutta for a period of 10 years and on the expiry of the said lease the defendants were requested to give up vacant and peaceful possession of the land and not premises. Again on 25th of April, 1959 the Manager of Nawab Estate, Murshidabad referred to the lease of land and not of the premises while writing letters to the defendants, Jatindra Nath Nandy and Santosh Kumar Nandy. By a letter dated 23rd of April. 1970 the Manager wrote to the defendants enquiring whether the defendants were interested in purchasing the land of the said premises. In fact, from the advertisement issued by the Manager in Sunday Amrita Bazar Patrika on 1st of May, 1962 it would appear that offers were called for in respect of sale of the land only of premises No. 7, Nawab Lane, Calcutta and finally by a letter dated 5th of April, 1962 the Pleader on behalf of Nawab Estate, Murshidabad gave a notice to the defendants asking for arrears of dues in respect of the land at 7, Nawab Lane, which the defendants have been holding over under the lease from the Murshidabad Estate. It has also been mentioned in the said letter that only the land in question had been sold to Sachindra Nath Mukherjee and the sale had been completed on 28th of March, 1962. Parties have led no oral evidence and relied on the documents disclosed in the proceedings. From the various deeds of conveyances as also the letters it would be evident that the plaintiffs predecessors in title, Sachindra Nath Mukherjee could only purchase the right, title and interest in respect of the land situate No. 7, Nawab Lane, Calcutta and could not have purchased the premises on the said plot of land which belonged to the defendants' predecessor in title and now it belongs to defendants. There was a valid and subsisting lease in favour of the defendants and after the expiry of the said lease the defendants are still in possession and they fall in the category of a statutory tenant under the Calcutta Thika Tenancy Act, 1949. Bills for the consolidated rates and taxes in respect of premises No. 7, Nawab Lane, Calcutta are made out in the name of Jatindra Nath Nandy and Santosh Kumar Nandy and in fact they have been paying the same to the Corporation of Calcutta. From the series of correspondence that have passed by and between the Manager, Nawab Estate, Murshidabad and the defendants nowhere it has been mentioned that the defendants are in arrears in respect of payment of rent.
16. In view of the fact, that not only Behari Lal Nandy, the predeces-sor-in-title of the defendants was a thika tenant but the defendants themselves also were thika tenants under the last lease given in their favour by the Manager. Murshidabad Nawab Estate for a period of 10 years and after the expiry of the said period of 10 years the defendants by remaining in possession of the said premises have acquired the status of statutory tenants under the Calcutta Thika Tenancy Act, 1949. Hence the plaintiff's claim that the defendants are trespassers in respect of the said premises cannot be accepted. More so from the various deeds of conveyances disclosed in the proceedings and tendered in evidence by parties it would show that the plaintiff could not acquire any right, title or interest in respect of the building situate at No. 7, Nawab Lane, Calcutta through her father-in-law, Sri Sachindra Nath Mukherjee who had acquired right, title and interest in respect of the land only. Because of that the plaintiff has to comply with the provisions of the Calcutta Thika Tenancy Act, 1949 and establish her right before the Controller of Thika Tenancy and not before a Civil Court. Hence I answer the issues in the manner following :
Mr. Panja on behalf of the plaintiff did not press issue No. 1 and parties did not submit any argument so far issue No. 1 is concerned, as such it is not necessary to answer issue No, I. So far issue No. 2 is concerned I am of the view and hold that the defendants are statutory thika tenants in respect of premises situate at No, 7, Nawab Lane, Calcutta. I answer issue No. 3 in the negative. I answer issue No. 4 in the negative. As a result, I dismiss this suit with costs.
17. Certified for two counsel There will be a stay for operation of the order for a fortnight from date.