P.B. Mukharji, J.
1. This is a suit by the pltf. for the recovery of possession of premises No. 83, Lower Circular Road, Calcutta, and for mesne profits.
2. Nagendra Nath Das and Ramesh Chandra Bhowmick were the joint owners of 83, Lower Circular Road, which was a vacant plot of land. By a registered lease dated 29-11-1943, the said owners Nagendra Nath Das and Ramesh Chandra Bhowmick let out the said vacant land to the defts., carrying on business in the name of National Motors for a term of 3 years with effect from 1-12-1943. The lease provides that on the expiry of the said term the defts. should deliver quiet and peaceful possession to the lessors. By a conveyance dated 4-5-1946, the said Nagendra Nath Das and Ramesh Chandra Bhowmick sold the said land to the pltf. Notice of the transfer was duly given to the defts. and the defts. were asked to attorn and pay rent to the pltf. The defts. paid rent to the pltf. thereafter until the determination of the said lease. The lease expired on 30-11-1946. On the expiry of the lease demands for possession were made by and on behalf of the pltf. but the defts. did not comply with such demands. Hence this suit for possession.
3. The lease, the conveyance and the correspondence between the parties including the letter of attornment will be found in the admitted brief of documents and correspondence marked as Ex. 'A' in this suit. The suit was filed on 23-7-1947.
4. The written statement was filed on 25-11-1947. The original written statement did not disclose very much of a defence except that it alleged that the said premises was not vacant land and that the defts. were entitled to the benefits of the Calcutta House Eent Control Order and Ordinance which were in force at that time. Then followed a stage where the deft. Baijnath admitted through his counsel that the said property was vacant land when it was let out. After that admission was made there was practically no defence to the suit. I directed that admission to be recorded in the minutes of this Ct.
5. Then came an application for amendment of the written statement when the suit was actually on the Daily List for hearing. I allowed the amendment to be made even at that late stage and even though it raised an entirely new defence. The order of amendment was made on 4-7-1949. By the new amendment the defts. raised the defence that the deft. was a Thika tenant under the Calcutta Thica Tenancy Act.
6. The only main issue raised in this case is: 'Is the deft. Baijnath Bajoria a Thica tenant in respect of the land at 83, Lower Circular Road, Calcutta, under the Calcutta Thica Tenancy Act ?' The other issue is about the mesne profits which will depend on this main issue.
7. The onus of proving Thica tenancy being on the defts., deft. Baijnath Bajoria called evidence first.
8. On behalf of the deft. Baijnath 4 witnesses have been examined--Kamala Charan Banerjee, Shib Charan Saha, Baijulal Agar-walla and Hrishikesh Ghosh. On an analysis of the evidence given on behalf of the deft. Baijnath Bajoria I have come to the conclusion that he has failed to prove that he was or is a Thica tenant within the meaning of the Calcutta Thica Tenancy Act in respect of the land at 83, Lower Circular Road. I will state my reasons why I have come to that conclusion.
9. Kamala Charan Banerjee is an employee of the deft. Baijnath Bajoria who says that he looks after all the affairs in connection with the premises No. 83, Lower Circular Road. In Q. 36 he was asked about the nature of tenancy of his employer and his answer was that they were Thica tenants. But in answer to Q. 37 to 39 from the Ct. he says that he calls the defts. Thica tenants because according to him those who take a vacant land on rent and builds structures on the said land are called Thica tenants. In fact in answer to Q. 40 he says that according to his interpretation of the word 'Thica' he is calling the defts. Thica tenants. I am afraid it is not a question of interpretation and specially an interpretation by this employee. It is always a question of fact whether in a particular case a tenant is a Thica tenant or not. In fact he realised the difficulty of the situation and in answer to Q. 41 admits that the parties must mutually agree before there can be a Thica tenancy but at the same time he admits that he has never seen the lease or does not exactly remember to have seen the lease. Finally in answer to Q. 50 he says that when discussions were taking place and negotiations were going on he saw the necessary papers but even then he cannot remember whether he saw the lease or not.
10. The deft. Baijnath Bajoria has not come forward to give evidence himself and to support the evidence of this witness. He, being the tenant, was in my opinion, the best witness to say what was the agreement between the landlord and him and whether under such agreement he was a Thica tenant.
11. I cannot accept evidence of this witness where he tries to make his employer a Thica tenant on the basis of his own interpretation of the word 'Thica' (Q. 40 to 44) and not on the facts, I do not consider this evidence satisfies the requirements of the Calcutta Thica Tenancy Act. When a tenant takes a vacant land and then builds structures thereon he does not ipso facto become a Thica tenant under the Calcutta Thica Tenancy Act. If that were so, every lessee under an ordinary building lease whereby he takes a vacant land and agrees to build on it would become a Thica tenant under the Act. Neither the express language nor the intention of the Act justifies such a conclusion. A Thica tenant under the Act must prove (l) a system, which is either the 'commonly known' system or a 'similar' system and (2) that he 'holds' under that system. (His Lordship considered the evidence of other witnesses and came to the conclusion that their evidence did not prove the defendant's case. His Lordship then proceeded:)
12-16. Section 2, Calcutta Thica Tenancy Act, has been construed by me in Murari Mohan Mukherjee v. Prokash Chandra Chatterjee, reported in : AIR1950Cal230 . I am still of the opinion, as I then was, that a tenant can only be called a Thica tenant under some 'system.' It may be the 'system' which has the well-known names mentioned in the Statute or it may also be a 'similar system.' But the 'system' under which a tenant holds has to be established by evidence. I am told by learned counsel for the pltf. that my view has recently been approved by the Court of Appeal and that decision has since been reported in Suraj Jan Bibee v. Banku Behary Saha, : AIR1950Cal428 . The 'commonly known' system mentioned as Thica, Thica Masik Utbandi, Thica Masik, Thica Bastum, are tenures commonly found in respect of agricultural lands and dealt under the Bengal Tenancy Act. There is no evidence before me whether such system which is said to be 'commonly known' is at all prevalent in Calcutta. There is no evidence in this case of any 'similar system' prevailing in Calcutta.
17. The framers of this statute have obviously been inspired by the notions and ideas of tenancies and tenures familiar under the Bengal Tenancy Act as will appear from the use of such expressions as 'Utbandi,' 'Bastu,' 'Thica'' 'Dakhal Basatkar' and ' Record of Rights.' Reference to the Bengal Tenancy Act is also explicitly made in Section 2 (6) of the Statute to define words and expressions used but not defined in the Statute. To import such notions and ideas although the Bengal Tenancy Act by its Section 1 (3) (i) and (ii) specifically excludes Calcutta and to demand their application in Calcutta is a question relating to the principle and policy of legislation with which this Ct. is not concerned at all. If the Legislature says that principles of agricultural tenures and tenancies and their notions and ideas have to be applied in the city of Calcutta even though such tenancies are for 'manufacturing or business purpose' as in Section 2 (5), Thica Tenancy Act, the Ct., in my opinion, must have to administer the Act. But this Ct. has the supremely responsible task of applying and administering the statute to the facts of each particular case that comes before it and in so applying and administering the statute it has to interpret and construe what the statute lays down. If the statute provides-that the application of the Act is to depend on certain facts it is for the Cts. to examine and see whether such facts do exist. As the statute provides that a Thica tenant is one who holds-under the 'commonly known' system or 'similar system' it is for the Cts. to find as a fact in each case whether such system exists before applying the Calcutta Thica Tenancy Act. If the Legislature provides for the existence of certain facts without which the Act cannot be attracted and such facts are either too difficult or impossible to prove this Ct. is powerless to do anything in the matter to resolve such a situation. The Ct. does not and cannot legislate but can only interpret. Learned counsel for the deft. referred to the fact that the Act was intended to protect the Bustee dwellers of Calcutta. It is difficult to see why he made that reference in the facts of this case which are not concerned with any Bustee at all. I would not have mentioned this argument but for the fact that it seems to me a common impression with the public and the litigants that the Calcutta. Thica Tenancy Act is a Charter of Rights for the Bustee dwellers of Calcutta. The intention of a statute is to be gathered from the language used in the statute read as a whole including its preamble and this Ct. does not deal with the problem from the point of view of what should have been expressed in the language but in fact is not. I do not find any reference to Bustee dwellers in the Calcutta Thica Tenancy Act. If it were intended to protect them there was nothing to prevent the Legislature from saying so because it would not have been either difficult or impracticable to define what a Bustee in Calcutta is. In fact Bustee has been defined under the Calcutta Municipal Act. The sine qua non of a good legislation is that those responsible for making the law should know: (a) the subject-matter of the legislation thoroughly and adequately and (b) how to express their knowledge and intention in reasonably and tolerably clear language. Hasty legislations have become far too frequent and still hastier and constant amendments which they often inspire are not conducive to security or social order.
18. The lease in this case does not describe the deft, as a Thica tenant. The tenant himself does not come to give evidence to say that he is a Thica tenant either under the commonly known system or under similar system. The witnesses he has called do not prove that premises 83, Lower Circular Road, is held by the deft. as a Thica tenant.
19. In my opinion, the deft. has failed to discharge the onus and has failed to prove that he is a Thica tenant within the meaning of the Calcutta Thica Tenancy Act.
20. The pltf. has led no evidence on the point on the ground that Mr. T.P. Das, learned counsel for the pltf., has contended before me that the onus has not been discharged by the defts.
2l. It appears to me from the record and progress of the suit that the defence of Thica tenancy is not a genuine but an inspired defence in this case. The facts did not inspire the defence and, therefore, it was not raised until at the latest possible stage. I have got the impression it was the Calcutta Thica Tenancy Act which inspired this defence. If there was anything genuine about this defence I fail to see why it was not raised even when the Calcutta Thica Tenancy Ordinance being West Bengal Ordinance No. XI  of 1948 which was published on 26-10-1948, in the Calcutta Gazette came into force and why the deft. waited till 4-7-1949, to make this new case which he has now failed to prove.
22. The lease describes Baijnath Bajoria and Balmukund Bajoria to be lessees and this is not disputed by deft. Baijnath who has appeared and contested this suit. That lease is an exhibit in the suit. No one has appeared for deft. Balmukund Bajoria, who is the son of Baijnath to contest this suit.
23. There will be, therefore, judgment for the pltf. against both the defts. for possession of premises 83, Lower Circular Road, and mesne profits at the rate of rent from 1-12-1946, until possession. The pltf. is also entitled to the costs of this suit.