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Md. Ahmed Amolia and ors. Vs. Nirmal Chandra Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 59 of 1975
Judge
Reported inAIR1978Cal312
ActsTransfer of Property Act, 1882 - Sections 105, 111 and 116; ;Evidence Act, 1872 - Section 90; ;Limitation Act, 1963 - Schedule - Articles 64 and 65
AppellantMd. Ahmed Amolia and ors.
RespondentNirmal Chandra Roy and ors.
Appellant AdvocateJayanta Mitra, Adv.
Respondent AdvocateD.K. De, Adv.
DispositionAppeal dismissed
Cases ReferredIn Tabor v. Godfrey
Excerpt:
- hazra, j. 1. this is an appeal from the decree dated september 7, 1975 passed by dipak kumar sen, j. in a suit filed by nirmal chandra roy and sk. jagadiswari dassi against the appellants and other respondents. the learned judge gave a judgment whereby he ordered and decreed that the defendants do deliver up quiet and peaceful possession to the plaintiffs of the land and premises no. 104, lower chitpur road, calcutta (hereinafter referred to as the premises); do pay rs. 1,500 on account of arrears of rent for ten months from march to december, 1961. he also ordered and decreed that a mandatory injunction be and the same is granted against the defendants except the defendant receiver shri t. dastidar directing them at their own costs and expenses to close up all the openings and.....
Judgment:

Hazra, J.

1. This Is an appeal from the decree dated September 7, 1975 passed by Dipak Kumar Sen, J. in a suit filed by Nirmal Chandra Roy and Sk. Jagadiswari Dassi against the appellants and other respondents. The learned Judge gave a judgment whereby he ordered and decreed that the defendants do deliver up quiet and peaceful possession to the plaintiffs of the land and premises No. 104, Lower Chitpur Road, Calcutta (hereinafter referred to as the premises); do pay Rs. 1,500 on account of arrears of rent for ten months from March to December, 1961. He also ordered and decreed that a mandatory injunction be and the same is granted against the defendants except the defendant Receiver Shri T. Dastidar directing them at their own costs and expenses to close up all the openings and connections in premises No. 105, Lower Chitpur Road, Calcutta so as to make the two premises Nos. 104 and 105 Lower Chitpur Road, Calcutta, independent of each other and further ordered and decreed that all the defendants except the defendant Receiver do pay to the plaintiffs mesne profits in respect of the premises commencing from January 1, 1962 until possession is delivered to the plaintiffs. He further ordered and decreed that Mr. S. A. Murshed, Advocate be and he is thereby appointedReceiver to enquire into the mesne profits on the basis of the average rate of rent payable per month by the tenants of the premises commencing from Jan. 1, 1962 until possession is delivered to the plaintiffs.

2. Three of the defendants, namely, defendants Nos. 2, 3 and 4 have preferred this appeal.

3. The case of the plaintiffs in theplaint is shortly as follows:

By an Indenture of lease dated March 3, 1911, one Bhola Nath Dhur, since deceased, demised to one Ahmed Mamooji Amolia since deceased, the land and premises for a term of fifty years commencing from the date the lessee Ahmed Mamooji Amolia was put in possession of the premises. The lease provided, inter alia, that the lessee would pay rent (i) for the first ten years @ Rs. 115 per month; (ii) for the second ten years @ Rs. 125 per month; (iii) for the third ten years @ Rs. 135 per month; (iv) for the fourth ten years @ Rs. 155 per month -- the rent of each month being payable within the fifteenth day of the succeeding month and the lessee being entitled to a rebate of Rs. 5 per month in case of punctual payment as aforesaid.

4. Pursuant to the lease the lessee was put into possession of the premises in or about Dec., 1911. The original lessor died. Thereafter, by devolution of interest and by mutual partition lessor's interest vested in the plaintiff. The original lessee who was governed by Sunni School of Mohamedan Law died many years ago : and the leasehold interest devolved on his heirs. A suit was instituted between the heirs of the lessee which included leasehold interest of the lessee. In that suit Shri T. Dastidar, Advocate was appointed Receiver. Defendants Nos. 1 to 10 (h) are the heirs and legal representatives of the original lessee. Defendant No. 11 is the Receiver. The case of the plaintiffs is that the leasehold interest expired by efflux of time in or about Dec., 1961. The defendants yet remain in possession of the premises. They have failed and neglected to make over possession to the plaintiffs in respect of the demise. The plaintiffs are entitled to ten months rent at the rate of Rs. 155 per month in terms of Indenture and claim on account thereof Rs. 1,550. The plaintiffs claim mesne profits @ Rs. 40 per diem from the expiry of the lease as the reasonable letting value of the said property at the end of 1961.

5. Further case of the plaintiffs is that at the time of making the lease dated March 3, 1911 there existed a 'road alignment line' running parallel to Lower Chitpur Road along the frontage of the premises No. 104, Lower Chitpur Road, Calcutta being the portion of the premises contemplated to be acquired by the Corporation of Calcutta. So the said lease which was a building lease was intended not to have any construction on the portion affected by the 'road alignment line'. The plaintiffs aver that the entire land and premises were leased out to the original lessee by the lease dated March 3, 1911 and only the said strip of land described above was to be left without any construction thereon.

6. In the alternative, it is stated that if it be construed that the said strip of land 'being of 12 feet depth' along the road frontage of No. 104, Lower Chitpur Road was not the subject of the lease dated March 3, 1911, then the plaintiffs will contend that the said strip was all along used by the lessee or his successor in interest and as a way of necessity, there being no other approach or entry into No. 104 Lower Chitpur Road, Calcutta except across the said strip of land.

7. The prayer in the plaint include prayer for possession of the premises: Rs. 1,550 being arrears, of rent from March to Dec., 1961; mesne profits and mandatory injunction.

8. The plaint was filed on Jan. 14, 1965.

9. It is pertinent to see what the defence, as delivered was.

10. Three separate written statements were filed.

11. The defendant No. 9, Musst. Amna Bibi, in her written statement filed on April 9, 1965 stated that she had no personal knowledge when the lessee was put in possession and lease commenced. She stated that the strip of land of 12 feet wide had been all along possessed and enjoyed and is still being possessed and enjoyed by her and her co-sharers openly and adversely to the plaintiffs and as of right and the plaintiffs are not entitled to claim possession from the defendants at this stage.

12. The defendants Nos. 2, 3 and 4 Md. Ahmed Amolia, Yusuf Ahmed Amelia and Cassim Ahmed Amolia filed a joint written statement on June 26, 1966. They stated that the lessee took possession of the premises and constructed a new building covering not merely thedemised portion of the premises but also the excluded strip of land 12 feet along the road front thereof and that he and his successors-in-interest enjoyed the same openly and adversely to the lessor for more than twenty years.

13. The written statement was amended on October 10, 1974. In the amended written statement the defendant stated that after expiry of the lease dated March 3, 1911 the defendants remained in possession of the suit premises and the lessor assented to the defendant's continuing in possession and/or to treat the tenancy as still subsisting. The defendants held over as monthly tenants of the suit premises. The new tenancy thus created expressly and/or impliedly had not been validly terminated by a notice to quit and as such the defendants were lawfully entitled to remain in possession of the demised premises and not liable to be evicted therefrom.

14. Further case of the defendants was that the strip of land 12 feet wide along the front of the premises was specifically excluded from the lease and Ahmed Mamooji Amolia and the successors-in-interest including these defendants have been openly, adversely and uninterruptedly in possession of the same for more than fifty years.

15. The Receiver Shri T. Dastidar, also filed a written statement on June 23, 1965. In his written statement he stated that the rent in respect of the premises for the month of March 1961 was duly tendered, but the same was not accepted He further stated:

'This defendant is not aware when the leasehold interest of Ahmed Mamooji Amolia (original lessee) expired or determined.........'

Before the learned trial Judge evidence was given on behalf of the plaintiffs by calling two witnesses; namely, (1) Dhananjoy Roy and (2) Nirmal Chandra Roy, the plaintiff No. 1. Several documents were also tendered on behalf of the plaintiffs. The defendants did not call any witness or give any evidence. But the learned counsel on behalf of the defendants cross-examined the plaintiffs' witnesses and argued the case on behalf of the defendants.

16. The learned trial Judge has delivered a well considered judgment dealing with the points urged before him in the suit.

17. On behalf of the appellants two points have been urged in this appeal;

(a) there was tenancy by holding over; and (b) the defendants acquired title by adverse possession in respect of the 12 feet wide strip of land as claimed in the written statement.

18. It seems to me that the compass of this appeal is very short, and there is little scope of argument in the appeal. I will first indicate my views with regard to the scope of the appeal and then deal with the points raised before us.

19. Admittedly, a lease was executed on March 3, 1911. It was duly registered. The lease provides the lessee 'to hold the premises hereby demised......... fora period of 50 years next ensuing.........'The lease contains: 'It is further agreed that the lease will have the effect from the date the lessee shall be put in possession of the demised premises,'

20. Under Section 111(a) of the T. P. Act, a lease of immovable property determines by efflux of time limited thereby. Therefore, no notice to quit is necessary under this section.

21. The main relief claimed in theplaint is for possession, arrears of rent and mesne profits. Admittedly, the plaintiffs are the heirs and legal representatives of the lessors and are owners of the premises. As the premises were held under a lease for fifty years the provisions of the West Bengal Premises Tenancy Act, 1965 relating to protection of tenant against eviction will not apply.

22. The suit was instituted on Jan. 14, 1965. On the admitted case of the parties the lease expired long before the institution of the suit. Learned counsel on behalf of the appellants argued that the lease expired on March 2, 1961. The case of the plaintiffs in the plaint is that the lessee was put in possession in or about Dec. 1911 and the lease expired by efflux of time in or about December, 1961. In any event, it is the common case of the parties before us that the suit was filed long after the expiration of the lease. What follows then? As the lease was determined by efflux of time, the plaintiffs as heirs and legal representatives of the lessor were entitled to possession of the leasehold premises. So, unless the heirs of the lessee can establish under what right they are entitled to remain in possession of the leasehold premises, the plaintiffs must get a decree for possession. Therefore, the short point is under what right the heirs of the lessee are claiming that they are entitled to remain in possession.

23. In their written statement In the suit the appellants stated that the defendants held over as monthly tenants of the suit premises, Thus, according to the appellants there was tenancy by holding over after expiry of the lease. The appellants are seeking to invoke Section 116 of the T. P. Act. The question is whether on the facts of this case Section 116 of the T. P. Act applies.

24. Section 116 speaks of effect of holding over. Under this section if a lea-see of a property remains in possession thereof after determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of any agreement to the contrary renewed from year to year or from month to month, according to the purpose for which the property is leased. Both Section 116 and Section 111(a) of the T, P. Act should be read together.

25. It is for the appellants to prove that (1) the lessee remained in possession after determination of the lease and (2) the lessor or his legal representatives accepted rent from them or otherwise assented to their continuing in possession. No oral evidence was given by the appellants or any of the heirs of the lessee on the points. Further the case of tenancy by holding over as provided under Section 116 of the Transfer of Property Act has not been made in the written statement of defendant No. 9 or of the Receiver. Only the defendants Nos. 2, 3 and 4 who are the appellants have made this case. Admittedly, no rent was accepted by the plaintiffs from the month of March, 1961. So the question is whether the legal representatives of the lessor otherwise assented to the defendants' continuing in possession of the property.

26. The word 'assent' means, according to Oxford Dictionary, 'to give the concurrence of one's will'. It implies an agreement to a proposal.

27. In Bhawanji Lakhamshi v. Himatlal Jamnadas, : [1972]2SCR890 Supreme Court observed with reference to Section 116 of the T. P. Act:

'The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his termwas over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.'

Thus, mere continuing in possession after determination of the term of the lease does not indicate tenancy by holding over.

28. I will now turn to the admitted facts of the case.

29. On Feb. 7, 1961, before the expiry of the lease, the plaintiffs addressed a letter to the heirs of the lessee and Shri T. Dastidar, Receiver 'to quit, vacate and deliver over quiet and vacant possession of the said premises, 104 Lower Chitpur Road on the expiry of the lease dated March 3, 1911.'

30. On Jan. 8, 1962, that is after expiry of the lease the plaintiffs addressed another letter to the Receiver and the heirs of the lessee. In this letter they referred to the letter dated Feb. 7, 1961 and stated:

'We regret to place on record that you have yet failed to deliver up possession of the above premises.'

On receipt of this letter, on Feb. 12,1962, the Receiver T. Dastidar held a meeting of the parties in Suit No. 2226 of 1964. In that meeting the solicitor for the appellants stated:

'The lease referred to in the letter is still subsisting and has not expired. The lessors are not entitled to claim possession of the property.'

The other parties who are heirs of the lessor supported the view of the solicitor for the appellants. The Receiver sent a copy of the minutes of the meeting to the plaintiffs for information.

31. What is the effect of the letter of the Receiver dated Feb. 12, 1962 to the plaintiffs? There cannot be any question of holding over in Feb. 1962, because, according to the heirs of the lessee, the lease was then subsisting. If the tenancy did not terminate, then obviously, there was no holding over. Further there could not be assent within the meaning of Section 116 of the Transfer of Property Act, because, 'assent' implies an intentional act of holding over. There could not be such intentional act of holding over by the appellants as there could not be an offer by appellants of taking new tenancy by remaining in possession of the property after expiry of the lease. The plaintiffs also did not assent. On April 1,1963, the solicitor for the plaintiffs addressed a letter to the heirs of the lessee that they were continuing to be in wrongful possession and occupation of the suit property and if they did not deliver possession of the premises legal proceedings would be instituted against them. In this view of the matter I am of opinion that the scope of the appeal is limited.

32. I shall now turn to the arguments of Mr. Jayanta Mitra on behalf of the appellants. He had first contended that on proper construction of the indenture of the lease the date of expiry of the lease is March 2, 1961. It is then contended that as the plaintiffs claimed arrears of rent from March to Dec. 1961 in the plaint, and in the solicitor's letter dated April 1, 1961 it is stated that the lease expired on the expiry of the month of November, 1961, the plaintiffs must be taken to have assented to continuance of the tenancy because at least for the month of Dec. 1961 rent has been claimed in the plaint after the expiry of the lease, it is difficult to accept this contention on behalf of the appellants. The plaintiffs as heirs of the lessor did not agree in the plaint to any proposal of the heirs of the lessee that they could continue in possession as monthly tenants after the expiry of the lease. According to the statement in the plaint, the lease expired by efflux of time in or about Dec. 1961. So, the plaintiffs claimed arrears of rent in terms of the lease from March, 1961 till Dec. 1961. The plaintiffs also claimed possession after the expiry of the lease and mesne profits from the expiry of the lease till recovery of possession.

33. In Deo Nandan Pershad v. Meghu Mahton, (1907) ILR 34 Cal 57 at p. 62 this court held:

'A mere demand for rent is not sufficient to create the relationship of landlord and tenant which is a matter of contract assented to by both parties,'

Thus, mere claim of rent does not amount to conclusive evidence of the intention of the lessor to renew or revive or continue the lease or create a new lease or tenancy by holding over.

34. The above principle of law was affirmed by a Division Bench of the High Court at Patna in Zaffar Hussain v. Mahabir Prosad, : AIR1957Pat206 :

'The mere claim of rent for the period after the expiry of the period of tenancy, after the notice to quit, will not amountto conclusive evidence of the intention of the landlord petitioner to renew, or revive or continue the old tenancy, or create a new tenancy by waiver of the notice to quit, or by holding over, as the case may be.'

Further, on the facts of this case it cannot be argued on behalf of the heirs of the lessee that they remained in possession after determination of the lease from March, 1961 and there was tenancy by holding over at least from December, 1961 as it appears from the minutes of the meeting of the Receiver held on Feb. 12, 1962 that the heirs of the lessee were of the view that the lease was then subsisting and did not expire.

35. Mr. D. K. De, the learned counsel for the plaintiffs respondents has contended before us that there cannot be any question of tenancy by holding over, because, parties were not ad idem with regard to the subject-matter of the lease. This contention of Mr. De has great force and has to be accepted as the heirs of the lessee have stated in their respective written statements that the 12 feet wide strip of land has all along been possessed and enjoyed by the defendants openly and adversely to the plaintiffs.

36. On the facts of this case the appellants have failed to prove that the plaintiffs have indicated their assent to the continuance in possession of the heirs of the lessee as monthly tenants.

37. The question, whether the lease terminated on March 2, 1961 or on Dec. 31, 1961 is relevant for the purpose of ascertaining mesne profits and not for the purpose of holding over; because, admittedly, the lease expired long before the institution of the suit.

38. Mr. Jayanta Mitra for the appellants has further argued that on the point of construction of an indenture of lease it is possible to contemplate a situation where demise is complete from the date of its execution. He has submitted that there may be a case where there is a present demise on the date of execution but the term of the lease may be effective on a future date. He has referred to a decision of this Court in Ramjoo Mahomed v. Haridas Mullick, AIR 1925 Cal 1087. In that case it was held by the learned single Judge of this Court, Page, J. that although the term of a lease is to commence at a future date or a formal document is to be executed, it does not necessarily follow that the agreement will not operate as a present demise of the premises. In that case, while considering Section 2(7) of the Registration Act, 1908, the learned Judge construed the meaning of 'present demise'.

39. Mr. Mitra also referred to Trivenibai v. Smt. Lilabai, : AIR1959SC620 where Supreme Court construed Section 2(7) of the Registration Act and in construing particular document in that case held (at p. 625):

'Generally if rent is made payable under an agreement from the date of its execution or other specified date, it may be said to create a present demise.'

He has also referred to the decision of the Punjab High Court in Karta Ram v. State of Punjab. which is a case under the Punjab Gram Panchayat Act, 1953.

40. In my view, the meaning of the word 'demise' in the above cases referred to by Mr. Mitra is not relevant for the purpose of deciding the question of holding over which arises for consideration in this appeal.

41. We are not concerned with hypothetical assumptions, but we have to decide the case on the facts admitted or proved. So, even assuming that the lease commenced on the date of execution, on the facts of this case there was no tenancy by holding over. In any event, on the question of construction of indenture of lease, I am unable to accept the contention on behalf of the appellants that the lease commenced on the date of execution of the lease. The words 'fifty years next ensuing' in the lease mean that the term will commence afterwards and not at the date of execution. The word 'ensue' means, according to Oxford Advanced Learners Dictionary 'happens later : follow, happen as a result'. The lease provides that it will have effect from the date the lessee shall be put in possession of the demised premises.

42. On the question when the lessee was put in possession, the learned trial Judge after considering the letters and correspondence between the parties (Exs. D, E and F) held:

'The lease must have commenced by the first day of January and resulted in an increase of rent at the end of every ten years in the month of January.'

He further held that the statements in Exhibits D, E and F are statements of the original lessee and should be considered as the admissions on his part. For this reason the learned trial Judge heldthat the lease in the instant case expired by Dec. 31, 1961. In my view, the above findings of the learned trial Judge are correct and I will accept the same.

43. In the letter dated Jan. 27/31, 1933 the lessee wrote to the lessor:

'I have accepted your supplementary bill for the increased rate of rent from Jan. 1932 and already paid you Rs. 40 for the first four months i.e. from Jan. to April 1932 at Rs. 10 per month.....'

This is a clear admission by the lessee with regard to increase of rent in terms of this lease.

44. So, the learned trial Judge was right in his above findings.

45. Mr. Jayanta Mitra has contended that the learned trial Judge should not have relied on the contents of the letters (Exs. D, E and F) as the same were tendered under Section 90 of the Evidence Act which raises a presumption as to signature of the writer and as to its execution, but there is no presumption as to contents of the document. In this connection, he has relied on the following dictum of R. P. Mookerjee, J. in the Bench decision of this Court in Kotiswar Mukherjee v. Paresh Nath Mukherjee, : AIR1956Cal205 :

'It has also been settled that only in such documents as bear the signature of the writer or of witnesses to the document that the presumption can arise. Account papers though more than thirty years old which do not bear on their face the signature of the writer are not admissible in evidence on the presumption available under Section 90, Evidence Act, vide Bhagirathmal Kanodia v. Bibhuti Bhusan, AIR 1942 Cal 309 and Basi Nath Pal v. Jagat Kishore, AIR 1916 Cal 176.'

The above dictum of the learned Judges is obiter (See : AIR1956Cal205 ). The dictum is based on two earlier decisions of this Court, which I think, are necessary to refer in this context.

46. In Bhagirathmal Kanodia v. Bibhuti Bhusan, AIR 1942 Cal 309, BiswasJ. was considering a document whichwas referred to as a Sanad. The Sanadwas in Persian and a Bengali translationof it was put in and the same was onthe records. It was not clear whether itwas an extract from a Collectorate register, or merely purported to be a copy ofan order for the issue of a confirmatorygrant. It did not bear the signature ofany official. The learned Judge held inthat case:

'In fact it seems to me that in the absence of any signature or of the name of any person by whom the document purports to be written, it is not possible to admit it in evidence as an ancient document under the provisions of Section 90, Evidence Act. Section 90 says that where a document purporting to be 30 years old is produced from proper custody, the Court may presume that the signature and any other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to be duly executed and attested. The presumption referred to in this section is to a limited character and applies only to the signature or handwriting. Where however, there are no names of executant, scribe or witness, I do not see how the section can avail to prove the document, merely because it happens to be more than 30 years old or is produced from custody which the Court may consider proper.'

In Basi Nath Pal v. Jagat Kishore, AIR 1916 Cal 176 at l77 it was held:

'It is well settled that Section 90 of the Indian Evidence Act does not prove the authority of the person who has made the grant, the genuineness whereof is presumed by the Court under the provisions of that section.........'

So, the dictum of the learned Judges in : AIR1956Cal205 should be confined to that case only. In the instant case, the letter (Ex. F) was written by the lessee to the lessor. The letter or document is more than thirty years old and coming from proper custody. So presumptions as to documents thirty years old under Section 90 of the Evidence Act may be raised. Under that section the signature and every other part of such document which purports to be in the handwriting of the lessee should be presumed to be in that person's handwriting and it will also be presumed that the document was duly executed. No objection as to validity of the document was specifically raised in the trial. In any event, the contents of the letter are admissions made by the lessee under Section 18 of the Evidence Act and same was proved against the representatives-in-interest of the lessee under Section 21 of the Evidence Act.

47. In K. Muneyya and Co. v. K. Varadarajulu, 0043/1964 : AIR1964AP17 itwas held that a person is bound by his statement in the document he has executed. So the lessee and his heirs or legal representatives are bound by the contents of the document.

48. In my view, the learned trial Judge was right in relying on the contents of the letters (Exs. D, E and F).

49. In the above view of the matter there is no substance in the contention of Mr. Jayanta Mitra that effect of holding over of the suit premises was that the heirs of the lessee became tenants from month to month as contemplated in Section 116 of the Transfer of Property Act.

50. The only other point is with regard to the question of adverse possession of the 12 feet wide strip of land abutting to Lower Chitpur Road now Rabindra Sarani. It is contended on behalf of the plaintiffs-respondents that this piece of land was demised under the lease and is a part of the demised premises. On behalf of the appellants it is contended that it was not demised under the lease and the lessor constructed building on it and it is not a part of the lease. It is not disputed that this piece of land is an adjoining land of the lessor and is attached to the premises.

51. I will now turn to the law applicable in a case where the lessee takes possession of adjoining land of the lessor. It is held in Subodh Gopal Bose. v. Burmah Shell Oil Storage and Distributing Co. of India Ltd, : AIR1957Cal67 :

'It is settled law that when a tenant encroaches on land outside his tenancy but belonging to his landlord he cannot acquire absolute title thereto by the adverse possession but obtain only that right of tenancy under his landlord. It is equally well settled that if a tenant encroaches on land contiguous to the land of his tenancy but belonging to other landlords, adverse possession by him by such encroachment would not give him an absolute title thereto but, only a lease-hold interest in these lands under his own Landlords.'

52. The correctness of the above principle of law is not disputed: but it is contended on behalf of the appellants that the learned Judges in that case did not give any reason but stated that the law on the point is 'well settled'. In my view, the learned Judges correctly laid down the principles of law in that case.

53. The reasons for the above principle will appear from a recent decisionof Pennycuick V. C. in Smirk v. Lyndale Developments Ltd., (1975) 1 Ch 317 at p. 321. The learned Judge in that case considered in detail the Law relating to encroachment by tenants on the land of their landlords. Although he described the law as being in something of a tangle, but in a very powerful and useful judgment he dealt with the law on the point elaborately and the same was accepted as correct by the Court of Appeal. I will shortly indicate the same here.

54. If the lessor is allowed to remain under the belief that the encroachment is a part of the lease the lessee is estopped from denying it and must render it up at the end of the term as the portion of the demise, (See Kingsmill v. Millard (1855) 11 Exe. 313). Further the lessor is entitled at the determination of the lease to recover from the lessee not only the land originally demised but also any land which the lessee may have added to it by encroachment from the waste, such encroachment being deemed to be made by him to tenant as an addition to his holding, and consequently for the benefit of his landlord, unless it is made under circumstances which show an intention to hold it for his own benefit alone, and not as part of his holding under the landlord.

55. In Whitmore v. Humphries, (1871) 7 CP 1 at p. 5, it was held:

'The rule is based upon the obligation of the tenant to protect his landlord's rights and to deliver up the subject of his tenancy in the same condition, fair wear and tear excepted, as that in which he enjoyed it.'

It was also held in that case:

'For these reasons I come to the conclusion that the meaning of the word 'encroachment' is quite apart from any question of assent or dissent on the part of the landlord, and signifies something taken in by the tenant by reason of his being tenant without anything to show that it was so taken otherwise than for the benefit of the landlord to be held as part of the demised premises, and given up accordingly at the end of the term.'

In Tabor v. Godfrey, (1896) 64 LJ QB 245 it was held:

'The tenant under a lease for years encroached upon and occupied a piece of land belonging to his landlord and ad-adjoining the demised premises for a period of more than twelve years. Thelandlord during the term brought an action for an injunction and damages for trespass......... held, that the action wouldnot lie. The tenant must be deemed to have occupied the piece of ground as part of the holding and he was entitled so to occupy it during the remainder of his lease.'

It was also held in that case:

'At the end of the lease the tenant could not have set up that the strip was his own or said that it was not part of the land included in the lease. A tenant who enters under one title cannot turn round and say he entered under another.'

In the facts of the instant case, the lessee took possession of the 12 feet strip of land under the lease. So, the above principle of law will apply and the heirs of the lessee must deliver possession of the same to the lessor or his legal representatives at the end of the term. Further, on the question of adverse possession no oral evidence has been given on behalf of the heirs of the lessee but reference has been made to the lease. So, I will turn to the lease.

56. In the first part of the lease, the 12 feet wide strip of land is included as part of the demise. The lease is a building lease and it provides that the lessee will at his own costs and expenses of not less than Rs. 15,000 within three years from the date of possession

'erect, built and completely finish a new building upon the demised land in place of the old building at present existing thereon upon the front of the said piece of land towards the Lower Chitpur Road at a distance of 12 feet from the boundary line which space had been contemplated for acquisition by the Corporation of Calcutta being the road alignment line for extension of the Lower Chitpur Road which portion is excluded from the lease.........'

57. In my view, the exclusion of the 12 feet wide strip of land in the lease was for a particular purpose, namely, for the purpose of receiving compensation for the same in case of acquisition and for the purpose that the lessee would not build any structure on it, The learned trial Judge has discussed the issues on the point and has rightly come to the conclusion that the 12 feet wide strip of land is included in the demise. Further, the learned trial Judge has also rightly held that in the instant case it is not disputed that the defendants and their predecessors-in-interest were inducted inthe said premises as tenants and as such their claim of absolute title to the disputed strip of land cannot in any event be accepted.

58. In view of the above matter, the points urged on behalf of the appellants fail. The appeal is dismissed. Interim order if any, is vacated. The judgment, decree and order of the learned trial Judge is affirmed except as hereunder.

59. Mr. S. A. Murshed, an advocate of this Court who was appointed receiver by the court of first instance is hereby discharged. The receiver is directed to hand over possession of the portions of the suit premises and all papers and documents held by him as such receiver to the plaintiffs-respondents, Nirmal Chandra Roy and Sm. Jagadishwari Dassi. The receiver is further directed to pay to the plaintiff-respondents the amounts held by him as such receiver after retaining in his hands the balance of his remuneration, and the outstanding 'costs charges and expenses, if any. In this respect, the receiver may take such steps as may be necessary to realise the funds of the estate deposited by him in banks to enable him to pay the same to the plaintiffs-respondents as early as possible. Mr. S. A. Murshed Receiver as Receiver in Suit No. 60 of 1965 is hereby directed to encash the fixed deposit receipts which have not matured for the purpose of payment in terms of the order. The receiver is also directed to file his outstanding statement of accounts within a fortnight after the long vacation.

60. The appointment of Mr. Murshed as Referee to enquire into mesne profits on the basis indicated in the judgment and order of the learned trial Judge is confirmed. Mr. Murshed is directed to enquire and report as to mesne profits following Order XX, Rule 12 of the Civil P. C. during the period from Jan. 1, 1962 until date of this decree and also for a further period from the date of this decree not exceeding three years until recovery of possession from the heirs of the lessee. (See Raja Bhup Indar Bahadur Singh and Bijai Bahadur Singh (1900) 27 Ind App 209 (PC).) His remuneration for acting as such). Referee is settled at 7 Gms. for each sitting of two hours.

61. Mr. Murshed will submit his report of such enquiry to the court of first instance within six months from this date, or within such further time as maybe extended by the court of first instance. The remuneration of the Special Referee and the cost of reference must be paid by the appellants. Cost of the appeal must also be paid by the appellants to the plaintiffs-respondents.

62. Certified for two counsel.

63. All parties including Mr. Murshed as Receiver and Special Referee and the State Bank of India, Calcutta Main Branch to act on a signed copy of the minutes.

Ramendra Mohan Datta, J.

64. I agree.


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