P.B. Mukharji, J.
1. This is a suit by the plaintiffs for the recovery of a vacant plot of land being the northern portion of premises No. 235/1, Bowbazar Street, Calcutta, more particularly described in the schedule to the plaint. According to the plaintiffs, the defendant was a tenant in respect of the said plot of land for a term of 15 years ending on 30th June 1947 at a rent of Rs. 20 per mouth. By a letter dated 25th April 1947, the plaintiffs called upon the defendant to give vacant possession on the expiry of the month of June 1947. It is also alleged in the plaint that a sum of Rs. 60 was due and payable by the defendant on account of rent for three months from April to June 1947.
2. The defendant filed his written statement and he took a number of points in defence. Mr. Gouri Mitter who appeared for the defendant has abandoned all these points taken in the written statement and has argued only one point before me and that is a point arising under the Calcutta Thika Tenancy Act, 1949, to which I will refer later or in the judgment.
3. On behalf of the defendant he has admitted the lease dated 1st July 1932, between the plaintiffs and the defendant and the letter, dated 25th April 1947. These two documents are to be found in the admitted brief of correspondence which has been marked by consent as Ex. A in this suit. For purposes of this suit Mr. Gouri Mitter for the defendant has admitted the facts stated in the plaint.
4. Mr. Mitter contends that the defendant comes within the scope of the Calcutta Thika Tenancy Act, 1949 and this Court has no jurisdiction to determine this suit having regard to Section 29 of that Act. He relies on Section 2 (5) of the Act which defines thika tenant in the following terms:
'Thika tenant' means any person who under the system commonly known as ''Thika', 'Thika masik uttandi,' 'Thika masik', 'Thika bastu' or under any other like system holds, whether under a written lease or otherwise, or has been recorded in any record- of-rights as holding, under the title ''dakhal basalkar' or other like appellation, 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 such other person and has erected any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person.
5. Mr. Mitter's argument is based on the two expressions 'or under any other like system' and 'whether under a written lease or otherwise'. It is not his contention that the defendant is a thika tenant in the sense that he could be called as 'thika' or 'thika masik utbandi' or 'thika masik' or 'thika bastu' what he contends is this that having held over after the expiry of the lease which I have mentioned, the defendant should be treated as holding the land within the meaning of the expression 'under any other like system.' He further points out that the fact of there having been a written lease does not alter the situation because of the words 'whether under a written lease or otherwise.'
6. Mr. Mitter contends that so far as the definition of 'thika tenant' is concerned the Ordinance and the Act are more or less in similar terms, and that his construction of the definition section should be accepted.
7. I cannot accept his construction of Section 2 (5), Calcutta Thika Tenancy Act, 1949 or Section 2, Calcutta Thika Tenancy Ordinance 1948. It seems to me that a tenant can only be called a thika tenant under any particular system. It may be the system which has the well, known names mentioned in the statute, namely, 'thika', 'thika masik utbandi', 'thika masik' or 'thika bastu.' It may also be a similar system. But the fact of having a system under which a tenant holds has to be established. Mr. Mitter has frankly conceded that he has no evidence on the point. In the absence of evidence, I am not prepared to hold that as a matter of fact the defendant is a tenant under any system which can be called the system of a thika tenant. Mr. Mitter contends that it should follow as a matter of legal construction and interpretation of Calcutta Thika Tenancy Act or ordinance and the definition as provided under Section 2 (5), of that Act or Section 2 of the ordinance. In my judgment, it is not a matter of legal interpretation or construction, but is a question of fact in every case to be decided on the materials available in such case. But it is essential in my view for any defendant to prove and establish the system referred to in Section 2 of the ordinance or Section 2 (5) of the Act before he can be called a thika tenant under the Ordinance or the Act. It is a matter of proof and evidence in every case.
8. In this particular suit the fact is that there was a lease, dated 1st July 1932. That lease was of the northern portion of the plot of land situated at premises no. 235/1, Bowbazar Street, Calcutta. It is not in evidence that the system mentioned in Section 2 of the ordinance or Section 2 (5) of the Act prevails in the Bowbazar Street locality of the town of Calcutta, Then it was a lease for at first a fixed period of 10 years with option thereafter on the part of the lessee to extend the lease for a further period of 6 years. It gave leave to the lessee to construct and erect any structure on the land and under the terms of the lease the lessee was obliged to remove the structures so erected before the expiry of the period mentioned in the lease. Analysing the different clauses in the alleged lease I do not consider that the present defendant can be called a thika tenant within the meaning of the Calcutta Thika Tenancy Ordinance, 1948 or the Calcutta Thika Tenancy Act, 1949.
9. Mr. Mitter has referred me to two decisions. One is a decision of Rishikesh Law v. Satishchandra A. I. R (9) 1922 Cal. 123: (64 I. C. 774). That was a decision under the Bengal Tenancy Act. It was concerned with the interpretation of a Uriya document where the words 'thika mokrar' were used and the nature of the land could be gathered from the fact that the tenant had to pay at so may annas per bigha for jalkar rent. There the learned Judges held that the word 'thika' was used to indicate the creation of a tenancy and the word 'mokrar' written in Uriya was in reality intended to mean mokrari indicating that the rent was fixed in perpetuity. I do not think that these considerations are germane to the construction now put before me. There are many kinds of tenures described in the Bengal Tenancy Act and current in different parts of the province.
10. The other decision to which my attention has been drawn by Mr. Mitter is Manmotha Nath v. Anath Bandu. 23 C. W. N. 201: (A. I. R. (6) 1919 Cal. 482) Mr. Mitter has referred me to p. 213 of that report. That again was a case under the Bengal Tenancy Act and it is not concerned with the question of construction that I have before me in this suit.
11. In that view of the matter I hold that there is nothing in this case to suggest or to show that the defendant is a thika tenant within the meaning of the Calcutta Thika Tenancy Ordinance, 1948 or the Calcutta Thika Tenancy Act, 1949.
12. There will accordingly be judgment for the plaintiff in terms of prayers 1, 2, 3 and 5 of the plaint. The mesne profits would be at the rate of Rs. 2 per day until delivery of possession.
13. Mr. Mitter on behalf of the defendant has asked for some time to vacate on the very good ground that his client has got structures on the land which he had built. I think he is entitled to have some time. Mr. Mitter asks for six months' time which I do not consider to be long having regard to the fact that he has been there for the last 15 years. The execution of this order for vacating possession will be stayed for six mouths within which time the defendant must vacate. This indulgence of time for six months is given to the defendant on the defendant's undertaking not to prefer an appeal from this judgment.