1. These are five appeals against five appellate decrees by tenants with respect to some suits in ejectment. The same question of law arises and therefore the same judgment will govern all the five appeals.
2. The facts are very clear. On 2-6-1947, plaintiffs Nos. 2 and 3 made a deed of gift in favour of the Calcutta Corporation by Ext. 3 of some bustee land out of the bustee sityated at No 18, Monoharpukur Road. For each plot of land then in occupation of a tenant there were joint landlords, namely, plaintiffs Nos. 1, 2 and 3. None of them was a separate landlord so far as the tenant in each of these cases is concerned of any particular separate tenancy land. The whole tenancy land was vested and possessed in the right of a landlord by three persons together, namely, plaintiffs Nos. 1, 2 and 3. These five suits in ejectment were brought by plaintiffs Nos. 1, 2 and 3 together as constituting the joint body of landlords for ejectment of these tenants. These lands have been made over to the Calcutta Corporation for the purpose of a 20 ft. wide road.
The plaint was filed on 23-3-1949. The Calcutta Thika Tenancy Act (West Bengal Act 2 of 1949) had come into operation from 28-2-1949.
The plea was taken in the trial Court in all the five suits that the tenants were protected from ejectment by the provisions of the Thika Tenancy Act. In view of the decision of the definition of 'tenant' under the Thika Tenancy Act of 1949, the trial court held, by a judgment delivered on 29-11-1949, that such protection was not to be given to these tenants, and therefore the suits were decreed in favour of the landlord. An appeal was taken against all the five decrees but the appellate court upheld all the five decrees on 9-2-1952 and dismissed all the five appeals. Out of the Second Appeals, four were filed in this Court on 26-3-1952 and one had been filed previously on 10-3-1952. It is beyond dispute that all these five appeals were pending in the second Appellate Court when the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 was passed on 21-10-1952. It is also admitted by both parties that no application under Sub-section (2) of Section 5 of that Ordinance was actually filed in the trial court in any of these five cases. I am not concerned with the application filed in the appellate court.
Then on 14-3-1953 West Bengal Act 6 of 1953, the Calcutta Thika Tenancy (Amendment) Act, 1953 came into operation. Section 1 enacts in its proviso that
'the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of Section 9, also apply and be deemed to have always applied to all suits, appeals and proceedings pending before any Court........on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952.'
It is beyond dispute, as I have said, that all these five Second Appeals were pending before the second appellate Court on 21-10-1952 when that Ordinance commenced. Therefore, subject to Section 9 of the Amendment Act of 1953, the Calcutta Thika Tenancy Act, 1949, as amended by the Act of 1953, shall be deemed to have always applied. Section 9 runs thus:
'Any proceedings commenced under Sub-section (2) of Section 5......were in force.'
3. I have pointed out that it is the admitted position in this case that no application under Sub-section (2) of Section 5 was ever made in the trial court in any of these five cases. Therefore, the restriction regarding Section 9 does not apply. It is beyond any shade of a doubt that the Calcutta Thika Tenancy Act, 1949, as amended by the Act of 1953 has got to be applied in the Second Appeal and one of the amendments which will now apply is the amendment of the definition of a thika tenant. The reasons given by both the Courts below for holding that the Calcutta Thika Tenancy Act, 1949, did not apply is now untenable in view of the change in the definition of a thika tenant. The question, therefore, will have to be decided in the light of the new definition of a thika tenant whether the protection given will apply or not.
4. My. attention has been drawn to one decision, viz. -- 'Ponnamma v. Arumogam', 1905 AC 383 (A) which unfortunately has no application because the Judicial Committee went upon the practice of that Court and not upon any question of the retrospective operation definitely and clearly given by a statute. When the statute gives retrospective operation to the definition of a thika tenant in a pending second appeal, the Court has got no right to interpret a thika tenant in any other manner. Therefore, the question whether the five appellants are thika tenants will have now to be decided under the definition of the Amendment Act of 1953 and, therefore, fresh decision by the trial court becomes now necessary and if necessary fresh evidence should be allowed.
5. My attention has been drawn to Section 301. Calcutta Thika Tenancy Act, 1949. That says that 'if any land is vested or is in the possession of a local authority', then the Thika Tenancy Act will not apply. That has got no bearing in the present case. The land in Section 30 means the land of a thika tenant because 8. 30 is in connection with Thika Tenancy and, therefore, the superior right in the present case in that land must be vested in the Corporation above, not in some other composite body of landlords of which the Calcutta Corporation only forms a part. Un-less we add the word 'wholly or partly' in the section, it cannot be applied to the present case and we are not permitted by the ordinary law to import words that are not in a statute unless there are very compelling reasons for the same. These are elementary rules and, therefore, I seer no reason to cite authorities.
6. The result, therefore, is that all the five appeals must be allowed; the decrees of the Courts below are set aside and the five suits are remanded to the trial Court for decision of the question of protection given to these tenants by the Calcutta Thika Tenancy Act, 1949 as amended by the Act of 1953, and then in the light of the decision so arrived at to act according to law.
The applications are now infructuous and call for no decision.
The appellants will get their costs in all the Courts up to this stage.
Leave under Clause 15 of the Letters Patent is asked for and is refused.