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Baneswar Pal Vs. Smt. Nirmala Jyoti - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberS.A. No. 43 of 1973
Judge
Reported inAIR1979Cal396
ActsCalcutta Thika Tenancy Act, 1949 - Section 2(5)
AppellantBaneswar Pal
RespondentSmt. Nirmala Jyoti
Appellant AdvocateSaktinath Mukherjee, Adv.
Respondent AdvocateSudhir Kumar Dutt, Adv.
DispositionAppeal allowed
Cases ReferredRoberta v. Church Commissioner
Excerpt:
- .....denies the material allegations contained in the plaint and his specific case is that he is a thika tenant and the present suit before the learned munsif is accordingly not maintainable. the tenancy in question was in existence from long before the date of execution of the registered deed of lease.the deed of lease is accordingly illegal, invalid and inoperative and the tenant is not bound by its terms.4. the learned munsif decreed the suit. the appeal preferred from the decision of the learned munsif was dismissed by the learned subordinate judge.5. the only question urged on behalf of the appellant by mr. saktinath mukherjee, the learned advocate, is that in the present case on a proper construction of the registered deed of lease (ext. 5) it will appear that the effective period.....
Judgment:

D.C. Chakravorti, J.

1. This appeal is from the judgment and decree dated July 20, 1972 passed by the learned Subordinate Judge, Third Court at Howrah affirming those passed by the learned Munsif, Third Court at Howrah.

2. The plaintiff-respondent brought a suit for eviction of the defendant-appellant and for recovery of arrear rents and mesne profits from him on the following allegations:

Nagen Pal, the father of the present appellant was a tenant in respect of the suit land under the plaintiff under a registered deed of lease for a fixed period of 14 years commencing from the month of November 1953 and terminating on the expiry of the month of October 1967. Under the terms of the aforesaid lease the lessee was to vacate the suit premises on the expiry of the aforesaid period without any notice. As the lessee did not so vacate the land the lessor by a lawyer's letter asked the lessee to vacate on the expiry of the month of November 1967. This was not complied with. The original lessee, said Nagendra Nath Pal, died leaving the present defendant as his sole heir. The plaintiff was accordingly constrained to file the present suit asking for the reliefs as aforesaid.

3. In his written statement the defendant denies the material allegations contained in the plaint and his specific case is that he is a thika tenant and the present suit before the learned Munsif is accordingly not maintainable. The tenancy in question was in existence from long before the date of execution of the registered deed of lease.

The deed of lease is accordingly illegal, invalid and inoperative and the tenant is not bound by its terms.

4. The learned Munsif decreed the suit. The appeal preferred from the decision of the learned Munsif was dismissed by the learned Subordinate Judge.

5. The only question urged on behalf of the appellant by Mr. Saktinath Mukherjee, the learned Advocate, is that in the present case on a proper construction of the registered deed of lease (Ext. 5) it will appear that the effective period of the lease in question was less than 12 years and that accordingly the lessee in this case would not come within the meaning of the provisions of Clause (b) of Sub-section (5) of Section 2 of the Calcutta Thika Tenancy Act, 1949. In substance, Mr. Mukherjee's contention is that the lessee in this case is a thika tenant as denned by Sub-section (5) of Section 2 of the said Act and that the present suit is, therefore, not maintainable. Subsection (5) of Section 2 of the said Act is as follows:

''(5) 'Thika Tenant means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the sucessors in interest of such person, but does not include a person--

(a) who holds such land under that another person in perpetuity; or

(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or

(c) who holds such land under that another person and uses or occupies such land as a khattal.'

6. It is the admitted case of the parties and it will also appear from the deed of lease (Ext. 5) that said Nagendra Nath Pal was previously a thika tenant under the plaintiff, that the said previous thika tenancy was determined by a notice, that there was a proceeding instituted before the Thika Controller for eviction of said Nagendra Nath Pal, that during the pendency of the said proceeding being Misc. Case No. 269 of 1954 a new tenancy was created in favour of said Nagendra Nath Pal by the execution of the deed of lease in question, that the subject-matter of the new lease covered not only the land which was held by said Nagendra Nath Pal under the original thika tenancy but some more lands and that the rate of rent to be paid under the new lease was also higher them that of the original thika tenancy. The said registered deed of lease was executed on February 21, 1956 but according to the terms of the deed of lease the lessee was to hold the land for fourteen years commencing from the month of November 1953 and ending with the month of October 1967. Ordinarily a lease may commence either from the date of its execution or from a date later than the date of execution. In other words, a lease may commence either simultaneously with the execution of the deed of lease or at a future date. But in cases where a lease is expressed to commence from a date anterior to the date of execution of the lease such anterior date would be material only for the purpose of computation of the period of the lease when it is one for a term of years but the interest of the lessee under the deed cannot be said to have begun from that anterior date. It will commence from the date of the execution of the deed of lease and not from the anterior date from which the lease is expressed to commence. This is so according to the comments appearing in Mulla on The Transfer of Property Act, 1882, 6th Edn. pages 645-646. In the present case, as already stated, the deed of lease was executed on February 21, 1956 but according to the terms contained in the deed of lease the lease was to commence from November 1953, i.e., from a date anterior to the date of execution. Here, therefore, for the purposes of computation of the period of fourteen years which was the term for which the lease was created one has to start from November 1953 and that being so the lease was to terminate on the expiry of the month of October 1967. But the duration for which the lease will be effective will be the period from February 21, 1956 to the end of October 1967. This view finds support from the observations made at page 54 of Hill and Redman's Law on Landlord and Tenant (15th Edn). There at page 54 the following comments appear:

'The term may commence either immediately, or from a past or future date; and although it is expressed to commence from a past day yet the actual interest of the lessee commences only on the execution of the lease and his liability is limited accordingly; thus he is not liable for matters arising before the date of execution under the covenant to repair or under a covenant not to erect buildings of less than a specified value.'

7. The principle laid down in Roberta v. Church Commissioner for England (1971) 3 All ER 703 (CA) also supports the view referred to above. In that case the question was whether the tenancy was a long tenancy as defined in Section 3 (1) of the Leasehold Reform Act, 1967. They said Section 3 (1) defines long tenancy as a tenancy granted for a term of years certain exceeding twenty-one years, whether or not the tenancy is (or may be) terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture or otherwise. There the relevant facts were as follows:

On May 15, 1950 B signed a contract for grant to him of a lease of a certain premises for a term of 101/4 years from March 25, 1950., in 1951 B enquired whether he could have a longer lease and early in June 1952 it was agreed that the lease to be granted should extend to June 1971; The lease was dated October 29, 1952 and by it the premises were demised to B for a term of 21i years from March 1950. These, applicant, B's successor as tenant under the lease, claimed a declaration that she was entitled under the Lease hold Reform Act, 1967 to acquire the freehold from the freeholders on the ground that the tenancy was for a term of years exceeding 21 years and therefore a 'long tenancy' within the meaning of said Section 3 (1). On these facts it is held that in order to fulfill the definition of long tenancy in Section 3 (1) a tenant must at some point of time be, or have been in a position to say that, subject to options to determine the rights of re-entry etc. he was entitled to remain tenant for the next 21 years whether in law or equity: although the Act did provide that successive periods of right as tenant might be added up to make 21 years in total, this was so only where the subsequent periods stemmed from a right of renewal or extension. It is further held therein that the fact that the parties by the habendum had expressed the term for a period of 211/4 years from March 25, 1950 did not have the effect that the term granted was in fact for 21i years, because the date of execution and delivery of the lease was October 29, 1952 and the tenancy granted by the lease could not take effect as such before that date.

8. Bearing in mind the principle referred to above and the terms of the deed of lease (Ext. 5) I cannot but hold that in the present case the tenancy does not come within the meaning of the exception in Clause (b) of Sub-section (5) of Section 2 of the Calcutta Thika Tenancy Act, for, here even though the tenancy was expressed to be one for a term of 14 years the tenant in this case held the land under the registered lease not for a duration of more than 12 years but for a duration of less than 12 years. The interest created in favour of the tenant should be deemed to commence on February 21, 1956 and not in November, 1953 even though in the matter of computation of the period on the expiry of which the lease win terminate by efflux of time regard shall be had to the month of November 1953 and the computation of the period of 14 years will have to be made from that date. According to the terms of the deed (Ext. 5) the lease expired on the expiry of the month of October 1967 but the tenant in this case can be said to have had his right with effect from February 21, 1956. The period from February 21, 1956 to end of October 1967 falls short of 12 years. In that view of the matter it cannot be said that the tenant was not a thika tenant in view of the provisions of Clause (b) of Sub-section (5) of Section 2 of the Calcutta Thika Tenancy Act.

9. No other question was raised in this appeal.

10. In the circumstance, the appeal ought to succeed and the judgment and decree impugned ought to be set aside.

11. The appeal is accordingly allowed and the judgments and decrees impugned are set aside. There will, however, be no order as to costs.


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