Braja Kanta Guha, J.
1. This appeal by the defendant arises out of a suit for ejectment and for recovery of damages. The appeal is being contested by the substituted respondents who purchased the disputed property during the pendency of the appeal in this Court.
The original suit was filed before the Munsif, 3rd Court, Alipore on 23-2-48. The suit was decreed on contest on 28-5-51 and the defendant was directed to vacate the suit land within 90 days. Mesne profits were also decreed in favour of the plaintiffs. There was an appeal by the defendant before the District Judge and this appeal was heard by a Subordinate Judge, Alipore who dismissed the same on 21-4-52. Thereupon the present appeal was preferred by the defendant before this Court on 16-5-52.
2. The plaintiffs' case is briefly that the defendant is a thika monthly tenant whose tenancy has been determined by notice. The notice was purported to have been served on 2-1-48 requiring the defendant to vacate the premises on the expiry of the same month. The defence inter alia was that the defendant had constructed substantial structures on the land, that the notice was illegal and insufficient and that the plaintiffs had granted a 20 years' lease in respect of the land in question.
According to the defendant there was a registered agreement for a lease executed with the knowledge and consent of the plaintiffs. The defendant further set up a plea under Section 53-A, Transfer of Property Act. The defence contentions were, however, negatived by both the Courts below and the suit decreed in favour of the plaintiffs. The suit which hart been filed, as stated before, on 23-2-48 before the Thika Tenancy Act, 1949 or, for the matter of that, Ordinance 11 of 1948 came into operation, was tried by the learned Munsif according to the ordinary provisions of law and not under the provisions of the Thika Tenancy Act.
3. On behalf of the defendant appellant Mr. Banerjee contends that by reason of the enactment of the Calcutta Thika Tenancy (Amendment) Act, 1953 which came into force on 14-3-53 during the pendency of this appeal the defendant is entitled to the benefit of the provisions of that Act. His contention is that even according to the admissions of the plaintiffs as contained in the plaint the defendant is clearly a thika tenant according to the present definition of the term under the Thika Tenancy (Amendment) Act, 1953.
That this is so, that the defendant is a thika tenant according to the present definition is clear enough and it was also the case of the plaintiffs in the plaint that the defendant was a thika tenant. Mr. Banerjee has not challenged the findings of the Courts below regarding the other aspects of the case. He has contended, however, that the defendant appellant is entitled to the benefit of the Thika Tenancy Act as amended and the argument before me relates only to ground No. 7 of the Memorandum of Appeal. That ground runs as follows:
'For that it should have been alternatively held that the defendant was a Thika tenant and the suit as framed was not maintainable and the notice was bad.'
4. Mr. Banerjee contends that the result of the combined operation of Section 8 and the proviso to Sub-section (2) of Section 1, Thika Tenancy (Amendment) Act, 1953 is that the present Act is to be governed by Section 5 of the Original Thika Tenancy Act, 1949 (as amended by Act 6 of 1953) and therefore as the case was not filed before the Thika Controller but before the Munsif the latter had no jurisdiction to try it and all that he could do was to return the plaint to the filing pleader for presentation to the Controller.
5. The next contention of Mr. Banerjee is that even if the learned Munsif had jurisdiction to try the suit he should have dismissed it because of non-compliance with Section 3 (4) of the 1949 Act as amended, first because the plaint simply averred that the landlord wanted khas possession of the land, that the landlord did not state specifically in the plaint that the land was required by the landlord for his own occupation or for the purpose of building on the land or otherwise developing the land by discontinuing letting of the land to Thika tenants; nor was it stated that it was proposed to discontinue letting of the land to thika tenants.
In other words, Mr. Banerjee's contention regarding this aspect of the case is that the requirement for khas possession is not identical with requirement 'for his own occupation' and, moreover, even if requirement for khas possession is held to be identical with requirement 'for his own occupation' there must be averment and proof that the landlord contemplated discontinuing letting to thika tenants. Mr. Banerjee's contention is that the phrase 'discontinuing letting to thika tenant' qualifies not only the phrase 'otherwise developing the land' but also the other clauses of Sub-clause (iv) i.e., the landlord has to prove that the land is required by the landlord for his own occupation by discontinuing letting to thika tenants and so on.
6. The second branch of Mr. Banerjee's argument is that the suit was in any case liable to dismissal because Section 4 (b) which requires at least three months' notice was not complied with in the present case.
7. As regards the first contention of Mr. Banerjee to the effect that by reason of Section 5 the Munsif had no jurisdiction to try the suit Mr. Biswas for the substituted respondents contends first that the defendant is estopped from contending that the present suit is governed by Section 5 or for the matter of that by any provision of the Thika Tenancy Act. His second contention is that even if it be held that the defendant is not estopped neither Section 5, Thika Tenancy Act nor any other provision of that Act is applicable to a suit like the present one which was instituted before 28-2-49 when the 1949 Act came into operation, but such a suit is to be tried by the ordinary Court under the provisions of the ordinary law.
8. I propose to deal with the first contention of Mr. Biswas regarding the point of estoppel. The point arises in this way. As has been mentioned before the present suit was instituted on 23-2-48 that is, even before the promulgation of the West Bengal Ordinance 11 of 1948 which was followed by the Calcutta Thika Tenancy Act (West Bengal Act 2 of 1949). The suit was pending at the time when the Calcutta Thika Tenancy Act of 1949 came into existence. Thereupon the plaintiff filed a petition praying for permission to amend the plaint in order to bring it in conformity with the provisions of Section 3, Calcutta Thika Tenancy Act, 1949. This petition was filed on 9-4-1949. This prayer for amendment was, however, vigorously opposed by the defendant who stated inter alia in his objection petition dated 27.5.50 that the property in suit could not come under the purview of the Thika Tenancy Act, 1949 and as such the amendment sought to be introduced by the plaintiff was not permissible. The question came up for hearing before the learned Munsif who disposed of the matter by his order dated 3.6.50. The relevant portion of the order may be quoted:
'The learned Advocate for the defence contends that the case does not come within the purview of the Calcutta Thika Tenancy Act, 1949. The learned Advocate for the plaintiff petitioner takes the defendant opposite party at his word and submits that he would not press for the prayer for amendment.
On a perusal of the pleadings it is apparent that the case does not come under the Calcutta Thika Tenancy Act. It is also the common case of the parties that the suit should be tried under the general law and not under the Calcutta Thika Tenancy Act, 1949. The order of transferring the suit to the file of the Controller is obviously mistaken and should be vacated. Hence , by exercise of inherent jurisdiction I correct the mistake and order that the suit be withdrawn from the file of the Controller and restored to the original file and number. The prayer for amendment is rejected as not pressed.'
9. It may be mentioned incidentally that the suit had been transferred by the learned Munsif to the file of the Controller lay his order dated 23.12.49 in view of the passing of the Calcutta Thika Tenancy Act. The circumstances set forth above provide the foundation for Mr. Biswas' argument that the defendant is estopped from contending now that he is entitled to the benefit of the Thika Tenancy Act. In my opinion this contention based on the ground of estoppel cannot be upheld and for the following reasons. There is the general principle about no estoppel against statute.
Secondly, at the time when the defendant was resisting the plaintiffs' prayer for amendment of the plaint the law as regards what exactly was meant by a Thika tenant was, according to the interpretation of the same by this Court, different from what it is now according to the present amendment of the Thika Tenancy Act. Moreover, the specific case of the defendant at the time was that he had a lease for 20 years in his favour and as such he was not a thika tenant. Furthermore, his contention at the time was that the case does not come within the purview of the Calcutta Thika Tenancy Act 1949, that is, the Thika Tenancy Act as it then stood. He did not commit himself then to the position that he could not be a thika tenant if the law were altered subsequently.
Under these circumstances I am of opinion that the doctrine of estoppel cannot operate against the defendant appellant and preclude him from contending now at the time of this appeal that he is entitled in spite of what had happened before to take up the position that he is a thika tenant under the present law and as such entitled to the benefits conferred upon such tenants by that law as it stands now.
10. This brings me to the second contention of Mr. Biswas that neither Section 5, Thika Tenancy Act as amended nor any other provision of that Act is applicable to a suit like the present one which was instituted prior to 28.2.49 when the original Thika Tenancy Act, namely, Act 2 of 1949 came into existence, but such a suit is to be tried by the ordinary Civil Court under the provisions of the ordinary law. A plain reading of Section 5 would seem to negative Mr. Biswas' contention that it is applicable only to suits instituted after 28.2.49. Section 5 as it stands now after amendment does not say in terms that it is to apply only to suits instituted after that date. On the contrary, the section is couched in general terms making it applicable to all cases when a landlord wishes to eject a tenant, but then Mr. Biswas argues--what was then the necessity of a provision like Section 29 in the original Act?
Mr. Biswas contends further that the very fact that a section like 29 providing for the application of the 1949 Act to a pending suit was enacted shows that it, was not the intention of the Legislature that Section 5 'per se' would be applicable to pending suits. Pursuing this line of argument to its logical conclusion Mr. Biswas contends that now that Sections 28 and 29 have been omitted from the 1949 Act (vide Section 8 of the Calcutta Thika Tenancy (Amendment) Act, 1953) Section 5 as it stands now can only mean that it is not applicable to a suit like the present one instituted prior to 28.2.49 with the result that the ordinary civil court is the proper forum for the trial of such a suit.
11. I am unable, however, to assent to this construction of Section 5. By reason of the proviso to Section 1(2) of the Amending Act, e.g. Act 6 of 1953 it is to be held that on 28.2.49 (when the 1949 Act came into force) the Thika Tenancy Act stood without Sections 28 and 29 of the 1949 Act. In other words, on that date the law was that a landlord wanting to eject a thika tenant was to apply to the Controller.
The question was what was to happen to suits like the present one which had been instituted prior to that date. Under the 1949 Act there was special provision for such suits contained in Sections 28 and 29. Those provisions have, however, been deleted by the Amending Act. Such suits, if pending, cannot be transferred to the Controller under Section 29, nor if already decreed before 28.2.49 can the decree be rescinded or varied under Section 28.
Was it then the intention of the Legislature that in such cases a thika tenant would be deprived of the various substantial benefits, as for instance, compensation for structures (vide Section 4 proviso II) which have been conferred upon him by the 1949 Act? In my opinion such could not be the intention of the Legislature. I am constrained, therefore, to hold that a thika tenant of such nature is also entitled to the benefits of the Act even in cases where a suit for ejectment had been instituted against him before the 1949 Act came into existence but which was pending before the Act came into force. Had it not been the intention of the legislature it would have spoken in clearer accents in the Amending Act.
I uphoZd, therefore, Mr. Banerjee's argumentthat the learned Munsif had no jurisdiction totry the suit by reason of Section 5 (as amended) of theAct. The nett result of Section 1(2) proviso and Section 8of the Amending Act in so far as its effect onS. 5 is concerned is that the decree passed againstthe defendant has to be vacated as being passedby a Court without jurisdiction. The decree passed by the lower Court must, therefore, be vacated and the learned Munsif will have to return theplaint for refiling it before the Controller. Thiswould appear to be an unfortunate result involvingwaste of labour, time and money, but this, it seemsto me, is the logical result of an ill-drafted pieceof legislation.
12. It remains for me now to dispose of another argument of Mr. Biswas. The appeal in the lower appellate court was decided on 21.4.52 and the present appeal was filed in this Court on 16.5.52. Mr. Biswas has contended that though it was open to the defendant to take advantage of the provisions of Section 5(2) of the Calcutta Thika Tenancy (Amendment) Ordinance of 1952 which gave him time to apply before the Court within three months of the commencement of that ordinance--that Ordinance, it may be noted, came into operation with effect from 21.10.52--the defendant did not avail himself of that provision and is, therefore, precluded from claiming benefit in the present Act.
I am inclined, however, to agree with Mr. Banerjee that simply because the defendant appellant did not choose to avail himself of that remedy by way of Section 5(2), Calcutta Thika Tenancy (Amendment) Ordinance 1952 he is not shut out from claiming the benefit of the subsequent Calcutta Thika Tenancy (Amendment) Act, 1953. I do not find any provision anywhere which deprives the defendant of claiming the benefit of the present Amending Act. This contention of Mr. Biswas, therefore, must accordingly be negatived.
13. As regards the other points canvassed before me by Mr. Banerjee it is not necessary for me to express any opinion at this stage and as such I refrain from doing so.
14. I may mention that another point which has been urged before me by Mr. Banerjee is that as the substituted respondents acquired the interests of the plaintiffs during the pendency of this appeal in this Court they are not entitled to claim mesne profits for the period prior to their purchase unless and until they prove that they have such a right according to the terms of their conveyance. It is not necessary for me to express any opinion on this point either apart from mentioning this contention.
15. The result, therefore, is that the appeal is allowed, the judgments and decrees of the lower courts are set aside and the plaint is directed to be returned for refiling it before the Controller.
16. In the circumstances, there will be no order as to costs in this appeal.
17. Leave to appeal under Clause 15, Letters Patent is prayed for and is granted.