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Banshidhar Durga Das Dutta Vs. Ishan Chandra Chatterji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1929Cal407
AppellantBanshidhar Durga Das Dutta
Respondentishan Chandra Chatterji
Excerpt:
- .....the land he was to take a new settlement on the expiration of the term written in the patta which term expired on 16th january 1922, the defendant, however, did not exercise his option of taking a new settlement when this term expired nor did be exercise that option within a reasonable time because it appears that he did not offer to take a new settlement for ten long months after the lease had expired and until the action for ejectment had actually begun. the defendant not having exercised his option to take a new settlement of the land either on the expiration of the term of the lease or within a reasonable time after expiration thereof was not, in our judgment, entitled to resist the plaintiff's claim for khas possession. in that view of the matter, the appeal must be allowed with.....
Judgment:

Mallik, J.

1. This appeal arises out of a suit for ejectment on the ground of expiration of the term of a written lease. The plaintiff's claim was resisted on the allegation that in the lease under which the defendant held the land, there was a covenant for renewal on the old terms. This defence found favour with the Courts below and the Courts below dismissed the plaintiff's suit. The plaintiff has appealed to this Court.

2. The passage in the lease on the strength of which the defendant wanted to resist the plaintiff's claim runs thus:

On the expiration of the term written in this patta you will take a new settlement , but if for any reason a new settlement be not possible, you shall at your own expense remove the rooms etc. etc.

3. This clause in the document may show that if the defendant had any right to take a new settlement of the land he Was to take a new settlement on the expiration of the term written in the patta which term expired on 16th January 1922, The defendant, however, did not exercise his option of taking a new settlement when this term expired nor did be exercise that option within a reasonable time because it appears that he did not offer to take a new settlement for ten long months after the lease had expired and until the action for ejectment had actually begun. The defendant not having exercised his option to take a new settlement of the land either on the expiration of the term of the lease or within a reasonable time after expiration thereof was not, in our judgment, entitled to resist the plaintiff's claim for khas possession. In that view of the matter, the appeal must be allowed with costs.

Page, J.

4. I agree. It must not be taken, however, that we should hold, in the circumstances obtaining in this case that the clause in dispute would create an option for the defendant to renew the lease for two years or seven years or ten years or twelve years or any term. It is, however, unnecessary to construe the clause, having regard to what has fallen from my learned brother. The case will be returned to the trial Court for the issues as to the amount of mean profits and of the compensation (if any) for fixtures to be determined according to law. The defendant-respondent must vacate the-premises within three weeks from to-day subject to such further extension (if any) as may be granted in the discretion of the trial Court on application duly made to such Court within the three weeks.


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