Case: Ramdas Bansal (D) Thr. Lr Vs. Kharag Singh Baid

premises No. 91, Mahatma Gandhi Road and premises No.6, Sambhu Chatterjee Street, Calcutta, together comprised lands on a portion whereof a building was erected and now known theOut of the said two plots, premises Nos.91-A, Mahatma Gandhi Road and premises No.6A, Sambhu Chatterjee Street were carved out. Out of the said lands, one Atal Coomar Sen was the owner of lands measuring 3 Cottahs 3 Chittacks and 30 Sq. feet, situated at 91-A, Mahatma Gandhi Road, Calcutta, which was leased to one Gunput Rai Bagla and Radha Kissen Bagla with the right to construct a building thereupon, for a period of twenty years commencing from 1st April, 1905. Pursuant to the right granted in the lease, the Baglas constructed a building on the demised premises. On 3rd March, 1908, a registered Agreement was entered into between Atal Coomar Sen, Gunput Rai Bagla and Radha Kissen Bagla and one Cowasji Pallenjee Khatow, whereby the Baglas surrendered their rights for the unexpired period of the lease with regard to the land to Atal Coomar Sen, while the structure standing on the land was sold to Cowasji Pallenjee Khatow. Atal Coomar Sen granted a fresh lease of the land to Cowasji Pallenjee Khatow for 42 years from 1st April, 1908. Atal Coomar Sen died on 5th November, 1927, leaving behind his son Achal Coomar Sen, who sold the said land to Aditendra Nath Mitter, Anitendra Nath Mitter, Ajitendra Nath Mitter, Ashitendra Nath Mitter and Abanitendra Nath Mitter, on 12th May, 1939. On 17th June, 1943, M/s. Moolji Sicka & Company, which had succeeded to the interest of Cowasji Pallenjee Khatow, by a registered Agreement assigned the unexpired portion of the Lease Deed to Chagganlal Baid and Parashmal Kankaria. On 6th October, 1945, Parashmal Kankaria assigned his share in the property in favour of Chagganlal Baid.3. On 21st Decembr, 1947, the Mitters filed Suit No.22 of 1948 in the Calcutta High Court against Chagganlal Baid and Parashmal Kankaria for their ejectment from the suit premises. During the pendency of the said suit, on 15th January, 1958, Chagganlal Baid executed six Deeds of Settlement in favour of his six sons in regard to the said property. On 19th September, 1972, Kharag Singh Baid and Barhman Baid as Trustees in the Deed of Settlement dated 15th January, 1958, granted a lease in favour of one Ramdas Bansal for a period of twenty one years commencing from 1st November, 1972, in respect of :a) House and building standing on 1 bigha 3 cottahs 14 chittacks and 30 sq. feet of land comprising premises No.91, Mahatma Gandhi Road, Calcutta (being the freehold portion) andb) House and building standing on 3 cottahs 30 sq. feet of land comprised in 91-A, Mahatma Gandhi Road.4. The said transactions prompted the Mitters to file Suit No.441 of 1973 in the Calcutta High Court against Chagganlal Baid for recovery of possession of the said property. The Respondents herein, in their turn, filed C.S. No.102 of 1994, against the Appellant, Ramdas Bansal, praying for rectification of the misdescription of the property in the Deed of Lease dated 19th September, 1972 and for recovery of possession of the lands inAppellant also filed certain additional grounds in support of his claim that he was a Thika tenant in the premises. It was also mentioned that in view of the option clause in the Lease Deed dated 19th September, 1972, the provisions of the proviso to Section 3(2) of the West Bengal Premises Tenancy Act, 1956, would not be attracted to the facts of the case. The appeal was dismissed by the High Court by its order dated 16th July, 2007, giving rise to the Special Leave Petition and the Appeal arising therefrom.

Reasoning: 27. The said question has been dealt with in detail both by the learned Single Judge, as well as the Division Bench of the High Court, and both the Courts had held that the said issue was not of much consequence, since, as is evident from paragraph 2 of the Written Statement, the Appellant herein was fully aware at the time of granting of the lease that the demised premises consisted of a building constructed on the premises which consisted of both premises No.91-A, Mahatma Gandhi Road, as well as 6-A, Sambhu Chatterjee Street, and that the said two premises were inseparable. Both the Courts, accordingly, rejected the plea of the Appellant that the suit was not maintainable as the description of the suit property did not tally with the description of the property in the lease deed. Consequently, both the Courts allowed the prayer of the Respondent/Plaintiff to rectify the schedule of the lease deed to correct the mis- description of the suit property therein, as there was no doubt as to the identity of the suit property on which Grace Cinema Hall was situate, and the building erected on the two plots was inseparable.28. In the facts of the case, we see no reason to interfere with the decision of the High Court in this regard.29. The point relating to a portion of the demised premises being a Thika Tenancy and thus covered by the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, was raised before the Division Bench of the High Court, which, however, negated such contention upon holding that the Respondents were not Thika Tenants since the building had been constructed on the land in question before the Calcutta Thika Tenancy Act, 1949, came into operation. Placing reliance on the doctrine of separation of possession from ownership, the Division Bench further held that the Appellant had failed to establish that the Respondents or their predecessors-in-interest were Thika Tenants of the suit property. The Division Bench also held that even after execution of the lease deed in favour of the Respondents, the lessor remained the owner of the property, whereas the Respondents father merely got the right to enjoyment of the property and could not, therefore, be said to be the Thika Tenant within the meaning of the definition given in the subsequent legislations. On such reasoning, the Division Bench rejected the application filed on behalf of the Appellant under Order XLI Rule 27 CPC to bring on record subsequent facts to prove his status as a tenant of a portion of the structure in relation to which the Appellant had acquired the status of a Bharatia after the acquisition of Thika Tenancies under the 1981 Act.30. The law relating to Thika Tenancies in relation to Calcutta and Howrah, as it existed prior to the Acquisition Act of 1981, was the Calcutta Thika Tenancy Act, 1949, which excluded leases of land exceeding 12 years duration. The instant lease being one for 20 years, the same stood excluded from the operation of the 1949 Act, when it was executed. In any event, having been granted a lease for a period of twenty one years in respect of the building standing on the suit premises, comprising premises No.91-A, Mahatma Gandhi Road and 6-A, Sambhu Chatterjee Street, Kolkata, in which the Grace Cinema was located, the Appellant could never claim to be a Thika Tenant in respect of the suit premises as defined either under the Calcutta Thika Tenancy Act, the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, as well as The West Bengal (Acquisition and Regulation) Act, 2001.31. As has been indicated hereinbefore, aer the Calcutta Thika Tenancy Act, 1949, was defined to mean any person who, inter alia, held, whether under a written lease or otherwise, land under 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 successors-in-interest of such person, except for the exceptions indicated in Sub-Section (5) of Section 2 of the said Act. As also indicated hereinbefore, the aforesaid Act stood repealed by the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, which provided for the acquisition of interest of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies and other lands in Kolkata and Howrah for development and equitable utilization of such lands. In the said Act, aas been defined to mean any person who occupies, whether under a written lease or otherwise land under another person and is or but for a special contract liable to pay rent, at a monthly or periodical rate, for the land to the said person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person. What is significant in the definition of Thika Tenant under the 1981 Act is the persons who had been excluded from the definition in the 1949 Act, were also brought within the ambit of the 1981 Act. Consequently, certain lands which were earlier excluded from the definition of, were now brought within its ambit.32. The circumstances were further altered with the enactment of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001, to provide for the acquisition of interests of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies in Kolkata and Howrah and other Municipalities of West Bengal for development and equitable utilization of such lands with a view to sub-serve the common good. It is clear that the main object of the 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands.33. The Appellant does not come within the ambit of any of the definitions under the aforesaid three Acts having been granted a lease of the structures which had already been erected on the lands long before the coming into operation of either the 1949 Act or the 1981 Act or even the 2001 Act. Consequently, the provisions of the West Bengal Premises Tenancy Act, 1956, will not also be applicable to the Appellant, whose lease stood excluded from the operation of the aforesaid Act under Section 3 thereof. Consequently, the Appellants application under Order XLI Rule 27 CPC was quite rightly rejected by the High Court.