TMI Blog1989 (4) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... Russa Road, now known as 34/A Shyama Prasad Mukherjee Road, Calcutta, by a registered lease deed dated 26th September, 1946, hereinafter referred to as 'the lease', at the first instance for a period of 10 years from 1st April, 1946 but if the lessee did not fail to pay the rent to the lessor and rates and taxes to the municipality during .that period, the lease would be extended for a further period of 5 years i.e. upto 31st March, 1961 at the rent of ₹ 250 in place of ₹ 200 per month; and if he continued to do like- wise, it would be extended for a further period of 5 years, that is, upto 31st March, 1966, at a monthly rent of ₹ 300 in place of ₹ 250; and if he continued to do likewise, during the period of 20 years, he would be entitled to obtain extension for a further maximum period of one year at a rent of ₹ 500 per month in place of ₹ 300 per month. The instant appellants are stated to have exercised their option of extension at the expiry of 10 years for a period of 5 years i.e. from 1st April, 1956 to 31st March, 1961 on increased rental of ₹ 250 per month and then for the second term of 5 years from 1st April, 1961 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case such a status was not available. The Second Appeal being S.A.T. 87 of 1981 having also been summarily dismissed by the High Court by the impugned order, the appellants have preferred this Appeal by special leave. Mr. D.K. Sen, the learned counsel for the appellants submits, inter alia, that there could be no controversy about the appellants' status of thika tenants in view of the fact that the lease was at the first instance for 10 years only and its first and subsequent extensions were contingent on the appellants' regular payment of rents, rates and taxes and enhancement of rent; that contingency did not happen as they did not pay any enhanced rent, but simply were holding over; that the second respondent who is the predecessor in interest of the first respondent, admitted the Thika Tenants status of the appellants in the earlier proceedings before the Controller and were therefore estopped from questioning that status; and that the learned Courts below erred in ignoring these vital pieces of evidence. Mr. Shankar Ghosh the learned counsel for the respond- ents refuting submits that the lease having clearly been for a period of 20 years, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of this deed or does not comply with his duties within 7 days in spite of service of warning notice or does not refrain from doing improper act, or if he is declared insolvent then in spite of the tenure of this lease having not expired, this lease, that is the tenancy of the second party Lessee will be cancelled or extinguished and the first party Lessor will be entitled to take khas possession of the said property. No plea or objection of the second party Lessee will be entertained. 11. The tenure of this lease will be for a period of ten years firstly from the 1st April, 1946 A.D. But if the second party Lessee, performs acts regularly according to provisions within this stipulated period and pays fixed rent to the first party Lessor regularly and pays rates and taxes to the Municipality and does not default in doing his duties, then the period will be extended under all the aforesaid terms for a further period of five years, i.e. upto the 31st March, 196 1, by fixing the monthly rent of ₹ 250 two hundred fifty rupees in place of ₹ 200 two hundred rupees and the second party Lessee shall be bound absolutely by the aforesaid provisions in paragraphs 1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period and if the second party Lessee, accepts such extended period, shall pay the entire dues of the first party Lessor within the last mentioned extended period upto the expiry of the said last extended period and upon that, by demolishing the houses etc. constructed on the Demised land will remove and replace the same. The first party Lessor shall not have any objection to the same nor the same shall be tenable-and shall give khas possession on the Demised Land to the first party Lessor, and in that event the first party Lessor shall be bound to give up his claim and contention on the houses etc. of the said second party Lessee and shall only take possession of the demised land that is, in such circumstances the houses etc. constructed by the second party Lessee to be a portion of the demised land. But if for any reason the second party Lessee, within the extended stipulated period does not give khas possession to the first party Lessor on the Demised land according to the aforesaid manner, or if he neglects to do so or is unable then the first party Lessor shall not be bound to give up his claim in respect of the houses etc. constructed by the said second party Lessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session of the said land to the second party Lessee, the second party Lessee hereby admit and promise that, Particulars and four boundaries of the property in Schedule Ka are given as: In the District of 24 Parganas, within the Police Station Bhowanipore, in Mouza Bhowani- pore Village, within the jurisdiction of the Sub-Registry Alipore, in Government Khas Mahal, in Division 6, Sub Division E (E) within the surplus land of scheme No. 4 of the Calcutta Improvement Trust, a portion of the plot No. 62 of the said scheme, the rent free land measuring more or less 0-6-5-30 six kathas, five chittaks, thirty square feet together with foundation of the wall together with all fittings and fixtures and easement and other rights etc. with all rights and entire right is the property whose current Municipal premises No. 5/2A, Russa Road and the second party Lessee have taken the said property on lease for a stipulated period of twenty years . (underlined by us) In clause 9 of the lease it would be seen how and when the rent is to be paid and when the lease would be liable to be cancelled have been stated. Clause 11 stipulates that at the first instance the period of lease was made 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in question. The question therein was whether under Section 5(1) of the Act as amended by the Amending Act of 1953 execution proceedings taken out by the decree holder against the appellant could be entertained only by the Controller and not by the civil Courts. This Court held that Section 5(1) did not apply to a case where the landlord had already obtained a decree for ejectment against his thika tenant and consequently the civil Court had jurisdiction to entertain the application. It was noted that until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act. On October 26, 1948, the Calcutta Thika Tenancy Ordinance XI of 1948 was promulgated because it was thought expedient, pending the enactment of appropriate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta. The object of the Ordinance was to give protection to the thika tenants in Calcutta and to afford them interim relief by staying execution of certain decrees and orders as mentioned in Section 3 until an appropriate Act was passed by the Legislature in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and not for a period of not less than 12 years. The High Court correctly held the lease to be for the less than 12 years. The next question is that of waiver, estoppel and res judicata. The appellants urged that there were two previous proceedings namely Misc. Execution case No. 126 of 1953 (Thika) and Misc. Judicial case No. 74 of 1958 (Thika) under the Act before the Controller. Except the implication that the proceedings having been before the Controller the respondents treated the appellants a thika tenants, no particular order finally conferring that status has been shown to us. By the order of this Court dated 10th March, 1980 in Special Leave Petition (Civil) 1363 of 1980 which was from the judgment and order dated 16.9.1979 of the High Court of Calcutta in F.A. No. 458 of 1978 the petition was dismissed without going into the question whether the Thika Tenancy Act was applicable or not. Misc. (J) case No. 74 of 1958 wherein the first respondent prayed for being added as petitioner No. 2 ended in a compromise. No status could, however, be said to have been determined. The essential element of waiver is that there must be a voluntary and intentional relinquishment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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