REPORTABLE
IN THE SUPREME COURT OF
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.684 OF 2012
(Arising out of SLP(C) No.25484 of 2007)
RAMDAS BANSAL (D) … APPELLANT
Vs.
KHARAG SINGH BAID & ORS. … RESPONDENTS
J U D G E M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. From the materials on record, it appears that premises No. 91,
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
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) and
b) House and building standing on 3 cottahs 30 sq. feet of land comprised in 91-A,
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
5. It is the specific case of the Appellant in the instant appeal that the property mentioned in the First Schedule to the plaint contained in Part I and Part II is not identical to the area shown in the map annexed to the Deed of Lease. Apart from the above, several other contentions were raised in the written statement filed by the Appellant, namely,
(i) that no notice of eviction, as envisaged under Section 13(6) of the West Bengal Premises Tenancy Act, 1956, had been given before filing of the eviction suit;
(ii) the particulars given in Parts I and II of the First Schedule and the map as Annexure B to the plaint were incorrect;
(iii) the lease had never been acted upon by the parties and the same was, by necessary implication, cancelled; and
(iv) movables indicated in Annexure C to the plaint belong to the Appellant and the question of payment of damages does not, therefore, arise.
6. On
Single Judge dated
7. Nothing further transpired till the month of August, 2006, when the Appellant filed an application under Order XLI Rule 27 of the Code of Civil Procedure (‘C.P.C.’, for short), being G.A.No.2719 of 2006, in the pending appeal (APOT No.12 of 2005) to bring on record certain documents showing that a portion of the demised property was governed by the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, which meant that by operation of law the Appellant had become a “Bharatia”, of the demised structure on 6A, Sambhu Chatterjee Street, under the Respondents who were already the Thika tenants of the said land. The said application was directed to be taken up along with the Appeal. The Appellant 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
dated
8. Appearing for Shri Ramdas Bansal, the Appellant herein, Mr. Jaideep Gupta, learned Senior Advocate, submitted that the question involved in the Appeal was whether a portion of the leased property comprised a Thika Tenancy, and if so, what would be the consequence thereof, vis-à-vis the said portion for which notice under Section 106 of the Transfer of Property Act, 1882, had been given prior to filing of the suit for eviction.
9. Mr. Gupta submitted that prior to 1949, within the municipal limits of
“Section 2(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 monthly or any other periodical rate, for the 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 successors 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; and
(c) who holds such land under that another person and uses or occupies such land as a khattal.”
10. In the said Act a Bharatia was described in Sub- Section (1) of Section 2 in the following manner :-
“Section 2 –
(1) “Bharatia” means any person by whom, or on whose account rent is payable for any structure or part of a structure erected by thika tenant in his holding.”
11. Mr. Gupta submitted that the aforesaid Act dealt only with the rights and obligations of the landlord, Thika Tenant and Bharatia, in relation to each other.
12. In 1981, there were fresh developments in relation to Thika Tenancies in
“Section 3 –
(8) “thika tenant” means any person who occupies, 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 at 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 residential, manufacturing or business purpose and includes successors-in-interest for such person.”
13. As may be noticed in the definition of Thika Tenancy in the 1981 Act, clauses (a), (b) and (c) of Sub-Section (5) of Section 2 of the 1949 Act were omitted which had the effect of including the said lands described therein within the ambit of Thika Tenancies under the 1981 Act. Consequently, the definition of “Bharatia” in Sub-Section (1) of Section 3 was also amended in the 1981 Act to read as follows :-
“Section 3 –
(1) “Bharatia” means any person by whom, or on whose account, rent is payable for any structure or part thereof, owned by thika tenant or tenant of other lands in his holdings or by a landlord in a bustee or his khas land.”
14. Mr. Gupta urged that in several judgments delivered by the Calcutta High Court, it was held that prior to coming into force of the Acquisition Act of 1981, only those tenancies where Kutcha structures had been erected by the Thika Tenant would be considered to be a Thika Tenancy. Learned counsel submitted that this proposition had never been decided by this Court despite the fact that the State of West Bengal had preferred an appeal in the case of Lakshmimoni Das Vs. State of West Bengal [AIR 1987 Cal 326]. The Appeal was not, however, pursued by the State of
Gupta submitted that it is a well-settled principle of interpretation that when the meaning of a provision in a Statute is clear from a plain reading thereof, no other interpretation ought to be given to the same. Mr. Gupta pointed out that in the context of this very Act, this Court in Gnan Ranjan Sengupta Vs. Arun Kumar Bose [(1975) 2 SCC 526] had observed that since the legislation is a beneficial legislation, nothing must be read into such definition that is not expressly made a part thereof.
15. Mr. Gupta further submitted that the interpretation which had been put by the High Court on the definition of Thika Tenancy must be held to have been impliedly set aside, since the law itself had been amended with retrospective effect from
16. Mr. Gupta submitted that on account of the change in the legal equations after the enactment of the 1981 Vesting Act, a portion of the suit premises had definitely vested, insofar as the interest of the landlord was concerned, in the State of West Bengal with effect from 8th February, 1982 and M/s Kharag Singh Baid & others, therefore, became tenants directly under the State of West Bengal, subject to the provisions of the Vesting Act, and Ramdas Bansal became a Bharatia under them within the meaning of the said Act. Mr. Gupta urged that as a result of the above changes, the relationship between the parties would no longer be governed by the provisions of the Transfer of Property Act and the Appellant could now be evicted only on the grounds set out in Section 13 of the West Bengal Premises Tenancy Act, 1956. It was submitted that none of the grounds on which eviction could be ordered under the aforesaid Act had, in fact, been pleaded or proved. The suit proceeds on the basis that the relationship between the parties continued to be governed by the provisions of the Transfer of Property Act, 1882, and
that the Appellant was liable to be evicted by efflux of time on the expiry of the period mentioned in the lease. Mr. Gupta urged that the land in question has, in fact, been classified by the Thika Controller as a Thika Tenancy and has, therefore, vested in the State of
17. Mr. Gupta submitted that the aforesaid question as to whether the lands did vest in the State of
18. Mr. Gupta lastly submitted that one of the prayers made in the suit filed by the Respondents is that the description of the property in the schedule to the lease is different from the description of the property in the schedule to the plaint, as a result whereof one of the express prayers in the suit was for leave to rectify the schedule to the lease on the ground of mutual mistake. According to Mr. Gupta, the said contention and prayer of the Respondents was clearly barred by limitation, since the suit for rectification had been instituted more than twenty one years after the execution of the lease. In this connection, Mr. Gupta submitted that the decision in Astulla Vs. Sadatu [AIR 1918 Cal 809] has no application to the facts of the present case, as the principle laid down therein was totally different and is incapable of being compared with the existing law. Mr. Gupta also denied the applicability of the doctrine of estoppel as contained in Section 116 of the Evidence Act on the submission that such estoppel operates and is available only at the beginning of a tenancy and that it is wellsettled that if since the date of tenancy the title of the landlord comes to an end, the doctrine of tenant’s estoppel can no longer arise.
19. Mr. Gupta urged that not only was the entire position altered with the coming into operation of the 1981 Vesting Act, but the equation between M/s Kharag Singh Baid & others and Ramdas Bansal underwent a sea change, in the context whereof the application filed on behalf of the Appellant under Order XLI Rule 27 CPC ought to have been allowed. He further submitted that the judgment of the High Court was, therefore, erroneous and was liable to be set aside.
20. On the other hand, Mr. Ahin Chowdhury, learned Senior Advocate, appearing for the Respondents, contended that the Lease which had been granted by the Respondent, Kharag Singh Baid, in favour of the Appellant, Ramdas Bansal, was for a period of twenty one years commencing from
the conditions of the said provisions had been satisfied.
21. Mr. Chowdhury submitted that the first contention before the Trial Court was with regard to the description and identity of the demised property. It was urged that confusion was sought to be created by the Defendant in the suit by contending that the Respondents were not entitled to relief, inasmuch as, they were seeking relief in a property which was different from the property mentioned in the Lease Deed. However, both the Trial Court, as well as the Division Bench, held that in this case there was no difficulty at all in identifying the property, inasmuch as, what was leased out by the Respondents to the Appellant was the Grace Cinema Hall and what was to be recovered by the Respondents in the suit was also the said Cinema Hall and nothing else.
22. Mr. Chowdhury submitted that the Appellant had himself stated in Paragraph 2 of his Written Statement that he was a monthly tenant of the very same property situated at 91-A,
which he was a tenant, was built on the premises which comprised 91-A,
housed therein. Mr. Chowdhury urged that the Trial Court had held that there was no confusion in the minds of the parties with regard to the identity of the demised premises and that the Appellant had not disputed the execution of the Lease Deed. There was, therefore, no difficulty in identification of the subject matter of the suit. Mr. Chowdhury submitted that there was an obvious mistake with regard to the description of the suit premises in respect whereof rectification had been sought. The premises on which Grace Cinema always stood, was 91-A, Mahatma Gandhi Road and 6A, Sambhu Chatterjee Street and the same building covered both the plots and it was nobody’s case that the possession of the Appellant herein was relatable to any other transaction apart from the lease dated 19th September, 1972. Mr. Chowdhury submitted that the Trial Court had very aptly recorded that after enjoying the fruits of the lease, the Appellant herein had wanted the Court to disregard the Deed of Lease because, according to the Appellant, it related to some other premises.
23. Mr. Chowdhury submitted that one of the other points which had been raised by the Appellant for determination before the Trial Court was that the Respondent was not entitled to have the Lease deed rectified, since the suit for rectification was barred by limitation. It was submitted that the said objection was considered and rejected by the Trial Court, since the suit was not one for rectification but for recovery of possession of the demised property after expiry of the period of the lease. Learned counsel submitted that it was not even necessary for the Respondent to expressly pray for a decree for rectification and even without such a prayer the Court could pass a decree for eviction in respect of the property which was demised. It was submitted that it was within the Court’s domain to construe as to which premises had been demised and for what term and on what conditions. According to Mr. Chowdhury, the bar of limitation could be raised only if the Respondent had come with a prayer for rectification of the document simplicitor. However, the primary relief sought for by the Respondents was for recovery of possession and rectification was sought as an incidental relief. Mr. Chowdhury submitted that as early as in the case of Mahendra Nath Mukherjee Vs. Jogendra Nath Roy Choudhury (2 Calcutta Weekly Notes, 260), the Calcutta High Court had held that title could be established without rectification of the instrument itself, even though the time to secure rectification of the instrument had elapsed. Mr. Chowdhury submitted that it had been consistently held by the Courts that if in a plaint a prayer for possession of the property or for declaration of title is made, rectification is only a formality and incidental to the relief granted. It was submitted that, in any event, the point relating to limitation had not been seriously urged before the Division Bench of the High Court. Mr. Chowdhury submitted that the only other point argued before the Trial Court, but not before the Division Bench, was that the lease was a precarious lease since it had an option clause, which entitled the Appellant to protection under Section 3 of the West Bengal Premises Tenancy Act, 1956. It was submitted that the said contention had been rejected by the Trial Court. Mr. Chowdhury submitted that in Pabitra Kumar Roy Vs. Alita D’souza [(2006) 8 SCC 344], it was held that the law was clear that a Lease Deed for a period of 20 years or more would stand excluded from the operation of the 1956 Act, unless the same was terminable before its expiration at the option of the landlord or of the tenant. After the lease was allowed to run its full course, both the lease and the conditions contained therein would come to an end and would cease to be operative and the clause for prior determination would no longer be available as a defence against eviction. The Trial Court, therefore, held that the contention regarding the sooner determination clause would not be of any help to the Appellant in the instant case, since the lease had run its full course and this point of precariousness was not pressed before the Division Bench.
24. Mr. Chowdhury submitted that the only other point which was canvassed before the Division Bench and not before the Trial Court was the point relating to Thika Tenancy. The learned counsel submitted that the documents which the Appellant had wanted to introduce at the appellate stage had not been produced before the Trial Court. It was also sought to be contended by the Appellant that by operation of the Thika Tenancy Act, Kharag Singh Baid was the Thika Tenant of the land while the Appellant, Ramdas Bansal, was a Bharatia under him and, consequently, was entitled to the protection of the Thika Tenancy Act, 1981, as far as the 3 Cottahs of land comprising 6A, Sambhu Chatterjee Street was concerned. According to Mr. Chowdhury, the provisions of the Thika Tenancy Act were not attracted to the facts of the present case at all, since the Baids never claimed that they were Thika Tenants. On the other hand, the Baids and their predecessors were holding under registered leases and all the Pucca constructions were made before 1949. So the Baids never became Thika Tenants of the land in question at any point of time.
25. Mr. Chowdhury further submitted that it is only on the basis of the documents, which the Appellant had sought to introduce before the Division Bench, that the contention was sought to be raised that by operation of law, the Baids became Thika Tenants and Bansal became a Bharatia in respect of the suit property. Mr. Chowdhury submitted that this contention was rejected since the Calcutta Thika Tenancy Act came into operation in 1949 and prior thereto it could not be said that either the Respondents had become the Thika Tenants or that the Appellant had become a Bharatia under them. On the other hand, the Baids came into the picture for the first time in 1949, and could not, therefore, be said to be Thika Tenants. Mr. Chowdhury submitted that there was a fully built-up running Theatre House on the land in question and as had been held in several decisions of the High Court, Thika Tenancy applies only to Kutcha structures. In fact, in 1986 the Calcutta High Court held in Jatadhari Daw Vs. Radha Devi [1986 (1) CHN 21], that the expression “structures’ in the statute did not include permanent structures and when permanent structures had been raised, such occupation could not be considered to be a
Thika Tenancy within the meaning of the 1949 Act. Mr. Chowdhury submitted that the said interpretation had been approved in the judgment of the Special Bench of the Calcutta High Court in the case of in Lakshmimoni Das case (supra). It was urged that in the absence of any Kutcha structure on the demised land, the Division Bench of the High Court had rightly decided that no Thika Tenancy was involved in this case. As far as the rejection of the application to adduce additional evidence is concerned, Mr. Chowdhury submitted that the Division Bench of the High Court had rightly rejected the application made under Order XLI Rule 27 CPC, since the Appellant did not fulfil the pre-conditions for asking for such relief. Mr. Chowdhury submitted that all the arguments advanced on behalf of the Appellant were arguments of desperation and the Division Bench had rightly disallowed the Appellant’s prayer for retrial of the suit on the basis of the new documents sought to be proffered on behalf of the Respondents. Mr. Chowdhury submitted that the appeal was wholly misconceived and was liable to be dismissed with appropriate costs.
26. As indicated hereinabove, the Respondents had filed Title Suit No.102 of 1994 against the Appellant, inter alia, for
(i) a decree for vacant possession in respect of the suit property comprising the demised premises
described in the schedule to the plaint and delineated in the map annexed thereto and marked with the letter ‘B’; and
(ii) if necessary, the mis-description in the lease deed dated 19.9.1972 be rectified so as to reflect
the true intention of the parties with regard to the identity of the suit property. Such a prayer was made on account of the fact that the description of the suit properties in the plaint did not tally with the description of the property in the Lease Deed itself. While in the Lease Deed, the demised property was described as premises No.91,
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 misdescription 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
31. As has been indicated hereinbefore, a “Thika Tenant” under 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
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
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 Appellant’s application under Order XLI Rule 27 CPC was quite rightly rejected by the High Court.
34. We, therefore, see no reason to interfere with the judgment and order of the Division Bench of the Calcutta High Court impugned in this appeal and the appeal is, accordingly, dismissed with costs assessed at Rs.25,000/- to be paid by the Appellant to the Supreme Court Legal Services Committee.
……………………………………………J.
(ALTAMAS KABIR)
…………………………………………J.
(CYRIAC JOSEPH)
