REPORTABLE

IN THE SUPREME COURT OF INDIA 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 M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. From  the  materials  on  record,  it  appears  that  

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 the “Grace Cinema Hall”.  Out 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) and  

b) 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 in question.  

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 15th July, 2003, the learned Single Judge framed  

issues  to  go  to  trial  in  the  suit.   After  diverse  

proceedings,  the  learned  Single  Judge  decreed  Suit  

No.102 of 1994, in favour of the Respondents herein.  

An appeal was filed by the Appellant herein, against  

the order of the learned Single Judge in the Calcutta  

High Court, being APOT No.12 of 2005.  On 28th June,  

2005, the Division Bench of the High Court stayed the  

operation  of  the  judgment  and  order  of  the  learned  

Single Judge dated 11th April, 2005.   

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 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.     

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 Calcutta and Howrah in the State of  

West Bengal, there existed a category of tenancy known  

as  “Thika  Tenancy”.   Under  such  system  of  tenancy,  

vacant land was leased by the landlord to a tenant with  

liberty to erect structures thereupon of a temporary  

nature, which were referred to as “Kutcha Structures”.  

The structures would be owned by the tenant of the land  

and the tenant was further entitled to grant lease of  

the  structure  or  portion  thereof  in  favour  of  sub-

tenants.   In this kind of tenancy, the tenant of the  

land was referred to as the “Thika Tenant” and the sub-

tenant was referred to as “Bharatia”.  Such tenancies  

were unregulated and came to be regulated for the first  

time by the Calcutta Thika Tenancy Act, 1949, in which  

a  Thika  Tenant  was  described  in  Sub-Section  (5)  of  

Section 2 in the manner following :-

“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 Calcutta with the enactment of  

the  Calcutta  Thika  and  Other  Tenancies  and  Land  

(Acquisition & Regulation) Act, 1981.   The said Act  

was for the acquisition of the interest of landlords in  

relation to the lands comprised in Thika Tenancies and  

certain other tenancies and other lands in Calcutta and  

Howrah,  for  development  and  equitable  utilization  of  

such  lands.  In  the  1981  Act,  “Thika  Tenancy”  was  

defined in Sub-section (8) of Section 3 as follows :-

“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 West Bengal  

because it subsequently amended the Acquisition Act of  

1981,  once  in  1993  and  again  in  2001,  as  a  result  

whereof the decision in  Lakshmimoni Das case (supra)  

ceased to have any effect.  According to Mr. Gupta, the  

subsequent  amendments  of  1993  and  2001  have  been  

challenged in the High Court, but the matter is yet to  

be decided.   Mr. Gupta urged that the interpretation  

given by the High Court to the word “structure” to mean  

Kutcha structures only, does not appear to be sound and  

is contrary to a plain reading of the Section.  Mr.  

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 18th February, 1982, when the  

1981 Act was brought into effect.  It was submitted  

that  after  the  amendment,  the  Controller  of  Thika  

Tenancy  has  consistently  included  permanent  “Pucca  

Structures”  within  the  definition  of  Thika  Tenancy,  

since  the  impact  of  the  earlier  judgments  had  been  

taken away by the amendments.   According to Mr. Gupta,  

it can no longer be said that a Thika Tenant must be  

the owner of a Kutcha structure alone.  Reference was

also made to the changes in the definition of “Thika  

Tenancy”  in  the  1981  Act,  whereby  various  types  of  

tenancies, which had previously been omitted from the  

definition, were now brought within the ambit of such  

tenancies.  In  this  regard,  Mr.  Gupta  laid  special  

stress on the fact that in the definition of “Thika  

Tenanvu” under the 1949 Act, lands held in lease for  

over 12 years were omitted from its purview, whereas in  

the  1981  Act  such  exclusion  was  omitted,  thereby  

bringing even such tenancies on lease beyond 12 years  

within the purview and ambit of “Thika Tenancies” and  

as a further consequence by virtue of Section 5 of the  

1981 Act, even leases held for periods beyond 12 years  

came  to  be  vested  in  the  State  free  from  all  

encumbrances. On account of such vesting, M/s. Kharag  

Singh Baid & others became Thika Tenants directly under  

the State of West Bengal and Ramdas Bansal became a  

Bharatia within the meaning of the Vesting Act.  Mr.  

Gupta  submitted  that  the  further  consequence  of  the  

above is that the relationship between the Thika Tenant

and Bharatia came to be governed by the provisions of  

the West Bengal Premises Tenancy Act, 1956.   

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 West Bengal.   

17. Mr. Gupta submitted that the aforesaid question as  

to whether the lands did vest in the State of West  

Bengal in 1982 arises in the context of an application  

made  under  Order  XLI  Rule  27  of  the  Code  of  Civil  

Procedure by the Appellant. The High Court summarily  

dismissed the said application on the erroneous basis  

that M/s Kharag Singh Baid & others did not acquire any  

title  to  the  structures,  but  merely  got  a  right  of  

enjoyment from the owners.   Mr. Gupta submitted that  

the  rejection  of  the  Appellant’s  application  under  

Order XLI Rule 27 C.P.C. was erroneous in view of the

changes  in  the  law  which  had  taken  place  since  the  

filing of the suit and its pendency in the Courts. Mr.  

Gupta  submitted  that  in  view  of  the  coming  into  

operation of the 1981 Act and the vesting provisions  

contained therein, the Courts were required to consider  

the matter differently from what existed at the time of  

filing of the plaint.  

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 well-

settled 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  1st November,  1972.  Since,  

after the expiry of the full term of the lease, the  

Appellant  refused  to  hand  back  possession  of  the  

leasehold  premises,  wherein  Grace  Cinema  Hall  was  

situated, the Respondents were compelled to file the  

suit for recovery of the suit premises.  Mr. Chowdhury  

urged  that  at  the  time  of  trial  of  the  suit,  no  

contention had been raised on behalf of the Appellant  

that the tenancy was either a Thika Tenancy or that he  

was a monthly tenant and enjoyed the protection of the  

West Bengal Premises Tenancy Act, 1956.  Mr. Chowdhury  

submitted that such a point was taken for the first  

time in regard to 3 Cottahs out of the entire suit  

premises  comprising  about  19  Cottahs,  before  the  

Division Bench which held that the question of Thika

Tenancy did not arise in the present case, since all  

the constructions had been raised before the Calcutta  

Thika  Tenancy  Act,  1949,  came  into  operation.   The  

Division  Bench  rejected  the  application  made  under  

Order XLI Rule 27 C.P.C., on the ground that none of  

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, Mahatma Gandhi Road, Calcutta, and a  

portion  of  6A,  Sambhu  Chatterjee  Street,  Calcutta,  

under the Respondents.  Furthermore, in his evidence-

in-chief, the Appellant had stated that the property of  

which he was a tenant, was built on the premises which  

comprised  91-A,  Mahatma  Gandhi  Road,  Calcutta  and  a  

portion of 6A, Sambhu Chatterjee Street, Calcutta.  He  

further  submitted  that  the  building  which  had  been  

constructed on premises No.91-A, Mahatma Gandhi Road,  

Calcutta,  and  a  portion  of  6A,  Sambhu  Chatterjee  

Street, Calcutta, was inseparable and a Cinema Hall was  

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,  

Mahatma Gandhi Road, Kolkata, in the plaint, the suit  

property was described as being the property situated  

at premises No.91-A, Mahatma Gandhi Road and portion of  

premises No.6A, Sambhu Chatterjee Street, Kolkata.  It  

is in such context that a separate prayer had been made  

in the plaint for rectification of the schedule in the  

Deed of lease, if necessary.  The said two reliefs were  

more  or  less  connected  with  each  other,  but  even  

without  such  rectification,  it  was  possible  for  the  

decree to be executed.   

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,  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 Howrah for  

development  and  equitable  utilization  of  such  lands.  

In the said Act, a “Thika Tenant” has 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

“Thika Tenancy”, 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 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)

New Delhi                     …………………………………………J. Dated: 19.01.2012                    (CYRIAC JOSEPH)