Harries, C.J:— This is an appeal from an order of Banerjee, J., sitting on the Original Side dated March 28, 1949, allowing an application for execution of a decree.
2. The Respondent obtained a consent decree against the Appellant on January 3, 1946, and by that decree the Defendant undertook to deliver possession within six months, execution of the decree being stayed for that time. The Defendant did not vacate at the expiry of the period of six months and on December 3, 1948, the Court made an order directing the Sheriff to deliver possession of the premises to the Respondent. The Sheriff failed to deliver possession and an application was made to the Court for an order that the Sheriff of Calcutta be directed to deliver possession of the land and premises known as No. 2, Nayan Krishna Saha Lane in the mode described by Or. 21, R. 35 of the Code of Civil Procedure.
3. The Appellant resisted the application and claimed to be a thika tenant and entitled to the protection given by the Calcutta Thika Tenancy Ordinance, 1948.
4. The learned Judge came to the conclusion that the Appellant was not a thika tenant and was not entitled to protection under the Ordinance. If no protection under the Ordinance could be claimed then it was conceded that the Appellant had no answer to the application for execution.
5. It appears that the Appellant's husband had been a lessee of these premises from the Respondent, but on December 13, 1944, this lease was surrendered by a document of that date. It appears from the document that there was still fourteen years of the lease to run but the lessee owed large sums of money to the landlord. As a result of an agreement entered into between the parties the lessee the Appellant gave up all claims under the lease and the landlord the Respondent in turn gave up certain decrees and claims which he had against the Appellant. Further the Respondent paid the Appellant a sum of Rs. 2,000 in cash and agreed to pay a sum of Rs. 200 for the doors, windows, beams, rafters, bricks, lime, surki, etc., of a structure upon the premises. The document ends with these words “I sign and execute this deed of surrender by giving up in your favour all my rights, etc., to the said land which I now have on the basis of the said temporary lease. I shall have no further claim or demand, right, title and interest on account of the said temporary lease. From this day I shall be regarded as merely a thika tenant at will (monthly tenant) in respect of the said land.” The document was of course, executed by the Appellant.
6. The document is in Bengali and I have merely set out a translation and there can be no doubt that the translation is accurate. The Appellant was to be regarded as “Ichhadhin thika praja” and immediately following these words the words “monthly tenant” in English appear in brackets.
7. Learned Counsel on behalf of the Appellant has contended that this deed of surrender clearly created a thika tenancy within the meaning of that term as used in the Calcutta Thika Tenancy Ordinance, 1948. That being so it is said that the Appellant was protected by sec. 3 of that Ordinance. “That section provides:
“Notwithstanding anything contained in any other law for the time being in force no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of this Ordinance.”
8. It was argued before Banerjee, J., that this section afforded no protection where the decree for ejectment was a consent decree but the learned Judge preferred not to rest his judgment on any such basis and I do not, therefore, propose to consider that matter any further.
9. In the learned Judge's opinion the Appellant had failed to prove that she was a thika tenant within the meaning of the term as used in the Ordinance. It is to be observed that no one but a friend gave evidence on behalf of the Appellant and the evidence of that friend is to a very large extent inadmissible. However the agreement is in writing and no evidence would be admissible to explain or add to or vary the terms of that writing.
10. The learned Judge was of opinion that there was no force in the Appellant's defence because she had failed to show that she was a person who held this tenancy under the system commonly known as “thika masik utbandi,” “thika masik,” “thika bastu” or under any other like system.
11. Learned Counsel for the Appellant has contended that it is sufficient that her tenancy is described as a thika tenancy in the agreement. But it appears to me that not all thika tenants come within this Ordinance because a thika tenant as the term is used in the Ordinance means any person who under one of a number of systems holds land under another person, whether under a written lease or otherwise and is, or but for a special contract would be liable to pay rent at a monthly or any other periodical rate for that land to such other person. There is no evidence in this case at all that the tenancy held by the Appellant was one under any of these systems. The necessity for such evidence has been stressed in two recent cases of this Court, namely, the cases of Murari Mohan Mukherjee v. Probodh Chandra Chatterjee(1) and Haran Chandra Dey v. Sm. Charu Bala Dassi(2).
12. In Murari Mohan Mukherjee's case, P.B Mukharji, J., held that a tenant holding over after the expiry of a lease cannot be treated as holding the land within the meaning of the expression “under any” other like system in sec. 2 (5) of the Calcutta Thika Tenancy Act, 1949 or sec. 2 of the Calcutta Thika Tenancy Ordinance, 1948. He further held that a tenant under the said section can only be called a thika tenant when it is one under any particular system as mentioned therein or under a similar system. It is a matter of proof and evidence in every case and it is essential for the tenant to establish it by evidence, the onus of proving this being upon him.
13. In Haran Chandra Dey's case, Banerjee, J., held that where any particulars of a tenancy or of any system under which the tenancy is held are not known and it is not proved that the structures or any of them standing on the land are erected by the tenant it cannot be said that the tenant is a “thika tenant” within the meaning of the Thika Tenancy Ordinance.
14. Both these cases make it clear that the person seeking the protection of the Ordi nance must show that his tenancy is under one of these various systems. There is no evidence at all as to whether this tenancy is covered by any of these systems and, there fore, I think Banerjee, J., was right in holding that the Ordinance gave no protec tion to the Appellant.
15. Further it is clear that the Appellant had not erected structures on the land as a thika tenant.
16. What had occurred was that the Appellant or her husband whilst lessees had erected structures. In the deed of surrender the materials of these structures were actually purchased by the landlord Respondent and there is nothing to suggest that after this deed of surrender any further erections were made by the Appellant in her capacity as a tenant under the agreement. As pointed out by Banerjee, J., in the case to which I have just made reference in order to be a thika tenant it must be established amongst other facts that the tenant has made certain erections upon the land which he had held as a thika tenancy tinder one of the systems. That factor is entirely absent in this case and I do not think that the fact that the tenant had erected a structure on the land whilst a lessee, brings the case within the Ordinance particularly when the landlord had actually agreed to purchase the materials of such structure.
17. It appears to me that what the parties contemplated in this case was an ordinary monthly tenancy. After the Bengali words the words “monthly tenancy” were written in English presumably to make the position perfectly clear. A monthly tenant is not necessarily a thika tenant and I think that the learned Judge was right in holding that on materials before him he was compelled to hold that the Appellant was a monthly tenant only and was not a thika tenant within the Ordinance. That being so the Appellant had no defence whatsoever to the Respondent's application and the order of Banerjee, J., cannot possibly be assailed.
18. In the result, therefore, this appeal fails and is dismissed with costs.
19. The stay order is vacated. The attorneys for the Respondent will be entitled to appropriate the sum of Rs. 600 deposited with them under orders of the Court or such portion of that sum as is required to satisfy this decree for costs.
Chatterjee, J.:— I agree.
20. Solicitors: Profulla Ghosh for the Appellant; B.N Basu & Co. for the Respondent.
N.D.R
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