P.N Mookerjee, J.:— These two appeals are directed against a decree, passed by the learned trial Judge, allowing the plaintiff's claim for ejectment but granting the defendant three years' time or a grace period of three years' to vacate the suit property. F.A No. 144 of 1960 is by the defendant, wherein she challenges the decree for ejectment. The other appeal (F.A No. 97 of 1960) is by the plaintiff, who has felt aggrieved by the above provision for time or grace period in the decree of the court below. This latter appeal, however, has spent itself and become infructuous as the grace period in question expired even before its hearing and the only order, which we need pass in this appeal, is to dismiss it on the said ground. F.A No. 97 of 1960 is, accordingly, dismissed without costs.

1. Turning, now to the defendant tenant's appeal, we may at once say that it involves a short question as to the defendant's status, namely, whether she is a thika tenant, entitled to protection under the Calcutta Thika Tenancy Act. The relevant facts are not many and they may be briefly stated here as follows:

The defendant was tenant under the plaintiff's father under a registered lease dated September, 26, 1929. That lease (Vide its certified copy Ext. B) was for twenty years, commencing from September 15, 1929. The rent reserved was Rs. 27/5/- per month @ Rs. 13/8/- per cotta per month on the total demised area of 2K-17 sq. feet. It also contained a renewal clause in the following terms:

“If the lessee shall be desirous of taking a renewal of the said demised premises for a further term of six years, commencing from the expiration of the term, hereby granted, the lessor shall execute and register and grant unto the lessee a renewal or fresh lease of the said premises for a further term of six years, commencing from the expiration of the term, hereby granted, at an enhanced rent of Rs. 15/- (Rupees fifteen) per cottah per month and subject to the same covenants, conditions and provisions as are herein contained saving the present covenant for a renewal and the present rate of rent.”

2. It is the plaintiff's case that the lessee exercised her above option of renewal and paid the enhanced rent of Rs. 30-5-9p. per month at the above enhanced rate of Rs. 15/- per cottah per month and remained in possession. The lessee, however, did not quit possession on the expiry of the said renewal or renewed period, notwithstanding plaintiff's demand for possession, and, accordingly, the present suit was instituted by the plaintiff on 15th September, 1958, for ejectment and mesne profits, of which, however, the latter claim was withdrawn by the plaintiff in course of the suit with leave to institute a fresh suit on the same cause of action, if not otherwise barred. The parties fought grimly on the issue of ejectment, the main defence on this particular point being that the defendant was a thika tenant under the Calcutta Thika Tenancy Act, which protected her from eviction. Obviously, if the defendant is a thika tenant under the above Act, the present action for ejectment must fail in view at least of Sec. 5 of the above Act, which vests exclusive jurisdiction in the matter of such ejectment with the Thika Tenancy Controller. The point, however, is whether the defendant's above claim of status is well-founded.

3. Now, Sec. 2(5) of the Calcutta Thika Tenancy Act — to quote only its relevant part, — defines Thika tenant as follows:

“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 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 a residential, manufacturing or business purpose and includes the successors-in-interest of such person but does not include a person—

(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;……….”

4. The defendant was, initially, a lessee of land and she erected structures thereon. She was, therefore, prima facie, a thika tenant unless she fell within any of the excluding clauses. Of these clauses, clause (b) is the only relevant clause here and the question is whether the defendant held the suit land at the relevant time under a registered lease of not less than twelve years. The relevant time would be on or after February 28, 1949, when the Calcutta Thika Tenancy Act, came into force. So far as the period up to 15th September 1949 is concerned, there can be no question that the defendant was holding under a registered lease for twenty years and, as such, could not claim to be a thika tenant in view of the excluding clause (b), quoted above.

5. The controversy then reduces itself to this: what was her status after the said date? Was she a tenant? If so, was she a thika tenant? Obviously, if the defendant was not a tenant after the above date, September 15, 1949, she can have no defence to the present action for ejectment and her present appeal must fail on that single and simple ground. If, however, she was or continued to be a tenant after the aforesaid date, the question would naturally arise as to what was the nature and character of her said tenancy.

6. On this part of the case two views are possible — (1) that it was a new tenancy and (2) that it was the old tenancy under the above registered lease, continued under its renewal clause, and subject to its terms. The theory of a new tenancy has been pressed by the defendant appellant and it has been argued on her behalf that she never exercised the option of renewal but held over oh payment of rent with the assent of the landlord giving rise to a new tenancy by “holding over” under Sec. 116 of the Transfer of Property Act, and, even otherwise, that is, if it be held that she exercised the option of renewal, there being, admittedly, no fresh document — far less any registered document — for this renewed period, the tenancy on renewal would be a new tenancy — not under any document or registered document, far less under a registered lease for not less than twelve years. The respondent, on the other hand, argues that the appellant did exercise her option of renewal and paid rent in terms thereof and so there is no room for any contention of a tenancy by “holding over” under Sec. 116 of the Transfer of Property Act, and the tenancy arising, as above, under the renewal clause of the registered lease, would be the old tenancy under the said lease, continued for the renewal period by virtue of the said clause. In any event, it would be a tenancy under the said renewal clause, which being a term and part of the registered lease for twenty years, would make this tenancy one under the said registered lease. In other words, the said registered lease would be the source and foundation of the original lease for twenty years and also the renewed lease for six years and either of the said two leases would be a lease under the said registered lease, which, in effect, would be a lease for twenty six years.

7. Admittedly, the defendant tenant paid rent at the enhanced rental of Rs. 15/- per cottah per month, mentioned in the renewal clause of the registered lease, from after the expiry of the original period of twenty years thereunder. This is a strong circumstance in support of the plaintiff's case that the defendant exercised her option of renewal. In the circumstances, when the learned Trial Judge has accepted the above case of the plaintiff on this point, we do not find any reason to differ from him. It is true that, in the correspondence, preceding the suit, the plaintiff did not make any definite assertion of the defendant's exercise of the option of renewal and, from that point of view, the plaintiff's definite assertion in evidence on this part of the case may be open to criticism, but, even on the defendant's evidence, there was a mutual discussion between the defendant and her landlord (the plaintiff's father) at the time and she continued to hold the land on payment of the enhanced rental, as mentioned in the renewal clause. The coincidence is significant. No details have been given by the defendant as to the above mutual discussion; On the other hand, she has stated that she “did not insist on a fresh document”. In the context of all these, we are inclined to hold that the defendant exercised her option of renewal and continued in possession on that footing, though no fresh lease was executed, as contemplated in the renewal clause, as neither party insisted on such a fresh document. The defence story of “holding over” not under the renewal clause and exercise of option thereunder but under Sec. 116 of the Transfer of Property Act, that is, with the mere assent of the landlord, dehors the said clause, is, accordingly, rejected.”

8. The position, then, is that, at the relevant time, the defendant occupied the suit land under the above renewal clause and in the exercise of her option thereunder on payment of the “rental”, as stipulated therein, though without having a registered renewal or fresh lease, as provided in the said renewal clause. The question is what was her status and the nature of her tenancy, if any.

9. As already stated this is not a case of “holding over” under Sec. 116 of the Transfer of Property Act, dehors the above renewal clause but a case of a tenancy, if any, under the said renewal clause or a case of the holding of the suit property by the defendant under the plaintiff under the said clause and in the exercise of her rights thereunder. This is clear from the decision of this Court in The Bengal National Bank Ltd. v. Raja Janaki Nath Roy, (1) 31 C.W.N 973 : A.I.R 1927 Cal. 725, where Rankin, C.J observed, at p. 984 of the report, that “the tenant, continuing in occupation under a special agreement for further lease is a different case from the tenant-holding over merely by consent but if for any reason his agreement has to be disregarded he can fall back upon the landlord's mere consent and claim his rights under Sec. 116”.

10. In the instant case, the above renewal clause contained the agreement for the lease for the further period of six years, which became binding on both parties, immediately on the lessee's exercise of the option thereunder, and the rights of the parties came to be governed by the said agreement, contained in the renewal clause in the registered lease for twenty years, giving to the lessee the option of renewal for the “further” period of six years, as mentioned therein, and the property continued to be held thereunder true, the clause provided for the execution and registration of a renewal or fresh lease but that was not eventually insisted on by the parties and if, in the circumstances, an effective lease or renewal for the said “further” period did not come into existence, the agreement for renewal was not affected but remained operative and enforceable and bound the parties and governed their rights.

11. In the premises, the renewal clause or the agreement for renewal cannot be disregarded but must be given its full effects and it may well be said that the old relationship of landlord and tenant between the parties continued and did not come to an end and the lease between them did not determine, merely by reason of expiry of the original period of twenty years but survived in or by reason of its renewal clause aforesaid, which, as one of its terms, still retained its full vigour (vide in this connection, Hemanta Kumari Debi… v. Sefatulla Biswas…., (2) 37 C.W.N 9). The instant case would not be one of a new tenancy, arising on the invalidity of a lease, by implication or under the law, from possession and payment and acceptance of rent, as in Ram Kumar Das v. Jagadish Chandra Deo Dhabal Deb, (3) A.I.R 1952 S.C 23 nor would it be a case of a tenancy — a new tenancy — by “holding over”, arising, on the determination of a lease by efflux of time, by mere acceptance of rent or assent of the landlord under Sec. 166 of the Transfer of Property Act, the acceptance of rent being only a form of such assent (Vide Karnani Industrial Bank Ltd. v. The Province of Bengal, (4) A.I.R 1951 S.C 285). It would be a case of a tenancy or a quasi or inchoate tenancy under a renewal clause and thus clearly distinguishable from the above classes of cases and the defendant's continuance of possession, be it as a tenant or otherwise, would be under and unequivocally referable to the renewal clause in question or the agreement, contained therein, and her rights, be they of a tenant or of specific performance or of a quasi or inchoate tenant under Sec. 53A of the Transfer of Property Act, would be only under the said clause or agreement.

12. In other words, the rights, in or under which the property in question continued to be held by the defendant flowed from the above registered lease for twenty years, containing inter alia the tenant's option for renewal for a further period of six years, and would be referable to the same and it would be doing no violence to language or any juristic or legal conception or principle to regard this holding of the property by the defendant as one under such a lease, so as to fall within the mischief of clause (b) of Sec. 2(5) of the Calcutta Thika Tenancy Act, and exclude her from the category of “Thika tenant” under the said Act, even assuming that she would otherwise have come within it. This conclusion of ours would be quite in accord with the decisions of our learned brothers P.B Mukharji, J. and Bachawat, J. in Annapurna Seal v. Tincowri Dutt, (5) 66 C.W.N 338, where, under a different approach and different reasonings — their Lordships themselves following different lines of reasoning — our learned brothers reached the same conclusion. As, on the reasonings, given above by us, that conclusion may well be supported, we deem it unnecessary to consider the arguments of Mr. Chakravorty against the reasonings of my learned brothers or upon the apparent inconsistencies in their modes of approach. On the same ground, we deem it unnecessary to discuss the decision, dated April 24, 1958, of Bose, J., (as he then was), in Suit No. 2257 of 1955 of this Court (Original Side) Lalit Mohan De v. Manick Chandra Hesh, (6) where his Lordship reached a similar conclusion as ours, on reasonings, which have been subjected to some criticism before us by Mr. Chakravorty, somewhat hesitatatingly. We would only point out that there is a fundamental distinction between a tenancy by “holding over” under Sec. 116 of the Transfer of Property Act, by mere assent of the landlord (including acceptance of rent as a form of such assent) and a tenancy or rights under a renewal clause. In the first case, the tenancy, though it may continue the old possession under the old terms, would, in law, be a new tenancy dehors the lease and in spite of its determination (Vide Gopal Chandra Rudra v. Khater Kariker, (7) 33 C.W.N 1207, and Mahadeb Ram Kahar v. Tinkari Roy, (8) A.I.R 1954 Cal. 539). In the other case, the tenancy or the rights in question arise under the lease itself, though under its renewal clause, by reason of the exercise of the lessee's option thereunder. In the latter case, the holding over and continuance of possession is under the original lease, which has not expired or determined but survives in or by reason of its renewal clause, which sustains the said holding over or continuance of possession, the same being under and referable to the said clause, or, for the matter of that, the original lease itself, while, in the former case, the holding over and continuance of possession is referable to the statute (Sec. 116 of the Transfer of Property Act) and is under it and cannot stand upon the original lease, which has determined and cannot support or sustain the same. The lease for the optional or further period under the renewal clause would not have been an independent lease but would have been a part and an integral part of the original lease, which in essence, was for a fixed or firm period of twenty years and an optional or further period of six years, the latter to come, into effect on exercise of the option by the tenant; or, in other words, the option of renewal, though it does not affect the term or period of the lease until the option is exercised, does affect it, once it is exercised. The holding thus under the said further lease would he a holding under the original lease, which, in effect, is a lease for the entire term including the option period, the latter operating only on exercise of the option. In the case of holding over under Sec. 116 of the Transfer of Property Act, however, it would have been under the ‘renewed’ or the new or statutory lease under the said section, distinct from and independent of the original lease, which stood determined, though, normally, the terms of the two, save, of course, the period, would, in the absence of an agreement to the contrary, be, practically, the same. The holding under the above statutory “holding over”, therefore, would not be a holding under the said original lease.

13. For the foregoing reasons, we hold that the defendant would not be a thika tenant under the Calcutta Thika Tenancy Act and would not be entitled to its protection. Her plea in that behalf would, accordingly, fail and her appeal (F.A No. 144 of 1960) must be dismissed.

14. As, however, the defendant is an old lady of about seventy years of age and a she has built substantial structures on the suit land and as the point involved herein was of some difficulty, we would give her two years' time to vacate the suit property, provided she pays to the plaintiff decree-holder by money order, or, deposits to his credit in the Court below, within three months from date, arrears, if any, of rent or mesne profits, as the case may be, and provided, further, she goes on paying or depositing as aforesaid, a sum of Rs. 30/5/9 p. per month, month by month, regularly, according to the English calendar, within the 15th of the next following month according to the same calendar, on account of current mesne profits. In default, this decree for eviction will be executable at once subject to this that, in the case of current mesne profits, the relevant or requisite default must be for, at least, two months in succession or otherwise.

15. There will be no order for costs either here or in the Court below.

16. We are told by the parties that the defendant appellant has already deposited in Court, the decretal costs of the Court below but the same have not, as yet, been withdrawn by the plaintiff decree holder. If so, the defendant appellant will be entitled to withdraw the same.

T.P Mukherji, J.:— I agree.

[Note:— The italics are ours — Ed.]