D.K. Seth, J.
1. This appeal arises out of the judgment and decree dated 13th May, 2003 passed in C. S. No. 900 of 1986 by the learned Single Judge decreeing the suit for recovery of possession. One Smt. Binapani Roy Chowdhury, the original plaintiff, executed a registered Deed of Lease dated 17th of September, 1956 in respect of the land to the defendant/appellant for a period of 25 years effective from 15th August, 1956 (expiring on 14th August, 1981) with an option for renewal for a period of 5 years. In the schedule of the deed, the property was described as vacant land. Under the terms of the lease, the defendant/appellant erected structure on the land. On the expiry of 25 years, the defendant/appellant expressed its desire to exercise option for renewal of the lease for a term of 5 years informing the plaintiff/respondent that a deed for renewal of the lease would be executed. Ultimately, no deed of renewal of lease was executed. Since July 1982, the defendant/appellant stopped payment of licence fee or occupation charge and denied the right title interest of the plaintiff in the property. The said Smt. Binapani Roy Chowdhury, the original plaintiff, terminated the tenancy and filed the suit for eviction and recovery of possession as well as for mesne profits. On the death of Smt. Binapani Roy Chowdhury during the pendency of the suit, the present plaintiff/respondent became the owner and were substituted in the present suit.
1.1. The defendant/appellant set up a claim that with the enactment of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (1981 Act) commencing from 18thof January 1982, the suit land vested in the State under Section 5 of the 1981 Act and the defendant/appellant became a thika tenant under the State. Alternatively, it claimed that by reason of payment and acceptance of rent after the expiry of the period of lease in the absence of any renewal or execution of fresh lease, the defendant/appellant became a premises tenant governed under the West Bengal Premises Tenancy Act, (WBPT Act). The notice purporting to terminate the tenancy was, therefore, invalid.
1.2. This suit has since been decreed holding inter alia that the defendant/ appellant was not a thika tenant and the 1981 Act has no manner of application. Similarly, it was further held that the defendant/appellant was not a premises tenant governed under WBPT Act. While decreeing the suit, it had also granted mesne profits at the rate of rent last paid. The plaintiff/respondent filed a cross-objection seeking relief on the question of mesne profits.
Submission by Counsel:
2. The learned Counsel for the respective parties had advanced long and erudite submissions on various points and led us through the materials on record and had discussed each of the questions in threadbare. In our view, we are not called upon to answer all the questions argued. We will confine ourselves only to the principal issues which would be relevant for our purpose instead of dealing with all the arguments spread over to various field advanced by the respective Counsel.
Issues to be answered :
3. The issues can be divided broadly in two principal issues - one, whether the defendant/appellant became a thika tenant under the State by reason of the enactment of 1981 Act and the other, in the alternative, whether the defendant/appellant became a premises tenant governed by the WBPT Act by reason of its holding over under Section 116 of the Transfer of Property Act (TP Act). These two broad issues can be split into various sub-issues as dealt with by the respective Counsel.
3.1. Apart from the above two broad issues, a secondary issue as to the maintainability of the suit before the ordinary original civil jurisdiction of this Court was taken on two grounds : pecuniary and subjective viz : (i) that the valuation of the suit had since been enhanced to attract the jurisdiction of this Court and that the suit was not correctly valued; (ii) in view of Sections 7 and 8 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (1997 Act) the jurisdiction of this Court has since ceased.
3.2. Before we proceed to decide the main two broad questions, we may answer the secondary question relating to the maintainability as hereafter.
Maintainability: Pecuniary jurisdiction :
4. Mr. Chatterjee contended that in order to attract the jurisdiction of this Court, the valuation had been increased by including damages whereas such a suit was to be valued on the basis of the annual rackrent. The learned Single Judge was pleased to decide the issue in favour of the plaintiff/respondent. The valuation of the suit was made at Rs. 16,200/- for recovery of possession, namely, on the basis of the annual rackrent and Rs. 66,150/- for rent and occupation charges upto 14th August, 1986 and mesne profits from 15th August, 1986 to 22nd September, 1986 at Rs. 38,000/- aggregating to Rs. 1,20,350/- to attract the pecuniary jurisdiction of this Court. A suit under Section 15 of the Code of Civil Procedure (CPC) is to be instituted in the Court of the lowest grade competent to try it. The valuation of the suit was enhanced in order to avoid the jurisdiction of the City Civil Court. The High Court, therefore, could not entertain the suit.
4.1. Pursuant to the resolution No. 6764 dated 17th December, 1949 by the Judicial Department of the Government of West Bengal, the Judicial Reforms Committee had made unanimous recommendation among others viz : the City Civil Court should be created to relieve the original side of a part of its jurisdiction. On the basis of this recommendation, the City Civil Courts Bill, 1953 was introduced to the West Bengal Legislative Assembly followed by the Statement of Object and Reasons for establishment of a City Civil Court for Calcutta to relieve the Original Side of the High Court of part of the large volume of civil litigations arising in Calcutta for speedy administration of justice. Section 5 of the City Civil Courts Act, 1953 prescribes in Sub-section (2) that the City Civil Court shall have jurisdiction and the High Court shall not have jurisdiction to try suits and proceedings of a civil nature not exceeding the valuation mentioned therein. Under the Letters Patent, 1862 since repealed in 1865, the High Court was established for the purpose of exercising such civil jurisdiction, original and appellate, provided in the Letters Patent within the area prescribed. Clauses 11 and 12 of the Letters Patent ordained that the High Court shall exercise ordinary original civil jurisdiction in respect of suits of every description within the local limits described therein. This jurisdiction conferred upon the High Court under the Letters Patent is subject to clause 44 of the Letters Patent, which makes the Letters Patent subject to the power of legislature by the Legislative Council. Section 21 of the City Civil Courts Act, 1953 gives an overriding effect to the provisions of the 1953 Act even in respect of Letters Patent providing that the provisions of the 1953 Act shall have effect notwithstanding anything to the contrary in any other law including in particular the Letters Patent of the High Court. Thus, by reason of exclusion of jurisdiction under Section 5, a suit triable by the City Civil Court is excluded from the ordinary original civil jurisdiction of the High Court.
4.2. Admittedly, at the time when the suit was filed, the City Civil Court was the competent Court of lowest grade to try the suit having pecuniary jurisdiction upto Rs. 1 lakh. A suit valued at Rs. 1 lakh or above could be filed in the Original Side of this Court since the property was situated within the local limits of jurisdiction of these two Courts in terms of clause 12 of the Letters Patent. Objection to such jurisdiction, in view of Section 21(2) CPC, is to be taken at the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement. Such objection to pecuniary jurisdiction shall not be allowed if made thereafter, unless there has been a consequent failure of justice. Thus, the objection to pecuniary jurisdiction has not been held to be so fatal as to render a decision by a Court without pecuniary jurisdiction, a nullity. That apart the division of pecuniary limits of jurisdiction is for the sake of convenience of the effectiveness of the justice delivery system.
4.3. Whether on the above principle the High Court can entertain a suit of lesser valuation, namely, that when a Court is conferred jurisdiction to determine a suit for higher valuation cannot be said to lack jurisdiction to determine a suit of lesser valuation. In fact, it was to relieve the pressure of the High Court, the City Civil Court Act was enacted and the jurisdiction to try such suits upto certain valuation was conferred on the City Civil Court. It seems to be a matter of convenience and a matter of procedure. However, we need not dilate on this question and we are not inclined to express any opinion on this question.
4.4. Section 7(xiii)(d) of the West Bengal Court-fees Act, 1970 (1970 Act) prescribes the Court-fees payable on the basis of annual rackrent for recovery of immovable property from a tenant including a tenant holding over after determination of tenancy. Therefore, for the purpose of determining Court-fees, the annual rackrent would be the amount on which the suit is to be valued. A valuation of the suit for the purpose of Court-fees is also the mode and method of valuation of the suit for the purpose of determining the pecuniary jurisdiction of the Court to which such suit is to be presented. A suit is to be valued on the basis of the relief claimed for the purpose of payment of Court-fees. On the basis of the valuation under Section 7(xiii)(d) of the 1970 Act the only relief could be had is of recovery of possession. A plaintiff cannot claim any other relief on the basis of annual rackrent since the relief relating to claim for arrears and mesne profits would be a relief for which separate Court-fee is payable under Section 7(i) of the 1970 Act. Inasmuch as the relief for recovery of arrear rent/occupation charges and mesne profits are reliefs relating to money. The suit for relief within the Section 7(i) is to be valued according to the amount claimed.
4.5. The present suit, admittedly, was for recovery of immovable property from tenant within the meaning of Section 7(xiii)(d) as well as for money i.e., for other sums payable periodically and damages under Section 7(i) of the 1970 Act. Admittedly, in the present case, annual rackrent was within the pecuniary jurisdiction of the City Civil Court at Calcutta. From the frame of the suit and the valuation as made above, it appears that in the suit along with the relief for recovery of possession of immovable property, mesne profits and recovery of arrear rent/occupation charges had also been claimed.
4.6. Having regard to the above proposition, it appears that the plaintiff had claimed arrear rent and occupation charges for the period till 14th August, 1986 which was sum payable periodically on account of holding over for the period. The plaintiff had also claimed mesne profits for the period 15th August, 1986 till 22nd September, 1986. It was open to the plaintiff to value the suit according to the relief claimed. The plaintiff had put forth the claim for damages or mesne profits at Rs. 1,000/- per diam from 15th of August, 1986 till delivery of vacant possession and accordingly had valued the suit immediately before the date of institution of the suit, which the plaintiff was entitled to do.
4.7. The right to value the suit is a right conferred on the plaintiff, which he can exercise within the four corners of the Court-fees Act and the Suits Valuation Act, 1887 (1887 Act). Unless any rules are framed by the State Government under Section 3 of the 1887 Act, the valuation in respect of suit relating to land is to be made on the basis of the market value for the purpose of determining jurisdiction. At the same time, in the absence of any rules for determining the valuation for the purpose of jurisdiction framed by the State Government the valuation for the purpose of Court-fees is to be equated for the purpose of jurisdiction. We are not informed of any rules having been framed by the State of West Bengal for valuation for the purpose of determining jurisdiction. Therefore, the valuation for the purpose of Court-fees is to be taken as the valuation for the purpose of jurisdiction. We are supported in our view by the ratio decided in Sisir Kumar Dutta and Ors. v. Susil Kumar Dutta, : AIR1961Cal229 . At the same time, Section 8 of the Suits Valuation Act prescribes that except the suits governed by Sections 7(v), (vi), (ix) and (x) clause (d), where Court-fees are payable ad valorem under the Court-fees Act, the valuation as determinable for computation of Court-fees and the value for purposes of jurisdiction shall be the same. Thus the Court cannot determine the suit for the purpose of jurisdiction by skipping over the valuation of the suit for the purpose of Court-fees. On this principle, we may find support from the decision in Bhupat Singh and Ors. v. Jnanendra Kumar Chowdhury and Ors., : AIR1955Cal341 .
4.8. On the question of pecuniary jurisdiction and valuation, Mr. Chatterjee relied upon Dinwara Engineers Private Limited v. Amitava Banerjee, 2002(1) CLJ 556; Shanti Devi v. Amal Kumar Banerjee AIR 1981SC 1550 and Govinda Kumar Sur and Ors. v. Mohini Mohan Sen and Ors. : AIR1930Cal42 . We do not find that these decisions have any manner of application in the present case.
4.9. That the valuation can be made by the plaintiff according to his own estimation and such valuation has to be accepted ordinarily is a settled proposition of law well-forfeited by the ratio decided in Tara Devi v. Thakur Radha Krishna Maharaj, : AIR1987SC2085 ; Sathappa Chettiar v. Ramanath Chettiar, : [1958]1SCR1021 and Meenakshisundaram Chettiar v. Venkatchalam Chettiarm, : [1979]3SCR385 . Nandita Bose v. Ratan Lal Nehta, : [1987]3SCR792 , permitted the plaintiff to value the suit according to her estimation claiming mesne profits, which, if interfered with, would otherwise prejudice the plaintiffs right to claim mesne profits or damages according to her estimation. The ratio decided in Nellimarla Jute Milts Co. Ltd., v. Rampuria Industries & Investments Ltd., 2000(2) CLJ 70 (DB) cited by Mr. Chatterjee appears to be distinguishable on facts. The said decision cannot impose any restriction on the right of the plaintiff to value the suit, according to the relief claimed on account of arrears due in respect of periodical payments as well as mesne profits in addition to the annual rackrent in view of the fact that different reliefs are being claimed in the same suit requiring the valuation of the suit according to Section 8 of the Suits Valuation Act, 1887 read with Section 7(xiii)(d) and Section 7(i) of the West Bengal Court-fees Act, 1970. Similarly, the other decisions Ramcharan Singh v. Sheo Dutta Singh AIR 1923 Pat 380; Prahlad Chandra Roy v. Rash Behari Roy and Ors., AIR 1949 Assam 64; Govinda Kumar Sur and Ors. v. Mohini Mohan Sen and Ors. : AIR1930Cal42 ; Balkrishna Bhimji Baknalkar v. Ramkrishna Ganadhar and Ors. AIR 1931 Bom 234 (DB); Mohd. Ibrahim v. Ishrat Bussain and Ors., : AIR1952All658 and Madak Chand Jain v. Fatma Dai, AIR 1999 MP 30 are either distinguishable or are not applicable in the facts and circumstances of the case. Thus, we are in agreement with the learned Single Judge on this issue and hold that the suit has been properly valued and that this Court has jurisdiction to try and entertain the same and thus the suit is maintainable before this Court.
Maintainability : Subjective jurisdiction :
5. A preliminary issue was taken by Mr. Bimal Chatterjee for the appellant as to the jurisdiction of the Court on the ground that since the defendant had claimed right under the 1981 Act, by reason of constitution of the West Bengal Land Reforms and Tenancy Tribunal under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (1997 Act), this issue can be tried only before the Land Tribunal since the jurisdiction of this Court has ceased in relation thereto in view of Sections 7 and 8 of the 1997 Act. This preliminary issue was decided in favour of the plaintiff to the extent that in order to determine as to whether the jurisdiction of this Court has ceased, it has to be seen whether the tenancy is covered under the 1981 Act, a specified Act defined in Section 2(r) of the 1997 Act. This question was tested in appeal and up to the Supreme Court. Ultimately, the suit was allowed to be decided by this Court. Be that as it may, this question looses its significance if it is found that the 1981 Act has no manner of application in the present case. Such a question can be gone into if prima facie it appears that the 1981 Act is not applicable. It is not a case that whenever a defence under the 1981 Act is taken, the jurisdiction of the Court would cease and the jurisdiction of the Land Tribunal would be attracted. If prima facie it appears that the 1981 Act is not applicable, in that event, the Court is at liberty to proceed With the same. In any event when a preliminary issue as to jurisdiction is raised, it has to be decided by the Court.
Whether the defendant/appellant is a thika tenant? :
6. Mr. Chatterjee had relied on various decisions in order to sustain his contentions with regard to the question as to whether the property would vest under Section 5 of the 1981 Act and on the question whether despite the lease above 12 years, it was a thika tenancy and that the 1981 Act applied even in respect of land held under the lease above 25 years irrespective of pucca or kutcha structure constructed by the lessee. In order to substantiate his contention, he had relied on the principle of interpretation of statute in relation to the Court's power and on various other principles. He relied on Vickers Sons & Maxim Ltd. v. Evans, 1910 AC 444; Nalinakhya Bysack v. Shyam Sunder Haldarand Ors., : [1953]4SCR533 ; P.K. Unni v. Nirmala Industries and Ors., : [1990]1SCR483 and various other decisions. We do not think that it would be necessary for us to deal with the same in view of the facts and circumstances of the case as discussed hereinafter.
6.1. This question is to be answered on the face of a decision in another proceeding between the plaintiff and the State of West Bengal in which the defendant/appellant was a party. Inasmuch as the plaintiff had preferred a writ petition before this Court against the State of West Bengal being Matter No. 215 of 1984 since been disposed of on 5th of May, 1986 (pp. 316-317 PB). In the said writ petition, it was held that this property was outside the purview of and, therefore, did not vest in the State under the 1981 Act. The special leave petition arising thereout was dismissed with liberty to the appellant to take appropriate steps before this Court by an order dated 30th September, 1991 (Ref. P-328 PB-12th-15th line from top). The defendant/appellant then made an application for recalling the said order dated 5thMay, 1986. But this application was dismissed on 16th of June 1993 (pp. 320-331 PB). The appeal preferred against this order was dismissed by the Division Bench on 12th August, 1994 (pp. 332-344 PB). The Apex Court in Civil appeal No. 8781 of 1995 [SLP No. (C) 3291 of 19951 did not interfere with the said judgment but had only recorded that the decision dated 5th May, 1986 in Matter No. 215 of 1984 would bind the State respondents No. 1 to 4 but would not bind the respondent No. 5 being the defendant/appellant (P-356 PB) in its order dated 22nd September, 1995. However, the Apex Court in its order dated 29th January, 1996 passed in SLP(C) 3291 since renumbered as Civil Appeal No. 8791 of 1995 had recorded that the order dated 22nd September, 1995 passed by it would not preclude the State from raising such contention which would be available to it on the basis of the amendment brought about in the 1981 Act subsequent to the judgment or on the question of validity or otherwise of the amendment. Admittedly, the State had not raised any objection and the decision on the said writ proceeding became final as between the plaintiff and the State of West Bengal.
6.2. On the other hand, the respondent filed Suit No. 900 of 1986 for recovery of possession. Upon notice to the State and the appellant a decree for eviction under Chapter XIII-A of the Original Side Rules was passed in 27th July, 1987. The appeal preferred thereout was dismissed by the Division Bench on 14th September, 1990. The Special Leave Petition against the said order dated 14th September, 1990 by the appellant/defendant, renumbered as Civil Appeal No. 136 of 1991 was allowed on 7th February, 1995 (p-345-355 PB) after rejecting the defendant/appellant's application for addition of the State of West Bengal as party on 25th September, 1991 (p-318 PB) and that of the State of West Bengal to implead itself a party on 29th August, 1991 (p-319 PB). In its order dated 7th February, 1995 (p-355 PB) the Apex Court was pleased to set aside the decree under Chapter XIII-A and remand the suit to this Court for, final disposal, since decreed on 13th May, 2003, the decree under appeal.
6.3. From the above facts, it is crystal clear that the decision dated 5th of May, 1986 between the parties including the State of West Bengal in WP No. 215 of 1984 had become final. By reason of the said decision holding that the property was outside the purview of the 1981 Act, the property did not vest in the State. In view of order dated 22nd September, 1995 (p-357 PB), this decision binds the State of West Bengal but not the defendant/appellant.
6.4. It is not necessary to answer the first question in view of the decision in the earlier proceedings as discussed. Inasmuch as, if the decision of the Court that the property did not vest in the State, binds the State and the plaintiff, in that event, the State would not become the superior owner of the land; and then the defendant could not claim to be a thika tenant under the State. The defendant could claim thika tenancy under the State only if the land had vested in the State and not otherwise. If the decision that binds the State holds that the land had not been vested, the State cannot claim any right on to the land to treat the defendant as its thika tenant under it. The learned Counsel for the parties have raised various questions but these questions would become academic, inasmuch as, even if it is found that the defendant is a thika tenant, then the defendant would be a tenant under the State and the land has to be vested under Section 5 of the 1981 Act, The land having held not to have been vested, the State cannot claim any right over it and if the State cannot claim any right, the defendant cannot claim itself to be a thika tenant under the State. Therefore, the defendant/appellant cannot be held to be a thika tenant. In that view of the matter, it is not necessary to go into any of the other questions on this point.
Effect of Section 116 TP Act:
7. The other question that was raised was that in view of Section 116 of the TP Act on the expiry of 25 years lease by reason of payment and acceptance of rent, the defendant/appellant was holding over on month-to-month basis. By reason thereof, it became a tenant on month-to-month basis in respect of land over which it had erected structure and as such he had become a thika tenant. This proposition also does not seem to be sound. The principle of holding over under Section 116 is in effect and extension or continuation or renewal of the lease on the same terms and conditions as contained in the registered Deed of Lease extending the period of original lease. It does not create a fresh lease. Renewal of a lease and creation of a fresh lease are two different things. Creation of lease is independent of any earlier lease which is independent of any lease previously held may be on the same terms and conditions, but renewal pursuant to an option exercised, permitted within the covenant of the lease is an extension of the existing lease for a further period. In case no deed is executed, by reason of Section 116 TP Act, the original lease continues, therefore, it cannot become a thika tenant, apart from the absurdity of the claim on the face of the reasons discussed in paragraph 6 above.
7.1. In Lalit Mohan Dey v. Satadalbasini Dasi, : AIR1965Cal55 , it was held that in a lease for 25 years with option of renewal for 5 years, if no lease is executed after 25 years, then the occupation of the tenant would be a continuation of lease in view of Section 116 TP Act. This view finds support from the decision of this Court referred to a third Judge in Ranjit Kumar Dutta v. Tapan Kumar Shaw and Anr., : AIR1997Cal278 where the continuation of occupation after expiry of lease outside the purview of WBPT Act having been held over under Section 116 of the TP Act is accepted as a continuation of the lease not a creation of a fresh lease but a prolongation or extension of the old lease. The word 'extension' ordinarily implies the continued existence or something to be extended. In case of extension, the same lease continues in force during the additional period by the performance of the stipulated act, even though no registered deed of lease is executed. This view has since been taken in Syed Ali Kaiser v. Mst. Ayesha Begum, : AIR1977Cal226 , which, however was sought to be distinguished by Mr. Chatterjee on the ground that the reasoning given in the said decision is green. Though there might be some substance in the contention of Mr. Chatterjee with regard to absence of reasons, but then it would not be of much importance, since the same view was taken as early as in 1965 in Lalit Mohan Dey v. Satadalbasini Dasi, : AIR1965Cal55 by a Division Bench presided over by late lamented P.N. Mookerjee, J., as His Lordship then was, and spoke for the Bench explaining reasons given in detail. This judgment was sought to be distinguished by Mr. Chatterjee on the ground that it is no more a good law, which we are unable to accept.
Whether the defendant is a premises tenant: Alternative case: How far permissible:
8. Alternative claims can be maintained even in the plaint but there is a limit to it. Diametrically opposite or conflicting or inconsistent claims or pleadings are not permitted. One cannot claim to be a thika tenant and premises tenant in the same breath. The claim would be redundant in view of the characteristic of the two kinds of tenancies. In a thika tenancy the thika tenant is the tenant in respect of the land on which he has erected or has acquired by purchase or gift a structure. In other words, a thika tenant is a tenant in respect of the land but owner of the structure. Whereas a tenant defined in Section 2(h) of the WBPT Act is a tenant of a premises as defined in Section 2(f) thereof to mean any building or part of a building or any Hut or part of a hut let separately and includes the gardens, grounds and out-houses, if any, appertaining thereto; any furniture supplied or any fittings or fixtures affixed for the use of the tenant in such building or part of a building or hut or part of a hut, but does not include a room in a hotel or a lodging house. Thus, a tenant under the WBPT Act is the tenant of a premises, which is a building or hut owned by the landlord, entitled to receive the rent of premises. Therefore, the landlord may either be the owner of the building or the owner of both the land and building, which he had let out to a tenant and entitled to the rent of the premises. However, the ingredient of tenancy under the WBPT Act is the premises, which is the primary concept. The landlord may be the owner of the land or may not be the owner of the land and even he may not be the owner of the building, but definitely a landlord defined in Section 2(d) of the WBPT Act would be entitled to receive the rent of the building comprised in the premises and the tenant would be the tenant in respect of the building comprised in the premises. A tenant under the WBPT Act cannot own the building comprised in the premises and be a tenant under the WBPT Act because he is a lessee of the land. Similarly, a landlord defined under Section 2(h) WBPT Act cannot be entitled to rent for the land without that for the building or structure comprising the premises. Such a conflicting/contradictory/inconsistent plea is not permissible.
8.1. On this question, we may find support from the reasons given in Moti Lal Poddar v. Judhistir Das Tear and Ors., 22 CLJ 254 where this Court had held that contradictory stand is not permissible.
8.2. Thus, such an inconsistent case cannot be made out in the defence. In that event, even if such a defence is raised, when on facts it appears that the tenant is a tenant of the land and owner of the structure or the building, then it does not fit in the definition of tenant defined in Section 2(h) of a premises defined in Section 2(f) under a landlord defined in Section 2(d) of the WBPT Act.
8.3. That apart, the defendant had stopped payment after 1982 and did not deposit rent either with the Rent Controller or in the Court; neither it had attempted to comply with and obtain the benefit of Sections 17(1), (2) and (2A) of the WBPT Act and as such it could not claim any benefit or protection under Section 17(4) of that Act. In any event from the materials on record, it appears that the defendant had all along claimed itself to be a thika tenant, therefore, it is estopped from claiming itself to be a premises tenant. The holding over under Section 116 of the TP Act as already observed would not create a new tenancy since it is a continuation of the original lease. On the same facts it cannot claim two inconsistent cases when electing for one. On the principle of Doctrine of Election, the defendant having elected to claim the benefit of 1981 Act, it is estopped from claiming benefit of the WBPT Act.
Conclusion :
9. In the facts and circumstances of the case and on the materials on record, as discussed hereinbefore, we have found that the defendant/appellant is neither a thika tenant nor a premises tenant. Therefore, the question of cessation or exclusion of the jurisdiction of this Court and attracting the jurisdiction of the Land Tribunal constituted under 1997 Act becomes irrelevant, and we hold that this Court has jurisdiction, both pecuniary and subjective, to entertain the suit. The learned Single Judge had rightly decreed the suit.
9.1. In these circumstances, we need not go into the other questions. The judgment and decree appealed against is, therefore, liable to be affirmed subject to the decision in the cross-objection.
Cross-objection
Costs:
10. Two grounds have been advanced by Mr. P.K. Mullik with regard to the question of mesne profits and granting of costs. Mr. Bimal Chatterjee, learned Counsel for the appellant, had pointed out that the learned Single Judge had granted costs.
Mesne profits:
11. On the question of mesne profit, it appears that the learned Single Judge had granted mesne profit at the rate of rent last paid. Admittedly, the lease was granted sometimes in 1956 for a period of 25 years. The decree was passed on 13th May, 2003 i.e., after 47 years. Admittedly, the property situated at a prime location in the heart of the city of Calcutta. There are certain materials on record on the question of mesne profits, particularly, in the evidence as is apparent from (page 106 PB) question Nos. 103 to 111 in examination-in-chief (page 144 PB) and question Nos. 271-273 in cross-examination of the PW. 1. Order 20 Rule 12 CPC requires an enquiry to be made in mesne profit. Sometimes the last rent may be treated as mesne profit, but it is a question dependent on various factors, which is a matter of reference for enquiry in view of Order 20 Rule 12 CPC. Mesne profit can be granted along with the decree but even then the enquiry is to be undertaken in the process and the matter is to be determined.
11.1. On the question of mesne profits, Mr. Mullick had relied on G. Geevarghese and Anr. v. Issahak George and Ors., : AIR1971Ker270 and Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Anr., : [1999]1SCR311 . These decisions support the view we have taken.
Conclusion:
12. Having regard to the facts and circumstances of the case and the materials on record, particularly, in view of the prime location of the property; the lapse of time; the untenable inconsistent stands taken by the defendant; the involvement in prolonged litigation for over 20 years; and having regard to the present market rate, in our view, the determination of mesne profits at the rate of rent last paid without any enquiry cannot be justified and an enquiry was required to be made for determining the mesne profit.
Order:
13. We, therefore, hereby allow the cross-objection and set aside the part of the decree with regard to mesne profit and remit to the case to the learned Court below for the purpose of an enquiry in the mesne profit under Order 20 Rule 13 CPC in accordance with law after giving opportunity to the parties. The cross-objection is allowed to the extent and the judgment and order is set aside only to the extent of grant of mesne profit and the suit is remanded only for the purpose of enquiry under Order 20 Rule 12 for determining mesne profit. Rest of the judgment and decree appealed against stands affirmed.
13.1. The appeal is dismissed subject to the decision in the cross-objection. The cross-objection is allowed as above.
R.N. Sinha, J.
14. I agree.