Judgement

SHELAT, J. : Two questions arise in this appeal by certificate granted by the High Court at Calcutta, (1) as regards the jurisdiction of the Controller under the Calcutta Thika Tenancy Act, 1949, after the deletion therefrom of Section 29 by Amendment Act of 1953 in respect of proceedings pending before him on that date and (2) the right of a Thika Tenant as defined by the Act to a notice provided under the deed of lease.

2. By a registered lease, dated December 4, 1934, the appellant entered into possession of the land demised thereunder from the Bhowanipore Wards Estate which was then managing the said property at a monthly rent of Rs. 47-0-3 P. The lease was for a fixed term of 10 years and it inter alia gave the tenant option of renewal of the said lease provided he offered the maximum rent which might he offered by intending tenants on expiry of the said term. Clause 7 of the deed of lease provided that the lessee shall be bound on the termination or sooner determination of the lease to restore to the lessors the land demised after removing the structures with drains, privies, water taps etc., leaving the land in the same state as it was at the date of the lease. It also provided that the lessee would be bound to sell the said structures, privies, drains etc. to the lessors if the lessors so desired at a valuation to be fixed by a qualified Engineer specified therein. Clause 7 then provided as follows.

Provided always and it is hereby agreed and declared that if it be required that the lessee should vacate the said premises at the end of the said term of 10 years the lessee will be served with a 6 months notice ending with the expiry of the said term and it is further agreed that if the lessee is permitted to hold over the land after the expiry of the said term of 10 years the lessee wil1 bc allowed a six months notice to quit and vacate the said premises."

It is clear that the lessee was entitled to a six months notice in the following two events before he could be required to vacate: (1) If the lessors desired the lessee to vacate at the end of ten years and not to renew the lease, they were bound to give six months notice ending with the expiry of the term of 10 years and (2) if on the expiry of the term the lease was not renewed but the lessee was allowed to holdover the lessors were bound to give him six months notice before being asked to quit. After the execution of the said lease the appellant built certain structures on some portion of the said land and let out the remaining portion as permitted under the said lease. .Since the said period of ten years was to expire on December 1, 1914, the appellant by his letter, dated November 30, 1944, to the Bhowanipore Wards Estate expressed his desire to exercise his option of renewal stating therein that he was prepared to pay such higher rent as the lessors had by that time received. According to the appellant. since he did not receive any reply to the said offer he continued to be in possession of the demised land and as was the practice between the parties, continued to deposit the aforesaid rent form time to time in the treasury of Alipore Collectorate. On May 26, 1945. the Manager of the Wards Estate intimated to the appellant that the renewal of the said lease was not sanctioned and asked the appellant if he was agreeable to pay rent at the rate of Rs. 12 per month per Cottah and a Selami equivalent to one year s rent. The appellant wrote back to say that he had already exercised his option, that he had been regularly depositing the said rent and that the said demand was excessive and he was therefore not bound to pay the same. Considerable correspondence thereafter ensued between the parties ending with the notice, dated October 14, 1946, by the said Wards Estate stating that as the appellant did not agree to pay the rent as demanded by them and the said lease was not renewed he was a trespasser and was not entitled to any notice under the said lease and