Judgment

P. K. GOSWAMI, J. - In this appeal by special leave directed against the judgment of the Calcutta High Court the only question that arises for consideration is whether the respondent is a thika tenant under Section 2 ( of the Calcutta Thika Tenancy Act, 1949.

2. On June 1, 1956, the predecessor-in-interest of the appellants (the latter, hereinafter to be described as the landlord) gave the land with which we are concerned in this appeal to the respondent (hereinafter to be described as the tenant) for occupation as a tenant on a monthly rent of Rs. 75/for one year. One of the conditions of the tenancy was that "the premises shall not be used for any purpose other than keeping of the lorries as garage". Another condition of the tenancy was that "the lessee will on the expiration of one year peacefully surrender and yeild up vacant possession to the lessor." On july 29, 1958, the landlord s advocate sent a notice of eviction to the tenant to vacate and deliver possession of the land on the expiry of August 1958. The tenant through his advocate by a letter of August 29. 1958, denied liability for eviction assserting that there was no violation of any terms and conditions of the tenancy and since there was refusal to accept the rent by the landlord the tenant had been deposisting the rent every month from March 1958 under the provisions of the Calcutta Thika Tenancy Act 1949 (briefly the Act) by which the tenancy was claimed to be governed. Thereafter a suit was filed by the landlord in the court of the 4th Munsif at Alipore on January 15, 1959.

3. It is not necessary to trace the history of the litigation covering this long period. It is sufficient to state that the High Court by its judgment on April 25, 1972, allowed the tenant s second appeal holding that he is a thika tenant within the meaning of Section 2 (5)of the Act. According to the High Court the tenant does not require any consent of the landlord to erect a structure on the land. The result was that the court of Munsif had no jurisdiction to entertain the suit, the matter being within the cognizance of the Controller appointed under the Act.

4. Mr. Sachin Chowdhary appearing on behalf of the appellants fairly and, if we may say so, rightly confined his argument to the principal question of law as set out above -

Is the tenant a thika tenant under the Act? If the answer is yes, the landlord is out of court. Before we proceed further we may briefly note that the tenant constructed certain structures on the land prior to the institution of the suit in 1959. Mr. Chowdhary, however, drew our attention to an observation in the judgment of the High Court to the effect that "admittedly the defendant (respondent herein) at his own cost constructed in 1962 structures upon the bare land which he took for the purpose of his business." Since the year of construction had not been particularly agitated in the courts below and there is evidence to show that the construction had commenced from 1957, we are not prepared to give undue importance to this observation about the year of construction mentioned in the judgment. This is particularly so in view of the fact that the tenant through his lawyer in reply to the notice of eviction asserted in August 1958 that -

"my client has constructed the structures and has done such other things as are needful for the purpose of the keeping lorries and other vehicles in the garages and making of necessary repairs of the same as well as upkeep and maintenance of the same for carrying on his business in transport service". Further, even so, although there is a reference to this reply of the advocate of August 29, 1958, in para 8 of the plaint, there is no denial of the construction of the structures as asserted in the said reply. Being faced with this factual position Mr. Choudhary strenuously contended that under Section 2 (5) of the Act erection of structures by the tenant must be with the permission of the landlord. In other wards, says Mr. Ch