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SUPREME COURT OF INDIA
G.L. OZA AND K.N. SAIKIA, JJ.
Provash Chandra Dalui and another, Appellants
Versus
Biswanath Banerjee and another, Respondents.
Civil Appeal No. 2977 of 1984
Decided on 3-4-1989
Calcutta Thika Tenancy Act, 1949 – Section 2(5)(b) and 5 - West Bengal Act 6 of 1953 - West Bengal Non Agricultural Tenancy Act, 1949 - Section 30(c) - Land - Thika tenants - Lease deed - Instant second respondent leased out land by a registered lease deed referred to as the lease, at first instance for a period of 10 years but if the lessee did not fail to pay rent to the lessor and rates and taxes to municipality during that period, lease would be extended for a further period of 5 years at rent and if he continued to do likewise, it would be extended for a further period of 5 years and if he continued to do likewise, during the period of 20 years, he would be entitled to obtain, extension for a further maximum period of one year at a rent - Instant appellants are stated to have exercised their option of extension at the expiry of 10 years for a period of 5 years on increased rental and then for the second term of 5 years - Alleging that the instant appellants failed to exercise option of extension for one year at an enhanced rent and also failed to give peaceful and vacant possession of the land to him, instant first respondent as plaintiff instituted title suit for ejectment, possession and mesne profits - Instant appellants as defendants contested the suit by filing a joint written statement stating, inter alia, that they did not exercise option of renewal after the expiry of original term of 10 years as they became thika tenants - Whether the instant appellants acquired status of thika tenants in respect of lease – Held, court do not find any reason in the above decisions to enable us to hold that the lease in the instant case was for a period of less than 12 years and not for a period of not less than 12 years - High Court correctly held the lease to be for not less than 12 years - Essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of relinquishment of such right - It means the forsaking assertion of a right at proper opportunity - First respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land - Estoppel may result though the party estopped did not intend to lose any existing right - Voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between relinquishment and conferment of the right in question. Nothing of the kind could be proved in this case to estoppel the first respondent - In Shanti Devi v. A. K. Banerjee, (1981) 2 SCC 199, it was held that parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom - Court would only look into terms of the lease irrespective of the averments in the pleadings - In the instant case as court have already held the lease to have been for twenty years, its character could not have been changed by the pleadings, if any, in the above cases - Nor could the respondents be held to have waived their rights under lease - Court do not find any infirmity in the impugned High Court order on this count also - In the result, this appeal fails and is dismissed - Appeal dismissed.
Key Points: - The lease was found to be for a term not less than 12 years, affecting thika tenancy status under S.2(5)(b) and S.5; High Court held lease not less than 12 years (!) (!) . - Essential element of waiver requires voluntary relinquishment of a known right; in this case no evidence supported waiver/estoppel against the first respondent (!) (!) . - Prior proceedings before the Controller did not conclusively confer thika tenancy status; status could not be altered by pleadings or incidental orders, so estoppel/waiver not established (!) (!) (!) . - The Court rejected the appellants’ claim of thika tenancy status and upheld dismissal of the appeal; no costs awarded (!) (!) . - The lease provisions specify a sequence of extensions (ten years initial term, then two 5-year extensions, then potential one-year extension) culminating in a twenty-year framework with specified rents, indicating an extension rather than renewal (!) (!) (!) (!) . - The landlord-lessee relationship under the Calcutta Thika Tenancy Act requires ejectment applications to the Controller; the status hinges on lease duration and statutory definitions (!) (!) . - The decision cites Shanti Devi v. A. K. Banerjee to emphasize that pleadings cannot alter the intrinsic character of the lease; focus remains on the lease terms (!) . - The appeal was dismissed; landlord-tenant dispute regarding whether appellants were Thika tenants under the Act is resolved against the appellants (!) (!) . - The judgment emphasizes interpretation of contract as a whole and the need to read the lease in context to ascertain true meaning (!) . - The decision discusses distinction between extension and renewal of a lease and clarifies that the lease in question was for twenty years with extension provisions (!) (!) (!) (!) .
JUDGMENT
K. N. SAIKIA, J.:— This defendants appeal by special leave is from the judgment and order of the High Court of Calcutta dated 18th February, 1982 in S.A.T. No. 87 of 1981 summarily dismissing the Second Appeal against the appellate order in T.A. No. 381 of 1980 which affirmed the judgment and decree in title suit No. 56 of 1966.
The instant second respondent Narendra Nath Mukherjee leased out the land measuring 6 cottas 5 chittaks 30 sqr. ft. at 5/2/A Russa Road, now known as 34/A Shyama Prasad Mukherjee Road, Calcutta, by a registered lease deed dated 26th September, 1946, hereinafter referred to as the lease, at the first instance for a period of 10 years from 1st April, 1946, but if the lessee did not fail to pay the rent to the lessor and rates and taxes to the municipality during that period, the lease would be extended for a further period of 5 years i.e. up to 3lst March, 1961 at the rent of Rs. 250 in place of Rs. 200 per month; and if he continued to do likewise, it would be extended for a further period of 5 years, that is, up to 31 st March, 1966, at a monthly rent of Rs. 300 in place of Rs. 250; and if he continued to do likewise, during the period of 20 years, he would be entitled to obtain, extension for a further maximum period of one year at a rent of Rs. 500 per month in place of Rs. 300 per month.
2. The instant appellants are stated to have exercised their option of extension at the expiry of 10 years for a period of 5 years i.e. from 1st April, 1956 to 31st March, 1961, on increased rental of Rs. 250 per month and then for the second term of 5 years from 1st April, 1961 to 31st March, 1966 at the increased rental of Rs. 300 per month. During the lease, on 31st March, 1959 the instant second respondent by a registered instrument transferred the land to the first respondent who thereby became the landlord. Alleging that the instant appellants failed to exercise the option of extension for one year at an enhanced rent of Rs. 500 and also failed to give peaceful and vacant possession of the land to him, the instant first respondent as plaintiff instituted title suit No. 56 of 1966 for ejectment, khas possession and mesne profits. The instant appellants as defendants contested the suit by filing a joint written statement stating, inter alia, that they did not exercise option of renewal after the expiry of the original term of 10 years as they became thika tenants from 28th February, 1949 i.e. on the date of commencement of the Calcutta Thika Tenancy Act, 1949 as admitted by the plaintiffs predecessor in interest, the instant second respondent, in Miscellaneous execution case No. 126 of 1953 (Thika) before the Controller under the Calcutta Thika Tenancy Act, 1949, hereinafter referred to as the Act, and by both the respondents in Misc. Judicial Case No. 74 of 1958 (Thika) before the said Controller. It was also stated that they (appellants) always paid rent at the rate of Rs. 200 per month and never any enhanced rent; and that the first respondents claim for the differential rent was also rejected. in the first respondents suit No.T.S. 80 of 1965 and the appeal therefrom was also rejected and ultimately the special leave petition (Civil No. 1363/80) was also dismissed by the SC on 10th March, 1980.
3. T. S. No. 56 of 1966 was decreed by the Trial Court wherefrom the appeal, being T.A. No. 381 of 1980, was also dismissed. The Additional District Judge while dismissing T.A. 381/80 relied on the decision of the Calcutta High Court, since reported in (1980) 1 Cal LJ 377, holding that as the lease was for a period of 20 years and not for a period of 12 years sub-section (5)(b) of Section 2 of the Act had no application; and that the respondents were not barred by waiver, estoppel, res judicata or principles analogous thereto because of the Misc. Case No. 74 of 1958 filed by the second respondent under Section 5 of the Act as there could be no question of giving a status under the Act when in the facts of the cas
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