P. B. MUKHARJI, J.

( 1 ) THIS is a suit by the plaintiff for the recovery of possession of premises No. 83, Lower Circular Road, Calcutta, and for mesne profits.

( 2 ) NAGENDRA Nath Das and Ramesh Chandra Bhowmick were the joint owners of 83, Lower Circular Road, which was a vacant plot of land. By a registered lease dated 29/11/1943, the said owners Nagendra Nath Das and Ramesh Chandra Bhowmick let out the said vacant land to the defts. , carrying on business in the name of National Motors for a term of 3 years with effect from 1/12/1943. The lease provides that on the expiry of the said term the defts. should deliver quiet and peaceful possession to the lessors. By a conveyance dated 4/5/1946, the said Nagendra Nath Das and Ramesh Chandra Bhowmick sold the said land to the plaintiff Notice of the transfer was duly given to the defts. and the defts. were asked to attorn and pay rent to the plaintiff The defts. paid rent to the plaintiff thereafter until the determination of the said lease. The lease expired on 30/11/1946. On the expiry of the lease demands for possession were made by and on behalf of the plaintiff but the defts. did not comply with such demands. Hence this suit for possession.

( 3 ) THE lease, the conveyance and the correspondence between the parties including the letter of attornment will be found in the admitted brief of documents and correspondence marked as Ex. "a" in this suit. The suit was filed on 23/7/1947.

( 4 ) THE written statement was filed on 25/11/1947. The original written statement did not disclose very much of a defence except that it alleged that the said premises was not vacant land and that the defts. were entitled to the benefits of the Calcutta House Eent Control Order and Ordinance which were in force at that time. Then followed a stage where the deft. Baijnath admitted through his counsel that the said property was vacant land when it was let out. After that admission was made there was practically no defence to the suit. I directed that admission to be recorded in the minutes of this Ct.

( 5 ) THEN came an application for amendment of the written statement when the suit was actually on the Daily List for hearing. I allowed the amendment to be made even at that late stage and even though it raised an entirely new defence. The order of amendment was made on 4-7-1949. By the new amendment the defts. raised the defence that the deft. was a Thika tenant under the Calcutta Thica Tenancy Act.

( 6 ) THE only main issue raised in this case is: "is the deft. Baijnath Bajoria a Thica tenant in respect of the land at 83, Lower Circular Road, Calcutta, under the Calcutta Thica Tenancy Act ?" The other issue is about the mesne profits which will depend on this main issue.

( 7 ) THE onus of proving Thica tenancy being on the defts. , deft. Baijnath Bajoria called evidence first.

( 8 ) ON behalf of the deft. Baijnath 4 witnesses have been examined Kamala Charan Banerjee, Shib Charan Saha, Baijulal Agarwalla and Hrishikesh Ghosh. On an analysis of the evidence given on behalf of the deft. Baijnath Bajoria I have come to the conclusion that he has failed to prove that he was or is a Thica tenant within the meaning of the Calcutta Thica Tenancy Act in respect of the land at 83, Lower Circular Road. I will state my reasons why I have come to that conclusion.

( 9 ) KAMALA Charan Banerjee is an employee of the deft. Baijnath Bajoria who says that he looks after all the affairs in connection with the premises No. 83, Lower Circular Road. In Q. 36 he was asked about the nature of tenancy of his employer and his answer was that they were Thica tenants. But in answer to Q. 37 to 39 from the Ct. he says that he calls the defts. Thica tenants because according to him those who take a vacant land on rent and builds structures on the said land are called Thica tenants. In fact in answer to Q. 40 he says that according to his interpretation of the word "thica" he is calling the defts. Thica tenants. I am a

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