The judgment establishes the requirement for evidence of specific systems of thika tenancy and structures erected by the tenant to qualify for protection under the Calcutta Thika Tenancy Ordinance, 1948.

( 1 ) THIS is an appeal from an order of Banerjee J. sitting on the Original Side dated 28th March 1949 allowing an application for execution of a decree.

( 2 ) THE respondent obtained a consent decree against the appellant on 3rd January 1946, and by that decree the defendant undertook to deliver possession within six months, execution of the decree being stayed for that time. The defendant did not vacate at the expiry of the period of six months and on 3rd December 1948, the Court made an order directing the Sheriff to deliver possession of the premises to the respondent. The Sheriff failed to deliver possession and an application was made to the Court for an order that the Sheriff of Calcutta be directed to deliver possession of the land and premises known as No. 2, Nayan Krishna Saha lane in the mode described by Order 21, Rule 35, Civil P. C.

( 3 ) THE appellant resisted the application and claimed to be a thika tenant and entitled to the protection given by the Calcutta Thika Tenancy Ordinance, 1948.

( 4 ) THE learned Judge came to the conclusion that the appellant was not a thika tenant and was not entitled to protection under the Ordinance. If no protection under the Ordinance could be claimed then it was conceded that the appellant had no answer to the application for execution.

( 5 ) IT appears that the appellant's husband had been a lessee of these premises from the respondent, but on 13th December 1944, this lease was surrendered by a document of that date. It appears from the document that there was still fourteen years of the lease to run, but the lessee owed large sums of money to the landlord. As a result of an agreement entered into between the parties the lessee the appellant gave up all claims under the lease and the landlord the respondent in turn gave up certain decrees and claims which he had against the appellant. Further the respondent paid the appellant a sum of Rs. 2,000 in cash and agreed to pay a sum of Rs. 200 for the doors, windows, beams, rafters, bricks, lime, surki etc. of a structure upon the premises. The document ends with these words:"i sign and execute this deed of surrender by giving up in your favour all my rights etc. , to the said land which I now have on the basis of the said temporary lease. I shall have no further claim or demand, right, title and interest on account of the said temporary lease. From this day, I shall be regarded as merely a ticca tenant at will (monthly tenant) in respect of the said land. "the document was of course executed by the appellant.

( 6 ) THE document is in Bengali and I have merely set out a translation and there can be no doubt that the translation is accurate. The appellant was to be regarded as "ichhadhin thika praja" and immediately following these words, the words "monthly tenant" in English appear in brackets.

( 7 ) LEARNED counsel on behalf of the appellant has contended that this deed of surrender clearly created a thika tenancy within the meaning of that term as used in the Calcutta Thika Tenancy Ordinance, 1948. That being so, it is said that the appellant was protected by Section 3 of that Ordinance. That section provides :"notwithstanding anything contained in any other law for the time being in force, no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of this Ordinance. "

( 8 ) IT was argued before Banerjee J. that this section afforded no protection where the decree for ejectment was a consent decree; but the learned Judge preferred not to rest his judgment on any such basis and I do not, therefore, propose to consider that matter any further.

( 9 ) IN the learned Judge's opinion the appellant had failed to prove that she was a thika tenant within the meaning of the term as used in the Ordinance. It is to be observed that no one but a friend gave evidence on behalf of the appellant and the evidence of that friend is to a very large extent inadmissible. However