CHITTATOSH MOOKERJEE, J.

( 1 ) THIS Letters Patent Appeal is at the instance of the defendant. On August 9, 1954, Kali Charan Mitra and Shyama Charan Mitra, predecessors-in -interest of the plaintiff-respondents had granted a registered Indenture of lease in favour of the appellant in respect of a vacant land measuring more or less two collahas comprised in premises No. 32/2, Chakraberia Road for a term of twelve years certain with effect from 9th day of August 1954 at a monthly rental of Rs. 25/- only excluding all Corporation taxes payable on or before the 7th day of every succeeding month. The lessors and the lessee inter alia agreed that the lessee would be allowed to construct a two-storied masonary building with corrugated iron/absestos roof according to plan sanctioned by the Calcutta Corporation but no permanent structures would be raised. The lessors further allowed the lessee to construct a permanent privy with drainage system at his own cost according to Municipal rules, Under Clause 10 of the said Indenture of lease, the entire structures including privy, water taps, electricity connection if built by the lessee and if not removed by him within a reasonable time after the expiry of the lease, were to be treated as the property of the lessors, who in that case, before taking possession of the land and structures would have to pay an amount equivalent to the cost price of the structures privy, water taps, drainage, electricity connection and all developments made for the land after deducting depreciation of twenty per cent, of the costs. It is unnecessary for our present purpose to refer to the other provisions contained in the Indenture of lease.

( 2 ) IT is not disputed that in view of the provisions of Section 2 (5) (b) of the Calcutta Thika Tenancy Act. 1949, the above Indenture of lease in favour of the defendant appellant was not governed by the said Act, but it is admitted that after the expiry of the terms of the lease of 12 years certain provided in the said Indenture of lease, the defendant-appellant had held over and the lessors had assented to continuance of his possession. The plaintiff respondents in paragraph 6 of the plaint have themselves pleaded that after the expiry of the aforesaid lease, the defendant lessee had 'held over' within the meaning of Section 116 of the transfer of Property Act under the same terms and conditions. In the eye of law the said term 'holding over' after the expiry of the term of the lease created a new tenancy in favour of the defendant appellant.

( 3 ) IT is settled law now that when a tenancy is created by holding over under Section 116 of the Transfer of Property Act, although the old possession may continue under the terms of the lease which had expired, in the eye of law a new tenancy arises. See the cases of Bengal National Bank Ltd. v. Raja Janaki Nath Roy, 31 Cal WN 973 = (AIR 1927 Cal 725); Kai Khushroo Bezonjce Capadia v. Bai Jerbai Hirjibhoy Warden, 1949 FCR 262 = (AIR 1949 FC 124) and other cases considered by P. N. Mookerjee and T. P. Mukherji, JJ. in the case of Satadal Basini Dasi v. Lalit Mohan Dey. It may be noted in the instant case the lease in favour of the appellant was not renewed in terms of any clause in the Indenture of lease providing for exercise of option of renewal.

( 4 ) THE principal point in this appeal is whether or not the said tenancy of the defendant appellant would be governed by the provisions of the Calcutta Thika Tenancy Act, 1949. In the event the defendant appellant became a thika tenant after a new tenancy was created as a result of his holding over, then the suit for ejectment and for other reliefs brought by Kali Charan Mitra, since deceased, the predecessor in interest of the respondents was plainly not entertainable in civil court. On the other hand, if the defendant's tenancy was not governed by the Calcutta Thika Tenancy Act the decree for eviction passed against him must be sustained.

( 5 ) M, M. Dutt. J. dismissed the

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