I.P MUKERJI, J.

This is an appeal from a Judgment and decree dated 15th June 2009 passed in a suit for eviction and mesne profit. The decree was for recovery of property which was the subject matter of the suit and for mesne profits. The rate of mesne profits was at the rates mentioned in Exhibit N with interest at the rate of 10 %.

The defendant is up in appeal. At the time of preferment of the appeal they were aggrieved both by the decree for eviction and mesne profit. During the hearing of the Appeal, the first point was given up as it was realized by them that there was no substance in it. Only the point about mesne profit was pressed. Such is the stand even in the written notes of argument.

But none the less some facts are to be noted .By a registered deed of lease dated 22 February, 1969, the first floor of 1, Shakespeare Sarani, Calcutta was demised to the appellant defendant for 21 years. The area was 12,108 square feet. One clause in the lease became controversial. It was that on completion of eight years, the appellant defendant had the option to terminate the lease. It did not do so .But nevertheless according to the appellant defendant by the proviso to s3 of the then West Bengal Premises Tenancy Act, 1956, the protection of s.3 did not apply, because of the presence of that clause. Upon the expiry of the period of lease, the appellant defendant became a monthly tenant. However the Respondent attempted to allege determination of the lease by its letter 24th July,1981. The appellant defendant argued in the alternative various points to the effect that the lessor lessee relationship was continued as a monthly tenancy under the holding over principle and by acquiescence. But all these grounds were rejected by the Hon`ble first court holding that the lease stood determined by efflux of time and that the Respondent was entitled to possession.

This part of the decree has not been challenged. Therefore we dismiss the appeal with regard to that part of the decree and affirm the Judgment and decree of the first Court to that extent.

But the real controversy is with regard to mesne profit.

On a reading of the Judgment under appeal it appears that the entire foundation for grant of mesne profit was a report dated 7th December,2007 of M/s Talbot &Co ,Surveyors and Valuers, marked as exhibit `N`. It was signed by Mr. S. Maitra, Chartered Valuation Surveyor. It was conceded by the Respondent that the valuer was not called to give evidence as an expert. The valuation report computed letting out values of the property as on 1st March,1990,1st March 1994,1st March,1998,1st March 2002 and 1st November,2007.They were Rs. 3,07,543, Rs. 5,63,627, Rs. 7,80,966,Rs10,32,207 and Rs. 13,00,762 respectively.

The learned Judge of the first Court passed a decree on the said valuation report. He said “…………and there shall be a decree for past and future mesne profits at the rates mentioned in Exhibit N with interest at the rate of 10 percent per annum.”

Now on our first look at the report, this report cannot be part of a decree, as it is uncertain. Something more had to be decided. For example as it is stated there that as on 1st March 2002 the rent was a particular amount and on 1st March 2007 it was a higher amount, neither the rent in February,2002 can be computed nor the rent in April 2007 on the basis of the report. The whole report was an estimation, in our opinion and not a quantification. That quantification is not available in the decree.

Moreover, it is possible to quantify the rent on the basis of the principles of valuation disclosed in the report. Some method should have been provided in the decree.

But the question is to what extent is the report reliable?

The valuer was called as a witness.

According to the records of his evidence he said that he had personally valued the property, prepared the report and signed it. He also disclosed the materials he had considered in preparation of the report, mainly in cross