The duration of the lease for the purpose of determining whether a person is a thika tenant must be the term of the same instrument and not the cumulative effect of two or more instruments.

1. THIS appeal is at the instance of the defendant Purushottam Das Murarka and it arises out of a suit for ejectment.

2. THE property in suit is a plot of land measuring bigha 15 cottahs comprised in premises No. 234/4, Prafulla chandra Road, Calcutta previously numbered as premises No. 234/2, Upper Circular Road, Calcutta. The suit property belonged to one Dinanath Das father of Debendra Nath Das. Dinanath settled the suit property with one Surendra Kumar by a registered deed dated August 4, 1929. Surendra used to carry on a business of mustard oil by erecting structures in the said premises. One Jatindra Mohon Seal purchased the interest of Surendra from his executors on May 9, 1936. One satya Narayan Murarka purchased the interest of Jatindra Mohon Seal and his co-sharer in the suit property on September 6, 1949. Debendra brought suit for ejectment against Satya Narayan and Jatindra. The suit was decreed on compromise and Debendra granted a lease of the suit property to satya Narayan by a registered deed of lease dated December 5, 1952 for five years commencing from January 1, 1952 and terminating on the last day of december 1956. Clause (1) of the lease is as follows :

"the term of the lease would be for five years commencing from the 1st day of January 1952 and terminating on the last day of December 1956 without notice from the Lessor and the Lessee will deliver khas possession on the expiry of the lease failing which the Lessor will be entitled to take legal action for the recovery of possession without any notice. Provided that the Lessor shall grant a fresh lease for a term of seven years at a rate then prevailing for such lands if the Lessee so desired and if the parties fail to come to any agreement in respect of the prevailing rate, the same shall be determined by reference to two arbitrators one being the nominee of the Lessor and the other of the Lessee. "

The lessee Satya Narayan Murarka possessed the suit property up to december 31, 1956 and requested the lessor Debendra Nath Das to grant to the appellant Purushottam Das Murarka, his cousin, a fresh lease of the suit property for a further term of seven years. Pending the negotiation of a fresh lease in favour of the appellant. Debendra Nath Das died on December 26, 1957, and the respondent was appointed the administrator pendente lite to the estate of Debendra in Probate case No. 3 of 1958. As per request of satya Narayan Murarka, the respondent granted a lease to the appellant by a registered lease dated September 17, 1959, for a term of seven years with effect from January 1, 1957 and terminating on December 31, 1963 at a monthly rent of Rs. 735/- according to English calendar month, besides payment of owner's and occupier's share of the municipal tax. By a letter dated December 16, 1963, the respondent asked the appellant to vacate the suit property on and from January 1, 1964 by removing all his structures, plants, machineries etc. The appellant not having vacated the suit property, the respondent instituted the present suit for recovery of khas possession of the suit property by evicting the appellant therefrom and for demolition and removal of the structure, plants, machineries etc. within the time to be fixed by the Court ; in default, it was prayed, the same would vest in the plaintiff. The respondent also prayed for a decree for damages at the rate of rs. 50/- per diem from January 1, 1964 till delivery of possession in due course of law.

3. THE appellant has contested the suit and his case is that the lease dated december 5, 1952, though it was in the name of Satya Narayan Murarka as lessee, the consideration therefore was equally shared by four persons including Satya Narayan Murarka and the appellant. They became owners by purchase of the structures, plants, machineries etc. lying on the leasehold land from Jatindra Mohon Seal and entered into a partnership by a deed dated October 21, 1949. Of the said four persons, three retired from the par