A tenancy is a thika tenancy if the tenant constructs the structure on the vacant land and is liable to pay rent only for the land, not for the structure.

Bhaskar Bhattacharya, J.: This first appeal is at the instance of defendants in a suit for eviction and is directed against the judgment and decree dated June 29, 1996 passed by the learned Judge, 12th Bench, City Civil Court, Calcutta in Ejectment Suit No. 1185 of 1975 thereby decreeing the aforesaid suit.

The proceeding has a chequered career.

2. The respondent herein filed the aforesaid Ejectment Suit No. 1185 of 1975 in the City Civil Court at Calcutta for eviction of the appellants by treating 'them as tenants governed under the provision of West Bengal Premises Tenancy Act on the ground of default in payment of rent and sub-letting and the case made out by the respondent was as follows :

Premises No.1, Keshab Chandra Sen Street belonged to one Sisir Kumar Dawn. After the death of said Sisir Kumar Dawn the property devolved upon his widow, Smt. Angurbala and his only son, Samir.

3. The appellants were tenants under them in respect of a portion of the northeri1 side of the said premises consisting of five rooms which were later converted into seven rooms as described in the schedule annexed to the plaint. The tenancy was held at a monthly rental of Rs. 70/- according to English calender. By a registered deed of conveyance dated June 26, 1974, the aforesaid heirs of Sisir Kumar Dawn sold their undivided half share in the said property to Smt. Pachha Debi, the grandmother of the plaintiff and the plaintiff for valuable consideration. By another registered deed of conveyance executed on the same day, the aforesaid heirs of Sisir Kumar Dawn transferred the remaining undivided half share in the said premises No.1, Keshab Chandra Sen Street to Smt. Gayatri Debi for valuable consideration. Smt. Gayatri Debi is the mother of the plaintiff. Ultimately by a registered deed of partition dated August 11, 1974 executed by the co-sharers, the said premises were mutually partitioned among them and under the terms of the said partition, the back portion being 'the northern portion of the said premises was allotted to the plaintiff who became absolute owner thereof. The tenancy of the defendants had fallen exclusively in the portion allotted to the plaintiff. The appellants were duly informed of the said transfer and they became monthly tenant under the respondent in respect of the said premises at monthly rental of Rs. 70/-. It was further alleged that the appellants were defaulters in payment of rent and they neglected to pay rent from August, 1974, the date the respondent became exclusive owner. It was further alleged that the appellants were also guilty of sub-letting and were thus liable to be evicted.

4. The aforesaid suit was contested by the appellants by filing joint written statement and the sum and substance of the defence contention was that they were tenants in respect of land under Sisir Kumar Dawn. According to the appellants, said Sisir Kumar Dawn sold the debris consisting of old bricks and other building materials to Mannuram Shaw, the predecessor-in-interest of the appellants on receiving consideration of Rs. 1,000/-. Thereafter, the said Sisir Kumar Dawn let out the vacant land measuring 1 cottah 8 chittaks to Mannuram Shaw on receiving a selami of Rs. 1,000/- on condition that rent would be Rs. 25/- according to English calender. An agreement was accordingly executed between Sisir Kumar Dawn and Mannuram on July 5, 1939 incorporating the terms of the tenancy. According to the said agreement Mannuram was permitted to construct structure with tiles and tin shed over the land. The further defence case is that the predecessor-in-interest of the defendants raised structure on the suit premises and let out two rooms to 'bharatias'. It was further contended by the appellants that the rent of Rs. 25/- a month was gradually enhanced to Rs. 70/- a month but the tenancy was in respect of the land only and it was never in respect of the structure. Therefore, the appellants took the specific plea that they were thika tenan