The exercise of the option of renewal by the respondent no.1 resulted in the lease becoming one for fifteen years and not a thika tenancy.

Sudhanshu Sekhar Ganguly, J.

1. This plaintiff appellant’s appeal has been preferred from the decision of Shri B.K. Dutta, Additional District Judge, 8th Court, Alipore dated 9.3.81 in T.A. No. 229 of 1979 reversing the decision of Shri A.K. Dasgupta, Assistant District Judge, 4th Court, Alipore

in T.S. No. 32 of 1974 dated 22.12.78.

2. Admittedly Madan Mohan Jaldka, the respondent defendant No.1 (respondent henceforward) took lease of 8 cottahs and odd of land being premises No.1, Chakraberia Road South, Police Station, Bhowanipur, District-24 parganas at a rental of Rs. 199/- per month from Bai Hem Kaur, the mother of the appellant plaintiff (appellant henceforward) by a registered deed dated 29.4.46 (Ext. G). The lease commenced with effect from 1.5.46 expiring on 30.4.56 with right of renewal for five years more at the option of the respondent at the same rent. Admittedly the tenancy continued even after 30.4.56 renewed on exercise of the right of renewal by the respondent, so says the appellant. The respondent did not vacate the suit land with the expiry of the terms of the renewed lease which continued till the end of April, 1961. Meanwhile Bai Hem Kaur died in or about June, 1955. On a partition between the appellant and his co-sharers, the suit property fell to the share of the appellant exclusively.

3. In December, 1962 the appellant served a notice to quit upon the respondent describing him as a thika tenant and requiring him to vacate the disputed property within March, 1963. Thereafter, he filed Misc. Thika case No.64 of 1963 in the court of the Thika Controller, Alipore for eviction of the respondent from the suit land. but subsequently this proceeding was withdrawn. Thereafter he filed the present suit for eviction of the respondent as he did not vacate the suit land in spite of service of notice to quit.

4. The appellant contends that by forging the signature of his mother Bai Hem Kaur, the respondent got a plan sanctioned from the Calcutta Corporation and on the strength of this plan he has constructed a building wherein he has inducted the other defendant-respondents without the consent of the appellant or his mother.

5. The defence of the respondent no.1 is that he became a thika tenant of the suit land for ten years on the strength of the deed of lease. On the expiry of the period of the lease, the lease was not renewed – as alleged – but the respondent no.1 continued as a monthly thika tenant of the suit land by holding over on payment and acceptance of rent. This tenancy is still continuing. Bai Hem Kaur willingly signed the plan and the building on the suit land was constructed with her and the appellants consent. The respondent no.1 also pleaded that the suit was barred by limitation and that he had required the interest of a thika tenant in the suit land by adverse possession.

6. The defence of the other defendant-respondents is that they have been occupying different portions of the suit-premises as tenants under the respondent no.1.

7. Relying on Satadal Basini Vs. Lalit Mohan, 68 CWN 1086 the learned Assistant District Judge held that since the respondent No.1 had exercised his option of renewal (Ext.2 2(a) the lease became one for fifteen years though to start with it was one for ten years and that therefore, the tenancy was not a thika tenancy in view of the provisions of s.2(5) (b) of the Calcutta Thika Tenancy Act. The learned Judge held further, that the suit was not barred by limitation and adverse possession. In the circumstances stated the learned Judge granted a decree to the appellant enabling him to recover khas possession of the suit land evincing respondents therefrom, but denying him a decree for mandatory injunction for removal of the structure built by the respondent No.1 on the suit land.

8. The appeal from this judgment being T.A. No. 229 of 1979 was heard by Shri B.K. Dutta, the learned Additional District Judge, 8th Court, Alipore and he disposed of it by an elaborate and well disc