A lease for a period of 20 years with express reference to such duration in the lease itself does not make the tenants Thika tenants under the Calcutta Thika Tenancy Act.

Chakravorti, J.

This is an appeal by the defendants against the judgment and decree paned in Title Suit No. 80 of 1965 of the 4th Court of Subordinate Judge at Alipore.

2. The suit was instituted by the plaintiff Biswanath Banerjee against the defendants, Debendra Chandra Dalui and Prabhash Chandra Dalui for recovery of arrears of rent with interest thereon. The simple case of the plaintiff is that the disputed property was leased out to the defendants by a registered deed of lease dated 26th, September, 1946 which was to take effect from 1st April, 1946. It was a lease initially for a term of 10 years reserving a monthly rent of 200/-. The lease contained clauses for further extension of two more terms of five years each at enhanced rate of Rs.250/- and 300/- respectively. The defendants failed to pay rent for a long time the total period of arrears being from April, 1959 to March, 1961 at the rata of Rs.250/- per month and from April 1961 to December, 1965 at the rate of Rs.300/- per month. Total claim was laid at Rs.15,671 with interest at 12%.

3. The defendant contested the suit mainly on the plea that they were Thika tenants under the Calcutta Thika Tenancy Act and as such the enhanced rent claimed by the plaintiff being not in conformity with the provisions of the Thika Tenancy Act was not maintainable. They also questioned the validity of the claim of interest at the rate of 12% per annum.

4. The learned Subordinate Judge by his judgment and decree dated 21.3.67 decreed the suit in part for Rs.1100/- with interest at 6¼% in a preliminary form. The structures raised on the disputed land remained charged for the payment. The defendant also took a plea that the plaintiff's predecessor in interest namely Narendra Nath Mukherjee had earlier instituted a Misc. case being Misc. Case No. 74 of 1958 under Section 5 of the Calcutta Thika Tenancy Act for eviction of the defendants. The plaintiff being a trnsferee from Nareneda Nath Mukherjee was substituted in that proceeding. The defence case, therefore also is that the plaintiff cannot now say that the defendants are not Thika tenants.

5. On an appeal against the decision this Court in F.A. No. 287 of 1968 set aside the decree and sent back the suit on remand. During the hearing of that appeal a question was railed whether in view of the earlier proceeding under section 5 of the Calcutta Thika Tenancy Act which ended in a compromise it was any longer open to the plaintiff to contend that the defendants were not Thika Tenants. It was held that though the plea of resjudicata was incidentally taken in the suit, no specific issue on the point was raised. On behalf of the plaintiff it was contended that the compromise decree was a nullity inasmuch as the status of the defendants was to be construed on a true and proper interpretation of the deed of lease itself and that the parties could not by consent, agree to a status under the Thika Tenancy Act which the lease itself did not create. However in view of such rival contentions two additional issues were framed to the following effect:-

(1) Is the claim of the plaintiff that the defendants are not thika tenants, barred by waiver, estoppel or by the principles of resjudicata or analogous principles in view of the order of the Court in the proceeding in Misc. Thika Case No. 74 of 1958 before the Thika Controller, namely 4th Munsif at Alipore.

(2) Whether the decree in the aforesaid case and the proceeding should be treated as a nullity as contended by the plaintiff-appellant.

6. The decree palled by the learned Subordinate Judge was set aside and the suit was remanded back to the Court below with a direction to decide the aforesaid two issues along with the issues already on record in accordance with law and in the light of the observations made in the judgment. Thereupon the suit was heard a fresh and decreed against defendants for a sum of Rs.8,000/- with interest at 12%. The defendant have preferred the present appeal. The plaintiff