IMPORTANT POINTS
(1) A tenant continuing in possession after expiry of lease may be treated as a tenant at sufferance which status is a shade higher than that of a mere trespasser – Appellant while continuing in possession after expiry of lease became liable to pay mesne profits.
(2) If a claim for mesne profits is one which accrues from day-to-day and it is a continuing one and if suit for mesne profits would fall to be decided under Article 113 of Limitation Act, then, since cause of action is a continuing one, suit may not be barred as regards any part of claim.

JUDGMENT :

K.M. JOSEPH, J.

Delay condoned. Leave granted.

1. The appellant is the defendant in the suit. By the impugned judgment, the division bench of the High Court has partly allowed the appeal filed by the appellant and modified the decree granted by the learned Single Judge in a suit filed by the respondent seeking mesne profits.

2. The respondent-plaintiff instituted the suit on the following basis. The respondent demised the centrally air-conditioned 2nd, 3rd and 4th floors of premise no. 1, Shakespeare Sarani, Kolkata and a non-air-conditioned guest house on the 9th floor. The lease was to subsist for a term of 21 years commencing from the date when the said floors were handed over to the appellant lessee. The respondent further claimed that there is a supplementary agreement which is also duly registered on 12.09.1969, which had brought about certain modifications in the original lease dated 21.11.1968. It was further the case set up by the respondent that the 2nd and 3rd floors came to handed over on 12.09.1969 and the possession of the 4th floor was made over to the appellant on 18.12.1969. It was alleged that there was failure on the part of the appellant to join and cooperate with the respondent in the matter of finalisation, execution, and registration of an appropriate document of lease in regard to the 2nd, 3rd and 4th floors. There is reference to an earlier suit which was filed in the year 1978 and which was not followed to its logical culmination but ended in a compromise. More of it later. Suffice it to notice at this stage that the proximate cause for the litigation was the failure of the appellant to hand over vacant possession of the 2nd, 3rd and 4th floors, upon the expiry of the lease. Possession was handed over to the respondent only on 31.05.1994. Resultantly, the respondent alleged that the appellant was in wrongful possession of the 2nd, 3rd and 4th floors after the expiry of the lease on 11.09.1990 i.e. for the 2nd and 3rd floors and for the 4th floor on 17th December, 1990 or alternatively on the expiry of the 3rd or 4th of November, 1991 till 31.05.1994. Even in terms of the computation of the period of 21 years by the appellant, this illegal possession continued till 31.05.1994. The respondent claimed mesne profits in respect of 57105 sq. feet at the rate of Rs. 31 per sq. feet per month.

3. In the written statement filed by the appellant the case inter-alia set up was that the period of lease was to be computed from the date of delivery of possession. The document dated 21st November, 1968 constituted the actual demise of the property. By notice dated 7th December, 1977, the respondent had determined the lease and there was a suit filed by the respondent which was dismissed as not pressed and appellant had constructed a new office building. It took some time to vacate. There was a clause for premature termination of the lease at the option of the appellant. Appellant was entitled to the protection of the West Bengal Tenancy Act, 1956 (hereinafter referred to as the ‘Tenancy Act’). The case of wrongful possession was denied. In the alternative, it was contended that respondent accepted monthly rent after the determination of the tenancy by notice dated 7th December, 1977. The tenancy is also protected therefore under the Tenancy Act.

4. The learned Single Judge found the plaintiff entitled to mesne profits. A referee was appointed to quantify the mesne profits. Both the appellant and the respondent filed appeals.

THE FINDINGS IN THE IMPUGNED JUDGMENT

5. The impugned judgment would show that the appellant addressed the following contentions. Mere reference to a document as a lease could not be a ground to find that the document dated 21.11.1968 was a lease deed. The nature of the document required examination. The effect of the withdrawal of the suit filed by the respondent in the year 1986 and t