The Thika Tenancy Act only applies to tenancies involving kutcha structures, and not to tenancies involving pucca structures.

Dictated Judgment

The Court: Both the appeals from decrees of dismissal are disposed of by this common judgment.

2. Two leases were executed by then shebaits of the Appellant Deites in or about the years 1908 and 1935 for initial terms of 80 years and 53 years respectively, with a one time option to renew the lease again in each case, for 10 years.

3. During the pendency of the terms, the shebaits filed suits for avoidance of the leases and for eviction. The decrees appealed against each dated 25th of November, 1976, and each passed by the Hon'ble Justice Salil Kumar Hazra, since deceased, were decrees of dismissal.

4. The appeals are of 1978.

5. In support of the two appeals Mr. Mitra and Mr. Sen have made submissions and for the respondent/defendant in both the appeals Mr. Bose has placed the case before us.

6. Because of the sheer passage of time it so happens that the validity of the leases initially executed is no longer a material issue. Taking that Mr. Bose's client's case that the option to renew was, duly exercised in cases of both the leases is correct, even then, it is in the year 1998 that the initially granted terms, along with the option terms, expired.

7. Applications for amendment have been filed and those applications are also being disposed of hereby. We have proceeded on copy papers but the Department should unearth the old papers and preserve the same along with the paper books for future records.

8. So far as the taking of notice of the passage of time is concerned, no formal amendment application is necessary in that regard as the Court must take judicial notice of the day and date when the Court is disposing of a particular litigation.

9. It is, therefore, inescapable that the long leases in favour of the original lessees have both expired and there has been neither a fresh grant of lease, nor holding over.

10. Although the decrees appealed from might have been, and we say this with due respect, perfectly good and proper at the date those were passed, today when we are disposing of the appeals the decrees of dismissal are no longer sustainable, especially if we look upon an appeal as a continuation of a suit.

11. If the suits were to be heard today afresh, the Court would have to proceed on the basis that the lessee has no defence against eviction on the basis of the lease deed.

12. Realising this to be so, Mr. Bose sought to base his defence upon quite another point. His case was, that by an order dated the 11th of July, 1995, a copy of which is annexed to his client's affidavit-in-opposition filed to the application for amendment, the Thika Tenancy Controller of Howrah has accepted his clients as thika tenants, at least provisionally, and similarly at least on a tentative basis ordered that the lands have vested in the State of West Bengal.

13. Mr. Bose's submission is that since the State of West Bengal is not a party in those appeals, and since he has brought before the Court an order passed by a competent statutory authority, the Court of Appeal should take due judicial notice of these and should refrain from passing any decree or order which would have the effect of nullifying the Controller's declaration.

14. Before we discuss this point further, we wish to make it clear at the very outset, that it would be a sad day, if a litigant could go to one departmental authority functioning in one corner of Howrah, in regard to a subject matter which is covered by pending appeals before the Division Bench, and could, as has happened in this case, obtain orders without notice to the appellants, which would have the effect of nullifying the appeal Court's power to do justice between the parties as per the terms of the lease and the law of the land.

15. Happily for us, and hopefully happily for all concerned, we have reached conclusions, which show in no uncertain manner, that such sad days have not yet arrived.

16. The root of the Thika Controller's jurisdiction is the State Act passed in West Bengal which is calle