- (1.) This defendants appeal by special leave is from the judgment and order of the High Court of Calcutta dated 18th February, 1982 in S.A.T. No. 87 of 1981 summarily dismissing the Second Appeal against the appellate order in T.A. No. 381 of 1980 which affirmed the judgment and decree in title suit No. 56 of 1966. The instant second respondent Narendra Nath Mukherjee leased out the land measuring 6 cottas 5 chittaks 30 sqr. ft. at 5/2/A Russa Road, now known as 34/A Shyama Prasad Mukherjee Road, Calcutta, by a registered lease deed dated 26th September, 1946, hereinafter referred to as 'the lease', at the first instance for a period of 10 years from 1st April, 1946, but if the lessee did not fail to pay the rent to the lessor and rates and taxes to the municipality during that period, the lease would be extended for a further period of 5 years i.e. up to 3lst March, 1961 at the rent of Rs. 250 in place of Rs. 200 per month; and if he continued to do likewise, it would be extended for a further period of 5 years, that is, up to 31 st March, 1966, at a monthly rent of Rs. 300 in place of Rs. 250; and if he continued to do likewise, during the period of 20 years, he would be entitled to obtain, extension for a further maximum period of one year at a rent of Rs. 500 per month in place of Rs. 300 per month.
(2.) The instant appellants are stated to have exercised their option of extension at the expiry of 10 years for a period of 5 years i.e. from 1st April, 1956 to 31st March, 1961, on increased rental of Rs. 250 per month and then for the second term of 5 years from 1st April, 1961 to 31st March, 1966 at the increased rental of Rs. 300 per month. During the lease, on 31st March, 1959 the instant second respondent by a registered instrument transferred the land to the first respondent who thereby became the landlord. Alleging that the instant appellants failed to exercise the option of extension for one year at an enhanced rent of Rs. 500 and also failed to give peaceful and vacant possession of the land to him, the instant first respondent as plaintiff instituted title suit No. 56 of 1966 for ejectment, khas possession and mesne profits. The instant appellants as defendants contested the suit by filing a joint written statement stating, inter alia, that they did not exercise option of renewal after the expiry of the original term of 10 years as they became thika tenants from 28th February, 1949 i.e. on the date of commencement of the Calcutta Thika Tenancy Act, 1949 as admitted by the plaintiffs predecessor in interest, the instant second respondent, in Miscellaneous execution case No. 126 of 1953 (Thika) before the Controller under the Calcutta Thika Tenancy Act, 1949, hereinafter referred to as 'the Act', and by both the respondents in Misc. Judicial Case No. 74 of 1958 (Thika) before the said Controller. It was also stated that they (appellants) always paid rent at the rate of Rs. 200 per month and never any enhanced rent; and that the first respondent's claim for the differential rent was also rejected. in the first respondent's suit No.T.S. 80 of 1965 and the appeal therefrom was also rejected and ultimately the special leave petition (Civil No. 1363/80) was also dismissed by the Supreme Court on 10th March, 1980.
(3.) T. S. No. 56 of 1966 was decreed by the Trial Court wherefrom the appeal, being T.A. No. 381 of 1980, was also dismissed. The Additional District Judge while dismissing T.A. 381/80 relied on the decision of the Calcutta High Court, since reported in (1980) 1 Cal LJ 377, holding that as the lease was for a period of 20 years and not for a period of 12 years sub-section (5)(b) of Section 2 of the Act had no application; and that the respondents were not barred by waiver, estoppel, res judicata or principles analogous thereto because of the Misc. Case No. 74 of 1958 filed by the second respondent under Section 5 of the Act as there could be no question of giving a status under the Act when in the facts of the case such a status was not available. The Second Appeal being S.A.T. 87 of 1981 having also been summarily dismissed by the High Court by the impugned order, the appellants have preferred this Appeal by special leave.;