A.K.Bisi, J. - (1.) In the instant suit instituted against the defendant Bharat Petroleum Corporation Ltd. the present plaintiffs have sought decree for possession of premises No. 3 Ganesh Chandra Avenue, Calcutta (hereinafter referred to as the suit premises), damages or occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14th August, 1986, mesne profits at the rate of Rs. 1,000/- per day from 15th August, 1986 till delivery of vacant possession of the suit premises to the plaintiffs and some other incidental reliefs.
(2.) Briefly stated the case set out in the plaint is that the original plaintiff Binapani Roy Chowdhury was the owner of the suit premises. By a registered indenture of lease dated 17th September, 1956, the suit premises had been leased out to M/s. Burmah Shell Oil Storage & Distributing Co. for a period of 25 years with effect from 15th August, 1956. The said lease deed contains a clause for option of renewal for a period of 5 years after expiry of the term of the original lease. The original plaintiff handed over possession of the suit premises to the said Burmah Shell Oil Storage & Distributing Co. in terms of the said lease deed on or before 15th August, 1956. In the month of January, 1976 the said Burmah Shell Oil Storage & Distributing Co. had been taken over by the Central Government of India under the Burmah Shell (Acquisition of Undertaking in India) Act, 1976, with effect from 24th January, 1976. Subsequently, Bharat Petroleum Corporation Ltd. had taken over the assets and liabilities of Burmah Shell Oil Storage & Distributing Co. The said period of 25 years expired on 14th August, 1981 and defendant No. 1 expressed the desire to exercise the option for taking the right of tenancy for 5 years in terms of the original lease deed. Defendant No. 1 also informed that it would enter into a fresh written agreement for the said 5 years but did not do so. Since July, 1982 defendant No. 1 failed and neglected to pay the licence fee or occupation charges and is now denying the right, title and interest of the plaintiff in respect of the suit premises. By the written notice dated 18th April, 1983 the original plaintiff terminated the licence or any relationship or right of the defendant to use or occupy the suit premises and/or rescinded the agreement between the plaintiff and the defendant for occupation of the suit premises. The defendant is claiming to be a tenant of the State of West Bengal under the provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981. It has been alleged by the plaintiff that the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 has not affected the right, title and interest of the plaintiff in respect of the suit premises and that the rights and liabilities of the parties are governed by the Transfer of Property Act, 1882. In any event the period of option to renew the lease in terms of the lease deed dated 17th September, 1956 expired on 14th August, 1986 and as such the plaintiff is entitled to get vacant possession of the suit premises. Since the defendant is in wrongful and illegal occupation of the suit premises, the plaintiff is also entitled to get measure profits at the rate of Rs. 1,000/- per day for the use and occupation of the suit premises by the defendant. The original plaintiff Binapani Roy Chowdhurani died during pendency of the suit and after her demise the present plaintiffs became the owner of the suit premises each in equal shares.
(3.) The defendant Bharat Petroleum Corporation Ltd. has contested the suit by filing the written statement and two additional written statements wherein the material allegations contained in the plaint have been denied. The specific case of the contesting defendant may briefly be stated thus. The tenancy in the suit premises was in nature of Thika Tenancy and/or was essentially a Thika Tenancy. The Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 came into force on and from 18th January, 1982. Section 5 of the said Act provides for vesting of the rights, title and interest of the Landlord of such land like the suit premises in the State of West Bengal. The defendant denies and disputes that the plaintiff is still owner of the suit premises by the registered indenture of lease dated 17th September, 1956. The original plaintiff Binapani Roy Chowdhurani since deceased granted lease of all that piece or parcel of revenue free land containing an area of 8 cottahs 3 chittacks and 4 sq. ft. being the suit premises in favour of the Burmah Shell Oil Storage & Distributing Company of India Ltd. (in short Burmah Shell) for a term of 25 years commencing from 5th August, 1956 with an option of renewal for a further period of 5 years at the rent and on the terms and conditions mentioned in the said indenture. The said Burmah Shell being the lessee under the aforesaid indenture subsequently erected structure on such land for the purpose of its business and carried on business of selling petroleum and petroleum products from the said premises. On 24th January, 1976 the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 came into force whereby and whereunder the right, title and interest of Burmah Shell in relation to its undertakings in India stood vested in the Central Government. By virtue of the provisions of the said Act, on expiry of the term of the lease, such lease became renewable at the desire of the Central Government on the same terms and conditions on which the lease was held by Burmah Shell. By operation of law the right, title and interest of Burmah Shell so vested in the Central Government was transferred by the Central Government to the defendant and notification was issued to that effect whereupon the defendant became a lessee of the vacant land of the suit premises under the original plaintiff. By the letter dated 30th July, 1981 the defendant gave notice to the original plaintiff exercising its option of renewal of the lease in terms of the provisions of the said indenture of lease dated 17th September, 1956. Though no further lease of the suit premises was granted by the original plaintiff to the defendant, the original plaintiff continued to accept rent from the defendant in respect of the suit premises. Under the circumstances the defendant became a monthly tenant under the original plaintiff and the tenancy of the defendant in respect of the suit premises was governed and protected by the provisions of the West Bengal Premises Tenancy Act, 1956. It has been further averred by the defendant that in view of enactment of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and in view of subsequent enactment of the Calcutta Thika Tenancy (Acquisition & Regulation) (Amendment) Act, 1993, the said premises vested in the State of West Bengal and neither the original plaintiff had nor the present plaintiffs have any right whatsoever over the suit premises. So the question of giving vacant possession of the suit premises by the defendant to the present plaintiffs cannot arise.;