- (1.) THESE two appeals are directed against a decree, passed by the learned trial Judge, allowing the plaintiff's claim for ejectment but granting the defendant three years' time or a grace period of three years' to vacate the suit property. F. A. No. 144 of 1960 is by the defendant, wherein she challenges the decree for ejectment. The other appeal (F. A. No. 97 of 1980) is by the plaintiff, who has felt aggrieved by the above provision for time or grace period in the decree of the court below. This latter appeal, however, has spent itself and become in fructuous as the grace period in question expired even before its hearing and the only order, which we need pass in this appeal, is to dismiss it on the said ground. F. A. No. 97 of 1960 is, accordingly, dismissed without costs. Turning, now to the defendant tenant's appeal, we may at once say that it involves a short question as to the defendant's status, namely, whether she is a thika tenant, entitled to protection under the Calcutta thika Tenancy Act. The relevant facts are not many and they may be briefly stated here as follows:
(2.) THE defendant was tenant under the plaintiff's father under a registered lease dated September, 26, 1929. That lease (Vide its certified copy Ext. B) was for twenty years, commencing from September 15, 1929. The rent reserved was Rs. 27/5/- per month @ Rs. 13/8/- per cotta per month on the total demised area of 2k-17 sq. feet. It also contained a renewal clause in the following terms: "if the lessee shall be desirous of taking a renewal of the said demised premises for a further term of six years, commencing from the expiration of the term, hereby granted, the lessor shall execute and register and grant unto the lessee a renewal or fresh lease of the said premises for a further term of six years, commencing from the expiration of the term, hereby granted, at an enhanced rent of Rs. 15/- (Rupees fifteen) per cottah per month and subject to the same covenants, conditions and provisions as are herein contained saving the present covenant for a renewal and the present rate of rent. " It is the plaintiff's case that the lessee exercised her above option of renewal and paid the enhanced rent of Rs. 30-5-9p. per month at the above enhanced rate of Rs. 15/- per cottah per month and remained in possession. The lessee, however, did not quit possession on the expiry of the said renewal or renewed period, notwithstanding plaintiff's demand for possession, and, accordingly, the present suit was instituted by the plaintiff on 15th September, 1958, for ejectment and mesne profits, of which, however, the latter claim was withdrawn by the plaintiff in course of the suit with leave to institute a fresh suit on the same cause of action, if not otherwise barred.
(3.) THE parties fought grimly on the issue of ejectment, the main defence on this particular point being that the defendant was a thika tenant under the Calcutta Thika Tenancy Act, which protected her from eviction. Obviously, if the defendant is a thika tenant under the above Act, the present action for ejectment must fail in view at least of Sec. 5 of the above Act, which vests exclusive jurisdiction in the matter of such ejectment with the Thika Tenancy Controller. The point, however, is whether the defendant's above claim of status is well-founded.;