- (1.) This is an appeal against a decision of the second Subordinate Judge, Alipur, dated 28th September 1943 reversing a decision of the Third Munsif, Alipur, dated 8th April 1943 in T. S. No. 102 of 1942 decreeing the suit filed by the 'plaintiff, the Corporation of Calcutta, against the defendants.
(2.) The facts out of which this appeal arises are as follows : On 6th October 1931, the Corporation of Calcutta (hereinafter referred to as "the Corporation") leased out a piece of land measuring 10 cottabs 5 chittacks and 14 sq. ft. being portion of premises No. 58/1, Kansaripara Road and Nos. 9 and 10 Kundu Road in favour of one Dulal Chandra Nandan, Secretary of the Bhowanipur Youngmen's Association. An indenture dated 6th October 1931 was executed by the parties. The indenture recites that on 27th March 1923, the Corporation for the monthly rent of Rs. 6 agreed to permit the said Association to occupy and use the premises No. 58/1, Kansaripara Road as play-ground and that the lessee as Secretary applied to the Corporation for lease of a further plot of land being portion of pre. raises Nos. 9 and 10 Kundu Road. The indenture further recites that the Corporation on 26th March 1930 resolved to lease the remaining portion of premises Nos. 9 and 10 Kundu Road and 58/1, Kansaripara Road to the lessee at an annual rent of Rs. 10 for playing outdoor games subject to the conditions that (a) no structure was erected, (b) the lessee would vacate the premises whenever called upon to do so by the Corporation.
(3.) The terms of the lease so far as they are material for this appeal may be set out as follows : Clause 1--The lessee hereby agrees to occupy the piece or parcel of land described in the schedule to the lease as a monthly tenant, it being hereby agreed that such occupation may be determined at any time by the Corporation by one month's written notice being given to the lessee. Clause 3--The lessee shall not be at liberty to erect any structure on the land without the previous permission of the Chief Executive Officer of the Corporation had and obtained in that behalf. Clause 5--The lessee shall, when-ever the said premises be required by the Corporation, on a month's notice deliver peaceful possession of the same to the District Engineer or any other Officer of the Corporation appoint-ed in that behalf provided always and it is hereby agreed that if there be any breach of any of the covenants herein contained it shall be competent for the Chief Executive Officer to cancel and determine the agreement and to take over peaceful possession of the said premises as if these presents had not been done.;