Partha Sakha Datta, J. - (1.) This second appeal is directed at the instance of the plaintiff being aggrieved with the judgment and decree dated 2nd August, 1997 passed by the learned Additional District Judge, 11th Court, at Alipore in Title Appeal No. 380 of 1994 whereby the judgment and decree dated 26th September, 1994 passed by the learned Munsif, 1st Court, at Alipore in Title Suit No. 452 of 1984 dismissing the suit for eviction was affirmed.
(2.) The facts are these: The plaintiff, Indian City Properties Limited, an existing company under the Companies Act, 1956 was the owner of a portion of the premises Nos. 36A and 36B, Ballygunge Circular Road, Kolkata which comprised of a parcel of land measuring 10 cottahs, 5 chittaks and 18 square ft. with a brick-built building consisting of two privies and a pucca boundary wall with a gate surrounding the land. The suit property as described above in the plaint was demised unto Burmah Shell, the predecessor-in-interest of the defendant/respondent, namely, Bharat Petroleum Corporation Limited, a company incorporated under the Companies Act, 1956 by an indenture of lease duly registered on 28th January, 1958 for a period of fifteen years with effect from 1st of August, 1957 at a monthly rental of Rs.750/- with option of renewals for two further periods of five years each. The purpose of the demise was to enable the respondent/defendant to carry on its business of sale of petroleum products, motor accessories etc. The Burmah Shell exercised its first option of renewal of lease commencing from 1st August, 1972 at an increased monthly rent of Rs.862/- which expired on 31st July, 1977. In terms of Burmah Shell (Acquisition of Undertakings in India) Act, 1976 the interest of the said company vested in the Government of India and thereafter it stood transferred to Burmah Shell Refinery Limited which was changed to Bharat Refinery Limited on and from 1st August, 1977. Subsequently, the name of Bharat Refinery Limited was changed to Bharat Petroleum Corporation Limited and a fresh certificate of incorporation was issued under section 23 of the Companies Act. The change of the name however, did not affect the rights and obligations of the defendant in respect of the said lease and the leasehold premises. The renewal of the lease for a second and final term of five years commencing from 1st August, 1977 at a monthly rent of Rs. 900/- was further recorded in a registered indenture dated 9th February, 1979 executed by and between the parties. The said indenture dated 9th February, 1979 records the commitments of the defendant to deliver up possession of the said premises to the plaintiff/appellant upon the expiration of the said terms and to remove the building structures from the premises at the cost of the defendant. The defendant allegedly became a defaulter for the period from May, 1982 to July. 1982 to the tune of Rs. 2700/-. The said deed of lease provides further that the plaintiff would be entitled to re-enter the demised premises in the event of the rent remaining unpaid for a period of two calendar months. The second and final agreement incorporated in the renewed lease for a term of five years from 1st August, 1977 expired on 1st August, 1982. The defendant having failed to deliver up vacant possession of the property the plaintiff commenced the action for ejectment and consequential reliefs.
(3.) The defendant/respondent, Bharat Petroleum Corporation Limited in its written statement contended, inter alia, that the defendant was given authority to erect structure on the land in question and, as a matter of fact, the predecessor-in-interest of the defendant erected structures on the vacant land so demised at its own cost for carrying on its business. The plea of the plaintiff that the defendant was defaulter was not correct. The defendant was not in wrongful occupation as alleged therein and the question of vacating the suit property with the alleged expiration of the lease is uncalled for in view of the provision of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 and although the plaintiff was not entitled to receive any rent since the promulgation of the said Act of 1981, the rent for few months was wrongly realized by the plaintiff. The entire construction on the suit land having been made by the defendant the latter can claim to be regarded as thika tenant in consequence of which ejectment suit would fail..;