Jnan Ranjan Sen Gupta & Ors Vs.
Arun Kumar Bose  INSC 141 (24 July 1975)
CITATION: 1975 AIR 1994 1975 SCC (2) 523
Transfer of property Act-Section 108(a)- S.
2(S) Calcutta Thika Tenancy Act, 1949-Thika tenant Construction of a beneficial
In 1956, the landlord let out for one year
the land in question to the tenant on a monthly rent of Rs. 75/-. One of the
conditions of the tenancy was that the promises should not be used for any
purpose other than the keeping of the lorries as garage. The landlord asked the
tenant to vacate by a not to quit. the landlord filed a suit for eviction which
was resisted by the tenant on the ground that he was a Thika tenant under
Calcutta Thika Tenant, 1949. The High Court held that the tenant was a Thika
tenant. The definition of a Thika tenant is a tenant who has erected or
acquired by purchase or gift any - structure on such land for residential,
manufacturing or business purpose and includes the successors in interest of
Admittedly, in the present case the tenant
has erected a structure. The counsel for the appellant landlord contents that
since the structure was erected by the tenant without the permission or the
landlord it is not a lawful erection of structure. The Thika Tenancy Act does
not talk about the consent of the landlord. The Court, therefore, must look
"t the Transfer of Property Act where section 108(o) prohibits the
premises to be used for any purpose other than the one for which it is let out.
According to the appellant, the premises were let out for garage and, therefore
the erection of' structures for the purpose of running the workshop would
attract section 108(o) of the Transfer of Property Act.
HELD: Negativing the contention of the
appellant, The tenancy in question does not militate against the construction
of structures and use of the land for the purpose of workshop for maintenance
of lorries by the tenant. A garage is a building where motor vehicles are
housed. The tenant has not used the land for purpose other than the purpose for
which it was leased. S.2(5) of the Act does not require a Thika Tenant to
secure prior permission of the landlord for erection of structures on the land.
As the preamble shows the Act is for making better provision relating to the
law of land lord and tenant in respect of Thika tenancies. It is a piece of
beneficial legislation Conferring certain rights upon the tenants. in dealing
with such a provision of law we cannot read into the definition something which
is not already there and the introduction of which will lead to imposing a
restriction upon the rights of this class of tenants by judicial
interpretation. Besides, there is no vagueness or uncertainty in the definition
clause. [108 E-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 185 of 1973.
Appeal by special leave from the judgment and
order dated the 25th April, 1972 of the Calcutta High Court in Second Appeal
being appeal-No. 859 of 1969.
Sachendra Chowdhary, S. K. Dholakia and R. C.
Bhatia for the appellant.
P. Chatterjee and Rathim Das, for the
The Judgment of the Court was delivered by
Goswami, J.-In this appeal by special leave directed against the Judgment of
the Calcutta High Court the only question that arises for 106 consideration is
whether the respondent is a thika tenant under section 2(5) of the Calcutta
Thika Tenancy Act 1949.
On June 1, 1956, the predecessor-in-interest
of the appellants (the latter, hereinafter to be described as the landlord)
gave the land with which we are concerned in this appeal to the respondent
(hereinafter to be described as the tenant) for occupation as a tenant on a
monthly rent of Rs.
75/- for one year. One of the conditions of
the tenancy was that "the premises shall not be used for any purpose other
than keeping of the lorries as garage." Another condition of the tenancy
was that "the lessee will on the expiration of one year peacefully
surrender and yield up vacant possession to the lessor." on July 29, 1958,
the landlord's advocate sent a notice of eviction to the tenant to vacate and
deliver possession of the land on the expire of August 1958.
The tenant through his advocate by a letter
of August 29, 1958, denied liability for eviction asserting that there was no
violation of any terms and conditions of the tenancy and since there was
refusal to accept the rent by the landlord the tenant had been depositing the
rent every month from March 1958 under the provisions of the Calcutta Thika Tenancy
Act 1949 (briefly the Act) by which the tenancy was claimed to be governed.
Thereafter a suit was filed by the landlord in the court of the 4th Munsif at
Alipore on January 15, 1959.
It is not necessary to trace the history of
the litigation covering this long period. it is sufficient to state that the
High Court by its judgment on April 25, 1972, allowed the tenant's second
appeal holding that he is a thika tenant within the meaning of section 2(5) of
According to the High Court the tenant does
not require any consent of the landlord to erect a structure on the land.
The result was that the court of Munsif had
no jurisdiction to entertain the suit, the matter being within the cognizance
of the Controller appointed under the Act:
Mr. Sachin Chowdhary appearing on behalf of
the appellants fairly and, if we may say so, rightly confined his argument to
the principal question of law as set out above- Is the tenant a thika tenant
under the Act ? If the answer is yes, the landlord is out of court.
Before we proceed further we may briefly note
that the tenant constructed certain structures on the land prior to the
institution of the suit in 1959. Mr. Chowdhary, however, drew our attention to
an observation in the judgment of the High Court to the effect that
"admittedly the defendant (respondent herein) at his own cost constructed
in 1962 structures upon the bare land which he took for the purpose of his
business." Since the year of construction had not been particularly
agitated in the courts below and there is evidence to show that the
construction had commenced from 1957, we are not prepared to give undue
importance to this observation about the year of construction mentioned in the
judgment. This is particularly so in view of the fact that the tenant through
his lawyer in reply to the notice of eviction asserted in August 1958 that- 107
"my client has constructed the structures and has done such other things
as are needful for the purpose of the keep in lorries and other vehicles in the
garages and making of necessary repairs of the same as well as upkeep and main
tenance of the same for carrying on his business in transport service ."
Further, even so, although there is a reference to this reply of the advocate
of August 29, 1958, in para 8 of the plaint, there is no denial of the
construction of the structures as asserted in the said reply. Being: faced with
this factual position Mr. Chowdhary strenuously contended that under section
2(5) of the Act erection of structures by the tenant must be with the
permission of the landlord. In other words, says Mr. Chowdhary the erection
should be lawfully done and if the tenant does not establish permission or
consent of the landlord in the matter there is no erection in the eye of law
within the meaning of section:
We will, therefore, read that section.
2(5): "'thika tenant' means any person
who holds whether under a written lease or otherwise, land under another
person, and is or but for a special contract would be liable to pay rent, at a
monthly or at any other periodical rate, for that land to that another person
and has erected or acquired by purchase or gift any structure on such land for
a residential, manufacturing or business purpose and includes the successors in
interest of such person, but does not include a person ... " As the
definition shows- (1) a thika tenant must be a person who holds land under
(2) it may be under a written lease or
(3) there is a liability to pay rent to the
landlord but for a special contract to the contrary; and (4) he has erected or
acquired by purchase or gift any structure on such land for a residential,
manufacturing or business purpose.
The tenant here fulfils the requisite
ingredients of the above definition clause.
There is no reference to landlord's
permission or consent for erection of structure by the tenant in the definition
clause. Mr. Chowdhary submits that it is implicit in the definition that in
order to be lawful erection of structure the tenant must take prior permission
from the landlord. Counsel further submits that whatever is silent in the Act
should be supplemented by reference to the Transfer of Property 108 Act
(briefly the T.P. Act). In this context Mr. Chowdhary draws our attention to
section 108(0) of the T.P. Act which may be set. Out:
"the lessee may use the property and its
products (if any) as a person of ordinary prudence would use them if they were
his own; but he must not use, or permit another to use, the property for a
purpose other than that for which it was leased, or fell or sell timber, pull
down or damage buildings belonging to the lessor or work mines or quarries not
open when the lease was granted, or commit any other act which is destructive
or permanently injurious thereto." According to Mr. Chowdhary the purpose
of the tenancy being that the premises shall not be used for any purpose other
than keeping of lorries as garage, construction of structures for the purpose
of running a workshop, which is the admitted factual position, would attract section
108(0) of the T.P. Act. He, therefore, submits that the case is squarely
governed by the provisions of the Transfer of Property Act and the court of
Munsif had jurisdiction to entertain and decree the suit. We may, however, note
in passing that one of the grounds on which a thika tenant may be ejected under
unmended section 3(ii) is that the tenant has used the land in a manner which
renders it unfit for any of the purposes mentioned in clause (5) of section 2
or that he has broken a condition consistent with this Act on breach of which
he is under the terms of the contract liable to be ejected.
We are unable to agree that the particular
condition of the tenancy referred to by Mr. Chowdhary militates against the
construction of structures and the use of the land for the purpose of workshop
for maintenance of the lorries by the` tenant. Without being too
hypertechnical, ordinarily keeping of lorries as garage would connote the
concept of construction of some structures for garaging the lorries.
The Chambers Dictionary gives the meaning of
garage as "the building where motor-vehicles are housed or tended."
The Shorter oxford English Dictionary gives the meaning of garage as "a
building for the storage or refitting of motor vehicles." We are,
therefore, unable to accept the submission that even on the terms of the
tenancy, as pointed out, the tenant has used the land for a purpose other than
that for which it was leased to attract the inhibition of section 108(0) of the
T.P. Act. We are also unable to accede to the contention that section 2(5) of
the Act requires a thika tenant under the law to secure prior permission of the
landlord for erection of structures on the land. As the preamble shows the Act
is for making better provision relating to the law of landlord and tenant in
respect of thika tenancies in Calcutta. it is a piece of beneficial legislative
conferring certain rights upon the tenants. In dealing with such provision of
law we cannot read into the definition something which is not already there and
the introduction of which will lead to imposing a restriction upon the rights
of this class of tenants by judicial interpretation. This is not permissible in
absence of express words to that effect or necessary manifest intendment.
Besides, we do not find any vagueness or uncertainty. in the definition clause.
The submission is, therefore, of no avail.
109 We are not required to deal with the
question whether the structures which stand on the land are permanent or not as
this point had not been agitated in the courts below. But we may in passing
notice that in view of section 108(p) of the T.P. Act since the lessee must
not, without the lessor's consent, erect on the property any permanent
structure, except for agricultural purposes, the State Legislature has by
amending the Act by Act No. 29 of 1969 inserted section 10A conferring a right
upon a thika tenant to erect a pucca structure for a residential purpose with
the previous permission of the Controller. We are, however, not required to
consider such a question in this appeal.
Mr. Chowdhary also relied upon a
contemporaneous letter written by the landlord to the tenant on June 1, 1956, which was found by the courts below to contain interpolation by the tenant
with regard to the according of permission to construct structures on the land.
We however, do not think that this would have any bearing on our.
interpretation of section 2(5) .
In the result the appeal fails and is
dismissed with costs.
P.H.P. Appeal dismissed.