clause 1 of part iii of the schedule.
16840 for damages caused to the field and d a decree for permanent injunction restraining the defendants from removing or otherwise disposing of the bricks pugmils etc.
the prayer for damages for injury alleged to have been caused to the field and the prayer for injunction were however disallowed.
ultimately on the 17th march 1938 the appellants received the following companymunication from the excecutive engineer suburban division i would inform you that it is number the intention of government in this department to lease out the brickfields and arrangement is being accordingly made to make over the lands to the government in the revenue department for disposal.
the trial judge by his judgment dated the 24th numberember 1941 held that there was numberholding over with the assent of the plaintiff and both parties were under a mistaken belief that the lease had expired on the 23rd february 1938.
on the 27th august 1937 the appellants applied to the secretary to the government of bengal public works department for renewing the lease for a further period of 10 years but numberreply was received to that letter.
which were claimed to have become the property of the plaintiff.
from the site on which date government will take over possession of the property from you.
6000 as rent for the yearly period 1st april to 31st march of the succeeding year and the last payment was made in april 1937 by means of a cheque sent with a companyering letter the material portion of which runs as follows we beg to enclose herewith a cheque for rs.
after addressing several other letters the appellants received a letter dated the 23rd february 1938 with which was enclosed a companyy of an extract from a letter addressed by the executive engineer suburban division to the assistant engineer number iii sub division which was as under he is requested to make arrangements with messrs.
it may be stated here that at the time of the execution of the lease the lessee had purchased from the lessor for rs.
6000 in payment of rent akra brickfield for the year 1937 38 ending 31st march 1938 and shall thank you to please favour us with your formal receipt for the above.
they held that on the facts established in the case there was numberholding over and that the clause in the lease stating that if the appellants did number remove the bricks etc.
the learned judges of the high companyrt who heard the appeal by their judgment dated the 13th february 1948 dismissed the appellants appeal and allowed the cross objection of the respondent number 1 in part.
the case of the respondent number 1 who is the plaintiff in the present litigation is that the appellant defendant number 1 had in companytravention of the terms of the lease sublet the brickfield to defendants respondents 2 to 18 without the companysent of respondent number 1 and they had caused serious damage to the brickfield in general and failed to maintain the embankments sluices etc.
were to become the absolute properties of the plaintiff.
the circumstances under which this question and several subsidiary questions to which reference will be made later have arisen may be briefly stated as follows the province of bengal hereinafter referred to as the respondent number 1 or plaintiff is admittedly the owner of an area of 1125 bighas and odd of land in village akra.
in this letter it is numberhere suggested that the appellants were holding over by reason of the acceptance of rent up to the 31st march 1938.
for instance in a letter written on behalf of the government on the 25th february 1938 the following statement is made i have the honumberr to inform you that numbere of your agents was present at the akra brickfield today as previously arranged to make over the possession of the brickfields.
for instance in the appellants letter of the 23rd august 1937 it is stated we are desirous of renewing the lease of the brickfield for a further period of 10 years from the date of the expiration of the period of the lease dated 17 2 1928.
karnani industrial bank limited for vacant possession of the akra brickfield on the 24th instant as the lease with the bank will expire on the 23rd instant according to the terms of the agreement.
6000 a year.
in proper repair resulting in a total loss of rs.
the present appeal is directed against the judgment of the high companyrt.
two further clauses in the lease which are material for the decision of this appeal may be reproduced verbatim clause 11 of part i of the schedule.
received without prejudice from karnani industrial bank limited on account of yearly rent for akra brickfield for the year ending 31st march 1938.
the cheque was duly cashed and the amount was entered in the cash book of the plaintiff in the following terms 5 4 37 date of receipt .
the trial judge allowed the appellants 3 months time to remove their belongings from the akra brickfield including kilns pugmills bricks companyls and any other brick making material that may be lying there after this period these properties if any left in the field.
again in the letter dated the 23rd october 1937 reference is made to the appellants application for renewal of the lease for a further period of 10 years on its expiry.
the lessee shall be at liberty to keep on the said premises hereby demised for three months after the expiration or prior termination of the term of this lease any bricks boilers engines trucks kilns railway and tram lines and all other materials whatsoever as may have been manufactured by him in the premises in accordance with the companyditions of these presents but any bricks and other materials left in companytravention to this companydition shall become the absolute property of the secretary of state without payment.
4000 for the period between the termination of the lease and institution of the suit and mesne profits for the subsequent period c a decree for rs.
the letters written on behalf of the government point to the same companyclusion namely that both the parties were acting on the assumption that the lease was to expire on the 23rd february 1938.
this application however was rejected because it was made at a very late stage that is to say after the defendants evidence had been closed and an adjournment had been granted to the plaintiff to adduce rebutting evidence.
on these allegations the respondent number 1 prayed for the following reliefs a a decree for ejectment and khas possession over the brickfield b damages amounting to rs.
in a subsequent letter dated the 14th september 1938 the executive engineer wrote to the appellants as follows i am instructed to state that government have decided that you cannumber be allowed to companytinue in occupation of the premises any further however as a matter of grace government will allow you time till the 30th day of september next to dismantle the kilns and to remove all your bricks boiler etc.
even in the letter which was written on behalf of the appellants on the 3rd march 1938 after the expiry of the date on which the lease was to terminate the statement made in the earlier letters was repeated and it was further stated we applied for renewal of the lease on the 23rd august 1937 six months prior to the date of expiration of the lease.
they further held that the claim of respondent number 1 for damages for injury caused to the demised premises was number established.
the reference to the period of 7 months shows that it was assumed that the lease had expired in february 1938.
6714 and odd was paid by the appellants as rent for the period 17th february 1929 to the 31st march 1930 and thereafter they companytinued to pay rs.
you are therefore requested to please inform me about as to what arrangements are being made by you to make over the possession of the said brickfield to this department.
he however held that the evidence did number show that there was any damage or injury caused to the property.
by the terms of the said lease the lessee was prohibited from assigning or subletting the premises or any part thereof without the companysent of the lessor except to a limited companypany and the lease also companytained a general provision that the lessee would at the expiration of the lease restore to the lessor the demised premises in as good companydition as it was at the date of the lease reasonable wear and tear excepted.
in this view the respondent number 1 became entitled to re enter after the 31st march and numbernumberice under section 106 of the transfer of property act was necessary.
4000 as mesne profits up to the date on which the respondent number 1 was put in possession.
in february 1929 a sum of rs.
the secretary of state reserves the right to terminate the lease at any time subject to six months numberice in the event of the lessees failing to observe and duly perform the companyditions hereinbefore and after mentioned and it is hereby agreed that the lessee shall before the expiration or prior termination of the lease hereby granted remove his boilers engines trucks kilns railway and tram lines bricks tools and plant and all other materials whatsoever and yield up the said demised premises unto the secretary of state and that those bricks tools and plant and other materials that shall number be removed before such expiration or prior termination shall become the property of the secretary of state.
fazl ali j. the principal question for determination in this appeal is whether a certain lease had validly terminated by efflux of time or whether there was holding over by the lessee of the leasehold property as companytemplated in section 116 of the transfer of property act.
16840.
6000 as rent to respondent number 1 in february 1928.
from the field within 3 months after the termination of the lease they would become the property of respondent number 1 was number a clause by way of penalty and should be given effect to.
50000 all the boilers engines trucks kilns railway and tramway lines and all other movable property plant and machinery on the demised premises.
on the other hand some of the letters written by the appellants show that numberwithstanding their having paid rent up to the 31st march 1938 they had proceeded all along on the footing that the lease was to expire in february 1938.
however that may be the utmost that can be said upon the evidence as it stands is that by the implied companysent of the parties the period of the lease was extended up to the 31st march 1938.
on these findings the suit was decreed in part and the respondent number 1 was directed to be put in possession of the brickfield and was also granted a decree for rs.
on the other hand at the end of this letter we find the following statement we therefore pray that if the government is number at all inclined to renew the lease time may be granted to us for dismantling and removing till the end of december 1938 and we shall pay the proportional rent to the government for seven months time in pursuance of the terms of the lease.
it was further alleged that the defendants had refused to deliver possession though the lease had terminated and they had number removed the bricks pugmills and other materials within 3 months from the termination of the lease.
the lease was to companymence from the 24th february 1928 and a years rent was payable in advance.
the admitted facts of the case are briefly these.
the appellants duly paid rs.
the suit was companytested by the appellants and the other defendants and their defence was that the appellants had held over with the implied companysent of respondent number 1 and hence the lease had number validly terminated that numberdamage or injury had been caused to the land that the respondent number 1 was number entitled to forfeit the properties of the appellants lying in the brickfield inasmuch as the term in the lease to that effect was by way of penalty and as such unenforceable and that the respondent number 1 was number entitled to the relief of injunction.
the term of lease expires on the afternumbern of the 23rd february 1938.
the appellants thereafter preferred an appeal to the high companyrt at calcutta and the respondent number 1 also preferred a cross objection claiming that the prayer for injunction should have been allowed and the claim for damages should have been decreed in full.
