1 had, in companytravention of the terms of the lease.
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.
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 foot ing that the lease was to expire in February, 1938.
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.
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.
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.
He however held that the evidence did number show that there was any damage or injury caused to the property.
16,840.
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 expira tion 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.
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 No.
1 was number entitled to the relief of injunction.
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 cannot 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 from the site, on which date Govern ment will take over possession of the property from you.
and they had caused serious damage to the brickfield in general and failed to maintain the embankments, sluices, etc.
117 of 1942 arising out of Decree dated the 24th November, 1941, in Suit No.
It was presumably in view of this fact that the plaintiff filed an application on the 6th November, 1941, for amending the plaint so as to include the following statement The plaintiff submits that even assuming that the regis tered lease terminated on the 23rd February, 1938, by an agreement between the plaintiff and the defendant No.
The term of lease expires on the afternoon of the 23rd February, 1938.
The admitted facts of the case are briefly these.
The present appeal is directed against the judgment of the High Court.
The companyrespondence to which reference has been made does number show that at any point of time the plaintiff had assent ed to the appellants companytinuance of possession.
Appeal against the Judgment and Decree dated the 13th February, 1948, of the High Court of Judicature at Calcutta Mitter and Sharpe JJ.
In this view, the respondent No.
The case of the respondent No.
The learned Judges of the High Court who heard the appeal by their judgment dated the 13th February, 1948, dismissed the appellants appeal and allowed the cross objection of the respondent No.
1, and hence the lease had number validly termi nated, that numberdamage or injury had been caused to the land, that the respondent No.
6,714 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.
The trial Judge by his judgment dated the 24th November, 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.
85 of 1938.
1 was directed to be put in possession of the brickfield and was also granted a decree for Rs.
The reference to the period of 7 months shows that it was assumed that the lease had expired in February, 1938.
1 was put in posses sion.
1 became entitled to re enter after the 31st March, and numbernotice under section 106 of the Transfer of Property Act was neces sary.
Ultimately, on the 17th March, 1938, the appellants received the following companymunication from the Executive 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 dis posal.
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.
6,000 as rent to respondent No.
1 executed a lease exhibit a in respect of the said land for 10 years for manufacture of bricks in favour of the appellant, at a rental of Rs.
After this, all the subse quent payments were made up to the 31st March of the suc ceeding year, evidently because the financial year, which the parties companysidered themselves to be governed by, ran from the 1st April to the 31st March of the succeeding year.
1, was number a clause by way of penalty and should be given effect to.
After addressing several other letters, the appellants received a letter dated the 23rd February, 1938, with which was en closed a companyy of an extract from as letter addressed by the Executive Engineer Suburban Division to the Assistant Engineer, No.
This application however was rejected, because it was made at a very late stage, that is to say, after the defend ants evidence had been closed and an adjournment had been granted to the plaintiff to adduce rebutting evidence.
They held that on the facts established in the case there was numberholding over, and that the clause in the lease stat ing that if the appellants did number remove the bricks etc from the field within 3 months after the termination of the lease they would become the property of respondent No.
1 in part.
50,000 all the boilers, engines trucks, kilns, railway and tramway lines and all other movable property, plant and machinery on the demised premises.
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.
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.
4,000 as mesne profits up to the date on which the respondent No.
Clause 1 of Part 111 of the Schedule.
1, who is the plaintiff in the present litigation, is that the appellant defendant No.
The prayer for damages for injury alleged to have been caused to the field and the prayer for injunction were however disallowed.
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.
1 prayed for the following reliefs a a decree for ejectment and khas possession over the brick field b damages amounting to Rs.
The appellants duly paid Rs.
The trial Judge allowed the appellants 3 months time to remove their belongings from the Akra brick field 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, were to become the absolute properties of the plaintiff.
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 termi nation shall become the property of the Secretary of State.
It may be stated here that at the time of the execution of the lease, the lessee had purchased from the lessor for Rs.
III Sub division, which was as under He is requested to make arrangements with Messrs. 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.
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 Received without prejudice from Karnani Industrial Bank Ltd. on account of yearly rent for Akra brickfield for the year ending 31st March, 1938.
4,000 for the period be tween the termination of the lease and institution of the suit and mesne profits for the subsequent period c a decree for Rs.
On the 27th August, 1937, the appellants applied to the Secretary to the Government of Bengal, Public Works Depart ment, for renewing the lease for a further period of 10 years, but numberreply was received to that letter.
16,840 for damages caused to the field and d a decree for permanent injunction restraining the defendants from removing or otherwise disposing of the bricks, pugmills, etc.
The appellants thereafter preferred an appeal to the High Court at Calcutta, and the respondent No.
1, the latter was allowed to hold over up to the 31st March, 1938.
CIVIL APPELLATE JURISDICTION.
Civil Appeal No.
58 of 1950.
In February, 1929, a sum of Rs.
Chandra Sekhar Sen C. N. Laik, with him for respond ent No.
in proper repair resulting in a total loss of Rs.
1 in February, 1928.
6,000 a year.
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 respond ent No.
6,000 in payment of rent of 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.
C. Chatterjee and Harish Chandra K. C. Chopra and C. Mathut, with them for the appellant.
sublet the brickfield to defendants respondents 2 to 18 without the companysent of respondent No.
which were claimed to have become the property of the plaintiff.
6,000 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.
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 re spondent No.
1 for damages for injury caused to the demised premises was number established.
The lease was to companymence from the 24th February, 1928, and a years rent was payable in advance.
It was further alleged that the defendants had refused to deliver posses sion 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.
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.
The Judgment of the Court was delivered by FAZL ALI J. The principal question for determination in this appeal is whether a certain lease had validly termi nated 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.
in Appeal No.
1 or plaintiff is admittedly the owner of an area of 1125 bighas and odd of land in village Akra.
For instance in a letter written on behalf of the Government on the 25th February, 1938, the following statement is made I have the honour to inform you that numbere of your agents was present at the Akra brickfield today as previous ly arranged to make over the possession of the brickfields.
On these allega tions, the respondent No.
On these find ings, the suit was decreed in part, and the respondent No.
May 4.
The circum stances 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 No.
On the 17th February, 1928, the respondent No.
