Holding

The lease is a stipulated twenty‑year lease, so the appellants are not thika tenants and no waiver or estoppel applies; the appeal is dismissed.

Summary

The appellants, P.C. Dalui and others, held a lease dated 26 September 1946 for an initial ten‑year term with contractual options to extend the lease for two further five‑year periods and a final one‑year period upon payment of enhanced rent. They exercised the two five‑year extensions but did not take the one‑year extension, after which the respondent, B. Banerjee, sued for ejectment. The appellants contended that, because the lease term was less than twelve years at its inception, they became "thika tenants" under the Calcutta Thika Tenancy Act, 1949, and that the respondent was estopped or barred by waiver from ejecting them. The Supreme Court examined the lease as a whole, noting that the schedule expressly described it as a twenty‑year lease and that the word "extension" (not "renewal") indicated a continuation of the same lease. Consequently, the lease did not fall within the definition of a thika tenancy, which applies only where the lease term is expressly less than twelve years. The Court also held that no waiver or estoppel arose because no definitive order had conferred thika‑tenant status on the appellants. The appeal was dismissed.

Issues considered

Whether the appellants acquired the status of thika tenants under the Calcutta Thika Tenancy Act, 1949.
Whether the doctrine of waiver, estoppel, acquiescence or res judicata bars the respondent from proceeding with ejectment.

Legislation cited

Calcutta Thika Tenancy Act, 1949s. Section 2(5)(b)
Indian Contract Act, 1872
Indian Evidence Act, 1872s. Section 115

Subjects

leaseextensionrenewalthika tenancyestoppelwaivercontract constructionCalcutta Thika Tenancy Actejectment

Judgment

••

PROVASH CHANDRA DALUI & ANR. A
v.
BISWANATII BANERJEE & ANR.

APRIL 3, 1989
B
[G.L. OZA AND K.N. SAIKIA, JJ.l

- Calcutta Thika Tenancy Act, 1949: Section 2(5)(b), Thika tenant:
if stated period of tenancy less than 12 years and not otherwise.

Indian Contract Act, 1872-Contract-To be construed with
)I( reference to object and whole of its terms-'Ex antecedentibus et conse- c
quentibus' circumstances surrounding creation and subject matter which
it was designed to apply to should be taken into account.

Indian Evidence Act, 1872: Section 115-Estoppel and waiver-
Distinction between-Voluntary choice essence of waiver.
D
Words and Phrases: 'extension'-'Renewal'-Distinction
between.

The second respondent" who is the predecessor in interest of the

- first respondent, had on. 2'6th September, 1946 leased out the land in
dispnte to the appellant at the first instance for a period of 10 years. The E
lease however provided to the lessee/appellants option of extention at
enhanced rent, twice for successive periods of 5 years, and a third
option of extension for a further maximum period of one year. The
appellants are stated to have exercised their option of extension for two
successive periods of live years, but failed to exercise the option of
extension for one year thereafter. On that ground, the first respondent F
instituted a suit for ejectment khas, possession and mesne profits. Tbe
appellants, as defendants, contested the Jmit stating, inter alia, that they
did not exercise the option for renewal after the expiry of the original
term of 10 years as they became thika tenants from 28th February, 1949
i.e. the date of commencement of the Calcutta Thika Tenancy Act, 1949
as admitted by the second respondent in two judicial proceedings before G
the Controller under the Calcutta Thika Tenancy Act, 1949. It was·
further stated that they never paid any enhanced rent; and that the first
respondent's claini for the differential rent was rejected in the first
respondent's suit, and ultimately the special leave petition filed in the
Supreme Court in that matter was also dismissed,
H
'
402 SUPREME COURT REPORTS {1989) 2 S.C.R.

The suit for ejectment in the present suit was decreed by the Trial
A
Court. The Appellate Court, while dismissing the appellants appeal,
held that ( 1) the lease was for a period of 20 years and not for a period of
less than 12 years, and hence sub-section S(b) of Section 2 of the Act had
no ai>plication; and (2) the respondent were not barred by waiver,
estoppel, res judicata or principles analogous thereto because of the
B earlier judicial proceedings tiled by the second respondent as there
could be no question of giving a status under the Act when in the facts of .•
the case such a status was not available. The High Court dismissed the
appellants' second appeal.

Before this Court it was urged on behalf of the appellants that (1)
there could be no controversy about the appellants' status of thika
c tenants inview of the fact that the lease was at the first instance for 10
years only and its first and subsequent extensions were contingent on
the appeilants regular payment of rents, rates and taxes and e11hance-
ment. of rent, which conti11gency did not happen as they did not pay any
enhanced rent, but simply were holding over; (2) the second respondent
D admitted the Thika Tenants status of the appellants in the earlier pro-
ceedings before the Controller and were therefore estopped from ques-
tioning that status.

On the other hand, it was urged on behalf of the respondent that
y
the lease having clearly been for a period of 20 years, the appellants
B have rightly been held not to be thika tenants under the Act; and that
there could be no estoppel against a statute.
-
p
Dismissing the appeal, it was,

HELD: (1) Every contract is to be consh"Ued with reference to its
object and the whole of its terms. The best interpretation is made from
the context_ The whole context must he considered to ascertain the
intention of the parties. It is an accepted principle of construction that
·-
the sense and meaning of the parties in any particular part of instru-

-
ment may be collected 'ex antecedentibus et consequentibus'; every
part of it may be brought into action in order to collect from the whole
O one uniform and consistent sense, if that is possible. [409E-G)

N.E. Railway v. Hastings, [1900] A.C. 260 (267), referred to.
•
(2) In the construction of a written instrument, it is legitimate
and in order to ascertain the true meaning of the words used and, if that
H be doubtful, it is legitimate to have regard to the circumstances sur-
&
•

P.C. DALUI v. B. BANERJEE 403

rounding their creation and the subject matter to which it was designed
A
and intended they should apply. [4IOA-B]

(3) It is pertinent to note that the word used is 'extension' and not
'renewal'. To extend means to enlarge, expand, lengthen, prolong, to
carry out further than its original limit. Extension ordinarily implies
the continued existence of something to be extended. The distinction B
between 'extension' and 'renewal' is chiefly that in the case of renewal,
•• a new lease is required, while in the case of extension the same lease

- continues in force during additional period by the performance of the
stipulated act. In other words, the word 'extension' when used in its
proper and usual sense in connection with a lease means a prolongation
of the lease. [411C-EJ
c
(4) Construction of this stipulation in the lease in the above man-
ner will also be consistent when the lease is taken as a whole. The
purposes of the lease were not expected to last for only 10 years as the
Schedule specifically mentioned the lease as "for a stipulated period of
twenty years." [4IJ'E] D

Kanai Lal v. Paramnidhi, [1958] SCR 360; Mahadeolal Kanodia
v. Administrator General of West Bengal, [1960] 3 SCR 578;
Annapurna v. Tincowrie Dutt, 66 C.W.N. 338; Shaffiuddin & Ors. v.
G.C. Banarjee, 69 C.W.N, 842 and Sheikh Gufan v. S.K. Ganguli,
[1965] 3 SCR 364 distinguished. E

- (5) No particular order from the previous judicial proceedings
conferring the status of thika tenants on the appellants has been shown.
The special leave petition was dismissed by the Supreme Court "with-
out going into the question whether the Thika Tenancy Act was appli-
cable or not." Hence, no status could be said to have been deter- F
mined. [413D-F]

(6) The essential element of waiver Is that there must be a volun-
tary and intentional relinquishment of a known right or such conduct as
warrants the inference of the relinquishnumt of such right. It means
forsaking the assertion of a right at the proper opportunity. l413F-G I
.
- ·--'< G

(7) Waiver is distinct from estoppel in that in waiver the essential
element is actual intent to abandon or surrender the right, while in
estoppel such intent is immaterial. The necessary condition is the detri-
ment of the other party by the conduct of the one estopped. An estoppel
may result though the party estopped did not intend to lose any exist- H
404 SUPREME COURT REPORTS [1989] 2 S.C.R.

ing right. Thus voluntary choice is the essence of waiver for which there
-L - j
"

A
must have existed an opportunity for a choice between the relinquish-
ment and the conferment of a right in question. Nothing of the kind
could be proved in this case to estopp the first respondent, who had
tiled the suit at the proper opportunity after the land was transferred to
him. [413G-H; 414A-B]
B 1,....
)
Shanti Devi v. A.K. Banerjee, [1981] 2 SCC 199, referred to.
•
CIVIL APPELLATE WRISDICTION: Civil Appeal No. 2977
of 1984.

From the Judgment and Order dated 18.2.1982 of the Calcutta
-
c High Court in S.A.T. No. 87 of 1981. x
D.K. Sen, Dr. Meera Agarwal and R.C. Mishra for the Appel-
\ants.

D A.K. Sen, S.K. Banerjee and P.K. Mukerjee for the Respon-
dents.

The Judgment of the Court was delivered by
y·
K.N. SAIKIA, J. This defendants' appeal by special leave is
B from the judgment and order of the High Court of Calcutta dated 18th
February, 1982 in S.A.T. No. 87 of 1981 summarily dismissing the
Second Appeal against the appellate order in T.A. No. 381 of 1'180
which affirmed the judgment and decree in title suit No. 56 of 1966.
-
The instant second respondent Narendra Nath Mukherjee leased ~~
F out the land measuring 6 cottas 5 chittaks 30 sq. ft. at 5/2/A Russa
Road, now known as 34/A Shyama Prasad Mukherjee Road, Calcutta,
by a registered lease deed dated 26th September, 1946, hereinafter
referred to as 'the lease', at the first instance for a period of 10 years •
from 1st April, 1946 but if the lessee did not fail to pay the rent to the

G
lessor and rates and taxes to the municipality during .th<tt period, the
lease would be extended for a further period of 5 years i.e. upto 31st
March, 1961 at the rent of Rs.250 in place of .Rs.200 per month; and if
'I· - \!!
\~

he continued to do likewise, it would be extended for a further period
of 5 years, that is, upto 31st.March, 1966, at a monthly rent of Rs.300
in place of Rs.250; and if he continued to do likewise, during the
period of 20 years, he would be entitled to obtain extension for a
H further maximum period of one year at a rent of Rs.500 per month in
place of Rs.300 per month.
P.C. DALUI v. B. BANERJEE !SAIKIA, J.I 405

The instant appellants are stated to have exercised their option of
extension at the expiry of 10 years for a period of 5 years i.e .. from 1st A
April, 1956 to :31st March, 1961 on increased rental of Rs.250 per
month and then for the second term of 5 years from 1st April, 1961 to
:31st Match, 1966 at the increased rental of Rs.300 per month. During
the lease, oil 31st March, 1959 the instant second respondent by a
registered instrument transferred the land to the first respondent who B
thereby became the landlord. Alleging that the instant appellants
4 failed to exercise the option of extension for one year at ail enhanced
rent of Rs.500 and also failed to give peaceful and vacant possession of

- the land to him, the instant first respondent as plaintiff instituted title
suit No. 56 of 1966 for ejectment khas, possession and mesne profiu.
the instant appellants as defendants contested the suit by filing a joint
written statement stating, inter alia, that they did not exercise option c
of renewal after the expiry of the original term of 10 years as they
became thika tenants from 28th February, 1949 i.e. 011 the date of
commencement of the Calcutta Thika Tenancy Act, 1949 as admitted
by the plaintiff's predecessor in interest, the instant second respon-
dent, in Miscellaneous Execution case No. 126 of 1953 (Thika) before D
the Controller under the Calcutta Thika Tenancy Act, 1949, herein-
after referred to as 'the Act', and by both the respondents in Misc.
Judicial Case No. 74 of 1958 (Thika) before the said Controller. It was
also stated that they (appellants) always paid rent at the tate of Rs.200
per month and never any enhanced rent; and that the first respon-
denes claim for the differential tent Wifs aiso rejected in the first

- respondent's suit No. T.S. 80 of 1965 and the appeal thetefrom was
also rejected and ultimately the special leave petition (Civil No. 1363/
80) was also dismissed by the Supreme Court on 10th March, 1980 .

. --~ T.S. No. 56 of 1966 was decreed by the Trial Court wherefrom
L
the appeal, being T.A. No. :381 of 1980 was also dismissed. The Addi-
tional District Judge while dismissing T.A. 381/80 relied on the deci-
sion of the Calcntta High Court, since reported in 1980 1 C.L.J. 377,
,._ -• holding that as the lease was for a period of 20 years and not for a
, fleriod of 12 years sub-section (5)(b) of Section 2 of the Act had no
application; and that the respondents were not barred by waiver,
.. ~. estoppel, res judicata or principles analogous thereto because of the G
Misc. case No. 74 of 1958 filed by the second respondent under Section
5 of the Act as there could be no question of giving a status under the
Act when in the facts of the case such a status was not availa~le. The
Second Appeal being S.A.T. 87 of 1981 having also been summarily
dismissed by the High Court by the impugned order, the appellants
have preferred this Appeal by special leave. H
406 SUPREME COURT REPORTS [1989] 2 S.C.R.
~. -
A Mr. D.K. Sen, the learned counsel for the appellants submits,
inter alia, that there could be no controversy about the appellants'
status of thika tenants in view of the fact that the lease was at the first
,_
instance for 10 years only and its first and subsequent extensions were
contingent on the appellants' regular payment of rents, rates and taxes
and enhancement of rent; that contingency did not happen as they did
B not pay any enhanced rent, but simply were holding over; that the _\...
second respondent who is the predecessor in interest of the first
respondent, admitted the Thika Tenants status of the appellants in the
earlier proceedings before the Controller and were therefore estopped
••
from questioning that status; and that the learned Courts below erred
in ignoring these vital pieces of evidence. -
c Mr. Shankar Ghosh the learned counsel for the respondents re- .)(
futing submits that the lease having clearly been for a period of 20
years, the appellants have rightly been held not to be thika tenants
under the Act; and that there could be no estoppel against a statute.

D Two questions are, therefore, to be decided in this appeal,
namely, whether the instant appellants acquired the status of thika
tenants in respect of the lease; and whether there was estoppel,
waiver, acquiesance or res judicata on the part of the respondents as iii
earlier proceedings they treated the appellants as thika tenants before
the Controller.
y
E
The Act was passed in 1949 to make better provisions relating to
the law of landlord and tenant in respect of thika tenancies in Calcutta.
It came into force on the day on which the Calcutta Thika Tenancy
Ordinance, 1948 ceased to operate. Section 2(5) in Chapter I defined
-
~:

"thika tenant" as follows: ·~·
p
"(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
0 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-

(a) who holds such land under that another person in
H perpetuity; or
__,

-
P.C. DALUI v. B. BANERJEE [SAIKIA, J.] 407
~~
(b) who holds such land under that another person under a
A
registered lease, in which the duration of the lease is expre-
ssly stated to be for a period of not less than twelve years;
or

(c) who holds such land under that another person and
-I uses or occupies such land as a khattaJ." B

• This new clause (5) was substituted by West Bengal Act 6 of
1953. The crucial words to be noted in clause (b) are that "the duration

- of the lease is expressly stated to be for a period of not less than twelve
years." In other words, if the stated period is of less than 12 years the
lessee will be a thika tenant and not otherwise. The important feature
of the provision contained ins. 5(1) !>f the Act is that the application c
>(
for ejectment of the thika tenant has to be made to the Controller. We
have, therefore, to ascertain the duration of the lease. Admittedly
clauses 9, 11, 12 and 13 of the lease read as follows:

"(9). If the second party lessee keeps the rent for two D
months.in arrear at a time or if contravenes or commits any
breach in respect of any provision of this deed or daes not
comply with his duties within 7 days in spite of service of
'/. warning notice or does not refrain from doing improper
act, or if he is declared insolvent then in spite of the tenure
of this lease having not expired, this lease, that is the E

-- ,,'
tenancy of the second party Lessee will be cancelled or
extinguished and the first party Lessor will be entitled to
take khas possession of the said property. No plea or objec-
tion of the second party Lessee will be entertained.

iii
--·-~- 11. The tenure of this lease will be for a period of ten years F
firstly from the l&t April, 1946 A.O. But if the second party

...' ....
Lessee, performs acts regularly according to provisions
within this stipulated period and pays fixed rent to the first
party Lessor regularly and pays rates and taxes to the
Municipality and does not default in doing his duties, then
"'( the period will be extended under all the aforesaid terms G
for a further period of five years, i.e. upto the 31st March,

•
;~
·'
1961, by fixing the monthly rent of Rs. 250 two hundred
fifty rupees in place of Rs.200 two hundred rupees and the
second party Lessee shall be bound absolutely by the
aforesaid provisions in paragraphs 1 to 10 during the said

' enhanced period and all the said terms will remain in force, H
408 SUPREME COURT REPORTS [1989) 2 S.C.R.
__._ -
A only the rent of Rs.250 two hundred fifty in place of Rs.200 "'
two hundred will be fixed.

12. If the second party Lessee performs his acts regularly
according to the aforesaid terms within last five years and is
abide by the rules and pays the fixed monthly rent of
B Rs.250 two hundred fifty rupees to the first party Lessor \-
month by month and pays the rates and tax to the Munici- ·
pality then on the expiry of the said tenure of five years, the •
tenure of this lease will be enhanced for a further period of
five years, i.e; upto 31st March, 1966 having fixed the -
monthly rent of Rs.300 three hundred rupees in place of
Rs.250 two hundred fifty rupees under all the aforesaid
c terms in paragraphs 1 to 10 and the second party Lessee )<'.
shall fully remain bound absolutely by all the aforesaid
terms and all the said rules shall fully remain in force, only
the monthly rent of Rs.300 three hundred in place of
Rs.250 two hundred fifty will be fixed.
0
13. If the lease is not determined for acting contrary to any
provisions within the tenure of the aforesaid term, then on
the expiry of the said term as mentioned in this deed, i.e.
on the 1st April, 1966 A.D. the second party Lessee on y
paying the entire receivable amount in respect of the
E Demised premises to the first party Lessor, will give khas
possession of the said land by treating the houses etc .
constructed on the Demised land, i.e. the houses etc. con- ....
structed on the land by him, i.e. the second party Lessee by <
treating the same to be a portion of the Demised land shall
vacate the said houses and said land. But if the second
F party Lessee, within the aforesaid 20 years, performs acts
according \o all the aforesaid provisions duly and regularly
and abide by all the same duly and regularly pays the fixed
rent and-rates and taxes at the proper place then the second
party Lessee if so desire, will be entitled to get the same for
a fvrther extended period of maximum one year from 1st
G April, 1966 A.D. by serving written Notice at least one
month prior to the expiry of the aforesaid tenure of 20
years by fixing monthly rent of Rs.500 five hundred rupees
in place of.Rs.300 three hundred under all the provisions of
the aforesaid paragraph No. 1 to 10 and the first party
Lessor shall be bound to grant the said extended period and
H if the second party Lessee, accepts such extended period,
... .....
•--i!

!!if
P.C. DALUI v. B. BANERJEE (SAIKIA, J.] 409

shall pay the entire dues of the first party Lessor within the
last mentioned extended period upto the expiry of the said
A
last extended period and upon that, by demolishing the
. houses etc .. constructed on the Demised land will remove
"I and replace the same. The first party Lessor shall not have
~
any objection to the same nor the same shall be tenable-

~

w~-
-)
. and shall give khas possession on the Demised Land to the B
first party Lessor, and in that event the first party Lessor
shall be bound to give up his claim and contention on the
houses etc. of the said second party Lessee and shall only
take possession of the demised land that is, in such circum-
stances the houses etc. constructed by the second party
Lessee to be a portion of the demised land. But if for any
'.>( reason the second party Lessee, within the extended c
stipulated period does not give khas possession to the first
party Lessor on the Demised land according to the afore-
. said manner, or if he neglects to do so or is unable then the
first party Lessor shall not be bound to give up his claim in
respect of the houses etc. constructed by the said second D
party Lessee. Moreover, by treating the houses etc. con-
structed on the demised land to be a portion of the said '--i

land, shall be entitled to take khas possession of the said
~ Demised land and besides the same, the first party Lessor

•. shall also be entitled to get any other remedy or damage or

... compensation according to law."

'Ex praecedentibus et consequentibus optima fit interpretatio.'
E

The best interpretation is made from the context. Every contract is to
be construed with reference to its object and the whole of its terms.
If:. ~- The whole context must be considered to ascertain the intention of the
..._ parties. It is an accepted principle of construction that the sense and F
meaning of the parties in any particular part of instrument may be
....
._ collected 'ex antecedentibus .et consequentibus;' every part of it may
be brought into action in order to collect from the whole one uniform
and consistent sense, if that is possible. As Lord Davey said in N.E. -"
Railway v. Hastings, (1900] A.C. 260 (267), "The deed must be read as
'--,> _, a whole in order'to ascertain the true meaning of its several clauses,
G

f and the words of each clause should be so interpreted as to bring them
into harmony with the other provisions of the deed if that interpreta-
tion does no violence to the meaning of which they are naturally
~H
H

· susceptible." In construing a contract the Court must look at the words
used in the contract unless they are such that one may suspect that they
do nof convey the intention correctly. If the words are clear, there is H
(

_.__,,"
410 SUPREME COURT REPORTS [1989] 2 S.C.R.

very little the Court can do about it. In the construction of a written
A
instrument it is legitimate in order to ascertain the true meaning of the
words used and if that be doubtful it is legitimate to have regard to the
circumstances surrounding their creation and the subject matter to
which it was designed and intended they should apply.
·,
B "The habendum in the lease states:. "Upon the prayer of ~
the second party Lessee to take the said land in arrange- •
ment and settlement for a stipulated period for starting
factories, Lathe works, manufacturing and repairing of
Motor Car parts, manufacturing and repairing Electric
Fans and various manufacturing business, constructing
pucca buildings on the said land or in portion thereof or
c subletting hou•es etc. and for constructing shop rooms etc. y.
under the following terms and provisions, to which he
agreed and upon\iving possession of the said land to the
second party Lessee, the second party Lessee hereby admit
and promise that," •
D
Particulars and four boundaries of the property in Schedule Ka
are given as:

"In the District of 24 Parganas, within the Police Station Y
Bhowanipore, in Mouza Bhowanipore Village, within the ~·--

-
E jurisdiction of the Sub-Registry Alipore, In Government
Khas Mahal, in Division 6, Sub Division "E" (E) relating
to Dihi 55 gram, in holding No. 224 within the surplus land
of scheme No. 4 of the Calcutta Improvement Trust, a
portion of the plot No. 62 of the said scheme, the rent free
land measuring more or less 0-6-5-30 six kathas, five chit-
F taks, thirty square feet together with foundation of the wall
together with all fittings and fixtures and easement and
other rights etc. with all rights and entire right is the pro-
perty whose current Municipal premises No. 5/2A, Russa
Road and the second party Lessee have taken the said
property on lease for a stipulated period of twenty years".
G (underlined by us)

In clause 9 of the lease it would be seen how and when the rent is
to be paid and when the foase would be liable to be cancelled have
been stated. Clause 11 stipulates that at the first instance the period of
lease was made 10 years and in case the Lessee acted in accordance
I-I with what was expected of him under clause 9, the period of the lease
P.C. DALUI v. B. BANERJEE [SAIKIA, J.] 411

would be extended for a further period of 5 years upto 31st March,
A
1961 at enhanced rent of Rs.250 per month, and if the Lessee con-
tinued to act in accordance with what was expected of him under
clause 9 during this period of 5 years the period of the lease would be
extended for a further period of.S years, that is, upto 31st March, 1966
at a monthly rent of Rs.300 and in case the Lessee continued to act
during this period as expected of him under clause 9 till the end of the B

·• period of 20 years he would be entitled by serving a notice to obtain an
extension for a further maximum period of one year at enhanced rent of
Rs.500 per month.

It is pertinent to note that the word used is 'extension' and not
'renewal'. To extend means to enlarge, expand, lengthen, prolong to
carry out further than its original limit. Extension, according to c
Black's La Dictionary, means enlargement of the main body; addition
of something smaller than that to which it is attached; to lengthen or
prolong. Thus extension ordinarily implies the continued existence of
something to be extended. The distinction between 'extension' and
'renewal' is chiefly that in the case of renewal, a new lease is required, D
while in the case of extension the same lease continues in force during
additional period by the performance of the stipulated act. In other
words, the word 'extension' when used in its proper and usual sense in
connection with a lease means a prolongation of the lease. Construc-
tion of this stipulation in the lease in the above manner will also be
consistent when the lease is taken as a whole. The purposes of the E
lease were not expected to last for only 10 years and as Mr. A.K. Sen
rightly pointed out the Schedule specifically mentioned the lease as
"for a stipulated period of twenty years." As these words are very
clear, there is very little for the Court to do about it.

The learned counsel for the appellants in support of his conten- F
tion that the appellants were thika tenants refers' us to AIR 1957 SC
907 = 1958 SCR 360; AIR 1960 SC 936 = 1960 3 SCR 578; 66 C.W.N.
338; 69C.W.N. 842; AIR 1965 SC 1839 = 1965 3 SCR 364.

,, · In Kanai Lal v. Paramnidhi, [1958] SCR 360, the status of the
!!:...~t. \ ,appellants as thika tenant was not in question. The question therein G
D' was whether under Section 5(1) of the Act as amended by the Amend-
;.r . ing Act of 1953 execution proceedings taken out by the decree holder
against the appellant could be entertained only by the Controller and
not by the civil Courts. This Court held that Section 5(1) did not apply
to a case where the landlord had already obtained a decree for eject-
ment against his thika tenant and consequently the civil Court had H
412 SUPREME COURT REPORTS [1989] 2 S.C.R.
~ ..
A jurisdiction to entertain the application. It was noted that until 1948
the rights and liabilities of the landlords and their thika tenants were
governed by the provisions of the Transfer of Property Act. On
October 26, 1948, the Calcutta Tbika Tenancy Ordinance XI of 1948
was promulgated because it was thought expedient, pending the enact-
ment of appropriate legislation to provide for the temporary stay of
B the execution of certain decrees and orders of ejectment of thika \-
tenants in Calcutta. The object of the Ordinance was to give protection •
to the thika tenants in Calcutta and to afford them interim relief by
staying execution of certain decrees and orders as mentioned in Sec-
tion 3 until an appropriate Act was passed by the Legislature in that
behalf. ·
c The facts of the instant case are entirely different inasmuch as
the lease was dated 26th September, 1946 and no question of eviction
by executing any decree arose until the Act was passed. The only point
to be noted is that the tenancy under the lease on the relevant date of
cn;ation was governed by the Transfer of Property Act.
D
In Mahadeo/al Kanodia v. Administrator General of West
Bengal, [1960] 3 SCR 578 = AIR 1960 SC 936, the question for deci-
sion was whether the appellant against whom proceedings for exec\1-
tion of a decree for ejectment was pending, who had applied for relief
under Section 28 and when that section was in force, was entitled to
R have his application disposed of in accordance with the provisions of
Section 28, which had ceased to exist retrospectively though it
remained undisposed on the date the Amendment Act, 1953 which
omitted Section 28 of the Act, came into force. This case is therefore
of no assistance to the appellants.

F In Annapurna v. Tincowrie Dutt, 66 C.W.N. 338, it was held on
the facts of the case that what was let out was land with structures and
it could never come under the operation of the Act inasmuch as the
property in suit had a history of 24 years under the registered lease
before that claim to become a thika tenant would arise u11der the Act.
,-
-
It was also held that where there was a covenant for renewal in a lease
G and the option did not state the terms of the renewal, the new lease, if
created would be for the same period and on the same terms as the •'
original lease in respect of all the essential conditions thereof except as
to the covemmt for renewal itself. This case therefore is hardly
relevant.

H In Shaffiuddin & Ors. v. G.C. Banerjee, 69 C.W.N. 842, it was
P.C. DALUI v. B .. BANERJEE [SAIKIA, J.] 413
~ ...- held that the status already acquired by the tenants in Tollygunje
under the West Bengal Non-Agriculiural Tenancy Act, 1949, could A
not be prejudiced and affected by the Act and the landlords were
therefore not entitled to any order of ejectment under the Act. This
case has; therefore, no bearing.

In Sheikh Gufan v. S.K. Ganguli, [1965] 3 SCR 364, the question
-1 was whether Section 30( c) of the Act was applicable to land in respect
B

~ of which betterment fee was levied. It is therefore not relevant for us.

We.do not find any reason in the above decisions to enable us to
hold that the lease in the instant case was for a period of less than 12
years and not for a period of not less than 12 years, The High Court
correctly held the lease to be for the less than 12 years . c
. ).(
The next question is that of waiver, estoppel and res judicata.
The appellants urged that there were two previous proceedings namely
Misc. Execution case No. 126 of 1953 (Thika) and Misc. Judicial case
No. 74 of 1958 (Thika) under the Act before the Controller. Except
,.
D
the implication that the proceedings having been before the Controller "
the respondents treated the appellants a thika tenants, no particular
order finally conferring that status has been shown to us. By the order
"-{ of this Court dated 10th March, 1980 in Special Leave Petition (Civil)
1363 of 1980 which was from the judgment and order dated 16.9.1979
of the High Court of Calcutta in F .A. No. 458 of 1978 the petition was E
dismissed "without going into the question whether the Thika Tenancy
· Act was applicable or not." Misc. (J) case No. 74 of 1958 wherein the
first respondent prayed for being added as petitioner No. 2 ended in a
compromise. No status could, however, be said to have been deter-
~ mined.
F
The essential element of waiver is that there must be a voluntary
and intentional relinquishment of a known right or such conduct as
·~ warrants the infererice of the relinquishment of such right. It means
the forsaking the assertion of a right at the proper opportunity. The
first respondent fi)ed Sl\it at the proper opportunity after the land was
transferred to him, and no covenant to treat the appellants as Thika G
~ tenants could be shown to have run with the land. Waiver is distinct
from estoppel in that in waiver the essential element is actual intent to
abandon or surrender right, while in estoppel such intent is immate-
rial. The neoessary condition is the detriment of the other party by the
conduc.t of the one estopped. An estoppel may result though the party
estQPped did not intend to lose any existing right. Thus voluntary H
414 SUPREME COURT REPORTS [1989] 2 S.C.R.

A choice is the essence of waiver for which there must have existed an ~,
opportunity for a choice between the relinquishment and the confer-
ment of the right in question. Nothing of the kind could be proved in
this case to estopp the first respondent.

B In Shanti Devi v. A.K. Banerjee, [1981] 2 SCC 199, it was held
that parties could not by their pleadings alter the intrinsic character of
the lease or bring about a change of the rights and obligations flowing
therefrom. The Court would only look into the terms of the lease Jr
irrespective of the averments in the pleadings. In the instant case as we
have already held the lease to have been for twenty years, its character
could not have been changed by the pleadings, if any, in the above
C cases. Nor could the respondents be held to have waived their rights
under the lease. We do not find any infirmity in the impugned High
Court order on this count also.

In the result, this appeal fails and is dismissed, but without any
order as to costs. Stay order, if any, stands vacated.
0
R.S.S. Appeal dismissed.