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Saghira Bano v/s Mahmood Alam & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    C.O. No. 1973 of 2018

    Decided On, 13 November 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SUVRA GHOSH

    For the Petitioner: Sanjib Kumar Mukhopadhyay, Md. Shakir, Advocates. For the Opposite Parties: Suman Sankar Chatterjee, Imteaz Ahamed, Advocates.



Judgment Text

1. In the present application under Section 227 of the Constitution of India, the petitioner has challenged the order dated 12-04-2018 passed by the Learned Civil Judge (Junior Division), 2nd Court, Sealdah in Title Suit No. 222 of 2017.

2. The petitioner submits that the plaintiffs/opposite parties filed the suit before the learned trial Court praying for decree for declaration and permanent injunction, claiming to be thika tenants in respect of the disputed property. On the prayer of the plaintiffs, the learned trial Court granted an order of adinterim injunction in their favour following which the defendant/petitioner appeared in the suit and filed an application under Order VII Rule 11 of the Code of Civil Procedure, praying for rejection of the plaint. The defendant/petitioner's contention before the learned trial Court was that the property being a thika property, the Court had no jurisdiction to try the suit and determination of title in respect of the property was within the domain of the Thika Controller.

3. The plaintiffs/opposite parties support the order impugned and submit that the learned trial Court has rightly held that as the dispute in the suit was between a thika tenant and a third party who was claiming title in respect of the property, such dispute was triable by the Civil Court and there was no bar under the law to decide such a dispute.

4. It is clearly enumerated in Order VII Rule 11 of the Code that "the plaint shall be rejected in the following cases:-

(a)............................................................

(b)............................................................

(c).............................................................

(d)Where the suit appears from the statement in the plaint to be barred by any law."

5. The case of the plaintiffs/opposite parties, as made out in the plaint itself, is that they are thika tenants in respect of the disputed property by way of inheritance from their predecessor Dulari Bewa, since deceased, who was the original thika tenant in respect thereof and after promulgamation of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981, became direct tenants under the Government of West Bengal. The predecessor of the plaintiffs inducted several bharatiyas in the property and received rents in respect of structures erected by her thereon. The plaintiffs alleged that the defendant, claiming to be the owner of the property, asked the plaintiffs to vacate the property and threatened to dispossess them there from. The plaintiffs prayed for a decree for declaration that the defendant had no right, title and interest in respect of the property and also for a decree for permanent injunction restraining the defendant from dispossessing the plaintiffs from the property or disturbing their peaceful possession therein. Therefore according to the plaint case itself, the plaintiffs/opposite parties claimed to be thika tenants in respect of the disputed property.

6. In view of Section 27 of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001, the Calcutta Thika and Other Tenancies and Lands (Acquisition & Regulations) Act, 1981, was repealed with effect from the date of commencement of the West Bengal Thika Tenancy (Acquistion & Regulations) Act, 2001.

7. Section 5(3) of the Act of 2001 is set out:-

"If any question arises as to whether a person is a thika tenant or not or whether the land in question is thika land or not, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question."

8. In other words all incidents of thika tenancy is to be determined by the Thika Controller and no civil court shall have jurisdiction to decide or deal with any such matter which is required to be determined by the Controller. Such bar to jurisdiction of the Civil Court is clearly enumerated in Section 21 of the Act.

9. In the present case, though the plaintiffs/opposite parties prayed for a decree for declaration that the defendant had no right, title or interest over the disputed property and a decree for permanent injunction against the defendant, the plaintiffs claimed their title and possession in respect of the property as thika tenants. In order to adjudicate whether the plaintiffs are entitled to get the relief as prayed for, their right over the property as thika tenants need to be gone into even without any specific pleading to that effect. The entire case of the plaintiffs is based on their rights accrued as thika tenants and no other source of derivation of their rights has been pleaded.

10. It is pertinent to refer to a judgment of a coordinate bench of this Court in Messrs. Acme Estate Private Limited v/s. Ramsakal Yadav and others reported in 2019(1) Indian Civil Cases 412 (Cal.) wherein similar issues were raised before the Court and the Court held that the plaintiffs cleverly drafted the plaint so as to by-pass the rigours of Section 5(3) of the Act of 2001.

11. Though the dispute between the parties apparently seems to be that of title, adjudication as to whether the plaintiffs are occupying the property as thika tenants comes into play and such adjudication which forms the moot point in the case, is barred under Section 5(3) as well as Section 21 of the Act.

12. In the premises, the suit appears to be barred by the West Bengal Thika Tenancy (Acquistion and Regulation) Act, 2001 from the st

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atement in the plaint itself. 13. Accordingly, the order impugned cannot be sustained and is required to be set aside. 14. C.O. No. 1973 of 2018 is allowed. 15. The order impugned dated 12-04-2018 passed by the Learned Civil Judge, 2nd Court at Sealdah is set aside. 16. The plaint in title suit no. 222 of 2017 is rejected under Order VII Rule 11(d) of the Code of Civil Procedure. 17. There will be no order as to costs. 18. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.
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