Calcutta High Court
Lalit Kr. Bagla & Ors vs Rajiv Kr. Poddar & Ors on 16 November, 2015
Author: Soumen Sen
Bench: Soumen Sen
1
ORDER SHEET
G.A. No. 1100 of 2011
With
E.C. No. 90 of 2011
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
LALIT KR. BAGLA & ORS.
Versus
RAJIV KR. PODDAR & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date: 16th November, 2015.
Appearance:
Mr. Ram Mohan Pal, Adv.
... for the petitioner
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Satadeep Bhattacharya, Adv.
Mr. S.S. Bhutoria, Adv.
... for the respondents
The Court: This is an application by Pannalal Jadav and three others in an execution proceeding initiated by the plaintiffs/decree holders. The case of the intervenors is that the predecessors in title of the intervenors were inducted by the Poddars in the year 1965 on the basis of a right given to the Poddars by the Bagla to create sub-lease.
It is argued on behalf of the intervenors that the Poddars were originally the leasee for 25 years, commencing from 1941 and thereafter by reason of renewal in the year 1965, the Poddars being empowered to create sub-lease in favour of the predecessors in title of the intervenors and as a result thereof, the suit for eviction could not have been filed without impleading the intervenors in the said proceeding. It is submitted that the Poddars had granted lease in favour of the intervenors of a vacant land and as such, the said property becomes a 2 thika tenanted property and accordingly this Court has no jurisdiction to entertain the said application. This aspect of the matter was considered in detail in GA No. 1034 of 2011. In the said decision I have considered the 1949 Act as well as 1981 Act. It has been fairly submitted on behalf of the intervenors that the intervenors are not pressing its right on the basis of Howrah Court order. It is needless to mention that the Howrah Court while disposing of that matter has failed to take note of the 1949 Act and the definition of thika tenant under the said Act.
The lease was executed in the year 1965 when the Thika Tenancy Act, 1949 was in operation and any lease beyond 12 years was specifically excluded from the purview of the said Act. Once the tenancy was specifically excluded from the purview of the 1949 Act, the 1981 Act would not be applicable in respect of the tenancies prevailing under the 1949 Act. Mere deposit of rent with the Thika Controller would not ipso facto create any thika tenancy since it was a lease beyond 12 years. The 1949 Act would not have any application. The 1981 Act would include Slum, Bosti and Khatal that would have no application in the instant case.
It is submitted that the decision in the Section 17 proceeding before the Howrah Court is not a decision on title which could affect the right of the lessor as owner of the property. There is no contract between the lessor and the applicant. If the Poddars are not thika tenant then the applicants also cannot claim a right superior to the right of Poddars. Moreover, even if it is assumed that the Poddars have the right to claim renewal of the lease for a period of another 20 years over and above 25 years, the said period had also expired which has been 3 duly recorded by the Hon'ble Division Bench in affirming the decree passed in EOS No. 3 of 2003. The right of the applicant, if any, to continue to be in occupation of the suit premises is co-terminus with the expiry of the lease and they cannot have any superior right than that of the Poddars.
The Calcutta Thika Tenancy Act, 1949 was enacted in view of a steady eviction of Bosti tenants of Calcutta on account of heavy pressure of population leading to great misery and hardship to the tenants. Initially, an ordinance was promulgated in 1948 which was replaced by the Calcutta Thika Tenancy Act, 1949. The statements of objects and reasons with which the Bill was presented before the legislature was as follows:-
"There has been a persistent demand for legislative measures for the protection of the thika tenants of Calcutta and the Howrah Municipal area against arbitrary eviction and enhancement of rent. Accordingly, an Ordinance was promulgated staying all decrees or orders for eviction of the thika tenants on any ground other than non-payment of rent. The present Bill has been framed with a view to regulate the rights and liabilities of the thika tenants and their landlords".
Under the 1949 Act, a person in order to establish thika tenancy, must fulfil the following conditions:-
(i) he holds land under a registered lease or otherwise,
(ii) he has either erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose.
Three categories of persons are expressly excluded from the ambit of the definition of a thika tenant, viz. (a) a person holding under a lease in perpetuity, 4
(b) a person holding under a registered lease for a duration of not less than 12 years, and (c) a person holding land under another person and using and occupying the same as a khatal.
The creation of a lease in the present case is governed by the 1949 enactment. There cannot be any doubt that Poddars under the lease agreement was clearly excluded from the operation of the 1949 Act and was not a thika tenant.
The Court below has completely overlooked the deed of lease dated November 11, 1965 between Baglas and Poddars which would have shown that the lessor was the deity being represented by the sole trustee and shebait. In any event, the decision in the Howrah suit with regard to the status of the applicants are tentative and cannot bind the Baglas. In any event the intervenors are not seeking any protection under the thika tenancy law.
With the expiry of the lease in the year 1990, Poddars became a trespasser of the premises and, therefore, Poddars have no legal right to possess the property. If Poddars do not have any right in respect of the said property, the applicants by any stretch of imagination cannot claim any right in respect of the property in question. Moreover, the applicant also does not come within the definition of Bharatia under the 1949 Act.
The only issue canvassed as I have indicated earlier was that the intervenors were required to be impleaded in the eviction proceeding. In my view, the intervenors are neither necessary nor proper party. The right of the intervenors, if any in relation to the said property, perishes with the expiry of the 5 lease period and as such, the intervenors have no independent right to continue in the property after the expiry of the lease period.
Under such circumstances, this application for intervention fails. It is, however, recorded that this order is confined to 14 cottahs 12 chhitaks 41.2 sq.ft. at premises No. 149, J.N. Mukherjee Road.
Mr. Abhrajit Mitra, learned Senior counsel, appearing on behalf of the decree-holders, has also submitted that in the execution proceeding the plaintiffs are not seeking to recover the 5 cottahs of land which forms the subject matter of the civil suit pending between the parties before the Fifth Munsif, Howrah.
The application, being GA No. 1100 of 2011, accordingly stands dismissed. However, there shall be no order as to costs.
(SOUMEN SEN, J.) sg2