Calcutta High Court (Appellete Side)
Kartick Shaw vs Sarada Devi Rajak on 18 February, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 18.02.19
Srimanta List - S/L Sl. No. 07 Ct. No. 25 C. O. 731 of 2017 Kartick Shaw
-vs.-
Sarada Devi Rajak Mr. Parimal Bhattacharyya, Adv., Mrs. Sima Majumder, Adv., Mrs. Sikha Chakraborty, Adv., Mr. Sankar Paul, Adv ...for the petitioner.
Dr. Madhusudan Saha , Adv.
...for the opposite party.
Order dated 24th January, 2017 passed by the learned Civil Judge (Junior Division), 1st Court at Sealdah in Title Suit No. 34 of 2010 is under challenge at the instance of the defendant/petitioner.
Factual matrix leading to the filing of the instant revision under Article 227 of the Constitution of India is summarized as hereunder :-
The opposite party as plaintiff filed Title Suit No. 34 of 2010 praying for permanent injunction restraining the defendant and his men and agents from encroaching any portion of the suit property in any illegal manner and/or from disturbing the peaceful possession and enjoyment of the plaintiff in the suit property or in any Portion thereof in any way or manner whatsoever and other consequential reliefs. It is alleged by the opposite party in the plaint that by virtue of a deed of gift executed by one Munni Devi Rajak, original thika tenant in respect of premises no. 3/1C/H/1, Sir Gurudas Road on 20th January, 1992, the plaintiff became the thika tenant in respect of the said property. The defendant has been possessing a plot of land on the northern side of the plaintiff's land. The defendant illegally tried to encroach upon the thika tenanted land of the petitioner which prompted him to file Title Suit No. 34 of 2010.2
The defendant/petitioner entered appearance in the said suit and filed written statement denying all material allegations made out by the plaintiff against him. The defendant also specifically pleaded that he is a thika tenant in respect of land measuring about 1 cottah 15 chittacks and 24 sq. feet with 14 structures thereon on the northern side of the plaintiff's property. There is a common passage in between the thika property of the plaintiff and the defendant. The plaintiff has been disturbing the defendant from using the common passage and for such illegal gain, has filed Title Suit No. 34 of 2010 with ulterior motive.
In the said suit the defendant/petitioner filed an application under Order 7 Rule 11 of the Civil Procedure Code stating, inter alia, that the suit is not maintainable in its form and content in view of the provision of Section 21 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereafter the said Act).
Mr. Bhattacharyya, learned Advocate for the petitioner at the very beginning of his argument draws my attention to Section 21 of the said Act. Section 21 imposes a bar to Civil Court's jurisdiction. It lays down, "No Civil Court shall have jurisdiction to decide, or to deal with, any question, or to determine any matter, which by or under this Act, is required to be or has been decided or deal with or which is to be, or has been determined, by the Controller or the Appellate or other authority specified in the provisions of this Act, and no order or Judgment passed or proceedings including execution proceedings commenced, under the provisions of this Act shall be called in question in any Civil Court". In this regard learned Counsel for the petitioner refers to a Division Bench Judgment of this Court in the case of Shri Lalit Kumar Bagla & Ors. -Vs.- Rajiv Kumar Podder & Ors., reported in 2016 (3) C.L.J. (Cal) 281. Paragraph 111 of the aforesaid report decision is relevant for the purpose of disposal of the instant revision. It is quoted below:-3
"111. Section 21 of the 2001 Thika Tenancy Act provides that no Civil Court shall have jurisdiction to decide or to deal with any question or to determine any matter which, by or under 2001 Act is required to be or has been decided or dealt with or is to be or has been determined by the Thika Controller or the Appellate Authority or other authorities specified under the provisions of the 2001 Thika Tenancy Act. Section 21 makes it clear that no order or judgment passed or proceedings including execution proceedings commenced under the 2001 Thika Tenancy Act shall be called in question in any Civil Court."
He also refers to another decision of the Division Bench of this Court in the case of Shri Samarendra Nath Das @ Samar Das -Vs.- M/s. Bengal Central Building Society Limited & Ors., reported in 2016 (1) C.L.J. (Cal) 459.
Dr. Madhu Sudan Saha, learned Advocate for the opposite party first refers to Section 8(3) of the said Act and submits that any dispute regarding payment of rent by the thika tenant to the State Government or by a bharatia to a thika tenant or in case of eviction of bharatia shall be disposed of by the Controller in such a manner as may be prescribed. Thus, according to the learned Advocate for the opposite party in view of Section 8 of the said Act the jural relationship between the thika tenant and bharatia will govern under the provision of the said Act, specially the question relating to payment of rent by bharatia to thika tenant, payment of rent by the thika tenant to the State Government and eviction of a bharatia by the thika tenant. Section 21 bars the jurisdiction of the Civil Court in respect of what are required to be decided by a thika Controller under Section 8 of the said Act.
It is urged by Dr. Saha, learned Advocate for the opposite party that the opposite party as plaintiff filed a suit simplicitor for permanent injunction under the provision of Special Relief Act. The said suit is not barred under Section 21 of the Act and Civil Court has jurisdiction to entertain a suit for permanent injunction under Specific Relief Act. In order to substantiate his contention he refers to a 4 decision of this Court delivered by a Co-ordinate Bench in Md. Jamil Akhter - Vs.- Abdul Majid, reported in 2011 (1) C.L.J. (Cal) 308.
A question, arose in the case of Md. Jamil Akhter (Supra), as to whether a suit for eviction of a licensee from a thika property is maintainable in Civil Court or not. A Co-ordinate Bench of this Court held that such a suit is not barred under Section 21 of the said Act and accordingly the same is maintainable.
It is also urged by Dr. Saha, learned Advocate for the opposite party that the defendant/petitioner was under obligation to file an application under Order 7 Rule 11 of the Civil Procedure Code for rejection of plaint at the first instance if the suit is not maintainable on the ground of either express or implied bar under any statute. In such suit the Court cannot see and consider the written statement filed by the defendant/petitioner. In support of his argument he refers to a decision of the Supreme Court in the case of Sajjan Sikaria & Ors. -Vs.- Shakuntala Devi Mishra & Ors., reported in (2005) 13 SCC 687.
I have heard learned Advocates for the petitioner and the opposite party, perused the materials-on-record and the decisions of this Court as well as the Supreme Court cited by the learned Counsels for the parties.
In Lalit Kumar Bagla (Supra) the point for determination before the Division Bench was if a thika Controller can exercise his power holding a particular property a thika tenanted property or not. The Division Bench of this Court on careful consideration of provisions of the said Act came to a finding that it is within the jurisdiction of the thika Controller to decide if a particular property is a thika tenanted property or not.
In Shri Samarendra Nath Das (Supra) a question arose as to whether a deed of conveyance comprising land in thika tenancy can be declared by the thika Controller as illegal and invalid. The Division Bench of this Court answered the question in affirmative.
5Title Suit No. 34 of 2010 has been filed by the opposite party invoking the provision of Section 39 of the Specific Relief Act praying for permanent injunction. In the said suit the issue that will be considered by the Civil Court is as to whether the defendant/petitioner has illegally encroached the thika tenanted property of the opposite party or not. In order to come to a specific finding on the above issue involved in the suit, the Civil Court is not required to come to any finding as to whether the defendant is a thika tenant or a bharatia or that the defendant makes payment of rent to the State Government or not. Therefore, the issue does not involve a question contemplated in Section 8(3) of the said Act. Therefore, the suit as framed by the opposite party and is pending in the first Court of the learned Civil Judge (Junior Division), in my considered view is maintainable in accordance with the provision of Section 39 of the Specific Relief Act.
In view of the above observation, I do not find any merit in the instant revision and the same is liable to be dismissed. Accordingly, the instant revision is dismissed on contest without cost.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.
(Bibek Chaudhuri, J.)