Calcutta High Court (Appellete Side)
Sri Debasis Mukherjee vs Hare Krishna Mahato on 11 April, 2023
S/L 6 11.4.2023
Court No.652 SD CO 4001 of 2019 Sri Debasis Mukherjee Vs. Hare Krishna Mahato Mr. Kaushik Dey Mr. Arijit Dey Mr. Avijit Dey ... for the Petitioner.
Mr. Wasim Ahmed Mr. Vijay Agarwal Md. Kashif Mr. Pritam Chakraborty ... for the Opposite Party.
Affidavit of service filed by the petitioner in court today be kept with the record.
This application under Article 227 of the Constitution of India has been directed against the order no.104 dated April 24, 2019 passed by the learned Civil Judge (Junior Division), 1st Court, South 24 Parganas at Alipore in Title Suit No.1868 of 2007.
The petitioner's specific case is that the petitioner being the plaintiff filed aforesaid suit for recovery of possession under the Transfer of Property Act, 1882 against the opposite party herein. The defendant appeared in the said suit and took the plea that he is a thika tenant in respect of 1000 sq.ft. suit land. Accordingly, the opposite party filed an application before the trial court for dismissal of suit on the ground that the trial court had no jurisdiction to try the 2 said suit as the opposite party is the thika tenant in respect of the suit property.
Learned trial court initially by the order no.30 dated July 15, 2013, was pleased to dismiss the said application and being aggrieved by the said order of dismissal, the opposite party herein preferred a civil revisional application before this Court being CO 3644 of 2013 wherein this court was pleased to observe that it is necessary to decide prima facie in the suit, pending before him, whether or not the opposite party is a thika tenant and this court was further of the view that the court below, if forms a prima facie view that the defendant is a thika tenant, then he would send the issue before the Thika Controller. It is further submitted that final argument in respect of the said suit has already been completed and parties have already filed their written arguments before the trial court on November 27, 2017 and several dates were fixed by the trial court for passing judgment. But on February 26, 2015, the trial court passed impugned order no.104 dated April 24, 2019, by which the court below came to a conclusion that it is very much necessary to determine the question as to whether the defendant is a thika tenant in respect of the suit property or not and for determination of such question about alleged thika tenancy of defendant in respect of suit property, he sent the issue to the Thika Controller. Being aggrieved by that order, petitioner has preferred this revisional application.
3
Learned counsel appearing on behalf of the petitioner submits that the court below did not comply the direction made by this court in CO 3644 of 2013. Accordingly, the court below may be directed to form a definite opinion as to whether the court below has got jurisdiction to try the said suit or not in compliance with the order of the Hon'ble High Court as he has not formed any definite opinion to that extent in the order impugned.
Learned counsel appearing on behalf of the opposite party submits that prima facie the order impugned shows that the court below was satisfied that the property in question is a thika property and as such, he has no other alternative but to refer the case before the Thika Controller.
I have considered the submissions made by both the parties.
On perusal of the annexures, it appears that this court while disposing CO 3644 of 2013 has framed definite opinion which runs as follows:-
"I have considered the rival contentions of the parties. I agree with the submission of the learned Counsel for the petitioner that Thika Controller has the exclusive jurisdiction to decide any question as to whether the person is a thika tenant or not. The jurisdiction of the Civil Court in that regard appears to have been expressly ousted. However, I am of the opinion that the learned Judge should first form a prima facie view that it is necessary to decide in the suit pending before him whether or not the defendant is 4 a thika tenant. If the learned Judge forms such a prima facie view then he will have no option but to send the issue for being decided by the Thika Controller. For the purpose of forming prima facie opinion it will be open to the learned Judge to record evidence. This exercise will be done by the learned Judge before he applies his mind to any other issue."
On perusal of the order impugned, it appears that the court below was of the view that the question as to whether the defendant is a thika tenant or not is completely out of jurisdiction of the court below and without determining the said question, the said suit for eviction of the defendant cannot be adjudicated and accordingly, the court below was of the further view that in the present suit the most important question involved to be determined, whether the defendant is a thika tenant in respect of the suit property or not and for that the court below has referred the said question for determination as to whether the defendant is a thika tenant in respect of the suit property, before the Thika Controller which appears to be gross violation of the order passed by this Court.
On further perusal of the order dated 26.02.2015 passed in CO 3644 of 2013, it is palpably clear that this court had directed the court below to form a prima facie view to decide in the suit pending before him whether or not the defendant is a thika tenant and for the purpose of forming such prima facie opinion, liberty was given to the court 5 below to record evidence. But without complying the said order passed by this court earlier, he has referred the question for adjudication before the Thika Controller.
In view of the above, the order impugned dated 24.4.2019 is hereby set aside.
Learned court below is directed to form prima facie view as to whether or not, the defendant is a thika tenant in respect of the 1000 sq.ft. of suit property described in the schedule to the plaint on the basis of evidence already available in record and if requires, taking additional evidence, and after considering the same if he finds that the land in question is thika property, then only he will refer the issue before the appropriate forum for adjudication. On the contrary, if he forms definite opinion that the property in question is not a thika property, then he will pronounce judgment on the basis of materials available in record.
The court below is also directed to complete such exercise within a period of twelve weeks from the date of communication of the order.
Accordingly, CO 4001 of 2019 is disposed of. There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Ajoy Kumar Mukherjee, J.)