Calcutta High Court
Smt. Purabi De & Ors vs Aloke Kr. Dutta & Ors on 18 August, 2014
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA 2455/2014
CS 413/1999
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SMT. PURABI DE & ORS.
Versus
ALOKE KR. DUTTA & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 18th August, 2014.
Mr. S. Ghosh, Adv., with Mr. P. Das, Adv. appears.
Mr. S. Mitra, Adv. appears.
Mr. S. Ray, Adv. appears.
The Court : In the partition suit, a preliminary decree was passed on August 26, 2011. A final decree is yet to be passed in the said proceeding. However, from time to time different orders have been passed in relation to the said partition suit.
During the pendency of the said proceeding it appears that four persons filed an application being G.A. No.2248 of 2012 seeking a direction for deletion of premises no.1A, Nirod Bihari Mullick Road, P.S. Maniktala, Kolkata- 700006, from the partition suit being C.S. No.413 of 1999. The basis of the application appears to be a mutation certificate issued by the Kolkata Municipal Corporation recording that the applicants are thika tenants. The said applicants have also annexed a document from the office of the Kolkata Thika Controller to show that the applicants have been recorded as thika tenants. The 2 mutation certificate as well as the certificate of the Kolkata Thika Controller are all of January 2011 and November 2011.
The plaintiffs submit that this property was never a thika tenanted property nor any proceeding was initiated by the Thika Controller for determination as to whether this property is a thika property and falls under thika tenancy.
Mr. Sounak Mitra, learned counsel appearing on behalf of the applicants, submits that no ground has been made out for recalling of the order dated March 4, 2013.
It is true that enough opportunity was given to the plaintiffs to appear and oppose the application being G.A. No.2248 of 2012. However, the fact remains that on the basis of the mutation certificate the status of the applicants could not be decided. However the document dated January 19, 2011 records that the said applicants are thika tenants. The plaintiffs, however, submit that such recording was made by the Thika Controller without giving any opportunity of hearing to the plaintiffs.
It is true that the applicants were not represented in spite of notices, but the fact remains that the partition suit is still pending and the final decree is yet to be passed. The documents disclosed by the applicants per se do not establish the applicants to be thika tenants. However, it is not desirable to express any final opinion in the matter as it is for the thika controller to decide the matter. In my view, the matter needs to be decided by the Thika Controller and accordingly I feel that an opportunity should be given to the plaintiffs to have adjudication of the nature of the property in question by the Controller of thika tenancy.
In view of the aforesaid, the order dated March 4, 2013 is modified to the extent that the Receiver and Commissioner of Partition shall not take any steps with regard to the suit property till the matter is decided by the Controller of thika tenancy under the West Bengal Thika Tenancy (Acquisition and 3 Regulation) Act, 2001. The plaintiffs should be at liberty to approach the Controller of thika tenancy for determination of the nature of the said property upon notice to the applicants.
With this modification of the order dated March 4, 2013, this application is disposed of.
The Commissioner of Partition and all concerned shall act on a certified website copy of this order which shall be supplied to the parties subject to their compliance with all the requisite formalities.
(SOUMEN SEN, J.) tk