Calcutta High Court (Appellete Side)
Manisha Chaudhuri vs State Of West Bengal & Ors on 1 August, 2018
01.08.2018
563(CML)
p.d.
W.P.L.R.T. No.339 of 2014
Manisha Chaudhuri
-Vs-
State of West Bengal & Ors.
Mr. Debabrata Saha Roy,
Mr. Pingal Bhattacharyya,
Mr. Subhankar Das ... For the petitioner.
None appears on behalf of any of the respondents.
This writ application has been filed against a final
order dated July 8, 2014 passed by the West Bengal Land Reforms
and Tenancy Tribunal, 1st Bench in the original application,
bearing O.A. No.3862 of 2012(LRTT). The said original
application was filed by the applicant/writ petitioner
challenging an order dated October 30, 2012 passed by the
Controller, Kolkata Thika Tenancy in Misc. Case No.37 of 2009.
The facts of the case are that the suit property
comprised in premises No.44, Kakulia Road, Kolkata- 700029
originally belonged to Smt. Mamata Ghosh, Smt. Pramila Ghosh
and Prasanta Kumar Ghosh. They transferred the suit property
measuring an area of 4 cottahs and 12 chitaks to one Naresh
Chandra Chowdhury (predecessor-in-interest of the writ
petitioner) by a registered Deed in the year 1981. The said
Naresh Chandra Chowdhury gifted the suit property in favour of
Manisha Chowdhury, the present writ petitioner.
That after becoming the absolute owner of the
premises in question, the petitioner got her name mutated in
the municipal records. Thereafter, the predecessors-in-interest
of the petitioner let out a portion of the suit property, being
3 cottahs and 8 chitaks to one Sm. Padma Bala Roy and others
and the other portion of the suit property, which is the
subject matter of dispute in the instant writ application as
also in the original application, was let out to Jogia Sonar,
the predecessor-in-interest of the respondent Nos.3 to 10
herein.
The respondent No.3 (since deceased) initiated a
miscellaneous application, bearing Misc. Case No.37 of 2009
before the Controller, Kolkata Thika Tenancy and filed Return
R/F.90/21 on August 14, 1982 claiming Thika Tenancy for 1 1/2
cottahs of land, which is the subject matter of dispute in the
instant proceeding.
In the proceedings before the Controller, Kolkata
Thika Tenancy, the applicant/petitioner, as O.P. No.1 entered
appearance and contested the proceedings, inter alia, stating
that the father of the petitioner/applicant purchased the
entire property of 44, Kankulia Road by a Deed of Conveyance in
the year 1961 along with land and structure thereon. Therefore,
according to the applicant/petitioner, when the father was the
owner of the land and structure, Jogia Sonar could not be the
owner of structure in question or a Thika Tenant for that
matter. It was her further contention that the Gift Deed made
in her favour also mentioned land with structure. The
applicant/petitioner objected to the claim of the said Hiralal
Barman, who claimed that Jogia Sonar was the owner of the
structure, being the Thika Tenant.
The applicant/petitioner further relied upon a judgment
and decree dated April 11, 1973 passed by the learned Sub-
ordinate Judge, 7th Court, Alipore in Misc. Appeal No.29 of
1973 thereby affirming the order dated January 9, 1973 passed
by the learned Munsif, 2nd Additional Court, Alipore, which was
upheld by this Court on November 29, 1982.
The Controller, Kolkata Thika Tenancy after considering
the documents filed by the Returnee as also the
applicant/petitioner, came to a finding that the premises in
question, being 44, Kankulia Road, was let out in two portions
- one part comprised in an area of 1 cottah 8 chittaks and
another part comprised in an area of 3 cottahs 8 chittaks. That
the father of the petitioner had instituted an eviction case
against the two persons, namely, Jogia Sonar and Chandra Roy
for 1 cottah 4 chitaks and 3 cottahs 8 chitaks respectively.
The second part of the premises comprised in an area of 3
cottahs 8 chitaks was occupied and they have already been
evicted by way of a title execution case on July 7, 2008. The
Controller, Kolkata Thika Tenancy came to a finding that as
the Thika Controller was not a party to the said proceedings,
he would desist from making any comment with regard to any
proceedings, which took place in respect thereof. The Thika
Tenancy Controller further came to a finding that rent receipts
clearly show that the rent of the land was realized by Jogia
Sonar, the letter of attornment was also mentioned Jogia Sonar
as Thika Tenant and from the plaint and the judgment and order
dated July 23, 2006, it showed that Jogia Sonar and/or her
successors have accepted the rent, as Thika Tenant. The Thika
Controller held that the recital of ownership of structures in
the Deed of Conveyance, by which the father of the petitioner
had become an owner of the property in question was without a
firm basis. The Thika Controller further held that if the rent
receipt was not in accordance with the prescribed form as
prescribed under the Thika Tenancy Act, the same would not
stand in the way in declaring Jogia Sonar and/or her
successors, as Thika Tenant of the property in question.
On the basis of the above observations, the Thika
Controller held that Jogia Sonar was the Thika Tenant in
respect of a portion of the suit property measuring an area of
1 cottah 4 chitaks.
Challenging the aforementioned order, the applicant/writ
petitioner filed O.A. No.3862 of 2012(LRTT) before the West
Bengal Land Reforms and Tenancy Tribunal and by a final order
dated July 8, 2014, the learned Tribunal dismissed the above
original application on contest and affirmed the order dated
October 30, 2012 passed by the Controller, Kolkata Thika
Tenancy.
According to the learned Tribunal, the occupier need
not always construct a structure on the land under his
occupation. He may acquire the structures by purchase or by
gift. It was also held that it need not be proved that Jogia
Sonar erected structure or acquired structure by purchase or
otherwise. The Tribunal further held that as Jogia Sonar was
not at all a party in the civil suit, wherein the property in
question has been declared to be a property governed by the
Transfer of Property Act by a decree of the civil court,
affirmed up to High Court was not bindings on her.
We have gone through the materials on record and the
documents on the basis of which, the Controller, Kolkata Thika
Tenancy had arrived at a conclusion that Jogia Sonar was a
Thika Tenant in respect of the property in question. We find
that the premises No.44, Kankulia Road, was let out in two
portions - one portion was let out to Padma Bala Roy and others
and another portion was let out to Jogia Sonar, the
predecessors-in-interest of the respondent Nos.3 to 10.
We are of the opinion that the findings are erroneous
in view of the fact that once the major portion of the same
premises has been declared to be a property governed by the
Transfer of Property Act, by an appropriate Civil Court, which
was affirmed up to the High Court, the said judgment and
findings are binding on the Thika Controller and there was no
option for him to take a different view in respect of the
portion occupied by Jogia Sonar, on the ground that a Thika
Controller was not a party to the civil suit against Padma Bala
roy and others, the findings of the Civil Court was not binding
upon him. Such observations are erroneous and the Thika
Controller is completely misguided himself.
From the observations made by the learned Tribunal, we
find that the learned Tribunal misconstrued the facts of the
case and have wrongly come to a conclusion that as the thika
Tenant was not a party before the Civil Court, wherein in an
eviction proceedings against similarly circumstanced tenants,
the plea of Thika Tenancy made by the tenant was rejected, the
declaration that the property governed was governed by the
Transfer of Property Act, would not be binding on Jogia Sonar
and/or her successors. The Tribunal further came to an
erroneous findings that Thika Tenant need not prove that she
had erected the structure or acquired structure by purchase or
otherwise. Jogia Sonar and her successors are not Thika
Tenants.
In view of the entire conspectus of things, we are of
the considered view that the order dated October 30, 2012
passed by the Thika Controller, Kolkata Thika Tenancy in Misc.
Case No.37 of 2009 as also the order dated July 8, 2014 passed
by the West Bengal Land Reforms and Tenancy Tribual in O.A.
No.3862 of 2012 (LRTT) and the observations made therein, are
liable to be quashed and set aside and accordingly, the same
are quashed and set aside.
The writ application and the above original
application stand allowed with the above observations.
There will be no order as to costs.
Let urgent photostat certified copy of this order, if
applied for, be given to the parties at an early date.
( Debasish Kar Gupta, J. )
( Shampa Sarkar, J.
