Calcutta High Court (Appellete Side)
Akb Wu Jeou O & Ors vs Smt. Saraswati Sarkar & Anr on 6 March, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
1 18 06.3.19
C.O. 3418 of 2017 akb WU JEOU O & Ors.
-Versus-
Smt. Saraswati Sarkar & Anr.
Mr. Sounak Bhattacharjee Mr. Sumitava Chakraborty ...For the Petitioner Ms. Sohini Chakraborty Ms. Prajaaini Das ...For the Opposite Party This revisional application is directed against order dated June 29, 2017 passed by the learned Civil Judge, Junior Division, 2nd Additional Court at Alipore, South 24- Parganas in Title Suit No. 20815 of 2011 rejecting the petitioners/defendants application under Order 1 Rule 10(2) of the Code of Civil Procedure. The suit was filed by the plaintiff for declaration, permanent injunction and recovery of khas possession. In the said suit plaintiff made the following prayers :
"a) Decree for declaration that the plaintiffs are the sole, absolute and lawful owners in respect of the suit property which is mentioned in the Schedule 'A' hereunder;
b) Decree for recovery of khas possession of the Schedule 'B' property on eviction of the defendants;
c) Decree for permanent injunction restraining 2 the defendants and their men and agents as well as associates from disturbing peaceful possession of the plaintiffs and/or from making any construction and/or from changingthe nature and character of the suit property and/or from making any third party interest and/or from part with possession of the suit property in any manner whatsoever;
d) Costs;
e) Any other relief or relieves as the plaintiffs are entitled to get in law and equity."
In the said suit, the defendants/petitioners filed an application under Order 1 Rule 10(2) read with Section 151 of the Code and prayed for addition of Thika Controller as a party defendant on the ground that the defendant is not a tenant under the plaintiffs but he is a tenant under the Thika Controller as the suit property vested long ago to the State under the provisions of Thika Tenancy Act.
While making this prayer before the learned Court below that the property belongs to the State and Thika Controller is a necessary party based on some money receipt/challans issued from the office of the Thika Controller showing that some payment have been made in respect of the suit property in the office of the Thika 3 Controller, by the order impugned, the learned Court below has held that the said documents are not final to come to a conclusion that the property belongs to Thika Controller.
In my view there is no impunity in the order impugned whereby the learned Court below has held that at this stage it will be too early to hold that the property is under Thika tenancy.
Although the defendant has filed an application to show that the property belongs to thika tenancy, materials disclosed in the revisional application show that it is yet to be adjudicated by a competent authority under the Thika Tenancy Act where the issue is pending whether the property is thika tenanted property or not. In the order impugned the learned Court has also mentioned that whether defendants are thika tenants or not is pending for decision before the West Bengal Tenancy Tribunal (A.R.).
In such circumstances whether it can be contended that the learned Court below has made any error in passing the order impugned not allowing the addition of Thika Tenancy Controller as party defendant.
In my view, if such an application is allowed this will give a presumption that the plaintiff has admitted the defendant as a thika tenant. Unless the defendant can show from any materials filed before the Court below that the 4 plaintiffs have in any manner admitted the defendant as thika tenant there can be no reason for the learned Court below to allow the Thika Tenancy Controller to be a party in the proceeding. In my view, the learned Court below has rightly rejected the defendant's prayer for addition of party. It is always the settled law, if the defendant has filed written statement and made specific plea that he is a monthly tenant under the plaintiffs, he will always be at liberty to lead evidence in support of such plea made in the written statement. Evidence if supports his case, he will definitely get benefit out of it.
Therefore, the impugned order does not call for any interference at this stage.
The revisional application is, thus, rejected. However, rejection of this revisional application will not debar the defendant to agitate before the Court below at a subsequent stage, if it is finally decided by the West Bengal Tenancy Tribunal a competent authority that the defendant is a tenant under the plaintiff, the defendant may take appropriate steps at the relevant point of time.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.
5( Sahidullah Munshi, J.)