Calcutta High Court (Appellete Side)
Ashis Ghosal & Ors vs Rajendra Prasad & Ors on 29 January, 2015
Author: Harish Tandon
Bench: Harish Tandon
1
05 29.01.15 C.O. 165 of 2015
akd
Ashis Ghosal & Ors.
Vs.
Rajendra Prasad & Ors.
--------
Mr. Aniruddha Chatterjee, Mr. Surya Prosad Chatterjee.
... for the petitioners.
The order rejecting an application under Order VII Rule 11 of the Code of Civil Procedure at the instance of decree holders/petitioners is assailed in an application under Article 227 of the Constitution of India.
The petitioners filed a suit for eviction before the Civil Court against the opposite party no. 16, which was ultimately decreed ex parte. The opposite party nos. 1 to 15 approached the Executing Court with an application under Order XXI Rule 101 of the Code of Civil Procedure seeking declaration of their right, title and interest with further assertion that the decree so passed is not binding upon them.
The application, in nutshell, proceeds that one, Sarban Prasad alias Barower, was a thika tenant in respect of the decretal property and a proceeding for eviction under Section 5 of the Calcutta Thika Tenancy Act, 1949 was initiated by one Nalini Rai Chowdhury. Though the said proceeding culminated into an order of eviction, but the said order could not be executed before the promulgation of Calcutta Thika 2 and other Tenancies and Lands (Acquisition and Regulation) Act, 1981. By virtue of Section 19 of the said Act, the proceeding under the old Act automatically abates.
The aforesaid opposite parties claimed their right as 'thika tenant' and resisted the decree by taking an objection that the same is not binding upon them.
The petitioners, who obtained the decree from the Civil Court, wanted the said application to be dismissed at the threshold taking aid of Order VII Rule 11 (d) of the Code of Civil Procedure.
According to the petitioners, by virtue of Sub- section 2 of Section 8 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 the Civil Court including the Executing Court cannot determine the question as to whether a person is a thika tenant or not, as the same is required to be decided by the Thika Controller. It is further contended that Section 21 of the said Act of 2001 contains an exclusion clause. Therefore, the said application is not maintainable.
Mr. Chatterjee, learned advocate appearing for the petitioners, was emphatic in his submission that the opposite party nos. 1 to 15 have sought for declaration of their status as 'thika tenant' and in view of the exclusion clause provided in the said Act of 2001, the Executing Court is denuded of such power to declare the status of a person as 'thika tenant' and, therefore, the application is required to be nipped in 3 the bud.
When a plaint is sought to be rejected on the ground that the relief claimed therein is barred by law, the Court shall look into the pleadings and the averments made in the plaint and should not go for a hovering enquiry to ascertain whether the suit is barred by law. It is a settled law that the Court shall not reject the plaint partially, if some of the reliefs even if appear to be barred when the other reliefs claimed in the plaint is capable of being adjudicated or determined by the competent Court. In other words the partial rejection of the plaint is impermissible.
From the application and the documents annexed thereto, it appears that the predecessor-in- interest of the opposite party nos. 1 to 15 suffered an order of eviction under Section 5 of the Calcutta Thika Tenancy Act, 1949 as far back as in the year 1958.
The predecessor-in-interest of the opposite party nos. 1 to 15 was admitted to be a thika tenant in respect of the property being the subject matter of an application filed under the said Act. There is a categorical statement in the said application that the order of eviction passed under Section 5 of the said Act of 1949 was never executed and after the promulgation of Calcutta Thika and other Tenancies (Acquisition and Regulation) Act, 1981, the said decree automatically abates.
The aforesaid statements in the said application came because of Section 19 of the said Act of 1981, which says - "All proceedings including appeals and all 4 proceedings in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of thika tenants and Bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never been made".
If a thika tenant, who suffered an order of eviction under Section 5 of the said Act of 1949, could not be evicted in due execution of the said order and remained in possession, section 19 of the said Act of 1981 disentitles the jaminder/landlord to execute the said order of eviction and, therefore, the person would remain as 'thika tenant' and such status cannot be lapsed merely because of the order of eviction was passed by the competent forum.
The opposite party nos. 1 to 15 have laid their claim by way of inheritance from the thika tenant, who got protection against the eviction under Section 19 of the said Act of 1981.
The submission of Mr. Chatterjee that the competent forum to decide the right, title and interest of a person as 'thika tenant' is the Thika Controller and not the Civil Court, as the jurisdiction of the Civil Court has been taken away by virtue of Section 21 of the said Act of 2001, does not appear to be correct proposition.
The status of the predecessor-in-interest of the opposite party nos. 1 to 15 was 'thika tenant' and the thika tenancy being a heritable right, the opposite 5 party nos. 1 to 15 have claimed such status as successor and heirs of the admitted thika tenant.
It is not an application simplicitor for declaration of a status as 'thika tenant' for the first time, as the status has already been decided and determined and well recognised in law and, therefore, it cannot be said that the said application is liable to be rejected at the stage of Order VII Rule 11 (d) of the Code of Civil Procedure.
Since the reliefs claimed therein strikes at the root of the jurisdiction of the Civil Court to pass a decree for eviction, this Court feels that the Executing Court shall decide the cause after affording opportunities to the parties to place their case.
This Court, therefore, do not find that said application is liable to be dismissed at the threshold.
This Court do not find any ground to interfere with the impugned order.
The revisional application is thus dismissed. It goes without saying that the aforesaid observations are mere tentative in nature and shall not sway the mind of the Executing Court in deciding the lis finally.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied on priority basis.
(HARISH TANDON, J.) 6