Calcutta High Court
Numazar Dorab Mehta & Ors vs The Assam Company India Ltd on 8 October, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.3680 of 2014
EC No.170 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
NUMAZAR DORAB MEHTA & ORS.
Versus
THE ASSAM COMPANY INDIA LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 8th October, 2015.
Appearance:
Mr. Jayanta Kr. Mitra, Sr. Adv.
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Dhruvo Ghosh, Adv.
Mr. Sourav Ghosh, Adv.
Mr. Arnab Basu Mullick, Adv.
. . .for the decree holders.
Mr. Anindya Kumar Mitra, Sr. Adv.
Mr. Surojit Nath Mitra, Sr. Adv.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Sudip Deb, Adv.
Mr. Sankarsan Sarkar, Adv.
Mr. Kirit Zaveri, Adv.
. . .for the judgment debtor.
The Court:- The misery of the judgment debtor starts after a
decree passed is what manifested in this proceeding.
A decree passed in a proceeding initiated under Chapter 13A
of the Rules on the Original Side of this Court upheld by the
Hon'ble Division Bench and a Special Leave Petition preferred by
the judgment debtor against such decree was dismissed by the
Hon'ble Supreme Court, still, the decree could not be executed in
2
view of this ingenuous application filed by the defendant judgment
debtor alleging that the decree is a nullity.
When the application for execution of the decree of the
Appellate Court was filed before this Court the judgment debtor
came up with a plea of thika tenancy to resist a decree which has
since affirmed and has attained finality.
The judgment debtor was a lessee in respect of a very
valuable property in the metropolitan city of Calcutta under a
lease dated 17th of April, 1984 with effect from 1st February, 1980
for a period of 21 years.
The plaintiffs instituted a suit for recovery of possession
after serving a notice under Section 106 of the Transfer of
Property Act. The defendants have taken all possible objections
that were available to the defendant in resisting the said
application. The defendant, however, was unsuccessful. Both the
learned Single Judge and the Hon'ble Division Bench upheld the
contention of the plaintiff and passed a decree for eviction.
The said decree was unsuccessfully challenged before the
Hon'bel Supreme Court. The Special Leave Petition was dismissed
in limine.
Mr. Anindya Mitra learned Senior Counsel appearing on behalf
of the judgment debtor submits that although in the earlier
proceedings a plea was not taken that the defendant is a thika
tenant but having regard to the provisions of the West Bengal
3
Thika Tenancy (Acquisition and Regulation) Act, 2001, the
defendant has become a thika tenant. This is a statutory
protection that the defendant is entitled under the law. It is
argued that by reason of the provisions of the said Act the State
has become the landlord as the said property has vested in the
State by operation of law. It is submitted that it is immaterial
as to whether at the earlier stages the defendant has taken a plea
of thika tenancy. Mr. Mitra has referred to the definition of a
thika tenant and the amendment made to the said definition on 1st
November, 2010. It is submitted that at the time of commencement
of the proceeding that is to say in 2006 when the suit was filed
the plaintiff could have proceeded with the said suit. However,
by reason of the amendment to the definition of thika tenant by
the West Bengal Act, XXV of 2010 which has come into effect on and
from 1st November, 2010 the defendant becomes a thika tenant. Mr.
Mitra has emphasized and drawn my attention to the definition of
thika tenant under Section 2 Sub-Section 14 and the parenthesis
which contains the amendment and submitted that by the amendment
pucca structure has been included in the said definition and by
reason thereof this property is taken out from the purview of the
Transfer of Property Act or West Bengal Premises Tenancy Act and
the defendant becomes a thika tenant under the State. Although
Mr. Mitra has difficulty in explaining the timing of filing an
application before the thika controller in ascerting his right as
4
a thika tenant after the dismissal of the Special Leave Petition
and only on 25th November, 2014, however, it is submitted that it
is for the thika controller to decide the said issue. Moreover,
if a decree is a nullity then such plea can be taken and raised at
any point of time and the executing Court is required to
adjudicate such issue and ignore the decree of a Court if the
executing Court is of the opinion that the said judgment and/or
decree was passed without jurisdiction. It is submitted by reason
of the amendment of the definition of thika tenant after November,
2010 the Civil Court has no jurisdiction to try and determine the
suit between the irrespective of any issue being raised by either
of the parties in that regard and to that effect. Mr. Mitra has
referred to Sections 3 and 21 of the West Bengal Thika Tenancy
(Acquisition and Regulation), Act 2001 and argued that Section 3
was of swiping nature as it invalidates any decree or order of a
Court or Tribunal or other authority. Section 21 of the said Act
clearly bars a jurisdiction of any other Court to try and
determine and decide the issues which are required to be
determined by the controller or the Appellate or other authorities
specified in the provisions of the Act. Section 2 sub-section 14
for the sake of brevity and convenience Section 2 sub-section 14,
Section 3 and Section 21 of the said Act are reproduced below:-
"S.2(14). "thika tenant" means any person who occupies,
whether under a written lease or otherwise, land under
5
another person, and is, or but for a special contract,
would be, liable to pay rent at a monthly or any other
periodical rate for that land to that another person,
and has erected of acquired [by purchase or gift any
structure including pucca structure, if any, on such
land] for residential, manufacturing or business
purpose, and includes the successors-in-interest of such
persons but excludes any resident of a structure
forfeited to the State under Sub-section (2) of Section
6 of this Act irrespective of the status, he may have
enjoyed earlier.
S.3. Act to override other laws. - The provisions of this Act
shall have effect notwithstanding anything inconsistent
therewith in any other law for the time being in force
or in any custom, usage or agreement or in any decree or
order of a court, tribunal or other authority.
S.21 Bar to jurisdiction. - No civil court shall have
jurisdiction to decide, or to deal with, any question,
or to determine any matter, which, by or under this Act,
is required to be, or has been, decided or dealt with,
or which is to be, or has been, determined, by the
Controller or the appellate or other authority specified
in the provisions of this Act, and no order or judgment
passed, or proceedings including execution proceedings
6
commenced, under the provisions of this Act shall be
called in question in any civil court."
It is submitted that by reason of such sweeping provisions in
the said two sections the matter raised in this proceeding are
required to be determined by the controller and accordingly such
issue need not be decided in this proceeding. Mr. Mitra submitted
that it is immaterial as to whether the defendant has demolished
an existing structure since it is undisputed that after
demolishing the existing structure the defendant has raised a
construction and by reason of operation of the law the said
property had vested in the State even when the 1981 Act was in
operation. It is argued that by reason of the decision of the
Hon'ble Supreme Court land and structure may constitute a thika
tenancy and having regard to the fact that a structure was raised
on the land and it is a pucca structure the defendant becomes a
thika tenant and the property assumes the character of a thika
property. The said property vests in the State during the
pendency of the suit and more precisely on and from 1st November,
2010.
It is argued that undisputedly with the consent and approval
of the plaintiffs/decree-holders, the defendant/judgment debtor
demolished the existing structure and constructed a pucca three
storied building with the sanction and approval of the Kolkata
7
Municipal Corporation, which would be evident from the letter
dated 6th May 1989 being Annexure-A to the petition being GA No.
3680 of 2014. Eviction decree has been passed on the basis that
the plaintiffs are the owners of the suit premises being premises
No. 52, Chowringhee Road, Kolkata 700 071. The West Bengal Act
No. XXV of 2010 was not brought to the notice of the Hon'ble
Division Bench of the High Court or of the Hon'ble Supreme Court.
It is submitted that by the time the appellate court passed
the decree, the suit property had vested in the State Government
under the said Act as amended w.e.f. 1st November 2010 and civil
court had lost jurisdiction to pass decree in favour of the
plaintiffs. The decree for delivery of possession to the
plaintiffs passed by this Hon'ble Court has been nullified by
operation of Section 3 of the Thika Tenancy Act. Section 3
provides that provisions of the Thika Tenancy Act shall have
effect notwithstanding anything inconsistent therewith in any
decree or order of court. A decree passed without jurisdiction by
a civil court is nullified by Section 3. The vesting of thika
land along with the interest of landlords therein in the State
free from all encumbrances is provided under Section 4 of the
Thika Tenancy Act, which shall have effect notwithstanding the
decree passed in the eviction suit. Clause (a) of section 4 of
Thika Tenancy Act was amended by the Amendment Act of 2010.
"Thika land" was also amended by the said Amendment Act [section
8
2(15)]. Thika Land means any land comprised in and appurtenant to
tenancies of thika tenant. "Thika Tenant" [Section 2(14)] means
any person who occupies by the written lease or otherwise land
under another person and has erected any structure including pucca
structure on such land for residential or manufacturing or
business purpose. In the instant case, the erection of the
building was for business purpose. Section 27 of the West Bengal
Thika Tenancy (Acquisition and Regulation) Act, 2001 (repeal and
saving clause) does not apply to a decree passed in a suit filed
after the West Bengal Thika Tenancy (Acquisition and Regulation)
Act, 2001 came into force. The said Act came into force on 1st
March 2003 and the suit (CS No. 16 of 2007) was filed in the year
2007 and final decree therein was passed on 8th October 2013.
Therefore, Section 27 does not have any application in this case.
The words used in the Act of 2001 originally were "any
structure" which according to the judgments of the Division Bench
and Special Bench of this Hon'ble Court meant kutchha or temporary
structure and therefore when pucca structure had been constructed
by a tenant, Thika Tenancy Act would not apply. Therefore, it is
contended that upon the amendment of Thika Tenancy Act by the Act
of 2010 as aforesaid with effect from 1st November 2010, the Thika
Tenancy Act came to be applicable, although a pucca structure has
been constructed by the tenant. It is submitted that this Hon'ble
Court had ceased to have jurisdiction over the suit property in
9
view of Section 21 of the Thika Tenancy Act upon inclusion of the
words "pucca structure" in Section 2(14) and amendment of
definition of "thika land" as made by the Amendment Act of 2010.
Therefore, the Division Bench had no jurisdiction in respect of
the subject matter of the suit and therefore the decree passed by
the High Court is a nullity. The plaintiffs had also ceased to be
the owners of the property at least with effect from 1st November
2010 and the property had vested in the State Government.
Accordingly, the High Court ceased to have any jurisdiction in
respect of the subject matter of the suit and did not have
competency to pass the decree or to confirm the decree of a trial
court for delivery of possession of the plaintiffs.
It is argued that it is not necessary that the tenant should
hold under a lease a bare land. Lease was not defined earlier.
The lease has been defined under Section 2(8) of the Thika Tenancy
Act, 2001. It says lease of immovable property which means both
land and building and vacant land without building. The
expression "immovable property" as used in Section 2(8) cannot be
changed by deletion of "immovable property" and incorporation of
words "bare land".
In view of the decision in Nemai Chandra Kumar & Ors. vs.
Mani Square Limited & Ors. reported at (2015) 2 WBLR 321 where it
has been held by the Hon'ble Supreme Court that any structure,
kutchha or pucca, if constructed by a tenant on land, it would
10
become thika tenancy, irrespective of provision of previous two
Acts, namely Thika Tenancy Act, 1949 and Kolkata Thika Tenancy
(Acquisition and Regulation) Act, 1981. By reason of this recent
decision of the Hon'ble Supreme Court of India, this Hon'ble Court
neither had nor has jurisdiction to decide or adjudicate the issue
of Thika Tenancy. This Hon'ble Court lacked inherent jurisdiction
to decide the issue of Thika Tenancy and the same can only be
decided by the Thika Controller.
Mr. Mitra reminded this Court that there is a distinction
between a decree passed by a Court which has no territorial or
pecuniary jurisdiction and by a Court having no jurisdiction with
regard to the subject matter of the suit. Whereas a plea of
Section 21 CPC may be taken in the first case but no such plea is
available to a party in respect of the second case. Any order
passed by a Court having no jurisdiction over the subject matter
of the suit would be a nullity and in this regard he has relied
upon the decision of the Hon'ble Supreme Court in Hasham Abbas
Sayyad versus Usman Abbas Sayyad reported at 2007 (2) Supreme
Court Cases 355 paragraphs 22 and 24. It is further argued if a
decree is found to be nullity and nonest its validity can be set
up even at the stage of execution or in a collateral proceeding
and the learned Counsel has drawn sustenance from the observation
of the Hon'ble Supreme Court in Urban Improvement Trust, Jodhpur
11
versus Gokul Narain (dead) by LRS. And Another reported at (1996)4
SCC 178.
It is submitted that if the order is void ab initio then the
principle of res judicata would not apply. Moreover, the special
leave petition was dismissed in limine without giving any reasons.
It is settled law that if the special leave petition is dismissed
without any reason and in limine, the said order of dismissal
cannot be treated as a decision on merits and accordingly cannot
be a res judicata. A question relating to the jurisdiction of a
court cannot be deemed to have been finally determined by an
erroneous decision of the court. If by an erroneous
interpretation of a statute the court holds that it has no
jurisdiction, the question would not operate as res judicata.
Similarly, by an erroneous decision if the court assumes
jurisdiction which it does not possess under the statute, the
question cannot operate as res judicata between the same parties,
whether the cause of action in the subsequent litigation is the
same or otherwise. In this regard, the learned senior counsel has
relied upon Ramnik Vallabhdas Madhvani v. Taraben Pravinlal
Madhvani reported at (2004) 1 Supreme Court Cases 497 and Mathura
Prasad Bajoo Jaiswal & Others v. Dossibai N. B. Jeejeebhoy
reported at 1970(1) Supreme Court Cases 613.
This apart, since particulars provided relating to the
possession and occupation of the defendant/judgment debtor in the
12
suit property are vague as would appear from the schedule of the
plaint as well as the plan which has been annexed thereto, the
instant decree cannot be executed. The learned Senior Counsel has
relied upon a decision in Laxman Wamanrao Nagapure vs. Shankar
Haribhau Adhau & Anr. reported at 2014(3) Mh.LJ 719 (Paragraphs 14
to 16)in support of his submission. It is the duty of the
plaintiffs to give full particulars of the possession of the
defendant in the suit property and if the same is not given, the
same has to be done by amending the plaint. On appeal, it has
been decided and held in the said case that the decree is liable
to be set aside on this ground and accordingly the matter was
again remanded back to the trial court for adjudication of the
same only after the plaint is amended.
In view of the aforesaid, it is submitted that the
defendant/judgment debtor is a Thika Tenant. If this is disputed
by the decree holder, this has to be decided by the Thika
Controller under Section 5(3) of the Thika Act. This Hon'ble
Court has no jurisdiction to decide this question. The
Jurisdiction of High Court is ousted by Section 5(3) read with
Section 21 of the Thika Act. This question is to be decided by
Thika Controller. Execution of the decree should remain stayed
till determination of the question of thika tenancy by Thika
Controller.
13
Mr. Jayanta Kumar Mitra, Learned Advocate General appearing
with Mr. Ranjan Bachawat, learned senior counsel and Mr. Dhruba
Ghosh, learned counsel submitted that it is implicit from the
definition of 'thika tenant' both under 1981 Act and the 2001 Act
that it relates to the land and not to the structure as the
definition under Section 2(14) of the 2001 Act refers to a person
who occupies 'land' under another person and has erected any
structure including pucca structure on such land for residential,
manufacturing or business purpose. It is submitted that on facts,
it would appear that the defendant at the relevant point of time
was occupying land with an existing building under the plaintiffs
and as such the question of the defendant erecting any structure
on such land could not and does not arise. The Learned Advocate
General has referred to the sanctioned plan and the lease deed to
argue that the defendant was allowed to carry out renovation of
the existing building. Recitals of the lease deed as well as the
habendum clause would show that there was an existing structure
and the defendant was making certain renovations, additions,
alterations and some constructions. It is submitted that it would
appear from the aforesaid recitals and the habendum that no
permission as such was given to erect any structure on the land.
The demolition of an existing structure for the purpose of raising
a new structure may not bring the said property within the purview
of the thika tenancy law and on that basis it is argued that on
14
the date of filing of the suit and even at subsequent stages the
defendant has consciously not raised the issue that the said
property is a thika tenanted property. On the expiry of the
lease, the defendant was required to deliver the peaceful
possession of the premises in question and accordingly the
question of the defendant becoming the owner of the said property
could not and does not arise. The defendant at no point of time
has ever claimed ownership of any structure on the said property.
The learned Advocate General has drawn a fundamental distinction
between the land and the structure and argued that one of the
fundamental facts about any thika tenancy is that the land is
owned by one person and the structure by another. The description
of 'demised premises' includes the altered and/or added building
in the lease itself. It is the demised premises which is to be
delivered on the expiry of the lease. The learned Advocate
General has referred to the Memorandum of Agreement dated 5th
February 1980 and the lease dated 7th April 1984 as also the
sanctioned plan of Kolkata Municipal Corporation and argued that
all these documents would reveal that the old two storied building
was being renovated and repaired and no new building was
constructed or erected on the land. The building of an additional
floor on the foundation of the old building does not amount to
erection of a structure as envisaged under any of the Thika
Tenancy Law. The learned Advocate General has laid much emphasis
15
on the conduct of the defendant and argued that at this stage the
defendant is estopped from raising a plea that the said defendant
is a thika tenant. It is submitted that this plea has been taken
motivatedly and by way of an afterthought to frustrate the decree
passed after a long battle and after a definite finding is reached
by the courts that the plaintiffs are entitled to a decree for
khas possession. The Learned Advocate General has submitted that
if a party at the right time did not raise an objection and does
not seek a right remedy he cannot now be heard to make noises and
raise objection with regard to the jurisdiction of the Court as
the measure of the court's attitude would be to disallow the party
to urge this point at all so that it has no more any occasion to
decide it. It is submitted that if such plea was available to the
applicant and the applicant has failed to raise such plea then the
said applicant cannot be heard at this stage on such objections so
as to reopen the entire issue. It is submitted that the
respondent was fully aware during the pendency of the suit that an
amendment was made to the Thika Tenancy Act of 2001. The respondent had no doubt in their mind that the provisions of the said Act would not apply and, therefore, the respondent did not raise the plea either before the Learned Single Judge or before the Division Bench. In fact, in the special leave petition no such plea was raised. The learned Advocate General has referred to the decision of our Court in Arbn. Jupiter General Insce. Co. 16 Ltd. vs. Corporation of Calcutta (with Award) reported at AIR 1956 CAL 470, Paragraphs 12, 13 and 14 and the decision in State of Rajasthan & Others vs. D. R. Laxmi & Others reported at (1996) 6 SCC 445 at 452, paragraph 8. The Learned Advocate General has laid emphasis on the observations made by HWR Wade which reads:
"The truth of the matter is that the Court will invalidate order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting of legal remedies it produces that result."
It is submitted that while the celebrated author has used the expression that it would cut an applicant of legal remedies, Justice P. B. Mukharji, our former Chief Justice, used the expression 'measures' which would disable a litigant to raise such plea. It operates as an estoppel.
17
There cannot be any doubt that the judgment delivered by a Court not competent to decide a lis is a nullity. There is a clear distinction between want of jurisdiction and erroneous exercise of jurisdiction.
The Hon'ble Supreme Court, in Karan Singh -vs- Chaman Paswan, reported at (1955) 1 SCR 117, observed that it is a fundamental principle and well established that a decree passed by a Court without jurisdiction is a nullity and that invalidity can be set up whenever it is sought to be enforced or relied upon even at the stage of execution or even at the collateral stage. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of the parties.
The jurisdiction may be defined to be the power of the Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. Such jurisdiction divides itself under three broad heads, namely with reference to
(i) subject matter;
(ii) the parties; and
(iii) the question which calls for decision.
It is equally well settled that a void order can create
neither legal rights nor obligations.
18
Similarly, the general principle underlying the doctrine of res judicata is ultimately based on the consideration of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final unless they are modified or reversed by the appellate authorities and the other principle is that no one should be made to face the same kind of litigation twice over because such a process would be contrary to the considerations of fair play and justice. (See Hope Plantations Ltd. Vs. Taluk Land Board, Peermade reported at 1999 (4) SCC 590) There also cannot be any dispute that a decree passed by a Court which lacked inherent jurisdiction is non est and void ab initio. If the Court has no jurisdiction, it is settled legal position that it is a nullity and it can be raised at any stage. If a decree is found to be a nullity, the same could be challenged and interfered with at any subsequent stage- say, at the execution stage or even in a collateral proceeding. The aforesaid position is well settled and not open for any dispute as defect in jurisdiction strikes at the very root of the authority of the Court to pass a decree which cannot be cured by consent or waiver of the parties. [Sarup Singh & Anr. Vs. Union of India & Anr. reported at (2011) 11 SCC 198]. In Jagmittar Sain Bhagat & Ors. Vs. Director, Health Services, Haryana & Ors. reported at (2013) 19 10 SCC 136 in Paragraphs 9 to 11, the Hon'ble Supreme Court has dealt with this aspect of the matter which reads:-
"9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a court/tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetrate and perpetuate defeating of the legislative animation. The Court cannot derive jurisdiction apart from the statute. In such eventuality the doctrine of waiver also does not apply. (Vide United Commercial Bank Ltd. v. Workmen; AIR 1951 SC 230, Nai Bahu v. Lala Ramnarayan; (1978) 1 SCC 58, Natraj Studioes (P) Ltd. v. Navrang Studios; (1981) 1 SCC 523 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar; (1999) 3 SCC 722.)
10. In Sushil Kumar Mehta v. Gobind Ram Bohra; (1990) 1 SCC 193 this Court, after placing reliance on a large number of its earlier judgments particularly in Premier Automobiles 20 Ltd. v. Kamlekar Shantaram Wadke; (1976) 1 SCC 496, Kiran Singh v. Chaman Paswan; AIR 1954 SC 340 and Chandrika Misir v. Bhaiya Lal; (1973)2 SCC 474 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, "performance cannot be forced in any other manner".
11. The law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such an authority does not have jurisdiction on the subject-matter. For the reason that it is not an objection as to the place of suing; "it is an objection going to the nullity of the order on the ground of want of jurisdiction". Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdiction fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide Setrucherla Ramabhadraraju v. Maharaja of Jeypore; AIR 1919 PC 150, State of Gujarat v. Rajesh Kumar Chimanlal Barot; (1996) 5 SCC 477, Harshad Chiman Lal Modi v. D.L.F. Universal Ltd.; (2005) 7 21 SCC 791 and Carona Ltd. v. Parvathy Swaminathan & Sons; (2007) 8 SCC 559.)"
It is equally settled that a Court executing a decree must execute the decree as it stands and has no power to go behind the decree and/or to entertain an objection to the legality or correctness of the decree. This is, of course, subject to the limitations mentioned hereinabove.
The question arises whether such a plea of thika tenancy can be raised at this stage to nullify the decree passed in a suit.
The defendant could not explain the reasons as to why a plea of thika tenancy was not raised at the stage when the suit was heard. Although Mr. Mitra, learned senior counsel, has argued that it is for the Thika Controller to decide as to whether the defendant is thika tenant or not, but this court cannot completely shut its eyes and remain blind till the thika controller decides the issue. The Court at this stage is required at least to form a prima facie opinion that the plea raised by Mr. Mitra is sustainable. If a plea is open to the defendant to be raised in the earlier proceedings and the defendant did not raise such plea, then it shall be presumed that the defendant has consciously abandoned such plea and requires the suit to be decided on the available pleadings. The defendant by their conduct induced the Court and the other party to believe that the Civil Court has 22 jurisdiction to decide the suit. The judgment debtor does not say that the judgment debtor was not aware at the relevant point of time that the said amendment had come. In order to examine whether the defendant could at all take advantage of the said section, it would mean reopening of the said decree as the fundamental question as sought to be raised at this stage by Mr. Mitra relates to the characteristic of the land and structure and a disputed question of fact as to whether there is a complete demolition of the existing structure and construction of a new structure. The defendant/judgment debtor at this stage sought to raise a dispute with regard to the factual matrix. A dispute is sought to be raised at this stage with regard to the nature of the land and structure mentioned in the lease deed. The defendant wants to run a case inconsistent with the recitals of the lease deed which plea at this stage is not available to the defendant.
The definition of "thika tenant" even under the 2001 Act clearly brings out the distinction between the owner of the land and the owner of the structure. On the basis of the lease document, it cannot be said that the defendant was a thika tenant at the time of the 1981 Act or even subsequent thereto. The question is whether at this stage the defendant should be allowed to raise such plea.
The judgment and order of the first Court as well as the appellate Court operate as res judicata between the parties. If 23 the defendant has not raised such plea of thika tenancy by reason of section 11, explanation-iv, it is barred by constructive res judicata.
That the civil court was competent to decide the matter at the time of filing of the suit, is not in dispute. Moreover, if any person is aggrieved by the execution of decree, it is the State Government and not the judgment debtor. The judgment debtor in this proceeding cannot espouse the cause of the State. The judgment is binding on the defendant.
It is submitted that by operation of law, the State has become the owner of the land and the judgment debtor is a tenant under the State. The judgment debtor has filed an application for recording its name as a thika tenant only on November 25, 2014, after the dismissal of the special leave petition when the fate of the defendant is sealed. Moreover, by reason of the notification dated November 17, 2014, the Thika Controller has no power to condone the delay in filing the return. The timing of the application speaks loud of the real purpose and intention of the applicant. The said application was filed seemingly to create a cause of action to file this application. The applicant contends that they have raised construction on the land after demolishing the existing structure. At the relevant point of time if a claim is made as a thika tenant then no pucca construction could have been made without the permission of the thika controller. 24 Curiously before filing of an application before the thika controller on 25th November, 2012, the defendant did not feel it necessary to assert its right as a thika tenant although, according to the defendant, there has been a perceptible change as to the character of the land and they become a thika tenant in respect of the property in question.
Mr. Mitra, however, would argue that non-compliance of the said provision may result in forfeiture of the rights and give certain special power to the State Government for repossessing the structure.
But the important thing to be taken note of is that if the defendant is really aware of their rights as thika tenants then why such plea was not raised prior to 25th November, 2015 is a mystery. In my view, the defendant clearly knew that the said tenancy would not come within the purview of the said act and hence not raised.
The order of the Civil Court cannot be treated as coram non judis firstly because that the Civil court had jurisdiction at the time when the suit was filed and secondly the defendant did not raise any objection with regard to the jurisdiction of the Court knowing fully well that there is an amendment to the definition of Thika Tenant in November 2010. It clearly shows that the defendant had no point of time ever considered and treated that the said land either to be a thika land or their status as thika tenant in 25 respect of the property in question. If a party is aware of his right but did not agitate such right and invite the Court to adjudicate such right, the said party cannot be heard at the later stage to contend that the Court has no jurisdiction and make an attempt to reopen the decree. If the plea of the respondent is accepted at this stage there would be no end to a litigation and finality attached to a proceeding would be a myth and it would be ruse in the hands of unscrupulous litigant to deny the plaintiff the fruits of a decree. Any party at his own sweet time and will cannot come and say after a finality is reached that the decree passed is a nullity. Whether a decree is a nullity or not of course has to be decided on a given facts and circumstances of a case. If it appears that there is an inherent lack of jurisdiction then certainly the decree becomes a nullity. However, in the instant case it could not be said that the Court does not have the jurisdiction. In any event the defendant by not raising such plea cannot be permitted to raise it at this stage. The judgement- debtor has filed his application with an ulterior motive to reopen the decree and is seeking an adjudication as to the character of the land that was open to the said defendant during trial. To that effect the legal remedies available to the judgment debtor is removed and cut of.
The defendant at this stage cannot be permitted to raise a completely new plea that was available to the said respondent when 26 the suit was heard. There is no patent lack of jurisdiction of the Civil Court at the time of passing the decree. It cannot be said that the Civil Court did not have the jurisdiction over the subject matter. The defendant by machination tried to create a smokescreen of an alleged right which the defendant does not have and is clearly estopped at this stage to raise such plea. Such plea is unethical and dishonest. The lack of jurisdiction must be obvious and does not require a detailed examination of facts and evidence.
With regard to the description of the properties the learned Advocate General has cited two decisions namely, Ramdas Bansal versus Kharag Singh Baid & Ors. reported at 2007(3) CHN 851 and Ravinder Kaur versus Ashok Kumar and Anr. reported at (2003) 8 SCC
289. In the said decisions it has been clearly held that when there is no difficulty in identification of the subject matter of the suit property there is no need for any rectification. The defendant precisely knew the description of the property and the schedule to the plaint is that of the schedule to the lease deed. The defendant is occupying the said area on the basis of the said lease deed. Therefore, raising a dispute with regard to the description or identity of the suit schedule property is only a stratagem to delay the eviction by abuse of the Court and the said objection is nipped in the bud.27
In view of the above, this application being GA No. 3680 of 2014 stands dismissed with cost assessed at 2000 GMs.
( SOUMEN SEN, J. ) SP/B.Pal/S.Kumar/TK/dg2