Calcutta High Court (Appellete Side)
Md. Salim & Ors vs Abdul Hafiz & Anr on 27 February, 2020
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Sarkar
C.O. No.4244 of 2019
Md. Salim & Ors.
Versus
Abdul Hafiz & Anr.
For the petitioner : Mr. Aniruddha Chatterjee,
Mr. Tanmoy Mukherjee.
For the Opposite Parties : Mr. Anirban Ray,
Mr. Sanjib Seth,
Mr. Varun Kotharia.
Hearing concluded on : 09/01/2020
Judgment on: 27/02/2020
Shampa Sarkar, J. :
The plaintiffs in Title Suit No.30 of 2019, has preferred this revisional application being aggrieved by an order dated November 25, 2019 passed by the learned Additional District Judge, 3rd Court at Howrah in Misc. Appeal No.90 of 2019, thereby reversing the judgment and order dated March 19, 2019 passed by the learned Civil Judge (Junior Division) 3rd Court at Howrah in said Title Suit NO.30 of 2019. By the order impugned, the learned Additional District Judge 3rd Court at Howrah allowed Misc. Appeal No.90 of 2019 and set aside the order of the learned trial judge directing the parties to maintain status quo in respect of possession, nature and character and also in respect of alienation and transfer of the suit property as on the date, that is, March 19, 2019, till the disposal of the suit, holding the order to be illegal and against the provisions of The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001(hereinafter referred to as the said Act). The learned lower appellate court came to the finding that the learned Civil Judge (Junior Division), 3rd Court at Howrah did not have the jurisdiction to decide the suit in view of the bar under Section 21 of the said Act. According to the learned lower appellate court, the learned Civil Judge (Junior Division) wrongly acted as an appellate authority against the order of the Thika controller and the appropriate forum for the plaintiff would be the Land Reform and Tenancy Tribunal, West Bengal.
2. Mr. Aniruddha Chatterjee learned Advocate appearing on behalf of the petitioners, submitted that the plaintiffs' case was that one Ali Hussain (since deceased) was the elder brother of the petitioner Nos.1, 2, 3 and Sahira Begum (since deceased). That Sahira Begum was the mother of the plaintiff Nos.4, 5, 6, 7, and 8. The said plaintiffs were being absolute owners claiming through Ali Hussain, who died issueless on April 24, 1978. The plaintiff Nos.1, 2 and 3 being his brothers, Jamila Khatoon (since deceased) being the wife, Abeda Khatoon (since Deceased) being the mother and Sahira Begum also known as Sahira Khatoon (since deceased) being the surviving sister, inherited the property of Ali Hussain. The mother of Ali Hussain died on January 19, 1998 leaving behind her, plaintiff Nos.1, 2 and 3 (sons) and Sahira Begum, the mother of the plaintiff Nos.4, 5, 6, 7, and 8 in respect of her undivided 16.67% shares of the property. Sahira Begum also died leaving behind the plaintiff Nos.4, 5, 6, 7, and 8.
3. Ali Hussain purchased the suit property by a registered deed of sale dated September 16, 1952. That the defendants were licensees under the plaintiffs in respect of the suit property, consisting of four tile shed rooms together with bath and privy situated at holding No.72, Srinath Porel Lane, Howrah. Abeda Khatoon and Jamila Khatoon (since deceased) allowed the defendants to reside in the said premises. Thereafter the plaintiffs also allowed the defendants to reside in the suit premises out of sympathy for a period of five years as mere licensees. The plaintiffs asked the defendants to vacate the suit premises, but they did not do so and it was to the utter surprise of the plaintiffs, that the defendants started taking measurements of the suit property and planned to make pucca constructions and new rooms. The notice was sent to the defendants through the learned lawyer of the plaintiff dated November 26, 2018, asking them to quit and vacate the suit premises within 30 days from the date of the receipt of the said notice. The plaintiffs prayed for the following reliefs:-
"15. The plaintiffs, therefore, pray for:
(i) a decree for eviction of the defendants from the suit premises as mentioned in the Schedule to the plaint and khas possession thereof.
(ii) cost of the suit.
(iii) any other relief/reliefs which the plaintiffs are entitled to in law and equity."
4. The petitioners filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and also filed an application under Order 39 Rule 7 of the Code of Civil Procedure and prayed for an order of temporary injunction restraining the defendants from changing the nature and character of the suit property by making pucca constructions thereon. The title suit was filed on January 7, 2019 and the application for temporary injunction was filed on February 2, 2019, when the plaintiffs discovered that the defendants were stacking building materials, sand, cement, bricks etc. on the suit holding with a motive to make constructions thereon. The defendants filed an application under Order 14 Rule 2 of the Code of Civil Procedure, for a decision on a preliminary issue and another application for dismissal of the suit being not maintainable. All the applications, except the application for local inspection were heard together and by a judgment and order dated March 19, 2019, the learned Civil Judge (Junior Division), 3rd Court at Howrah, rejected the application under Order 14 Rule 2 of the Code of Civil Procedure and held the suit was maintainable. The learned trial court further took up the hearing of the application for temporary injunction and passed an order of status quo, directing the parties to maintain status quo in respect of the possession and character of the suit property and also in respect of the alienation and/or transfer of the suit property, till the disposal of the suit. Aggrieved, the opposite parties/defendants preferred an appeal before the learned lower appellate court. The learned lower appellate court by the order impugned held that the suit was not maintainable and that the proceeding before the learned trial judge was misconceived and any challenge to the order of the thika controller would be before the Land Reform and Tenancy Tribunal as the land was a Thika Tenancy. The Misc. Appeal No.90 of 2019 was allowed. The order of injunction dated March 19, 2019 was set aside. However the learned lower appellate court, although, held that the suit was not maintainable but, did not set aside that part of the order dated March 19, 2019, by which the suit was held to be maintainable by the learned trial judge while rejecting the applications filed by the defendants under Order 14 Rule 2 of the Code of Civil Procedure and for dismissal of the suit.
5. Mr. Chatterjee submitted that the learned lower appellate court erred in holding that the suit was not maintainable being barred under the provisions of the Section 21 of the said Act, inasmuch as, the learned lower appellate court failed to consider the provisions of Sections 5, 6, 7 and 21 of the said Act. According to Mr. Chatterjee, the learned trial judge upon consideration of the relevant pleadings and documents arrived at the conclusion that the suit was maintainable, which according to Mr. Chatterjee was a decision with regard to acceptance of a prima facie case of the plaintiff and an observation that the plaintiffs had a fit case to go to trial. Once there was a finding with regard the prima facie case, the learned trial judge rightly passed the order of status quo, with regard to the nature, character possession and alienation of the property in question. He submitted that upon consideration of prima facie case, balance of convenience and inconvenience and also irreparable loss and injury, such an order was passed. He also submitted that on the other hand the case of the defendants were that the property was a thika property. That, Ali Hussain was the recorded thika tenant. The name of the defendants were recorded in the LR record as thika tenants. That the thika controller had held that the property was a thika property. That the learned Civil Court did not have jurisdiction to entertain the suit. Thus, the suit was not maintainable. That after Ali Hussain died issueless in 1978, leaving behind his widow Jamila Khatoon as his only legal heir, Jamila Khatoon by way of a deed of Hebanama dated April 30, 1982 had transferred the suit property in favour of the defendants and one Abdul Rashid(since deceased). That Abdul Rashid died in 1993 leaving behind his widow Sabina Anjum and Zeba Anjum. Sabina Anjum and Zeba Anjum by registered deed of sale dated February 11, 2015 sold their undivided share to the defendants and the defendants became thika tenants. That the suit property would be governed by the said Act and the suit was not maintainable. Thus, according to Mr. Chatterjee, the admitted case of the defendants were that Ali Hussain was the owner of the suit property, which was a thika property and was transferred to the defendants by a deed of gift dated April 30, 1982 executed by his sole living heir Jamila Khatoon. That the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, (hereinafter referred to Act of 1981) came into force with effect from January 18, 1982. Assuming that the suit property was a thika property and the contention of the defendants were correct, the transfer of the suit property by a Hebanama dated April 30, 1982 was barred by law. According to Mr. Chatterjee the said land had vested in the State along with all interest of the landlord under Section 7(2) of the Act of 1981 and any agreement for transfer of the suit property whether oral or in writing by late Jamila Khatoon in favour of the defendants was prohibited.
6. Mr. Chatterjee contended that Section 6 (3) of the Act 1981 of provided the interest of thika tenants and tenancies of other lands holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter-se amongst the heirs and existing co-sharers-interest or prospective heirs, subject to the provision of the sub-section (1) of Section 7 which provided that any transfer or agreement for transfer, whether oral or written, in contravention to the provision of sub-section (3) of Section 6 or sub-section (1) of Section 7, shall be void and of no effect whatsoever and the land and structure shall vest in the State. Thus, according to Mr. Chatterjee, in view of Section 6 (3) and Section 7 (1), (2) of the said Act of 1981, which had come into force on an from January 18, 1982, transfer by Jamila Khatoon in favour of the defendants was void. Thus, going by the pleadings of the defendants that the suit premises was a thika land which was transferred to them by Jamila Khatoon , such transfer was illegal and void by operation in law and as such the defendants did not have any claim in respect of suit property. According to Mr. Chatterjee, when prima facie title and right in respect of the said property was proved, the balance of convenience were in favour of granting a protective as also a preventive order of status quo with regard to the nature, character, possession and alienation of the suit property and the plaintiff had a good case to go to trial. This was not a case which according to Mr. Chatterjee could be thrown out at the first instance without a trial on evidence. The learned trial judge was justified in passing the order of status quo and the learned lower appellate court acted illegally and with material irregularity by setting aside the order of status quo, inter alia, holding that the suit property was a thika property and the suit itself was not maintainable and the appropriate remedy would be before the Land Reform and Tenancy Tribunal, West Bengal and the learned Civil Judge did not have jurisdiction to decide the suit. It was further urged by Mr. Chatterjee that the observations made by the learned lower appellate court with regard to the maintainability of the suit was beyond the scope of the Misc. Appeal and such observations would prejudice the trial. Mr. Chatterjee's further submitted that as the plaintiffs proved their prima facie case, until the learned trial judge decided the suit and came to a finding that the suit property was a thika property and the defendants had right title and interest over the suit property better than that of the plaintiffs, the suit property should be protected from being changed, wasted or damaged or alienated. According to Mr. Chatterjee, if the defendants were allowed to change the nature and character of the suit property or alienate the same, then the petitioners would not be able to recover the property as it stood even if they were ultimately successful in suit and third party rights would be created. He relied on the following decisions, namely, Md. Jamil Akhter vs. Abdul Majid reported in 2001 (1) CLJ 308, Gangubai Bablya Chudhary and Ors. vs. Sitaram Bhalchandra Sukhtankar and Ors., reported in AIR 1983 SC 742, Sajjan Sikaria & Ors. vs. Shakuntala Devi Mishra & Ors., reported in (2005) 13 SCC 687.
7. He further submitted that Sections 8 (3) and Section 21 of the said Act, did not create any bar on the jurisdiction of the civil court to entertain a suit for eviction between the licensor and licensee. In this case, defendants did not claim to be Bharatias. That the defendants also did not claim that the transfer by Jamila was permissible being in favour of other co-sharer or heirs or prospective heirs or relatives of Jamila Khatoon. The defendants were not heirs or co-sharers or prospective heirs of Jamila Khatoon and the deed of gift in their favour was void. That construction on the whole of the suit land, would make the situation irreversible by the time the dispute was decided and would preclude a just and fair decision in the matter. On the contrary, if the order of status quo passed by the learned trial judge, was upheld, the defendants were not likely to be inconvenienced because they were in possession of the suit property and their possession would not be disturbed.
8. Mr. Anirban Ray, learned Advocate appearing on behalf of the opposite parties submitted that the plaintiffs failed to produce any documents to show that the defendants were licensees under the plaintiffs. The plaint was fraudulent in view of the suppression of the fact that the suit property was a thika property. That the plaintiffs failed to prove a prima facie case. The plaintiffs filed the suit as joint owners, without challenging the record of rights, wherein Ali Hussain was recorded as a thika tenant. That Jamila Khatoon's deed of gift was not challenged. By an order dated September 18, 2014, the Deputy Controller Thika Tenancy Department, Howrah, recorded that property after the death of Ali Hussain, went to Jamila. Jamila sold the said property on April 30, 1982, that is, after January 18, 1982 to Abdul Hafiz, Abdul Rashid and Saiful Ahmed. That Abdul Rashid died leaving behind him Sabina Anjum and Zeba Anjum, Abdul Hafiz and Saiful Ahmed. That the purchasers were declared to be 'Thika Proja' under Section 3 (3) of the said Act. That by another order dated December 2, 2014, the Deputy Controller, Thika Tenancy Department, Howrah granted permission to Zeba and Sabina to sell their portion and transfer their land to Abdul Hafiz and Saiful Ahmed. Thus the records showed that the suit property had along been a thika property and the suit was barred under the said Act. The learned Advocate for the opposite parties relied on the following decisions:- The State of Orissa vs. Gopal reported in AIR 1952 SC 12, Krishna Shaw & Ors. vs. Netai Pandit reported in (2016) 4 WBLR (Cal) 72, Bengal Ambuja Housing Development Ltd. vs. Pramila Sanfui & Ors., reported in 2016 (2) ICC (S.C.) 331, Sri Uma Shankar Sha & Ors. vs. Sri Addya Prosad Pathak & Ors., reported in (2015) 1 WBLR (Cal) 472.
9. Mr. Ray submitted that by granting the interim relief, the learned trial judge, had allowed the main reliefs to the petitioners. That Section 21 of the said Act and Section 8 (3) of the said Act were a clear bar in this case and the suit was not maintainable when the suit was not maintainable. The learned lower appellate court was right in rejecting the prayer for temporary injunction by setting aside the order of the learned trial judge. He further submitted that the maintainability of the suit must be considered before the grant of interim injunction and the learned lower appellate court was right in first deciding about the maintainability of the suit and then passing the order for injunction after coming to a finding that the plaintiffs could prove their prima facie to go to trial.
10. Heard the learned Advocate of the parties. I have gone through the order passed by the learned trial judge dated March 19, 2019. The learned judge, took into account the documents filed by the parties and came to the conclusion that although, the civil court did not have jurisdiction to try questions which the thika controller or the appellate authority under the said Act were empowered to decide on matters provided for under Sections 5, 6 and 8 of the said Act, but the learned trial judge upon consideration of the said provisions came to the conclusion that this suit was simpliciter, a suit for eviction of a licensee by the licensors, and thus the civil suit was maintainable. The learned trial judge further held that the civil court was not required to look into the question of title of the licensor. The suit could not be rejected as being not maintainable at this stage without trial. That the contrary claims of the parties were required to be decided after taking evidence and upon consideration of the documents produced by the parties. The learned trial Court came to the conclusion that prima facie, the documents, that is, death certificates, faraznama, LR Parcha, photocopies, of the advocate notices, ration cards, aadhar cards, voter cards, certified copy of sale deed etc. produced by the plaintiffs would prima facie show that the plaintiffs were legal heirs of the deceased Ali Hussain. That the defendants also admitted that Ali Hussain was the original owner. The defendants also filed documents to show that they were in possession of the suit property in question, that is R.S record of rights, mutation certificate, tax assessment certificate, tax receipt, original deed of sale in the name of Ali Hussain in 1952 on the basis of which Ali Hussain had purchased the thika right over the suit holding in 1952. The learned court held that the defendants failed to produce any documents to show that the order dated September 18, 2014 passed by the Deputy Controller was on the basis of an enquiry made as required by law. The learned trial judge, prima facie, further came to the finding that thika controller did not have any right to give permission to sell the thika property on December 2, 2014 on the prayer of Zeba Anjum and Sabina Anjum, unless the said sale was inter se amongst heirs, co- sharers or prospective heirs. The learned trial judge further held that the defendants could not produce any documents to show that a 'No Objection' from the thika controller was taken before making the alleged construction. That the plan sanctioned by the Howrah Municipal Corporation was for G+2 floors but the law was settled that only a two storied building G+1 could be built on a thika land and as such the sanction was contrary to the law. That Jamila Khatoon had ¼ of the share of Ali Hussain and could not have transferred the entire share of Ali Hussain to the defendants. Under such circumstances, according to the learned trial judge, the plaintiffs had a strong prima facie case and the suit property was required to be protected. Thus the order of status quo was passed to prevent further wastage, damage, change in the nature and character of the suit property and also to prevent transfer of the suit property till the disposal of the suit. The learned lower appellate court reversed the said finding and held that the suit was barred under Section 21 of the said Act. That the dispute should be decided by the thika controller. That certified copies of the document filed by the defendants would show that the defendant's predecessors were recorded as 'Thika Proja'. That permission was also given by the Deputy Thika Controller for sale of property by Sabina Anjum and Zeba Anjum and as such the civil suit was barred under Section 21 of the said Act.
11. The law is specific that after January 18, 1981, when the 1981 Act came into force, Jamila Khatoon could not have sold the thika land. Title of Ali Hussain is not disputed. Whether Ali Hussain had other legal heirs (the plaintiffs) or whether Jamila Khatoon was the only heir of Ali Hussain are matters to be decided on trial. Yet, the admitted position is that the defendants were claiming through the Hebanama executed by Jamila Khatoon in April 30, 1981 after the said Act of 1981 was notified and under the said Act of 1981 such transfer was barred. Sections 6(3) and 7(1) (2) of which are quoted below:-
"6. Incidents of tenancies in respect of land vested in the State.-
(3) The interests of Thika tenants and tenants of other lands holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares-interest or to the prospective, heirs, subject to the provisions of sub-section (1) of Section 7.
7. Thika tenant not to let out land.- [(1) The thika tenants and tenants of other lands holding directly under the State shall be entitled to let out in whole or in part structures existing on, or constructed after, the date of commencement of this Act on such lands but not any vacant land or any part thereof.] [(2). Any transfer or agreement for transfer, whether oral or in writing, in contravention of the provisions of sub-section (3) of section 6 or sub-section (1) of this section shall be void and be of no effect whatsoever and the land and structure shall stand vested in the State in accordance with the prescribed procedure.]"
12. The Act of 2001 also has similar provisions:-
"5. Incidents of tenancies in respect of lands vested in this State.- (1) Subject to the provisions of the Urban Land (Celling and Regulation) Act, 1976 (33 of 1976), and the provisions of this Act, every thika tenant, occupying any land under a landlord on the date of commencement of this Act, shall occupy such land, on such terms and conditions as may be prescribed, directly under the State as if the State had been the landlord in respect of that land.
(2) Every thika tenant holding directly under the State under Sub-
section (1) shall be liable to pay to the State Government in the prescribed manner such revenue as may be determined.
(3) If any question arises as to whether a person is a thika tenant or not or whether the land in question is thika land or not, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question.
(4) The interests of the thika tenants holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares- interest and spouses or to the prospective heirs, with a prior permission of the Controller, subject to the provisions of sub-section (1) of Section 6.
(5) The thika tenants holding directly under the State under sub- section (1) shall be entitled [to construct pucca structures or to change the nature, character and dimension of an existing structure on the land] in accordance with the building plans sanctioned under the Kolkata Municipal Corporation Act, 1980 (West Ben. Act LIX of 1980), and the rules made thereunder, or the Howrah Municipal Corporation Act, 1980 (West Ben. Act LVIII of 1980), and the rules made thereunder, according as the land may be situated within Kolkata as defined in clause (9) of section 2 of the Kolkata Municipal Corporation Act, 1980, (West Ben. Act LIX of 1980), or Howrah as defined in clause (15) of section 2 of the Howrah Municipal Corporation Act, 1980 (West Ben. Act LVIII of 1980), for-
(a) residential and business purposes for themselves and the Bharatias under them; and
(b) essential common facilities like common pathway, common bath, toilet, water supply, drainage, sewerage, lighting and similar other purposes:
Provided that the thika tenants holding directly under the State under sub-section (1), shall obtain a no objection certificate from the Controller before making any pucca construction or changing the nature, character and dimension of an existing structure on the land, irrespective of the area of the land.
(6) The thika tenant holding directly under the State under sub-
section (1), shall be liable to pay rent to the State Government at such rate and in such manner as may be prescribed."
6. Thika tenant not to let out vacant land, - (1) The thika tenants holding lands directly under the State shall be entitled to let out in whole or in part structures existing on, or constructed after, the date of commencement of this Act on such lands but not any vacant land or any part thereof.
(2) Any transfer or agreement for transfer, whether oral or in- writing, or any activity in contravention of the provisions of sub-section (4) [or sub-section (5), or proviso to sub-section (5), of section 5], shall be declared invalid under an order of the Controller and the structure or part of structure, as the case may be, shall stand forfeited to the State in accordance with the procedure as may be prescribed.
(3) Notwithstanding anything contained in this section, where a pucca structure has been constructed without No Objection Certificate as required by the proviso to sub-section (5) of section 5, the Controller may, subject to he provisions of any other law for the time being in force, after being satisfied that the forfeiture of such structure to the State under sub-section (2) will cause hardship to the thika tenant or the Bharatia, as the case may be, issue a provisional certificate for the purpose of obtaining construction plan sanctioned by the local authority:
Provided that the Controller shall not issue final certificate unless the thika tenant has produced a construction plan of such structure sanctioned by the local authority to the Controller within such time and on payment of such fee, as may be prescribed:
Provided further that if the thika tenant fails to produce such sanctioned plan within such prescribed time to the Controller, the Controller may invoke the procedure of forfeiture under sub-section (2).
(4) Whenever it appears to the State Government that the land comprised in any thika tenancy is needed, or is likely to be needed, for any public purpose, it may, after giving the thika tenant and the Bharatias, if any, an opportunity of being heard, resume the land comprised in such thika tenancy with or without structures, if any, and take possession of the land:
Provided that immediately after such resumption, the State Government shall pay to the thika tenant or the Bharatia, if any an amount not exceeding ten times of the compensation determined under sub-section (6) of section 7 of the Act in addition to the compensation determined under sub-section (6) of section 7.
(5) A Controller after satisfying himself that a Bharatia stays at the structure forfeited under sub-section (2) above may [grant licence to such Bharatia in respect of so much area of such structure as is occupied by such Bharatia and such licence may be granted on such terms and conditions, and in such manner, as may be prescribed.
8. [Incidents for tenancies of Bharatias.] - The monthly and other periodical tenancies of Bharatias in respect of the structures occupied by them on payment of rents to the thika tenants shall, with effect from the date of coming into force of this Act, be governed by the provisions of [the West Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997)], in matters relating to the payment of rent by the Bharatias and their eviction by the thika tenants, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act.
[(2) If any question arises as to whether a person is a Bharatia under a particular thika tenant, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question.] (3) Any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed.
(4) A thika tenant may, in default of payment of rent to the State Government, be evicted or otherwise penalised by the Controller in such manner as may be prescribed.
[(5) An order passed by the Controller under the provisions of this Act shall be executable by the Controller as a decree of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court.] (6) Notwithstanding anything contained in this Act or in [the West Bengal Premises Tenancy Act, 1997], a Bharatia under a thika tenant shall be entitled to take separate electrical connection from the electricity supplying agency and separate water supply connection from the appropriate agency for his own use.
(7) A Bharatia shall be liable to pay rent to the thika tenant at such rate as may be prescribed.
[(8) Where there is no thika tenant or the thika tenant is not traceable for any reason whatsoever, a Bharatia shall be liable to deposit rent with the Controller in respect of the area of the structure as is occupied by him at such rate, and in such manner, as may be prescribed.] [(9) Notwithstanding anything contrary contained in the Act, the State Government shall not be deemed to be a landlord as defined in clause (c) of the section 2 of the West Bengal premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997), but be a licensor and the Bharatia shall be a licensee under the State, where there is no thika tenant.]"
13. The defendants did not file any documents to show that they had obtained permission from the thika controller before making the constructions as required by the law. Admittedly in the decision of Md. Jamil Akhter (supra), this court held that suit for eviction between licensors and licencees was not barred under Section 21 or sub-section (3) of Section 8 of the said Act. Thus, when the learned trial judge on appreciation of the documents and facts, arrived at the conclusion that prima facie it appeared that Jamila Khatoon could not have sold the property under the Hebanama after January 18, 1982, that is on April 30, 1982, and as the defendants could not produce a no objection certificate from the thika controller seeking permission for making construction as per the sanction plan, and the suit was merely a suit for eviction between licensors and licencees, I have no hesitation to hold that learned trial judge was justified in passing the order of status quo, with regard to the nature, character and possession of the suit property. The learned lower appellate court failed to appreciate the contentions of the plaintiffs as also the provision of law quoted hereinbefore but, proceeded on the basis of the orders dated December 2, 2014 and September 18, 2014, passed by the Deputy Thika Controller, and arrived at the conclusion that the suit property was a thika property and the suit was not maintainable and that the learned trial judge was not justified in passing the order of status quo. The learned lower appellate court failed to consider that the suit was not with regard to determination of any dispute between a thika tenant and his 'Bharatias' as covered under the provisions of Section 8 of the 2001 Act nor was the suit relating to disputes covered under Section 5 of the 2001 Act and the scope of the suit and reliefs prayed for was limited to eviction of licencees by the licensors. Thus, the decision of Krishna Shaw & Ors. (supra) is not applicable in this case, inasmuch as, there the suit was filed for eviction of a Bharatia by a thika tenant. The decisions with regard to the proposition that maintainability of the suit should be decided while granting an interim injunction namely, Bengal Ambuja Housing Development Ltd. and Sri Uma Shankar Sha & Ors. (supra) as cited by Mr. Ray are accepted, inasmuch as, the learned trial judge upon determination of the maintainability of the suit first, passed the order of status quo. The learned lower appellate court failed to consider the vital issue, that even if, assuming the defendants were claiming through Ali Hussain a thika tenant on the basis of the Hebanama executed by Jamila Khatoon (wife of Ali Hussain) which was executed on April 30, 1982, that is, after coming into effect of the 1981 Act, the prima facie case was against the defendants and in favour of the plaintiffs. Prima facie, the transfer was barred under Sections 6 (3) and 7 (1) and (2) of the Act of 1981 and the matter needs to be decided on trial. The order passed by the learned trial judge dated March 19, 2019, of status quo with regard to the nature, character, possession and alienation of the suit property is upheld. Both parties are directed to maintain status quo as directed by the learned trial judge by order dated March 19, 2019. The order dated November 25, 2019 is set aside and quashed. The learned trial judge is requested to expedite the suit and proceed on the merits thereof, without being influenced by this order.
14. Thus, this revisional application is disposed of.
15. There will be, however, no order as to costs.
Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shampa Sarkar, J.)