Calcutta High Court (Appellete Side)
Nathni Ray & Ors vs Shree Shree Ram Jee on 7 August, 2019
132. 07.08.2019
mb In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
C.O. No. 2527 of 2019
Nathni Ray & Ors.
-Vs.-
Shree Shree Ram Jee,
Shree Shree Lakshman Jee,
Shree Shree Sitamai Jee &
Shree Shree Mahabir Jee Trust & Anr.
Mr. Debjit Mukherjee,
Ms. Susmita Chatterjee,
Mr. K. Bhattacharyya
...for the petitioners
Mr. Tanmoy Mukherjee
...for the opposite party
no. 1
The defendants in a suit for declaration of title and consequential reliefs have filed the instant revisional application against an order rejecting an application of the petitioners under Order VII Rule 11(d) of the Code of Civil Procedure.
Learned counsel for the petitioners argues that the trial court acted without jurisdiction in refusing to reject the plaint, in view of the suit having been filed before a civil court and there being specific pleadings that the suit property is a thika tenancy in the plaint, in particular, in paragraph nos. 3 and 4 thereof.
It is submitted that the trial court committed a jurisdictional error in relegating the matter to trial on evidence, despite the fact that the suit property was originally a thika tenancy, being evident on the face of the plaint.
Learned counsel for the plaintiff/opposite party no. 1, on the other hand, submits that Section 10 (1) of the Calcutta Thika Tenancy Act, 1949 provided that, notwithstanding anything to the contrary contained in any contract, on the determination of the interest of a thika tenant in the land comprised in a holding as a result of ejectment from the holding of, or of surrender or abandonment of the holding by, the thika tenant, or otherwise, any structure standing upon such land and existing on the date of such determination shall vest in the landlord.
It is, thus, submitted that, since it has been categorically averred in the plaint that the thika tenancy right of the last thika tenant of the property was surrendered in favour of the plaintiff, the court could not have rejected the plaint on the face of the pleadings.
It is further argued that, even if the specific date of surrender was not mentioned in the plaint, the same could, at best, be the subject-matter of evidence and had to be decided on trial, as rightly directed by the trial court and could not justify the rejection of the plaint.
Upon perusal of the plaint, it is seen that it is categorically stated in paragraph no. 4 thereof, that the last thika tenant of the suit property surrendered her thika tenancy right in favour of the plaintiff and subsequently, the plaintiff inducted one Kalicharan Das , the defendant no. 1, as monthly premises tenant in respect of the structure on the said property.
In view of such averment, it is not ex facie clear from the averments of the plaint that the said surrender took place after cessation of the operation of the Calcutta Thika Tenancy Act, 1949. As such, in view of the question being subject to trial on evidence, the trial court was justified in rejecting the application for rejection of plaint at this premature juncture.
Accordingly, C.O. No. 2527 of 2019 is dismissed, thereby affirming the impugned order, without, however, any order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of necessary formalities.
(Sabyasachi Bhattacharyya, J.)