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Mr. S. P. Roy Chowdhury, learned senior advocate appearing on behalf of the petitioners, submits that the principal relief in the instant suit relates to declaration as to the validity or invalidity of the purported deed of gift on the ground that it offends the provisions contained under Section 5 of the said Act and can only be decided by the Thika Controller. He strenuously submits that in view of Section 21 of the said Act the jurisdiction of the Civil Court has been expressly excluded in relation to matters and affairs concerning Thika Controller and, therefore, the trial court erred in law in rejecting the application under Order VII Rule 11(d) of the Code. In other words, Mr. Roy Chowdhury emphasized on the provisions contained under Section 5(4) of the said Act, which makes imperative on the parties before transferring the shares inter se amongst the heirs and the legal representatives or the prospective heirs to take prior permission of the Thika Controller and if the stand of the plaintiff, as would appear in paragraph 7 of the plaint, is that the said deed is inoperative, void and illegal, as no prior permission was taken, such issue can only be decided by the Thika Controller and not by the Civil Court. In support of the aforesaid contention, he firstly relies upon a judgment of a Co-ordinate Bench in case of Smt. Suchita Ruia & Ors. Vs. Vikash Fabrics Pvt. Ltd. & Ors., reported in (2016) 5 West Bengal Law Reports (Cal) 370 and secondly, a judgment of this Court in case of Sri Samaarendra Nath Das @ Samar Das vs. M/s. Bengal Central Building Society Limited & Ors., reported in (2016) 2 West Bengal Law Reports (Cal) 350. He strenuously submits that unless the principal relief is adjudicated and/or determined the relief in the form of partition of the property is ancillary and incidental thereto and, therefore, cannot stand independently.

In the instant case, the mother, who was admittedly a thika tenant, executed a deed of gift in favour of her two sons, the petitioners herein, and according to the plaintiff/opposite party, such deed is void, inoperative and illegal as no prior permission was obtained by the mother from the Thika Controller.

In view of the provisions contained under Section 6(2) of the said Act, there is no doubt in my mind that the Thika Controller enjoins powers and jurisdiction to pass an order invalidating the purported deed of gift having made in contravention to the provisions of sub-section (4) of Section 5 of the said Act.

In case of Sri Samarendra Nath Das @ Samar Das (supra), the Division Bench was considering the same point, which is urged in the instant revisional application, pertaining to a suit filed by the plaintiff therein for declaration of a deed to be void and mandatory injunction to restore the property to him. In the said report, the purported deed was admittedly executed after coming in force of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. A plea was taken by the defendant before the trial court that the relief of such nature is expressly barred and the Civil Court cannot determine the same because of Section 21 of the said Act. The Division Bench held:

"8. In our instant case a plaint reading of the averments in the plaint shown that in the garb of a decree for declaration and mandatory injunction plaintiff has assailed the transfer in respect of 'B' schedule property in favour of defendant No. 2 by virtue of the deed of conveyance dated 27th July, 2011. In paragraph 13 of the plaint it has been stated that the schedule 'B' property is comprised in Thika tenancy and as such the transfer of the said property by the defendant No. 1 offends the provision of the W.B.T.T. Act 2001 and consequently renders the deed of conveyance void. Manifestly, without declaring as invalid the said deed of conveyance, the reliefs sought for by the plaintiff in the suit cannot be granted. Sub-section (2) of Section 6 of the W.B.T.T. Act 2001 clearly provides that any transfer of 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 Section 5 or proviso to sub-section (1) of this Section, shall be declared invalid under an order of the Controller. The power to declare as invalid the deed of conveyance in question which has been challenged by the plaintiff in Paragraph 13 of the plaintiff exclusively vests with the Controller in view of sub-section (2) of Section 6 of the Act. Therefore the jurisdiction of the Civil Court to decide the issue has been completely excluded in Paragraph 8 of the plaint it has been mentioned that schedule 'B' property is a part of schedule 'A' property whereas the suit schedule 'C' property is a part of schedule 'B' property. The relief sought for by the plaintiff is in respect of schedule 'C' property which is, as per the above statement in the plaint, a part of schedule 'B' property which is the subject of the impugned deed of conveyance dated 27th July, 2011. Section 21 of the W.B.T.T. Act clearly bars the jurisdiction of the Civil Court to deal with or to decide 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. The fact that the plaintiff has challenged the sale deed in question is also clear from Paragraph 14 of the plaint wherein it has been averred that the cause of action of the suit arose on diverse dates starting from the month of July, 2011 with the execution of the sale deed between the defendant No. 1 and the defendant No. 2. Evidently, a bare perusal of the plaint itself reveals that the crux of the dispute is the impugned deed of conveyance dated 27th July, 2011. Without declaring the aforesaid deed as void, a decree for restoration of possession in respect of schedule 'C' property as prayed for by the plaintiff cannot be granted. As already mentioned, Sub- Section (2) of Section 6 of the W.B.T.T. Act authorises the Controller to decide the aforesaid dispute raised by the plaintiff in the suit."