Calcutta High Court (Appellete Side)

Devendra Kumar Mishra vs Rajendra Kumar Mishra & Ors on 13 August, 2021

13.08.2021 (S/L-11) Ct.-18 (Susanta)

(Via Video Conference)

C.O. 850 of 2021

Devendra Kumar Mishra

-Vs-

Rajendra Kumar Mishra & Ors.

Mr. Arijit Bardhan, Mr. Rishabh Dutta, ...... For the petitioner.

Mr. Tapas Kumar Bhattacharya, Mr. Monis Banerjee, ..... For the Opposite Party.

The defendant no. 1 in a suit for declaration

of title, recovery of possession and injunction is

the petitioner of the present application under

Article 227 of the Constitution of India which is

directed against the order dated March 19, 2021

passed by the 1st Court of learned Civil Judge

(Junior Division), Sealdah, 24-Parganas (South)

in the said suit being Title Suit no. 360 of 2020.

The defendant no. 1 sought for rejection of

the plaint of the said suit under Order VII Rule

11(d) of the Code of Civil Procedure on the

ground that it is barred by law.

The learned Trial Judge by the order

impugned has dismissed the said application

holding that statement made by the plaintiff in

the plaint does not show without any doubt that

the suit is specifically barred by any law in force.

Mr. Arijit Bardhan, learned advocate

appearing on behalf of the petitioner referring to

a portion of the averments made in paragraph 5

of the plaint vis-à-vis the reliefs sought for in the

suit, particularly, the relief prayed under prayer

(d), submits that the jurisdiction of the Civil

Court to grant such relief to the plaintiff is

barred by virtue of Section 21 of the West

Bengal Thika Tenancy (Acquisition and

Regulation) Act, 2001 (hereinafter referred to as

the "said Act" in short) inasmuch as the said

relief of the plaintiffs is based on the decision of

an issue which in terms of sub-Section (3) of

Section 5 of the said Act can only be decided by

the Thika Controller appointed under the said

Act, therefore, according to him the learned Trial

Judge has misdirected himself in holding that

the suit is not barred by any law for the time

being in force.

Responding to the said argument of Mr.

Bardhan, Mr. Tapas Kumar Bhattacharya,

learned Counsel appearing on behalf of the

plaintiff/opposite party no.1 relying on the

decision of the Hon'ble Supreme Court in the

case of Pawan Kumar vs. Babulal since

deceased through legal representatives &

Ors. reported in (2019) 4 Supreme Court Cases

367 submits that for the purpose of Order VII

Rule 11 of the Code, the plaint is to be read

wholly and meaningfully and if the plaint of the

said suit is so read, it would appear that all of

the reliefs sought for in the said suit are not

barred by any law, as suggested by Mr. Bardhan.

Mr. Bhattacharya further submits that the

plaintiff seeking amendment of the plaint of the

said suit has already filed an application under

Order VI Rule 17 of the Code and pending

consideration of the said application, prayer for

rejection of the plaint is pre-matured.

Heard learned counsel for the parties,

perused the materials-on-records.

Sub-section (3) of Section 5 of the said Act

mandates that if any question arises as to

whether a person is a Thika tenant or not or

whether the land in question is a Thika land or

not, the Controller, either on his own motion or

upon receiving any information, may, after

examining all such documents and particulars as

may be considered necessary, enquiry upon and

decide such question. The said sub-section of the

said Act is quoted below for ready reference:-

"5. .......................................................... (1)......................................................... (2).......................................................... (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."

Section 21 of the said Act puts a bar to the

jurisdiction of the Civil Court to determine any

matter, which, by or under this Act, is required

to be decided by or dealt with by the Controller.

Section 21 of the said Act is quoted below for

the sake of convenience:-

"21. Bar of 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 commenced, under the provisions of this Act shall be called in question in any civil court."

It appears from the record that in the above

quoted portion of paragraph 5 of the plaint the

plaintiff has claimed that the defendant no. 1 has

illegally and fraudulently with the support of

forged and fabricated documents intends to

insert the name as a owner of the property and

the authority of Thika Controller as well as the

Kolkata Municipal Corporation relying upon the

said forged manufactured documents recorded

the name of the defendant no.1 as a Thika

Tenant with respect to the entire suit property.

The relevant extracts from the said

paragraph is quoted below for ready reference:-

"5. ..........................................and in the year of 2009 the plaintiff gathered knowledge from the reliable source that taking advantage of the same the said Devendra Kumar Missir illegally and fraudulently, with the support of forged and fabricated documents intend to insert the name as a owner of the property and the authority of Thika Controller as well as the Kolkata Municipal Corporation relying upon the said forged manufactured documents recorded the name of the defendant no.1 as a Thika Tenant with respect to the entire suit property being premised No. 9/2, 9/3 and 9/4, Omda Raja Lane, Police Station Narkeldanga, Kolkata-700 015 and immediately thereafter on 16.09.2009 the plaintiff lodged a written complaint stating such illegal act of defendant No.1 before the authority of Thika Controller, Kolkata Thika Tenancy Govt. West Bengal, 35, Gopal Nagar Road, Kolkata-700 027 as well D.G. Building Kolkata Municipal Corporation, 5, S.N. Banerjee Road, Kolkata-700 013 ".

The plaintiff in the suit has prayed for

different reliefs such as declaration of his title

over the suit property along with defendants Nos.

2 & 3, declaration that defendant No. 1 is the

illegal occupier and have no right, title and

interest in respect of the suit property, recovery

of possession and declaration declaring the

papers and documents in respect to the

is illegal and null and void in the eye of law.

Some of the said reliefs on the face of it may

not come within the sweep of the bar

contemplated under Section 21 of the said Act

but the relief sought under prayer (d) cannot be

granted to the plaintiff without resolving the

issue raised in the paragraph 5 of the plaint.

The said prayer (d) is quoted below:-

"d. declaration declaring the papers and documents in respect to the ownership manufactured by the defendant No. 1 is illegal and null and void in the eye of law;"

The bar under Section 21 of the said Act

may not come in the way of granting some of the

reliefs sought for in the suit but a part of the

plaint cannot be rejected under Order VII Rule

11 of the Code [See Sopan Sukhdeo Sable &

Ors. vs. Assistant Charity Commissioner &

Ors. reported at (2004) 3 SCC 137], therefore,

the entire suit comes under the mischief of the

said provision of the said Act.

It is too ambitious an argument that since

the application for amendment of the plaint is

pending for consideration, the prayer for