Calcutta High Court (Appellete Side)
Ct. No. 04 vs Ab on 4 July, 2022
08 04.07. WPLRT 61 of 2022
2022
Farida Begum and another
Ct. No. 04 Vs.
Ab
The State of West Bengal and others.
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Mr. Bhaskar Prosad Banerjee,
Mr. Surendra Kumar Sharma.
... for the petitioners
Mr. Chandi Charan De,
Mr. Anirban Sarkar.
... for the State.
Mr. Supratim Dhar,
Mr. Dhananjoy Nayak.
... for the private respondent.
The instant writ petition arises from a judgment and
order dated 11th February 2022 passed by the West
Bengal Land Reforms and Tenancy Tribunal in OA 127 of
2010 (LRTT) by which the matter was remanded to the
Thika Controller, Howrah to decide afresh.
The writ petitioners claimed to be the absolute
owners and possessors of the suit property. It is a
specific case of the writ petitioners that a lease was
executed and registered on 24th December 1957 by their
predecessor in favour of one Rosulan Bibi for a period of
ten years as Thika Praja. The entry made in the RS
Record of Right would also reveal that the said Rosulan
Bibi was holding the property as Thika Praja. It is a
specific case of the writ petitioners that after the expiry of
the lease by efflux of time, the thika right was
surrendered and the possession was handed over by the
said lessee in favour of the predecessor in interest of the
present writ petitioners.
Subsequently, a suit was filed before the Civil Court
seeking declaration of title as well as correction of the
Record of Right. The said suit was decreed ex parte and
the title of the writ petitioners was declared and the
correction was directed to be made in the Record of
Right. It was categorically held that the property is not
comprised in thika and, therefore, it does not come
within the purview of the Calcutta Thika Tenancy
(Acquisition and Regulation) Act, 1981. Such ex parte
decree is still alive and has not been set aside in a validly
instituted proceeding.
It is contended by the learned Advocate for the
private respondent that a title suit being no. 49 of 2009
has been filed before the 3rd Court of learned Civil Judge
(Junior Division), Howrah praying for decree of
declaration that the ex parte decree passed in Title Suit
No. 7 of 1991 is fraudulent, illegal and void one and,
therefore, not binding upon the private respondent. The
said suit is still pending.
The facts emanate from the respective pleadings
leaves no ambiguity in our mind that the said ex parte
decree passed in Title Suit No. 7 of 1991 is still operative
and binding upon the parties unless the same is set aside
by passing a decree in the later suit. Subsequently, an
approach was made to the Thika Controller by the private
respondent claiming his title by virtue of a Will executed
by the alleged erstwhile lessee and the Thika Controller
disposed of the proceeding directing the record to be
corrected and declaring the status of the property as
'thika'.
It is beyond cavil of doubt that after promulgation of
the Calcutta Thika Tenancy (Acquisition and Regulation)
Act, 1981, the power was not conferred upon the Thika
Controller to declare the status of a person as thika
tenant and, therefore, Civil Court's jurisdiction in this
regard was not taken away. However, the position is
changed after the repeal of the said Act of 1981 with the
replacement of the West Bengal Thika Tenancy
(Acquisition and Regulation) Act, 2001. Section 5(3) of
the said Act bestowed power upon the Thika Controller to
decide the dispute as to the status of a person in such
capacity, which necessarily and/or impliedly excludes
the jurisdiction of the Civil Court.
The decree passed by the Civil Court during the
interregnum i.e. between the period when the Act of 1981
was in vogue and the period by which the same was
replaced by the Act of 2001 cannot be termed to be bad
or void as the jurisdiction of the Civil Court was impliedly
excludes. Even an ex parte decree has its force akin to a
contested decree unless set aside in a competent
proceeding. The efficacy of the ex parte decree cannot be
diminished having passed in absence of the defendant
nor the decree passed on contest can be put at the higher
pedestal than of the ex parte decree. There is no
distinction assigned in the definition given to a decree
under Section 2(2) of the Code of Civil Procedure and,
therefore, the contention of the private respondent that
the ex parte decree has no legal efficacy cannot be
entertained.
Admittedly, the predecessor in interest of the present
private respondent was a party in the said suit and,
therefore, the decree passed therein, though ex parte,
binds him and he cannot wriggle out from the same so
long the same is operative, subsisting and has not been
set aside in a validly instituted proceeding. The entry
made in the Record of Right has a presumptive value of
possession but such presumption is not static or rigid
and depends upon the rebuttal having shown thereto.
The Record of Right is maintained for the purpose of
collection of land revenue having no nexus or impact on
the title of a person over the said property.
The entry made in the Record of Right can neither
creates any title into a person nor extinguishes such
right. The entry in the Record of Right cannot have an
edge over the decree passed by the Civil Court having
jurisdiction in this regard and, therefore, such erroneous
recording does not create any right into the private
respondent nor the authority should ignore the decree of
the Civil Court by giving primacy to the entry made in the
Record of Right over the decree of the Civil Court.
We do not find any justification in the observations
of the Tribunal in remanding the matter to the Thika
Controller to decide whether the private respondent is a
thika tenant or the property is comprised in thika.
As indicated above, the power and jurisdiction of the
Thika Controller was conferred when the West Bengal
Thika Tenancy (Acquisition and Regulation) Act, 2001
was promulgated, which was conspicuously absent in
Calcutta Thika Tenancy (Acquisition and Regulation) Act,
1981. It is no longer res integra that during subsistence
of the Act of 1981, the Civil Court has jurisdiction to
declare the status of a person and having declared so, it
is not open even to a Thika Controller to controvert the
same. The statutory authority is bound by the decree
passed by the Civil Court so long it is operative,
subsisting and in force.
We, thus, find that the Tribunal committed error in
remanding the matter to the Thika Controller for deciding
the status of the private respondent or the property as
thika by overlooking the decree of the competent Civil
Court.
The order impugned is, thus, set aside. The order of
the Thika Controller is also set aside.
The writ petition is, thus, disposed of.
There shall, however, be no order as to costs.
(Harish Tandon, J.)
(Shampa Dutt (Paul), J.)
