Asit Chatterjee vs Kanai Lal Das
2022 Latest Caselaw 1342 Cal

5. SA 5 of 2022 21-03-2022 sg CAN 1 of 2022 Ct. 8 Asit Chatterjee Versus Kanai Lal Das

(Through Video Conference)

Mr. Subhasish Pachhal, Adv.

...for the appellant

The second appeal has come up for admission. The

appellant is aggrieved by the judgment and decree dated 10th

February, 2021 passed by the learned Additional District Judge, 1st

Court, Howrah in Title Appeal No. 256 of 2018 thereby setting

aside the judgment and decree dated 25th September, 2018 passed

by the learned Civil Judge (Junior Division), 4th Court, Howrah.

The plaintiff filed a suit for eviction of the defendant on

the ground that the defendant is a trespasser and he is likely to be

evicted. The defendant in his written statement alleged that the

property is a thika tenanted property and the plaintiff is a thika

tenant. It is further alleged that the defendant is a bharatia under

the plaintiff. On the basis of the pleadings and documents, the

learned Trial Judge framed 11 issues. One of the issues framed by

the Trial Court relates to the status of the defendant in relation to

the said property. The Trial Court held that in view of the fact that

the property is a thika property and the plaintiff is the thika tenant,

the dispute raised by the defendant in the written statement is

required to be decided by the Thika Controller in accordance with

Section 8(2) of the West Bengal Thika Tenancy (Acquisition and

Regulation) Act, 2001.

The learned Trial Judge relied upon the decision of this

Court in the matter of Krishna Shaw & Ors. vs. Netai Pandit

reported in 2016 (3) CHN (Cal) 1 and held that the suit filed for

eviction of the defendant/tenant from the suit property, which is a

thika property that is required to be decided by the Controller. The

learned Court did not go into the other issues at all. The learned

Court did not decide whether the relationship between the plaintiff

and the defendant is landlord and tenant or the defendant is

trespasser.

The learned First Appellate Court, on the basis of the

evidence on record by a detailed judgment found the defendant to

be a trespasser and, accordingly, arrived at a finding that the

provision of Section 8(2) of the West Bengal Thika Tenancy

(Acquisition and Regulation) Act, 2001 has no manner of

application. The learned First Appellate Court had taken into

consideration that the defendant has failed to produce any rent

receipt to show that there is a relationship between the landlord

and tenant and also title of the defendant in relation to the suit

property. The contention of the plaintiff that taking advantage of

the illness of the plaintiff and his staying away from the suit

property for sometime, the defendant trespassed in the suit

property and had taken the illegal possession of the suit property

was proved and accepted.

This defence was established by the plaintiff at the trial.

The defendant witness during his cross-examination has admitted

that he has no document to show that his father used to reside in

the suit property as tenant along with his aunt and he cannot also

say to whom, his father and aunt used to pay rent. He also

admitted that he is not a tenant in respect of the suit property. This

admission clearly nullifies the stand taken by the appellant before

us that he is a bharatia under the thika tenant. On such facts

emerging from the pleading and evidence, it cannot be said that

the suit for eviction of a trespasser would be barred under Section

8(3) or Section 21 of the West Bengal Thika Tenancy Act.

In our view, the learned First Appellate Court was justified

in reversing the judgment of the Trial Court as it is elementary

that in order to ascertain whether the Civil Court has jurisdiction

to try and determine the suit initially the pleadings and at the trial

evidence are to be looked into by the trial court. Merely raising an

issue so as to create a bar to proceed before a Civil Court, would

not suffice as the Court has to come to a finding that there are

enough materials to justify that the issue raised cannot be decided

by the Civil Court and it has to be decided by the Controller alone.

Moreover, nothing prevented the defendant from raising an issue

before the Thika Controller to decide his status under Section 8(2)

of the West Bengal Thika Tenancy (Acquisition and Regulation)

Act, 2001.

While we accept the submission of the learned Counsel for

the appellant that a dispute between the thika tenant and bharatia

has to be adjudicated under Section 8(2) of the said Act but having

regard to the admission of the defendant that he has no document

or rent receipt to show that he is a bharatia under the thika tenant,

we are unable to accept that the suit is barred under Section 8(2)

of the West Bengal Thika Tenancy (Acquisition and Regulation)

Act, 2001 and Section 21 of the West Bengal Thika Tenancy Act.

In this regard, we refer to a judgement of this Court in Md. Jamil

Akhtar vs. Abdul Mojid reported in 2011 (1) CLJ (Cal) 308 where

it has been held that the suit for eviction of licensee can be heard

by the Civil Court. The said judgment was rendered in similar

facts where a plea was taken that defendant is a bharatia and not a

licensee.

In view of the issue being settled by this Court and also

having regard to the findings arrived at by us and the facts and

circumstances of this case, we are not inclined to admit the second

appeal.

SA 5 of 2022 is, accordingly, dismissed. CAN 1 of 2022 is

also dismissed.

Urgent photostat certified copy of this order, if applied for,

be supplied to the parties upon compliance of all requisite

formalities.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)