Sri Debasis Mukherjee vs Hare Krishna Mahato
2023 Latest Caselaw 2430 Cal

S/L 6
11.4.2023

Court No.652 SD CO 4001 of 2019 Sri Debasis Mukherjee Vs.

Hare Krishna Mahato

Mr. Kaushik Dey Mr. Arijit Dey Mr. Avijit Dey ... for the Petitioner.

Mr. Wasim Ahmed Mr. Vijay Agarwal Md. Kashif Mr. Pritam Chakraborty ... for the Opposite Party.

Affidavit of service filed by the petitioner in court

today be kept with the record.

This application under Article 227 of the Constitution

of India has been directed against the order no.104 dated

April 24, 2019 passed by the learned Civil Judge (Junior

Division), 1st Court, South 24 Parganas at Alipore in Title

Suit No.1868 of 2007.

The petitioner's specific case is that the petitioner

being the plaintiff filed aforesaid suit for recovery of

possession under the Transfer of Property Act, 1882 against

the opposite party herein. The defendant appeared in the

said suit and took the plea that he is a thika tenant in respect

of 1000 sq.ft. suit land. Accordingly, the opposite party filed

an application before the trial court for dismissal of suit on

the ground that the trial court had no jurisdiction to try the

said suit as the opposite party is the thika tenant in respect

of the suit property.

Learned trial court initially by the order no.30 dated

July 15, 2013, was pleased to dismiss the said application

and being aggrieved by the said order of dismissal, the

opposite party herein preferred a civil revisional application

before this Court being CO 3644 of 2013 wherein this court

was pleased to observe that it is necessary to decide prima

facie in the suit, pending before him, whether or not the

opposite party is a thika tenant and this court was further of

the view that the court below, if forms a prima facie view that

the defendant is a thika tenant, then he would send the issue

before the Thika Controller. It is further submitted that final

argument in respect of the said suit has already been

completed and parties have already filed their written

arguments before the trial court on November 27, 2017 and

several dates were fixed by the trial court for passing

judgment. But on February 26, 2015, the trial court passed

impugned order no.104 dated April 24, 2019, by which the

court below came to a conclusion that it is very much

necessary to determine the question as to whether the

defendant is a thika tenant in respect of the suit property or

not and for determination of such question about alleged

thika tenancy of defendant in respect of suit property, he

sent the issue to the Thika Controller. Being aggrieved by

that order, petitioner has preferred this revisional

application.

Learned counsel appearing on behalf of the petitioner

submits that the court below did not comply the direction

made by this court in CO 3644 of 2013. Accordingly, the

court below may be directed to form a definite opinion as to

whether the court below has got jurisdiction to try the said

suit or not in compliance with the order of the Hon'ble High

Court as he has not formed any definite opinion to that

extent in the order impugned.

Learned counsel appearing on behalf of the opposite

party submits that prima facie the order impugned shows

that the court below was satisfied that the property in

question is a thika property and as such, he has no other

alternative but to refer the case before the Thika Controller.

I have considered the submissions made by both the

parties.

On perusal of the annexures, it appears that this court

while disposing CO 3644 of 2013 has framed definite opinion

which runs as follows:-

"I have considered the rival contentions of the

parties. I agree with the submission of the learned Counsel

for the petitioner that Thika Controller has the exclusive

jurisdiction to decide any question as to whether the person

is a thika tenant or not. The jurisdiction of the Civil Court

in that regard appears to have been expressly ousted.

However, I am of the opinion that the learned Judge should

first form a prima facie view that it is necessary to decide in

the suit pending before him whether or not the defendant is

a thika tenant. If the learned Judge forms such a prima

facie view then he will have no option but to send the issue

for being decided by the Thika Controller. For the purpose

of forming prima facie opinion it will be open to the learned

Judge to record evidence. This exercise will be done by the

learned Judge before he applies his mind to any other

issue."

On perusal of the order impugned, it appears that the

court below was of the view that the question as to whether

the defendant is a thika tenant or not is completely out of

jurisdiction of the court below and without determining the

said question, the said suit for eviction of the defendant

cannot be adjudicated and accordingly, the court below was

of the further view that in the present suit the most

important question involved to be determined, whether the

defendant is a thika tenant in respect of the suit property or

not and for that the court below has referred the said

question for determination as to whether the defendant is a

thika tenant in respect of the suit property, before the Thika

Controller which appears to be gross violation of the order

passed by this Court.

On further perusal of the order dated 26.02.2015

passed in CO 3644 of 2013, it is palpably clear that this court

had directed the court below to form a prima facie view to

decide in the suit pending before him whether or not the

defendant is a thika tenant and for the purpose of forming

such prima facie opinion, liberty was given to the court

below to record evidence. But without complying the said

order passed by this court earlier, he has referred the

question for adjudication before the Thika Controller.

In view of the above, the order impugned dated

24.4.2019 is hereby set aside.

Learned court below is directed to form prima facie

view as to whether or not, the defendant is a thika tenant in

respect of the 1000 sq.ft. of suit property described in the

schedule to the plaint on the basis of evidence already

available in record and if requires, taking additional

evidence, and after considering the same if he finds that the

land in question is thika property, then only he will refer the

issue before the appropriate forum for adjudication. On the

contrary, if he forms definite opinion that the property in

question is not a thika property, then he will pronounce

judgment on the basis of materials available in record.

The court below is also directed to complete such

exercise within a period of twelve weeks from the date of

communication of the order.

Accordingly, CO 4001 of 2019 is disposed of.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)