Gorachand Dalui And Others vs Netai Das

Sabyasachi Bhattacharyya, J

The present revision has been preferred at the instance of the defendants in an eviction suit against an order whereby the petitioners’ application

for rejection of plaint, under Order VII Rule 11 of the Code of Civil Procedure, was dismissed.

Learned counsel for the petitioners argues that the plaint schedule describes the suit property as follows :

“All that piece and parcel of three rooms, veranda, common bath and privy having brick walls tile shed at premises No. 6H/9, Raicharan Paul

Lane, P.S. Topsia, Kolkata-700046.â€​

It is argued that the plaintiff thus admitted himself to be the owner of only the structure situated on the suit land and not of the land itself, raising a

presumption that the same is a thika tenancy property.

Moreover, the address of the premises is “6H/9, Raicharan Paul Laneâ€​. As such, it is argued that the premises is comprised of a hut and is, on the

face of it, a thika property.

It is further argued that, in the plaint, the opposite party referred to a reply being given by the petitioners to the quit notice given by the

plaintiff/opposite party. Since such document was referred to in the plaint, the court ought to have looked into it. The said reply, it is submitted, raised

the contention that the suit property is a thika property.

It is further argued on behalf of the petitioners that certain documents, which were obtained by the petitioners and produced in the court below,

including a memorandum issued by the office of the Thika Controller dated January 24, 2019 and a demand details provided by the Assessment

Collection Department of the Kolkata Municipal Corporation generated on August 30, 2018, indicate that the suit property was a thika tenancy.

It is argued that the document issued by the Thika Controller specified that although no return was filed for the premises as described in the plaint,

return was filed for 6H/9, Raicharan Paul Lane. Even from the document issued by the Kolkata Municipal Corporation, it is evident that the suit

property was described as a hut and is prefixed by the letter ‘B’, which ipso facto shows that the property was situated in a ‘bustee’ and

was comprised of a thika tenancy.

It is argued that under Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, any dispute, regarding payment of rent

by the thika tenant or any case of eviction of bharatia shall be disposed of by the Controller.

It is further argued that as per Section 5(3) of the 2001 Act, 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 would enquire and decide the said question.

It is thus argued that the trial court had no jurisdiction to entertain and proceed with the hearing of the suit and as such, ought to have rejected the

plaint.

It is also argued on behalf of the petitioners that the plaint case revolves around the contention that the father of the defendants/petitioners, who was

the original tenant, expired in the year 1981 and much thereafter the mother of the petitioners also expired.

It has been construed by the plaintiff, as per the plaint, that the petitioners were rendered trespassers by operation of Section 2(g) of the West Bengal

Premises Tenancy Act, 1997, taking the death of the mother to be the relevant point of time.

Accordingly, a fifteen days’ notice to quit was admittedly given to the petitioners by the plaintiff/opposite party.

It is argued that the relevant date should have been taken to be the death of the father in the year 1981, on which tenancy automatically devolved upon

the petitioners by virtue of the West Bengal Premises Tenancy Act, 1956, which was the predecessor of the present statute of 1997. Such vested

right, it is argued, could not be taken away and the notice, which was the cause of action of the suit, being de hors the provisions of Section 6 of the

1997 Act, was patently bad in law and the suit not maintainable in its present form, alleging the petitioners to be trespassers.

It is further argued that the court-fees paid were insufficient.

Learned counsel for the petitioners submits that the plaint ought to have been rejected on all the aforesaid grounds.

In support of his contentions, learned counsel for the petitioners cites a judgment reported at 2008 (1) CHN 97 (Bijoy Nagar Tea Company Ltd. Vs.

Narsing Dasgupta & Ors.). Placing particular reliance upon paragraphs 38 and 39 of the said judgment, it is submitted that an application under Order

VII Rule 11 of the Code of Civil Procedure, ought to be decided on a meaningful reading of the plaint and any vexatious or mala fide litigation ought to

be struck down at that stage.

Learned counsel for the petitioners also cites a judgement reported at AIR 1998 SC 634 (I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and

others. Relying on Paragraph 16 in particular, it is submitted that a pleading, which is the product of clever drafting and is vexatious in nature, ought to

be nipped in the bud.

While controverting the above submissions, learned counsel for the plaintiff/opposite party argues that the document annexed at page 32 merely

showed that somebody had filed a stray return, but does not convert the suit property into a thika tenancy. Even in the document issued by the

Corporation, at page 31 of the revisional application, the name of the predecessor-in-interest of the opposite party was given as owner. As such, even

such documents do not establish that the suit property is a thika tenancy.

Moreover, it is submitted that the well-settled principle prevailing in the field is that the court could look into the averments of the plaint only, for the

purpose of deciding an application under Order VII Rule 11 of the Code. No extraneous material could be looked into for such purpose.

In support of such submission, learned counsel cites a judgment reported at AIR 2015 SC 2485 (P. V. Guru Raj Reddy, Rep. By GPA Laxmi Narayan

Reddy and another Vs. P. Neeradha Reddy and others) and 2017(3) CHN (CAL) 535 (Premal Sen Vs. Ranjit Sen).

Learned counsel for the opposite party also cites a judgment reported at AIR 2003 SC 759 (Saleem Bhai and others Vs. State of Maharashtra and

others), wherein it was held, inter alia, that an application under Order VII Rule 11 of the Code has to be decided independently irrespective and

independent of the contentions taken by the defendants in the written statement.

It is argued that, on a plain reading of the plaint, no legal bar to the filing of the suit could be discovered.

Learned counsel for the petitioners, in reply, points out that, as per Section 178(v) of the Kolkata Municipal Corporation Act, 1980, every land

comprised in a thika tenacy with a hut or building made thereon, either in a bustee or otherwise, shall be assessed separately as a single unit. As such,

it is argued that the suit property was evidently a thika tenancy.

Upon considering the submissions of both sides and a perusal of the plaint, it is clear that the premise of the suit was that the petitioners were

trespassers. In the plaint, it was stated that the plaintiff/opposite party was the owner of the suit property. However, despite the schedule of the plaint

describing the suit property predominantly as a structure, no distinction could be culled out from the plaint as to the opposite party being the owner of

specifically the structure on the premises-in-question, without being the owner of the land housing such structure as well. To be a thika tenancy, there

has to be a specific distinction between the ownership of the structure and the land. The thika tenant, to be one, has to own or acquire the structure on

the ground and the land, initially belonging to someone else, vests in the State by virtue of the thika tenancy statute. However, no such line of

distinction was drawn in any manner in the plaint itself. The description of the suit property by the structure alone, ipso facto was not sufficient to

indicate that the land belonged to someone else, since nothing whatsoever has been mentioned as regards the ownership of the land in the plaint.

As far as the argument, that the number of the suit property is 6H/9 and therefore it is a thika tenancy comprised of a hut, is concerned, there is no

specific law to indicate that such description, by itself, is restricted to thika tenancy properties alone. Although it may be customary to describe a thika

tenancy with the said letter ‘H’, mere use of the said letter, in the absence of specific averments to show that the tests of a thika tenancy were

satisfied, is not sufficient to indicate that the suit property is a thika tenancy.

Section 178(2)(v) of the 1980 Act is a mere rule of convenience and defines the assessment of thika tenancy properties. Even from the said provision,

it is not clear that the description of a property by the letter ‘H’ automatically confers the status of thika tenancy on the said property, although

the reverse may be true, that is, thika tenancies may generally be denoted by the said letter.

It has to be kept in mind that the present adjudication pertains to an application under Order VII Rule 11 of the Code and does not emanate from the

final hearing of the suit, where all the pros and cons of the submissions as recorded above can be gone into on evidence. The court would only see the

plaint in its true meaning to decide such an application.

In the present case, the other limb of the argument of the petitioners, that the reply of the petitioners raised a question as to the thika tenancy status of

the suit property, could not be gone into at this stage. That is so, because the plaint does not describe the contents of the said reply, nor could any

question raised in such a reply be equated with a similar question in the pleading. For a matter to be conclusively held to involve the question as to

whether the land is a thika land, there has to be allegations and counter allegations to that effect in the pleadings, comprised, under Order VI Rule 11

of the Code of Civil Procedure, of only the plaint and the written statement.

As far as the dispute as envisaged in Section 8(3) of 2001 Act is concerned, whether the present dispute is one for eviction of a bharatia cannot at all

be clinched from a meaningful reading of the plaint. As far as the frame of the present suit is concerned, it is for the eviction of trespassers. Whether

the petitioners are actually the trespassers or premises tenants or the property is a thika property can only be decided as issues in the suit, upon

evidence being led thereon.

It would be premature at this juncture to decide such question and to reject the plaint.

The other argument of the petitioners is that the suit, framed as one for eviction of trespassers, could not be maintainable since on the face of the

plaint, the petitioners acquired an accrued right of tenancy on the death of their father in the year 1981 itself. However, whether the death of the

original tenant, being the father of the petitioners, in 1981, would protect the petitioners from the operation of Section 2(g) of the 1997 Act is a

controversial issue and a subject matter of recent judgments of this Court, wherein it has been more-or-less settled that the operation of Section 2(g)

of the 1997 Act is not restricted to five years from the death of the tenant alone, but also operates against tenants in whose favour tenancy had

acquired previously, from five years after the commencement of the Act itself.

In the present case, the petitioners were not the original tenants. The father of the petitioners was the original tenant and he expired in the year 1981.

However, whether the petitioners, by virtue of the death of their father in 1981, automatically acquired tenancy rights, which are immune even from

the operation of Section 2(g) of the 1997 Act, is a question of law, which has to be raised and decided upon evidence in the suit itself.

As such, the consequential issue of validity of the quit notice also has to be decided at the time of trial, since the same is utterly dependent on the other

issue as to whether the petitioners are trespassers or premises tenants.

As regards the objection as to deficit court-fees, the said issue has to be resolved only upon the point being raised in the trial and the court directing

the opposite party to put in such deficit court-fees and is not relevant for the present consideration.

Hence, even subscribing to the propositions laid down in the cited judgments, those do not entitle the petitioners to a rejection of the plaint, as framed.

It may further be considered that the question as to whether the suit property is a thika tenancy is rather incidental to the adjudication of the present

lis, which is one for eviction and not for declaration of title.

As such, the said issue could not be conclusively decided at the stage of hearing an application under Order VII Rule 11 of the Code.

In the circumstances, the trial court acted well within its jurisdiction in dismissing the application for rejection of plaint filed by the petitioners. No

interference with the said order is called for.

Accordingly, C. O. No. 1306 of 2019 is dismissed on contest.

There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.