Lalit Kumar Bagla and Others vs Rajiv Kumar Poddar and Others

Soumen Sen, J—This application has been filed by M/s. Patel Timber Industries (hereinafter referred to as the "applicant") for a declaration that the decree dated 11th August, 2010 passed in A.P.O No. 455 of 2005 arising out of E.O.S. No. 3 of 2003 is a nullity and not executable against the applicant.

The basis of the application in short are stated hereinafter.

The applicant is a registered partnership firm carrying on its business at Premises No. 149/13, J.N. Mukherjee Road, P.S.-Malipanchghora, P.O.-Salkia, District- Howrah-711106 since 1964. The applicant claims to be a thika tenant in respect of the land measuring about 14 Cottahs 10 Chittaks in respect of the aforesaid premises. Poddars as lessee of the said property settled and/or granted the said land to the applicant and received rent per month from the said applicant showing the applicant as a thika tenant. The applicant raised substantial structure thereto with the consent and knowledge of the Poddars. After the Calcutta Thika Tenancies and Lands (Acquisition and Regulation) Act, 1981, (hereinafter referred to as the "1981 Act") the applicant has been paying rent (khazna) to the State of West Bengal. The Thika Controller, Howrah in a proceeding being MP-3/83-84 initiated sometimes in 1984 provisionally recorded the status of the petitioner as thika tenant and received provisional rent from the petitioner through challans being satisfied with the nature of possession of the applicant and has allowed the applicant to pay Khazna to the State. After the aforesaid 1981 Act came into force there is no relationship of landlord and tenant between Poddars and the applicant. The applicant is not a premises tenant in the suit property under the Poddars.

Subsequently, the Thika Controller, Howrah on September 29, 2010 passed a final order recording the name of the applicant as permanent thika tenant in respect of the holding in question in view of the provisions of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter referred to as the "2001 Act") and issued a "No Objection Certificate". Thereafter the applicant has deposited and is depositing the rent for the land with the office of the Thika Controller, Howrah against proper receipt as permanent thika tenant. Thereafter, the Municipal authority on the basis of the final order of the Thika Controller revised the assessment record deleting the name of superior landlord, namely, Baglas as owner thereof and incorporating the name of State of West Bengal as owner of the holding in question. The Municipality has also started raising property tax bill since November 30, 2010 for payment of tax in respect of the applicant''s portion of the holding in question as an occupier wherein the name of the Government of West Bengal, Controller of Thika Tenant, Howrah has been recorded as owner. The applicant has deposited tax as an occupier with the Municipal authority.

In or about 1987, Smt. Sarada Devi Podder, one of the heirs of the original lessee filed a Title Suit No. 133 of 1987 in the Court of 5th Munsif at Howrah for eviction of the applicant firm as premises tenant. In the said proceeding, the applicant has filed a written statement claiming maintainability of the suit in view of the provisions of the 1981 Act. In disposing of the application under Section 17(2)(2A) of the West Bengal Premises Tenancy Act, 1956 wherein the relationship of landlord and tenant was disputed, the learned Court below by an order dated 20th May, 1992 held that the applicant firm is a thika tenant and dismissed the suit as not maintainable.

Podders being aggrieved by the aforesaid order of the Civil Judge preferred an appeal being Misc. Appeal No. 150 of 1992 which was allowed by the learned District Judge by a judgment and order dated 5th April, 1999. The applicant challenged the said order by a revision before this Court being C.O. No. 1912 of 1999. The revisional Court set aside the order passed in Misc. Appeal on the ground that the order impugned dated 20th May, 1992 could not have been challenged by a Misc. Appeal and the only remedy to the Podders was to prefer a revision. The said revisional application was allowed with liberty to challenge the order of the Munsif. However, Podders did not challenge the said order.

In 1990 Podders filed a suit against Baglas in T.S. No. 240 of 1990 praying, inter alia, for specific performance of contract for renewal of lease which was subsequently transferred to this Court and numbered as E.O.S. No. 4 of 2003.

In or about 20th August, 1991 Baglas filed a suit being T.S. No. 232 of 1991 in the Howrah Court against Podders for eviction on the ground of expiry of lease which was transferred to this Court and was numbered as E.O.S. No. 3 of 2003.

On 30th June, 2005, the suit filed by the Baglas being E.O.S. No. 3 of 2003 for recovery of possession against the Podders was dismissed. As a consequence of the said dismissal, the suit filed by the Podders succeeded. In view thereof, on 11th August, 2010, two appeals were preferred by the Baglas as lessor of the said property. Both the appeals were disposed of by the Hon''ble Division Bench by an order dated August 11, 2010 in favour of the Baglas. The Division Bench decreed the suit for eviction against the Podders after taking into consideration the subsequent events, namely, that even the period of renewed lease stood expired by efflux of time and the Podders did not dispute the said fact. The Podders were permitted to vacate the suit premises to the Baglas by 31st December, 2010 subject to filing an undertaking that the Podders shall vacate the suit premises in favour of the Baglas on or before 31st December, 2010 and payment of arrear occupation charges at the rate of Rs. 10,000/- per month till the possession is handed over.

Subsequent thereto, on September 29, 2010, the Thika Controller in exercise of his power under Section 5 sub-section 3 of the 2001 Act passed an order in MP-3/83-84 holding that on verification of the documents filed by the applicant Sri Bhimji Patel on behalf of Patel Timer Industries the applicant is a thika tenant under Section 5(3) of 2001 Act in respect of holding No. 149/13 J.N. Mukherjee Road, Howrah.

Mr. Bhaskar Ghose, the learned Senior Counsel appearing on behalf of the applicant submits that the plaintiffs have due knowledge of the order passed by the Thika Controller which would be evident from the cause title of W.P. No. 18008 (W) of 2010 filed by six thika tenants for payment of Municipal Tax in which the Baglas were added as parties. Notwithstanding the knowledge about the status of the applicant in February, 2011 Execution Case No. 90 of 2011 was filed. In view of the order dated 20th May, 1992 passed in T.S. No. 133 of 1987 that the defendant is a thika tenant the decree obtained by the plaintiff dated 11th August, 2010 is not enforceable against the applicant.

In T.S. No. 138 of 1987 between the Podders and the applicants, one of the issues raised was whether the applicant is a thika tenant. It is submitted that the trial Court on consideration of the materials on record as well as the evidence adduced by the parties arrived at a finding that the Podders as plaintiffs were unable to prove that at the time of giving possession of the land in question to the applicant there was any structure and had failed to establish that any structure was constructed prior to 1981. Under such circumstances, the issue raised with regard whether the applicant is a thika tenant was answered in favour of the applicant and the suit was dismissed. The Podders are relations of the Baglas. The Podders were parties to the said suit. Podders knew that by reason of the aforesaid decree, the applicant is a thika tenant and as such it was the duty of Podders in the litigations pending before the High Court to bring to the attention of the Court that there is already a subsisting order in favour of the applicant recognizing their status as thika tenant in respect of the holding in question.

Mr. Ghose would further submit in a partition suit being No. 1 of 1952 between Baglas and Podders pending before the Bombay High Court, on 25th March, 1958 final decree was passed under which the Howrah property was exclusively allotted to Podders as their share. Sri Lalit Kumar Bagla is the maternal uncle of Rajiv Kumar Poddar. Hence, it prima facie appears that the lease deed dated 11th November, 1965 between Baglas and Poddars was a fake transaction and such deed was created for some ulterior purpose.

Mr. Ghose has referred to the decision of the Hon''ble Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 : (1993) 2 BC 546 : (1993) 6 JT 331 : (1995) 109 PLR 293 : (1993) 4 SCALE 277 : (1994) 1 SCC 1 : (1993) 3 SCR 422 Supp : (1994) 1 UJ 1 1 and S. Vanathan Muthuraja Vs. Ramalingam alias Krishnamurthy Gurukkal and Others, (1997) 1 CTC 692 : (1997) 5 JT 110 : (1997) 3 SCALE 726 : (1997) 6 SCC 143 : (1997) 3 SCR 581 and submits that since the fraud is perpetrated on the Court by the Podders in deliberately not disclosing that the applicant is a thika tenant, the decree passed by this Court is a nullity and not enforceable against the applicant. It is further submitted that by obtaining such collusive decree, the order of the Thika Controller passed in 2009 cannot be bypassed and rendered otiose. The remedy, if any of the Baglas is to approach the West Bengal Land Reforms and Tenancy Tribunal and so long the order of the Civil Court and the order of the Thika Controller subsists, the decree cannot be executed against the applicant.

Mr. Ghose has referred to the judgment in the suit while dismissing the suit filed by the Baglas against Poddars, the Hon''ble Court in the judgment dated 30th June, 2005 arrived at a finding that the contention raised by the Poddars that they are thika tenants cannot be accepted on the grounds that there is a pucca structure on the suit property and in arriving at such a conclusion, the learned single Judge has relied upon answer to question Nos. 410 to 416 given by Mahesh Poddar. This judgment in Extraordinary Original Suit No. 3 of 2003 runs counter to an earlier finding between the Poddars and the applicant in which the applicant was held to be thika tenant.

It is submitted that by reason of the finding arrived at in the proceeding under Section 17(2) it is no more open at this stage to disregard such order and execute the decree. Mr. Ghose has relied upon a Division Bench judgment of our Court in Biswa Bhusan Bose and Another Vs. Smt. Kusum Agarwalla, 85 CWN 120 and submitted that it was held in the said decision that an order adjudicating a dispute under Section 17(2) or under Section 17(3) of the West Bengal Premises Tenancy Act is not always tentative in nature. The issue requiring adjudication in such proceeding may overlap on an issue involved in the suit itself.

It is submitted that by reason of 2001 Act, the jurisdiction of the Civil Court to decide as to whether the Poddar was thika tenant or not could not have been decided by the Civil Court in view of Section 5 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. It is argued that High Court suit was decreed in favour of Bagla on 3rd March, 2003, after coming into operation of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001. The said Act came into operation on 1st March, 2003. Having regard to the issue raised in the said suit by the Poddar that they are thika tenant, the High Court could not have decided the said issue as the said issue ought to have been decided by the thika controller inasmuch as the said proceeding is not saved under Section 27 of the 2001 Act. The decision of the High Court in the suit with regard to the status of Poddars is without jurisdiction. In this regard Mr. Ghose has referred to a decision of the Hon''ble Supreme Court in S. Vanathan Muthuraja Vs. Ramalingam alias Krishnamurthy Gurukkal and Others, (1997) 1 CTC 692 : (1997) 5 JT 110 : (1997) 3 SCALE 726 : (1997) 6 SCC 143 : (1997) 3 SCR 581 .

Per contra Mr. Abhrajit Mitra, the learned Senior Counsel appearing on behalf of the decree-holder submits that the provisional recording of the name of the firm as thika tenant in the record of Howrah Municipal Corporation and the finding of the Civil Judge in Title Suit No. 133 of 1987 instituted by Poddars for eviction of the firm that the firm is a thika tenant is contrary to the law laid down by the Special Bench of this Court in Lakshmimoni Das and Others Vs. State of West Bengal and Others, AIR 1987 Cal 326 : (1987) 1 CALLT 371 : 92 CWN 72 . It is submitted that while construing Section 5 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 it was held by the Special Bench that the lands with pucca structure are not covered by the words "other lands" under Section 5 of the said Act inasmuch as it was held that sub-section 2 of Section 8 read with Rule 5(1) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1982 infringes Articles 25 and 26 of the Constitution was relied upon by Mr. Mitra in order to show that the debutter estate was the owner of the land and in the said decision it was held that the right of religious minority protected under Section 26 of the Constitution to own property and to administer such property and/or to establish and maintain institutions for religious and charitable purpose cannot be taken away by the said impugned Act and further if the temples and/or sheba puja of the deities cannot be maintained because of taking away of such property without providing for permanent annuity, the purpose of the trust is bound to be frustrated and the religious institutions so affected will come to an end thereby interfering with the right to profess and practise religion guaranteed under Article 25(1) of the Constitution.

Mr. Mitra submits that the decree-holders are the trustees and shebaits of Shree Shree Iswar Satyanarayanjee, Shree Shree Mahadeojee, Shree Shree Parvatijee, Shree Shree Ganeshjee and Shree Shree Suryanarayanjee being the five deities.

The decree-holder is not a party to the suit and/or an application under Section 17 before the Civil Judge at Howrah. If at all the order of the Civil Court dated 20th May, 1992 is to be construed to be a declaration that Patel Timber Industries is a thika tenant of the portion in their possession, then in that case this declaration would not bind any person other than the parties to the suit, namely, Poddar and the said firm. A decree for declaration is not an order in rem eviction suit is not a proceeding whose orders and/or judgments are relevant in other proceedings where the same issue comes up for consideration. In this regard, Mr. Mitra relied upon a Division Bench judgement of our High Court in Smt. Sunita Sharma Vs. Smt. Ratna Das (Ghosal), (1995) 2 CALLT 147 .

The learned senior Counsel has referred to a decision of the Hon''ble Supreme Court in Keshar Bai Vs. Chhunulal, (2014) 1 AD 409 : AIR 2014 SC 1394 : (2014) AIRSCW 960 : (2014) 1 JT 379 : (2014) 1 SCALE 170 to argue that a judgment and decree regarding title to property passed in an eviction suit is not binding in any subsequent suit on the question of title. It is submitted that the judgment of the Civil Court on the face of it is without jurisdiction since under the relevant provisions of the then prevailing Calcutta Thika Tenancy Act, 1981, a debutter property was outside the purview of the said Act. The reliance is placed in this regard to the Special Bench judgment of our High Court in Lakshmimani Dassi (supra) and Sri Sri Satyanarayanji v. Administrator Corporation of Calcutta reported at 1988 (2) CLJ 314 . The judgement of the Civil Court according to the learned senior Counsel is also a judgment per incuriam for the reason that the evidence on record in the present suit which is also the basis of the judgment dated 20th May, 1992 is that a pucca structure was erected on the land in question before the 1965 lease or later. Under Calcutta Thika Tenancy Act, 1981 as also the West Bengal Thika Tenancy Act, 2001(prior to the 2010 amendment) a tenant of a vacant land who has erected pucca structure could not under any circumstance be a thika tenant. In this regard, Mr. Mitra has relied upon a decision in Kolay Properties (P) Ltd. Vs. The State of West Bengal and Others, AIR 2012 Cal 188 : (2012) 2 CALLT 268 : (2012) 3 CHN 255 .

It is argued that in the instant case, the entire structure is pucca but had it not been so, with the walls alone made of bricks it would have qualified as pucca structure. In the instant case, the demise was not of vacant land but of land with structure. That is the description of the property in the lease deed. If at all there is a conflict between the two parts of the lease deed, the earlier part would prevail over the later part. In this regard he has relied upon a decision of the Hon''ble Supreme Court in Kaivelikkal Ambunhi (dead) by LRs. and others Vs. H. Ganesh Bhandary, AIR 1995 SC 2491 : (1995) 2 CTC 389 : (1995) 7 JT 164 : (1995) 5 SCALE 23 : (1995) 5 SCC 444 : (1995) 3 SCR 35 Supp .

The learned Senior Counsel has relied upon the decision of our High Court in Annapurna Seal v. Tincowrie Dutt reported at ILR 1961 (1) Cal 1 Paragraphs 22 to 24, 45 and 46 to argue that in the said decision it was held that if land is demised with even one structure, it would not be a thika land. The order of 20th May, 1992 if at all held to be a valid declaration of thika tenancy in favour of Patel Timber, it would be a case hit by the doctrine of lis pendens and consequently not affect the rights of debutter estate in the eviction suit which was pending on that date. The decision of our High Court in Sri Sri Radha Raman Jew and Others Vs. Shaligram Subha Karan Kemani and Another, AIR 2001 Cal 78 : (2001) 3 CALLT 202 : 105 CWN 1067 was referred to and relied upon in this regard.

The learned Senior Counsel has referred to Clause 5 of the lease and argued that as per the lease deed all the structures erected if not removed on expiry of the lease shall be deemed to be the property of the deities. This fact was not considered in the judgment of 20th May, 1992. The Civil Court also overlooked the fact that thika tenancy can be created by the owner of the property in favour of thika tenant and not by lessee (namely Poddars). In other words, there has to be a relationship of landlord and tenant between the owner and the thika tenant. Declaration of thika tenancy in favour of lessee vis-�-vis a sub-lessee can never be binding on the owner where admittedly the owner did not create a thika tenancy in favour of the occupant. The learned senior Counsel has relied upon Paragraph 34 and 36 of Radha Raman Jew (supra).

In dealing with the order of the Thika Controller dated 23rd September, 2010 it is submitted that this proceeding was commenced under the Calcutta Thika Tenancy Act, 1981. In Calcutta Thika Tenancy Act, 1981, there was no provision for Thika Controller to adjudicate or determine any question of thika tenancy. Section 27 of the West Bengal Thika Tenancy Act, 2001 preserved pending legal proceedings as if "the 2001 Act had not been passed". Therefore, in this proceeding being Case No. MP/3/83-84 initiated in 1983 Thika Controller had no jurisdiction to adjudicate and declare Patel Timber Industries as a thika tenant. The order of Thika Controller is without jurisdiction and, as such, a nullity and has no effective force. Jurisdiction goes to the root of the matter. The jurisdiction to adjudicate thika tenancy right by the Thika Controller was granted under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 by Section 5(3). The said provision came into effect from 1st March, 2003.

The learned senior Counsel has relied upon Sabita Rani Majilya Vs. State of West Bengal, (2011) 3 CHN 534 and argued that in the said decision it was held that if it is found at the relevant time a Thika Controller had no jurisdiction under the Act, 1981 though the jurisdiction made subsequently after 1st March, 2003 declaring the status of the firm as the thika tenant, but as the proceeding as initiated under the Act, 1981, such proceeding was not saved under sub-section (2) of Section 27 of the Act, 2001, and as such the impugned decision of the Thika Controller would be a nullity. An order without jurisdiction is a nullity and can be declared as such even in a collateral proceeding. The learned Senior Counsel for this proposition has relied upon Sabitarani Majilya (supra) and Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, AIR 2005 SC 1050 : (2005) 3 ESC 305 : (2005) 105 FLR 1 : (2005) 2 JT 370 : (2005) 1 LLJ 1122 : (2005) 140 PLR 645 : (2005) 3 SCC 232 : (2005) 2 SCR 105 : (2005) 2 SLJ 188 : (2005) AIRSCW 1005 : (2005) 2 Supreme 26 .

It is submitted that several other occupants had raised similar issue by making intervention applications being G.A. Nos. 909 to 912, 914 and 915 of 2011. After hearing, they all conceded and gave up this issue of thika tenancy and they withdrew their intervention applications unconditionally.

Mr. Mitra, further submitted that the lease was granted by the decree-holder in favour of Poddars for a period of 25 years from 11th November, 1965 with land and structures. Poddars could not have claimed thika tenancy since under the Calcutta Thika Tenancy Act, 1949, a person who holds the land under another person under a registered lease in which the duration of the lease is expressly stated to be for a period of not less than 12 years is excluded from the definition of ''thika tenant'' under Section 2(5) of the 1949 Act.

Mr. Mitra has referred to a Division Bench judgment of our Court in Smt. Amala Palit and Another Vs. Smt. Ratna Bose and Others to argue that the claim of tenancy by the Poddars or for that matter the applicant was not coming within the purview of the 1949 Act.

The lease was executed in the year 1965 when the Thika Tenancy Act, 1949 was in operation and any lease beyond 12 years was specifically excluded from the purview of the said Act. Once the tenancy was specifically excluded from the purview of the 1949 Act, the 1981 Act would not be applicable in respect of the tenancies prevailing under the 1949 Act. Mere deposit of rent with the Thika Controller would not ipso facto create any thika tenancy since it was a lease beyond 12 years. The 1949 Act would not have any application. The 1981 Act would include Slum, Bosti and Khatal that would have no application in the instant case.

It is submitted that the decision in the Section 17 proceeding before the Howrah Court is not a decision on title which could affect the right of the lessor as owner of the property. There is no contract between the lessor and the applicant. If the Poddars are not thika tenant then the applicants also cannot claim a right superior to the right of Poddars. Moreover, even if it is assumed that the Poddars have the right to claim renewal of the lease for a period of another 20 years over and above 25 years, the said period had also expired which has been duly recorded by the Hon''ble Division Bench in affirming the decree passed in EOS No. 3 of 2003. The right of the applicant, if any, to continue to be in occupation of the suit premises is co-terminus with the expiry of the lease and they cannot have any superior right than that of the Poddars.

The Calcutta Thika Tenancy Act, 1949 was enacted in view of a steady eviction of Bosti tenants of Calcutta on account of heavy pressure of population leading to great misery and hardship to the tenants. Initially, an ordinance was promulgated in 1948 which was replaced by the Calcutta Thika Tenancy Act, 1949. The statements of objects and reasons with which the Bill was presented before the legislature was as follows:--

"There has been a persistent demand for legislative measures for the protection of the thika tenants of Calcutta and the Howrah Municipal area against arbitrary eviction and enhancement of rent. Accordingly, an Ordinance was promulgated staying all decrees or orders for eviction of the thika tenants on any ground other than non-payment of rent. The present Bill has been framed with a view to regulate the rights and liabilities of the thika tenants and their landlords".

Under the 1949 Act, a person in order to establish thika tenancy, must fulfil the following conditions:--

"(i) he holds land under a registered lease or otherwise,

(ii) he has either erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose."

Three categories of persons are expressly excluded from the ambit of the definition of a thika tenant, viz. (a) a person holding under a lease in perpetuity, (b) a person holding under a registered lease for a duration of not less than 12 years, and (c) a person holding land under another person and using and occupying the same as a khatal.

Thika tenancy arises where there is a division of title between the land and the structures standing thereon. The thika tenant erects structures on the land of somebody else and not on his own land. The title to the land does not belong to the tenant. But the title to the structures belongs to the thika tenant either by (1) erection by him, or (2) by purchase, or (3) by gift, or (4) by succession ( Annapurna Seal Vs. Tincowrie Dutt, (1962) 1 ILR (Cal) 1 . But where land with structures is let out under a registered lease for a term of 25 years, the Calcutta Thika Tenancy Act, 1949 is not applicable to the tenancy. The successor of such a tenant cannot claim to be a thika tenant (Annapurna Seal (supra). It was observed by P.B. Mukherjee, J, that the Calcutta Thika Tenancy Act imports concepts of temporary nature in respect of the three notions of "thika tenants", "structure" and "bharatia".

In Annapurna Seal (supra) it was held that the word "structure" cannot be construed under the Calcutta Thika Tenancy Act to make it equal to building or to mean the same thing as building.

In Manindra Nath Ghose Vs. Sm. Ashalata Mitra and Others, AIR 1975 Cal 429 the principal point for decision was whether a person, who was excluded from the category of thika tenants during the subsistence of a registered lease for more than 12 years, becomes a thika tenant if he holds over after the expiry of the term of the registered lease whereupon a new tenancy is created by holding over, although the tenant did not erect any structure on the land after the commencement of the new tenancy by holding over.

The same question arose also in the case of Annapurna Seal (supra). The Division Bench consisting of P.B. Mukherjee, J. and Bachawat, J. held that a person originally excluded from being a thika tenant, cannot become a thika tenant by holding over, although a new tenancy is created after the expiry of the registered lease for two successive periods of 12 years.

In another Bench decision in Lalit Mohan Dey Vs. Smt. Satadalbasini Dasi, AIR 1965 Cal 55 the same question came up for consideration and it was held by P.N. Mukherjee, J. that a person by continuing in possession after the expiry of a 20 years registered lease with a renewal clause, continues in possession by virtue of the renewal clause on the same terms and conditions of the registered lease, even though the lease is not renewed; and the provision of the Calcutta Thika Tenancy Act do not apply to such a tenancy, which is different from a tenancy by holding over.

The definition of ''thika tenant'' however, has undergone a change under Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. The said Act has repealed and replaced the 1949 Act and the three exception clauses in the definition ''thika tenant'' under the 1949 Act has been omitted in the 1981 Act. Section 6 of the new Act, 1981 lays down the incidents of thika tenants. Every thika tenant will after the commencement of the said Act hold the land of tenancy under the State Government on such terms and conditions as may be prescribed and its rights shall be heritable but not transferable.

The Hon''ble Supreme Court, however, in a recent decision in Nemai Chandra Kumar and Others Vs. Mani Square Ltd. and Others(2015) 1 RCR(Rent) 506 : (2015) 2 SCALE 657 held that the word ''any structure'' relates to structure erected or acquired by purchase or gift on such land for a residential, manufacturing or business purpose. ''Any structure'' mentioned therein has a direct relationship with the purpose for which the structure is erected or acquired i.e. for a residential, manufacturing or business purpose. The words ''any structure'' has no bearing with the nature of structure i.e. whether it is ''Kutcha'' (temporary) or ''pucca'' (permanent). If such ''any structure'' was erected or acquired not for residential, manufacturing or business purpose, the person who is holding land cannot claim to be a ''Thika Tenant'' within the meaning of Section 2(5) even if other conditions mentioned therein are fulfilled.

In view of the aforesaid finding the decisions of our High Court in

"(1) Kshiboda Moyre Sen and Others Vs. Ashutosh Roy and Others, 63 CWN 565 ;

(2) Monmatha Nath Mukherjee Vs. Sm. Banarasi and Others, 63 CWN 824 ;

(3) Annapurna Seal v. Tincowrie Dutt, 66 CWN 338;

(4) Furushottam Das Murarka Vs. Harendra Krishna Mukherjee, 79 CWN 852 ;

(5) Lakshmimoni Das and Others Vs. State of West Bengal and Others, AIR 1987 Cal 326 : (1987) 1 CALLT 371 : 92 CWN 72 ;"

were held to be not the correct law.

Mr. Ghose is right in his submission that in view of the decision in Nemai Chandra (supra) the issue regarding nature of construction for the purpose of determining thika tenancy right has been finally crystallized and the decisions of our Court as noted earlier does not hold good.

In the instant case, however, the question whether any structure was present at the time of creation of tenancy is immaterial since I am of the view that the said lease is excluded from the purview of thika tenancy under the 1949 Act.

The creation of a lease in the present case is governed by the 1949 enactment. There cannot be any doubt that Poddars under the lease agreement was clearly excluded from the operation of the 1949 Act and was not a thika tenant. The Howrah Court deciding the application under Section 17 of the West Bengal Premises Tenancy Act, 1956 had no occasion to consider the claim of Baglas against Poddars. At this stage, it would be fruitful to refer to the observations of the Howrah Court in arriving at the said finding:--

"Now I came to the definition of thika tenant. Thika Tenant "means any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors in interest of such person" - Sec 3(8) of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981.

Here the defendant satisfies all the necessary ingredients of thika tenant. The defendant has established that he took land on rent and made structure thereon after the enforcement of the aforesaid Act. Now I proceed to see whether defendant is thika tenant from the angles of evidence.

In para (1) of the plaint, the plaintiffs have taken lease by registered deed consisting of pucca construction thereon (land). In examining chief of c p (plaintiff) - "We took lease for 25 years from Sri Satyanarayan Jee in 1965. Thereafter, we made structure thereon and then gave tenancy to different tenant plot wise". From para D of the plaint, it transpires that lease was taken with structure, whereas from deposition of cpl, it is clear that construction was made after taking lease. It means that the plaintiffs are not sure whether there was structure at the time of execution and registration of lease deed on 11/11/1965. These two statements are contradictory and it cannot be presumed that there was structure on land in 1965. It is the duty of the plaintiff to prove his case, but he failed to prove that there was structure on the land in 1965. When the structure was made, is fact of question which is to be determined.

In cross exam (XXX) the PW-1 (Defendant) deposed:-- "{I filed the paper as Thika Math Bharatia rasid. There is no paper to the fact of my taking tenancy"

O P (Plaintiff) have deposed as follows:-- "I have no personal knowledge about the agreement of induction of tenant on lease. Patel Timber was given 8 Kattas of land. I have not yet filed papers relating to structure on suit land.

From these evidences it is clear that land was given in tenancy and the plaintiff have not filed any paper relating to ascertainment of date of structure.

O P deposed as follows "I did not require to enquire about holding No. 149/1, J.N. Mukherjee road"

O P deposed:-- "the enquiry was made and objection filed in the thika controller. I cannot say whether defendant name in the record of thika controller. The portion of 149, J.N. Mukherjee Road is the place (suit property) where defendant resides."

From the record, it is found that the defendant name was mutated in respect of holding No. 149/13, J.N. Mukherjee Road, Salkia, P.S. M P Ghara, Dist. Howrah with the knowledge of the plaintiff as the plaintiff made enquiry in the thika controller. The defendant has asserted that he made structure after 1981, the plaintiff failed to proof that he made structure prior to 1981. As this is the duty of the plaintiff to prove his case and he could not prove and moreover he could not establish that it was not constructed after 1981 nor controverted it, so it is presumed that the structure was made by the defendant after 1981.

In the light of the aforesaid observations, it is held that the defendant is thika tenant in respect of suit holding.

Hence, Ordered

That the suit be and the same is not maintainable in the eye of law. It is further declared that the defendant is thika tenant in respect of the suit holding."

The Howrah Court has disbelieved the lease deed and the ownership of Baglas in respect of the property in question without even impleading the Baglas. The fate of the Baglas in relation to the said plot of land was decided in their absence. Moreover, if it is assumed for the sake of argument that the applicants are thika tenants even then having regard to the law laid down in Lakshmimoni Das (supra) the decision of the Howrah Court that the applicants are thika tenants is contrary to law.

In Lakshmimoni Das (supra) the vesting of the land of debutter estate to the State without providing for permanent annuity was held to be invalid. The said decision was rendered in 1987 where as the decision of the Howrah Court is of 1990. The said decision being contrary to law cannot in any event bind the Baglas. The said decision was not brought to the notice of the Howrah Court. The provision for annuity was incorporated by the West Bengal Amendment Act, XXI of the 1993 with retrospective effect from 18th January, 1982. Moreover, the Court below has failed to notice the 1949 Act and the definition of thika tenant under the said Act. The Court below has completely overlooked the deed of lease dated November 11, 1965 between Baglas and Poddars which would have shown that the lessor was the deity being represented by the sole trustee and shebait. In any event, the decision in the Howrah suit with regard to the status of the applicants are tentative and cannot bind the Baglas. The suit instituted by Baglas are to be decided and concluded as if the new Act of 2001 was not enacted curtailing the power of the Civil Court to decide the issue. In view of the decree in Bagla''s suit in 2003 the controller could not have proceeded with the pending proceeding for determination of the right of the application.

The Poddars in the High Court suit has alleged that they were thika tenants. The applicant contended that after the promulgation of 1981 Act, the property stood vested in the State and the applicant became direct tenant under the State. The thika tenancy dealt with by the Act of 1981 or by the Act of 2001 was a thika tenancy as it existed on January 18, 1982 when both the Acts were brought into force. In view of the definition of ''thika tenant'' under the 1949 Act, Poddars could not be treated as a thika tenant as he was holding the land under a registered lease executed in 11th November, 1965 for a term of more than 12 years. The amended definition of West Bengal Thika Tenancy (Acquisition and Regulation) Amendment Act, 2010 did not redefine the thika tenancy as defined in the Calcutta Thika Tenancy Act of 1949, in the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 or as originally in the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. The amended Act of 2010 amended the definition of thika tenant under section 2(14) of the said Act of 2001 only and that too with effect from November 1, 2010.

The amended definition of 2010 did not redefine the thika tenancy as defined in the said Act of 1949, in the said Act of 1981 or as originally in the said Act of 2001. The amendment Act of 2010 amended the definition of thika tenant under section 2(14) of the said Act of 2001 only and that too with effect from November 1, 2010.

The said Act of 2001 like the said Act of 1981 provided for continuance of thika tenants after vesting of the lands along with the landlord''s interest. Several incidences of tenancies in respect of lands vested in the State were indicated in both the Acts.

The amendment definition of thika tenancy under the said Act of 2001 has nothing to do with the thika tenancies, which were liable to be vested with the coming into force of the said Act of 1981 on January 18, 1982. The amended definition deals with a post-vesting thika tenant continuing to hold under the State with the extended right to make pucca structures. (See Kamal Kumar Mitra Vs. Arun Kumar Chatterjee(2015) 2 CHN 140 and Bharat Petroleum Corporation Limited Vs. Aarvee Finvest Private Limited, (2013) 4 CALLT 386 : (2014) 1 RCR(Rent) 217 : (2014) 1 WBLR 1023

With the expiry of the lease in the year 1990, Poddars became a trespasser of the premises and, therefore, Poddars have no legal right to possess the property. If Poddars do not have any right in respect of the said property, the applicants by any stretch of imagination cannot claim any right in respect of the property in question. Moreover, the applicant also does not come within the definition of Bharatia under the 1949 Act.

On the contrary, the learned single Judge in the suit between the Baglas and Poddars have decided the issue with regard to the thika tenancy and in arriving at such a finding had relied upon answer of Poddars to question Nos. 410 to 416 in cross-examination which are as follows:--

"410. Q. The occupants are doing business from certain buildings situated in the said premises. Is that so?

A. Yes.

411.Q. So they are erecting building in the said premises?

411.A. There are godown in the said premises.

412.Q. The godown are constructed by which materials?

412.A. Steel, rod, cement etc.

413.Q. Are there any pucca structure in the suit premises?

413.A. Yes.

414.Q. So the Suit premises is not a thika tenanted premises?

414.A. I can not say.

415.Q. So you cannot disagree if I suggest that there cannot be any thika tenancy in respect of the suit premises?

415.A. Yes.

416.Q. Is the Suit premises is a thika tenanted premises according to you at present?

416.A. No. "

In view of the 1949 Act and the recitals in the deed of lease dated 11th November, 1965 which completely excludes the property in question from the purview of the 1949 Act. The assumption of jurisdiction by the Civil Court and for that matter by the controller was completely without jurisdiction. The fact that it was a lease more than 12 years is a jurisdictional fact which goes to the very root of the matter. The Court could not only proceed with the matter provided it comes within the purview of the 1949 Act or 1981 Act and not otherwise. Similarly, the assumption of jurisdiction by the Thika Controller was also erroneous and without jurisdiction. The jurisdiction of the Civil Court as also of the Tribunal is dependent upon the land conforming the subject matter of the suit comes within the purview of the 1949 Act. The existence of such a jurisdictional fact is a sine qua non or condition precedent to the assumption of jurisdiction by the Civil Court or Thika Controller.

In the 1981 Act, there is no provision unlike Section 5 and the present Act of 2001 whereby any power is conferred upon the Thika Controller to decide the status of the person claiming to be a thika tenant or for determination as to whether the land is a thika land. In fact, Section 5(3) has undergone an amendment in 2010. It was only by reason of amendment to Section 5(3) of the 2001 Act that Thika Controller is the only authority empowered to decide any question as to whether a person is a thika tenant or not or whether the land in question is a thika land or not. Prior to the said amendment, the original subsection 3 only confers power on the controller to decide the question whether a person is a thika tenant or not. The original Section 5(3) came into effect from 1st March, 2003 and the amended provision on November 1, 2010. The Act of 2001 came into effect on 1st March, 2003.

Any decision taken by the Controller under the 1981 Act with regard to the question covered under Section 5(3) of the 2001 Act would be without jurisdiction. However, the power of the Civil Court to decide such question was never curtailed and it was only after the introduction of 2001 Act which came into effect on 1st March, 2003 that the power of the Civil Court to decide such questions covered by Section 5(3) of 2001 Act stands excluded.

Mr. Ghose, the learned Senior Counsel appearing on behalf of the applicants submits that the decree-holder is not entitled to protection under Section 27 of the 2001 Act. It is submitted that the status of the applicants could only be decided by the Thika Controller and Thika Controller having passed an order on 29th September, 2010, the said order cannot be annulled and/or nullified by enforcing the decree for eviction. The only remedy open to the decree-holder in such a situation is to approach the Land Reforms and Tenancy Tribunal established under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 for setting aside of the order of the Thika Controller. Mr. Ghose has relied upon Section 6 of the General Clauses Act and Section 27 of the 2001 Act. Mr. Ghose has relied upon P.N. Balasubramanian Vs. Union of India and Another, AIR 1975 Delhi 258 : (1976) ILR Delhi 506 and Ramesh Kumar Soni Vs. State of Madhya Pradesh, (2013) 3 AD 401 : AIR 2013 SC 1896 : (2013) CriLJ 1738 : (2013) 3 JT 375 : (2013) 2 RCR(Criminal) 271 : (2013) 3 SCALE 51 : (2013) 14 SCC 696 : (2013) AIRSCW 1568 and for the proposition that the effect of the application of the principle embodied in Section 6 of the General Clauses Act is that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law. On the strength of the said sections and the decisions Mr. Ghose has strenuously argued that the suit instituted by the Baglas for eviction of the Poddars in which an issue was raised by the Poddars that the said Poddars are thika tenant could not have been decided by the High Court by reason of the 2001 Act which empowers the Thika Controller to decide the said issue and such power was conferred upon the Thika Controller on and from 1st March, 2003 precisely two days prior to the delivery of judgment in the suit by this Court.

Mr. Abhrajit Mitra, the learned Counsel appearing on behalf of the decree-holder submits that the interpretation of Section 6 of the General Clauses Act and Section 27 of the Act of 2001 clearly shows that the suit pending prior to coming into operation of the 2001 Act is saved inasmuch as the decision in Sabitarani Majilya (supra) would clearly show that initiation of any proceeding by the controller to determine the status of a person as thika tenant before the amendment was without jurisdiction and any finding arrived at by the thika controller in such a situation would be held to be invalid and, accordingly, the decree-holder would not be required to approach the Land Reforms and Tenancy Tribunal established under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. Even if it is assumed that the initial defect of jurisdiction of the controller gets cured by subsequent legislations conferring power on the controller to decide the issue and on the date of the order the controller could have decided the issue, the controller is bound by the decision of the High Court with regard to the character and status of Poddars vis-�-vis the property in question.

Mr. Mitra has relied upon the decision of the Hon''ble Supreme Court in Videocon International Ltd. Vs. Securities and Exchange Board of India(2015) 2 AD 351 : AIR 2015 SC 1042 : (2015) 1 BC 443 : (2015) 124 CLA 289 : (2015) 188 CompCas 566 : (2015) 1 CompLJ 465 : (2015) 1 SCALE 293 : (2015) 4 SCC 33 : (2015) 129 SCL 673 . In order to appreciate the rival contentions it would be necessary to consider the said two sections which reads:--

"S.6 of the General Clauses Act. Effect of repeal - Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

S.27 of 2001 Act. Repeal and savings.--(1) With effect from the date of commencement of this Act, the Kolkata Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Ben. Act 37 of 1981), shall stand repealed.

(2) Notwithstanding the repeal of the said Act, such repeal shall no -

(a) affect the previous operation of the said Act or anything duly done or suffered thereunder; or

(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Act; or

(c) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the said Act; or

(d) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed."

On a conjoint reading of the said sections it appears that the right of the Baglas to evict the Poddars in which the Poddars have taken a plea that they are thika tenants were pending when the repeal came in and, thus, it saves the right accrued in favour of Baglas to proceed against the Poddars for eviction and in such a situation the Civil Court would be empowered to decide the said issue. Moreover, the hearing was concluded prior to 1st March, 2003 and the judgment was delivered only two days thereafter. At the time of the filing of the suit by the Baglas against the Poddars Civil Court has jurisdiction to try the suit. The purpose of the saving clause is to save the litigant''s rights that had accrued or vested prior to the repeal of the Act. The decisions cited from the Bar shows that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change- over of proceedings, from the court or the Tribunal where they are pending to the court or the Tribunal which under the new law gets jurisdiction to try them.

It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums.

In Manujendra Dutt Vs. Purendu Prosad Roy Chowdhury and Others, AIR 1967 SC 1419 : (1967) 1 SCR 475 , the Hon''ble Supreme Court considered the effect of the deletion of Section 29 of the Calcutta Thika Tenancy Act, 1949, by the Calcutta Thika Tenancy (Amendment) Act, 1953 in the context of the pending action. The suit for ejectment against a tenant was instituted in a civil court in 1947. In view of Section 29 of the Thika Tenancy Act, 1949, the suit was transferred to the Controller. During the pendency of the suit before the Controller, Section 29 was deleted by the Amending Act. The question that arose was whether by deletion of Section 29 the jurisdiction of the Controller over a pending suit was taken away. It was held by this Court that the deletion of Section 29 did not deprive the Controller of his jurisdiction to try the suit pending before him on the date when the Amending Act came into force. It was pointed out that though the Amending Act did not contain the saving clause the savings contained in Section 8 of the Bengal General Clauses Act, 1899, corresponding to Section 6 of the Central Act, applied and the transfer of the suit having been lawfully made under Section 29 of the Act, its deletion by the Amending Act, did not affect its previous operation or anything duly done thereunder. Similarly, in Mohd. Idris and Others Vs. Sat Narain, AIR 1966 SC 1499 : (1966) 3 SCR 15 , the question was whether the Munsif who was trying a suit under the U.P. Agriculturists Relief Act ceased to have jurisdiction after the passing of the U.P. Zamindari Abolition and Land Reforms (Amendment) Act, 1953, which conferred jurisdiction on the Assistant Collector. This Court held that the jurisdiction of the Assistant Collector was itself created by the Abolition Act and as there was no provision in that Act that the pending cases, were to stand transferred to the Assistant Collector for disposal, the Munsif continued to have jurisdiction to try the suit. It was observed that the provisions for change-over of proceedings from one court to another are commonly found in a statute which takes away the jurisdiction of one court and confers it to the other in pending actions.

In Paragraph 31 of the Videocon International (supra) the Hon''ble Supreme Court affirmed the earlier view expressed in M/s. Ambalal Sarabhai Enterprises Ltd. Vs. M/s. Amrit Lal and Co. and Another, AIR 2001 SC 3580 : (2001) 7 JT 477 : (2001) 5 SCALE 509 : (2001) 8 SCC 397 : (2001) AIRSCW 3326 : (2001) 6 Supreme 505 in the following words:--

"31. .........................................................................................

The opening words of Section 6 specify the field over which it is operative. It is operative over all the enactments under the General Clauses Act, Central Act or Regulations made after the commencement of General Clauses Act. It also clarifies in case of repeal of any provision under the aforesaid Act or regulation, unless a different intention appears from such repeal, it would have no affect over the matters covered in its sub-clauses, viz., (a) to (e). It clearly specifies that the repeal shall not revive anything not in force or in existence or effect the previous operation of any enactment so repealed or anything duly done or suffered or affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed statute, affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the repealed statute and also does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. Thus the Central theme which spells out is that any investigation or legal proceeding pending may be continued and enforced as if the repealing Act or Regulation had not come into force.

As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words such repeal does not effect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties get crystallised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find Clause (c) of Section 6, refers the words "any right, privilege, obligation.... acquired or accrued" under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here, mere existence of a right not being ''acquired'' or ''accrued'', on the date of the repeal would not get protection of Section 6 of the General Clauses Act.

At the most, such a provision can be said to be granting a privilege to the landlord to seek intervention of the Controller for eviction of the tenant under the Statute. Such a privilege is not a benefit vested in general but is a benefit granted and may be enforced by approaching the Controller in the manner prescribed under the statute. On filing the petition of eviction of the tenant the privilege accrued with the landlord is not effected by repeal of the Act in view of section 6(c) and the pending proceeding is saved under Section 6(e) of the Act.

Thus we find Section 6 of the General Clauses Act covers a wider filed and saves a wide range or proceedings referred to in its various sub-clauses. We find two sets of cases, one where Section 6 of the General Clauses Act is applicable and the other where it is not applicable.

In cases where Section 6 is not applicable, the courts have to scrutinise and find, whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved. However, in cases where Section 6 is applicable, it is not merely a vested right but all those covered under various sub-clauses from (a) to (e) of Section 6. We have already clarified right and privileges under it is limited to those which is ''acquired'' and ''accrued''. In such cases pending proceedings is to be continued as if the statute has not been repealed.

In view of the aforesaid legal principle emerging, we come to the conclusion that since proceeding for the eviction of the tenant was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable in the present case, as it is Landlord''s accrued right in terms of Section 6. Clause (c) of Section 6 refers to "any right" which may not be limited as a vested right but is limited to be an accrued right. The words ''any right accrued'' in Section 6(c) are wide enough to include landlord''s right to evict a tenant in case proceeding was pending when repeal came in. Thus a pending proceeding before the Rent Controller for the eviction of a tenant on the date when the repealing Act came into force would not be affected by the repealing statue and will be continued and concluded in accordance with the law as existed under the repealed statute."

In P.N. Balasubramanian (supra) it was held by the Delhi High Court that Section 6 does not save the provisions of the Repeal Act but saves only the rights and liabilities which have accrued under the repealed provisions, since a right having been acquired under the statute is not to be taken away by repeal or thereof. The saving clause has saved the rights that survive the repeal. Saving clause is enacted to mitigate the harsh rule of the Common Law and provides expressly that whenever a statute is repealed such repeal shall not affect pending actions founded on the repealed statute. In Sri Ranjit Sarkar Vs. Smt. Malati Ghosh it was held that suit filed before the Civil Court to evict the defendant under the 1981 Act due to default in payment of rent by the defendant is saved under Section 27 of the 2001 Act.

Under such circumstances, I am of the view that the proceeding instituted before this Court by the Baglas against the Poddars was saved and does not affect the jurisdiction of the Civil Court to decide the status of the Poddars. The other objection raised was that the schedule of the decree is vague. The said objection is also without any merit. The applicants are not under any misconception that they were inducted by the Poddars in respect of the property described in the schedule to the lease agreement. The said plea raised by the applicants is only for the purpose of delaying the execution of the decree and to create a smokescreen. The applicants have not been able to establish any independent right in respect of the property in question and claim their right through the Poddars till 1983 before claiming thika tenancy in respect of the self-same property. The Poddars in turn claimed their right through the Baglas under the lease agreement.

Under such circumstances, I am of the view that the objection raised by the applicant with regard to the executability of the decree is misconceived. Accordingly, G.A. No. 1034 of 2011, G.A. No. 1035 of 2011, G.A. No. 1036 of 2011, G.A. No. 1038 of 2011 stands dismissed.

However, there shall be no order as to costs.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.

Later:

After delivery of judgment, Mr. Sukumar Bhattacharjee, learned Counsel appearing on behalf of the applicants, prays for stay of operation of the judgment. Since the applicants were enjoying an interim order of injunction restraining the decree-holder from dispossessing them, the said interim order shall continue for a period of two weeks.