Nagendra Lal Saha vs Ajit Kumar Baisya Saha

Chittatosh Mookerjee, J.—Ajit Kumar Baisya Saha, opposite party No. 1 in the present Rule, had commenced a proceeding for ejectment from the disputed property against the opposite parties Nos. 4 and 5 under the Calcutta Thika Tenancy Act, 1949. The learned Thika Controller by consent of parties allowed the said application of opposite party No. 1.

The present Petitioner claims to be a bharatiya of the structures in question under the opposite parties Nos. 4 and 5 and he claims that by operation of Section 10 of the Calcutta Thika Tenancy Act, 1949, notwithstanding the above determination of the interest of the opposite parties Nos. 4 and 5, he was entitled to continue in possession and must be deemed to be a tenant in respect of the structures under the opposite party No. 1. The Petitioner, by an application before the learned Munsif Court at Alipore, who was also the Thika Controller, prayed for declaring his above status. The present opposite party No. 1 raised a preliminary objection to the maintainability of the said application filed by the Petitioner. The learned Munsif, acting as the Thika Controller, held the said application to be maintainable and proposed to give opportunity to the Applicant to prove his case by evidence. The opposite party No. 1 being aggrieved by the said order preferred am appeal. The learned Additional District Judge, Sixth Court, Alipore, has allowed the said appeal and has set aside the order of the learned Thika Controller. He has ordered that the application in question for determination of the Applicant''s status as bharatia be rejected. Thereafter, the Petitioner obtained the present Rule.

Section 2(1) of the Calcutta Thika Tenancy Act defines bharatia as any person by whom, or on whose account, rent is payable for any structure or part of a structure erected by a thika tenant in his holding.

Sub-section (1) of Section 5 of the Act provides that when a Thika Controller allows an application made by a landlord u/s 5, he shall make an order directing the thika tenant to vacate the holding and subject to the provisions of Section 10, to put the landlord in possession thereof.

Mr. Mukherjee, learned Advocate for the Petitioner, is therefore right in his submission that the statute itself makes an eviction order passed by the Thika Controller subject to the provisions of Section 10 of the Act.

Sub-section (2) of Section 10 provides as follows:

When any structure standing on any holding of a thika tenant vests in the landlord under Sub-section (1) otherwise that as a result of ejectment of the thika tenant from the holding on the ground specified in Clause (ii) of Sub-section (1) of Section 3, any bharatia in possession of such structure or any part thereof, shall, without any application being made, be entitled to continue in such possession and shall be deemed to be a tenant in respect of such structure or part thereof, as the case may be, within the meaning of the West Bengal Premises Tenancy Act, 1956 (W.B. XII of 1956), holding under the landlord on the terms and conditions on which such bharatia had been holding immediately before such structure vested in the landlord.

Provided that nothing in this sub-section shall prevent either the landlord or such bharatia so deemed to be a tenant holding under the landlord, from proceeding under the West Bengal Premises Tenancy Act, 1956, for fixing the standard rent payable in respect of such structure or part thereof, as the case may be.

Thus, in cases covered by Sub-section (2) of Section 10 of the Act, an eviction order passed u/s 5(1) of the Act is not enforceable against a bharatia. The landlord in such cases has been precluded from recovering khas possession of the structure in question. Secondly, by operation of law, after the vesting a bharatia to whom Sub-section (2) of Section 10 applies becomes eligible to continue in possession as a tenant in respect of such structure or part thereof. Sub-section (2) of Section 10, further, indicates the incidents of the said tenancy by laying down that a bahratia, who by statutory operation becomes a tenant under the owner in the circumstances mentioned in Sub-section (2) of Section 10 would be regulated by the provisions of the West Bengal Premises Tenancy Act, 1956 and he shall be holding the said tenancy on the same terms and conditions on which he was a bharatia under a thika tenant, before the interest of the latter was determined by an order u/s 5 of the Act.

Section 10 of the Calcutta Thika Tenancy Act, 1949, does not, however, contemplate riling of any application before the Thika Tenancy Controller for declaration of the status conferred upon a bharatia as a consequence of the determination of interests of thika tenants in certain cases. In fact, Sub-section (2) makes the position clear by providing that ''without any application being made'' a bharatia would be entitled to continue in possession and shall be deemed to be a tenant under the landlord on and from the date of determination of the interest of the thika tenant, i.e. upon vesting of the structures standing on any holding of a thika tenant. Obviously in the absence of any statutory provisions in this behalf, the Thika Controller cannot entertain any application for declaration of bharatia status. The Controller can exercise only such powers as are expressly conferred upon him by the Calcutta Thika Tenancy Act, 1949 and those powers which are incidental and ancillary thereto.

But a person who wants to assert his right to continue in possession as a tenant after the determination of the interest of the thika tenant under the circumstances contemplated in Section 10(2) is not without any remedy. In the first place, he is entitled to bring a civil suit for establishment of the status claimed by him. The learned Additional District Judge, was, however, not quite precise when he observed in the order impugned in the Rule that the only remedy of such a bharatia who becomes a tenant by operation of Section 10(2) is to file an application before the Rent Controller under the West Bengal Premises Tenancy Act, 1956. Apart from making an application for fixation of the standard rent, a bharatia who wants to claim that he had been elevated to the position of tenant, as already observed, may institute a suit for declaratory and consequential reliefs.

Again, orders made by the Thika Tenancy Controller are to be executed in the manner contemplated in the Code of Civil Procedure, 1908, for execution of decrees, vide Sub-section (6) of Section 27. I have already pointed out that Sub-section (1) of Section 5 puts a fetter on the power of the Controller to put the landlord in possession in execution of an order u/s 5. The same has been made expressly subservient to the provisions of Section 10 of the Act. Therefore, an eviction order passed under the Calcutta Thika Tenancy Act, 1949, against a thika tenant is not executable against a bharatiya who is protected by Sub-section (2) of Section 10. A bharatiya who enjoys protection u/s 10(2) is not a representative of the thika tenant but has an independent statutory status enjoying immunity from eviction orders passed u/s 5 of the Act.

In this connection, Mr. Mukherjee, learned Advocate for the Petitioner, rightly drew my attention to the decisions of this Court regarding executability of ejectment decrees passed under the West Bengal Premises Rent Control (Temporary) Provisions Act, 1950 and under the West Bengal Premises Tenancy Act, 1956, vis-a-vis sub-tenants enjoying statutory protection against eviction : vide Gopal Chandra Sadhukhan v. Sheikh Jamsed (1964) 68 C.W.N. 806, Sudhamay Basu v. Raja Ram (1954) 59 C.W.M. 889 Deo Karan Agarwalla v. Satyendra Ghosaul (1959) 63 C.W.N. 361. Similarly, in case any person claiming to be a bharatiya entitled to protection u/s 10(2) of the Calcutta Thika Tenancy Act offers resistance or obstruction to the execution of an eviction order passed by the Thika Tenancy Controller, the Controller being in the position of executing Court, is bound to satisfy whether such resistance or obstruction offered by a person claiming in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor thika tenant. Thus, an investigation of the claim of protection u/s 10(2) is not ruled out. But, on the other hand, having regard to the provisions of Section 5(1) and Section 10(2)of the Act, such investigation about claim of bharatiya right would be imperative before the Thika Tenancy Controller can put the landlord in possession of the property in dispute in execution of the eviction order passed u/s 5 of the Act.

In the present case, the said stage has not yet been reached. A declaratory relief u/s 10(2), as already stated, is not contemplated by law. But notwithstanding the order passed on the instant applications made by the present Petitioner in case the eviction order is sought to be executed against him it would be open to him; to pray before the Controller acting as the executing court to make an investigation regarding his claim to be in possession and to resist the execution of the eviction order at the appropriate stage and in the appropriate manner laid down by law. It is further made clear, at this stage, I have not addressed myself to the merits of the claims and contentions of the parties regarding the status claimed by the Petitioner. If the Petitioner asserts in the execution proceeding that he was a bharatiya and now entitled to protection u/s 10(2) of the Act, the Thika Tenancy Controller in course of the execution proceeding will determine the same in accordance with law. Subject to these observations the Rule is disposed of.

There will be no order as to costs.