GOPI KANTA SEN Vs. ABDUL GAFFUR

JUDGEMENT

(1.) This is an appeal by a certificate granted by the High Court at Calcutta from a judgment and decree in Second Appeal Passed by that court in January, 1961. The question before us is, whether the respondent No. 1 was entitled to the benefit of the Calcutta Thika Tenancy Act, 1949, as amended finally by an Act of 1953.

(2.) The facts necessary for the disposal of this appeal are as follows. On the 18th June 1948, the plaintiff, the appellant before us, instituted Suit No. 292 of 1948 for ejectment of three persons, namely, Abdual Rahim. Abdual Hamid and Abdual Gaffur, from the property in suit (a parcel of land about 1 cottah 8 chittaks being part of premises No. 6/1, Shibtola Lane, Entally, Calcutta). In the notice to quit served on the 7th May, 1948 the first two persons were described as tenants under the plaintiff and the third as a person who had purported to purchase the structures on the land and the tenancy right therein. In the plaint itself, the first two defendants were described as thika tenants. No claim was made for rents or taxes although it was alleged that the same were in arrears. The suit was contested only by the third diffident who filed a written statement in September 1948 contending that the suit was bad for non-joinder of parties. The suit was decreed by a Munsif of Sealdah court, 24-Parganas on March 18, 1949 after the Calcutta Thika Tenancy Act of 1949 had come into force on February 28, 1949. The appeal filed therefrom by the third defendant was demised by the Subordinate Judge. Fifth Additional Court, Alipore on November 23, 1949. The decree-holder put the decree in execution and recovered possession of the land on December 18, 1949. The Calcutta Thika Tenancy (Amendment Ordinance), 1952 was passed on October 21, 1952 introducing various changes in the Act and substituting a new definition of a thika tenant. On March 14, 1953 the Calcutta Thika Tenancy (Amendment Act), 1953 was passed amending the definition of thika tenant still further and introducing important changes in the Act of 1949. The effect of these provisions will be considered later on.

(3.) Before the Subordinate Judge, a point was taken that after the coming into force of the Act of 1949, the Rent Controller alone had jurisdiction in respect of ejectment suits as the defendant-appellant was a thika tenant. The subordinate Judge dismissed the plea on the ground that the defendant-appellant had not erected the structures on the land was not a successor-in-interest of the tenant but only a transferee. Abdual Gaffur preferred a Second Appeal to the High Court and this was heard and disposed of by a single Judge of that court on July, 21, 1954, long after the Thika Tenancy Ordinance of 1952 and the Amending Act of 1953 had come into force. The learned Judge held that at the time when the appeal of the defendant was disposed of by the Subordinate Judge, the rights of the parties were governed by the Thika Tenancy Act of 1949 and they definition of a thika tenant in that Act was not such as to afford any protection to the appellant. In view of the amendment of the Act in 1953 however, the learned Judge felt that the question whether the appellant was entitled to the benefit of that Act had to be re-examined and consequently he remanded the matter to the lower appellate court with a direction that there should be a fresh decision of the case after considering the law applicable and taking further evidence if necessary. On remand, the Subordinate Judge, Seventh Court, Alipore rejected the plea of the landlord that the appellant Gaffur could not be regarded as a thika tenant inter alia on the ground that he had sold his interest by a registered sale deed dated April 12, 1949 to one Subasini. On a consideration of the provisions of the Act and the Ordinance, the Subordinate Judge held that the appellant, Gaffur, was not liable to ejectment in the absence of any grounds therefore in the notice to quit in accordance with s. 3 of the Act as he was a thika tenant within the meaning of the Act as it was finally amended. He also observed that s. 4 of the Act would be applicable. The landlord went up in appeal once more to the High Court. On this occasion, the main plank of the argument on behalf of the landlord was the with the omission of s. 29 civil courts became unable to remit ejectment suits to the controller with the result that the Act as finally amended could not apply to pre-Act suits and thika tenants could get no relief under the Act. The learned Judges of the Division Bench of the High Court found themselves unable to accept this argument and held that the only power vested in civil courts in respect of ejectment suits against thika tenants like the present one was to be found in ss. 28 and 29 of the original Act and by their omission from the statute "suits for eviction became infructuous before civil courts". In the result, they dismissed the appeal. We have now to trace relevant changes in the law made from time to time and see whether the landlord was entitled to eject Abdual Gaffur notwithstanding the Act as amended from time to time.