KRISHNA CHANDRA PRAMANIK Vs. LAKSHMAN CHANDRA MAHATO

JUDGEMENT

(1.) THIS is a second appeal against the judgment of the Seventh Court of Subordinate Judge, Alipore, refusing to reopen the decree under section 5 of the Thika Tenancy Ordinance-Ordinance 15 of 1952. The Trial Court reopened the decree; but the Court of Appeal below refused to re-open against which is the present appeal. There is also an application under section 115 of the Code of Civil Procedure.

(2.) BEFORE proceeding further I must note the question whether an appeal is maintainable or not, as has been decided between the parties by a judgment and order of P. N. Mookerjee, J. and he has been pleased to hold that an appeal is maintainable. In that view of the matter the question cannot he reagitated and, therefore, a second appeal is maintainable. If a second appeal is maintainable, no petition is maintainable and, therefore, that petition under section 115 of the Civil Procedure Code must be dismissed. I therefore, proceed to consider the second appeal.

(3.) THE plaintiff instituted the suit for ejectment of the defendant on a notice to quit stating that the defendant was a tenant of the land at 48b, Circular Garden Reach Read. The defense was that the defendant was a tenant of Bhukailash Debuttor Estate not under the plaintiff. Even if it would be held that he is a tenant, he is entitled to remain in the land under the Thika Tenancy Act of 1349. In the suit, this question as to whether he was a Thika tenant or not was not adjudicated at all because of certain decisions of this High Court regarding the meaning of the word 'thika Tenant'. The suit was decreed ex-parte.