PEARI KUMARI BEWA Vs. NALINAKSHA GHOSH

JUDGEMENT

(1.) This is a petition for revision of an order passed by the Munsif at Sealdah holding that Section 28 of the Calcutta Thika Tenancy Act (West Bengal Act II of 1949) is not attracted if the decree in ejectment had been one by consent of the parties. The Plaintiffs opposite parties had brought a suit against the Defendant Petitioner for ejectment on the ground that the said Defendant was a monthly tenant at will in respect of a plot of jand, such tenancy having been determined by a notice to quit. Though a written statement was filed contesting the Plaintiffs' claim, a decree in ejectment was passed on February 16, 1949, on confession of judgment. The Defendant was directed to vacate the land in suit within one year from the date of the decree failing which possession would be delivered through court in execution of the decree. Within a few days after the Calcutta Thika Tenancy Act came into force on February 28, 1949, the tenant-Defendant thereafter filed an application under Section 28 of the said Act stating inter alia that on the day the Defendant had confessed judgment she felt helpless under the then existing law. As she had not yet been actually ejected from the premises she claimed that she was protected under the provisions of the Calcutta Thika Tenancy Act, and the decree in ejectment could not have been passed on February 16, 1949, had Act II of 1949 been then in force. The landlords opposite parties contended that the decree being one passed upon an agreement between the parties, before the Calcutta Thika Tenancy Act had come into force, the present application was not maintainable in law. Before the learned munsif both the parties agreed that a consent decree could not be rescinded under Section 28 of the said Act. It is against this order dismissing the tenant's application under Section 28 of the Act that the present Rule had been obtained.

(2.) The relevant portion of Section 28 of the Calcutta Thika Tenancy Act, 1949, is in the following terms:

(3.) The expression "decree or order" appearing in Section 28 of the Calcutta Thika Tenancy Act makes no distinction between a decree or order whether passed after contest or otherwise. Before the learned munsif, the parties agreed that the provisions contained in this section were not attracted in the case of consent orders or decrees; so it was unnecessary for the court to consider, whether the tenant was a thika, tenant under the Act. We have, however, now to consider whether even if the tenant were a thika tenant, is she entitled to get the benefit under Section 28 of the Act?