BASANTA KUMARI JOARDAR Vs. ILA MUKHERJEE

JUDGEMENT

(1.) This Rule was obtained by the tenant and it is directed against an order of eviction of the petitioner passed by the appellate authority in a proceeding under Section 5 of the Calcutta Thika Tenancy Act.

(2.) The facts that lie in a short compass may be stated as follows:- The predecessor-in-interest of the petitioner Laksminarayan Joardar, took settlement of a portion of Debuttar land situated at No. 17-A, Nimtolla Ghat Street, Calcutta, as a "thika tenant". The petitioners as heirs and legal representatives of the said Laksminarayan, since deceased, have been continuing to enjoy the said tenancy under the landlord deity Shri Radhakrishna Jew. Sometime in 1965, the O. Party, Ila Mukherjee, started a proceeding under S. 5 of the Calcutta Thika Tenancy Act before the Thika Controller, Calcutta for eviction of the petitioner on the ground that she required the suit land for her own occupation and for the purpose of building thereon or otherwise developing the said land by its continuing letting to thika tenants. The said opposite party claimed here leasehold interest with respect to the suit land on the basis of a registered deed of lease obtained from the landlord deity. Both the tribunals below concurrently found that the opposite party required the suit land for erection of a building for her own use and occupation and passed an order of ejectment against the petitioner. The petitioner being aggrieved moved this Court on an application under Article 227 of the Constitution and obtained the present Rule.

(3.) Mr. Mitter, the Learned Advocate for the petitioner, contended that as the original landlord deity was not in possession of the property when the lease with respect to the disputed property was executed in favour of the opposite party, the said lease would take effect from the date the lessor gets back the property. In the instant case as the petitioner was in possession of the property, therefore the lessee could not evict the petitioner in terms of the aforesaid lease. In support of his contention Mr. Mitter referred to a Bench decision of this Court Indraloke Studio Ltd. v. Santi Debi, reported in AIR 1960 Cal 609.