JOY KISSEN ARORA Vs. RAGHUNATH PROSAD GUPTA

JUDGEMENT

(1.) This application under Order 21, Rule 97 of the Code of Civil Procedure raises an interesting question of law of some importance. Shortly put, the question is, whether the applicant decree-holder who has obtained against the defendant judgment-debtor Ragunath Prosad Gupta a decree for vacant possession of the open plot of land which had been let out to the said Ragunath Prosad Gupta, is entitled to evict the respondents who claim to he tenants under the said Ragunath Prosad Gupta of portions of the structures built by the said judgment-debtor Raghunath Prosad Gupta on the said open plot of land.

(2.) The open plot of land in question belongs to the Board of Trustees for the improvement of Calcutta and was held by Gopekrishna Arora, Mulch and Arora, Radhakrishna Arora and Joykrishna Arora as lessees with an option to purchase the same. In a suit for partition between the Aroras, a receiver was appointed over their properties, including the laid in question. The land in question had been let out to one Reghunath Prosad Gupta who had built structures on the land and had inducted the respondents in the present proceeding as tenants in the said structures built by him. Proceedings had been started under Section 5 of the Calcutta Thika Tenancy Act, 1949 against the said Raghunath Prosad Gupta and after the appointment of the receiver in the partition suit of the Aroras, the said proceeding was continued by the receiver. The said proceeding ultimately came up before this Court in its Civil Revisional jurisdiction, (Civil Rule No. 258 of 1962) and a Division Bench of this Court held by its judgment delivered on the 12th of December, 1962 that the Calcutta Thika Tenancy Act had no application to the land in question and dismissed the proceeding under Section 5 of the Calcutta Thika Tenancy Act.

(3.) The plaintiff had thereafter instituted this suit for recovery of vacant possession of the land in question from the said Raghunath Prosad Gupta, after due determination of the tenancy. In the suit Raghunath Prosad Gupta who was the tenant of the open plot of land, was the only defendant. It appears from the nature of evidence adduced in the suit on behalf of the plaintiff, that the "plaintiff" was aware of the fact that the defendant Raghunath Prosad Gupta had built structures on the said land and had inducted tenants therein. The suit was contested by the said defendant Raghnnath Prosad Gupta and a decree was passed in favour of the plaintiff in the suit on contest against the said defendant Raghunath Prosad Gupta for vacant possession of the said plot of land. The material portion of the decree reads-