SAILABALA DASI Vs. SARAT CHANDRA

JUDGEMENT

(1.) This Rule raises a point of first impression, and a somewhat challenging one, under the Calcutta Thika Tenancy (Amendment) Ordinance 1952.

(2.) The Rule was obtained by the defendant in a suit for ejectment. That suit was decreed on 31-8-1948, and the decree of the trial Court was affirmed on appeal on 10-9-1949. On 28-2-1949 the Calcutta Thika Tenancy Act came into force. Thereafter, the petitioner made an application under Section 28 of the new Act for reopening the decree and for consequential reliefs, but his application was dismissed on 28-5-1951, on the finding that he was not a thika tenant at all. An appeal from that order was dismissed on 24-3-1952, on the ground that no appeal lay. Thereafter, the defendant moved this Court against both the order of 28-5-1951, passed by the Munsiff and order of 24-3-1952, passed by the appellate court and obtained the present Rule. While the Rule was pending, the Thika Tenancy (Amendment) Ordinance was published and came into force on 21-10-1952.

(3.) The only point urged in the Rule is that by virtue of the provisions contained in Section 5(1) of the Ordinance, the Act, as amended by the Ordinance, should now be applied to the case and this Court should either itself give relief to the petitioner on the basis of the new definition of 'thika' tenant or remit the case to the trial court for appropriate action. There can be no question that if Section 5(1) applies to the facts of this case, the prayer made by the petitioner must be conceded.