MANINDRA KUMAR ROY CHOUDHURY Vs. JOYGUNNESSA

JUDGEMENT

(1.) THIS second appeal is on behalf of the defendant No. 1 in a suit for a declaration that the plaintiffs and the proforma-defendants are the thika tenants under defendants no. 1 in respect of the disputed property. It is stated that one Sukkur Choudhury the predecessor-in-interest of the plaintiffs and the proforma-defendants held a thika tenancy under the defendants No. 1's predecessor. The defendant No. 1 after the death of Sukkur Choudhury in the year 1946 purchased the shares of Ayesha Bibi and halima Bibi in the tenancy. Ayesha bibi was a widow and Halima Bibi was the mother of Sukkur Choudhury. The defendant No. 1 thus purchased a share in the aforesaid thika tenancy. Having purchased some share in the thika tenancy, the defendant No. 1 purchased the interest of the landlord of Sukkur choudhury and the defendant No. 1 thereafter caused a notice to be served under section 9 (2) of the Calcutta thika Tenancy Act. Some proceedings under section 9 (3) were taken by Baitan Bibi, one of the widows of Sukkur Choudhury, who married one Tozamal hussain. The plaintiffs averred that they were not bound by the order under section 9 (2), but the order under section 9 (2) having clouded their title, they applied for a declaration of their tenancy rights under the defendant no. 1. The defence that the defendant no. 1 took was that the suit was barred under section 42 of the Specific Relief act ; and his further defence was that the remedy to the tenants being provided under section 9 (3) of the Calcutta Thika Tenancy Act and the plaintiffs not having applied for that remedy which was their only remedy, the present suit was impliedly barred. It is this latter aspect of the matter which has been urged in this Court and we shall consider only that aspect. Section 9 of the Code of Civil Procedure says, "the Courts. . . . . have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. " The question therefore is whether the cognizance of the present suit is expressly or impliedly barred by any statute. On general principles also the Judicial Committee in the case between (1) Secretary of State v. Mask and Co. , reported in 67 Indian Appeals, 222, at p. 236 observed as follows:

(2.) THE first question is whether there is any explicitly expressed exclusion of jurisdiction of the Civil Court under the provisions of the Calcutta Thika tenancy Act. For that purpose we shall examine the provisions of the act. Section 5 relates to proceedings for ejectment. It begins by saying, "notwithstanding anything contained in any other law for the time being in force a landlord wishing to eject a thika tenant. . . shall apply in the prescribed manner to the Controller for an order in that behalf. . . " Here it is clear that notwithstanding the provisions contained in section 9 of the Code of Civil Procedure, a landlord wishing to eject a thika tenant must apply to the Controller. Here it has been explicitly expressed that the jurisdiction of the Civil Court will be excluded. Section 9 (1) of the Calcutta Thika tenancy Act relates to abandonment. It says, "when a thika tenant voluntarily abandons his holding without notice to the landlord and without arranging for the payment of his rent as it falls due, the landlord may, at any time after the expiration of a period of two months from the date of such voluntary abandonment, file the notice referred to in sub-section (2 ). . . . . . ". Sub-section (2) provides:

(3.) THE Judicial Committee further considered the well known judgment of willes, J. in (2) Wolverhampton New water Works Co. v. Hawkesford, reported in (1859) 6 C. B. (N. S.) 336 and further found in the aforesaid case of (1) Secretary of State v. Mask and Co. , that the question in the present case fell under the third class stated by willes, J. as follows: