DILWAR SULTAN Vs. KESHAB CHANDRA MUKHERJEE

JUDGEMENT

(1.) This appeal arises out of an application under Section 28, Calcutta Thika Tenancy Act 1949. The application was dismissed by the trial court and the tenant's appeal from the said decision failed before the Subordinate Judge who dismissed it on the merits and also on the ground that no appeal lay from an order rejecting an application under Section 28, Calcutta Thika Tenancy Act, 1949. Hence this Second Appeal by the tenant who has also filed an application in the alternative under Section 115, Civil P. C. for revision of the orders of the two courts below.

(2.) A preliminary objection has been raised to the maintainability of the second appeal, but in view of the alternative application in revision and the nature of the questions involved in this case, it is not necessary to examine the merits of the said objection.

(3.) On 15-12-1948 the respondents landlords obtained an ex parte decree for ejectment against the tenant appellant. Before, however, possession could be recovered in execution of the decree the tenant judgment-debtor applied, under Section 28, Thika Tenancy Act, 1949 which had come into force in the meantime, for rescission of the said decree. This application was made on 18-9-1950 and the learned Munsif by his judgment dated the 29th June 1951 dismissed the same on the ground that the applicant was not a "thika tenant" under the Act. The basis of that finding was that the applicant had failed to prove the "thika system" as required by law. The appeal from that decision was dismissed by the lower appellee court on 8-2-1952. The learned Subordinate Judge held that the learned Munsif's decision was not appealable in law. He also held that the decision of the learned Munsif was right on the merits and the "thika system" not having been proved the applicant was not a "thika tenant" under the Act and the application could not, therefore, succeed.