ASHISH KUMAR DAS Vs. REKHA MUKHERJEE

JUDGEMENT

(1.) This application under section 115 of the Code is directed against Order No.57 dated 27.5.82 passed by Sri S. B. Muhuri, Munsif, 1st Court, Alipore in Title Suit No. 412 of 1977. The above order was passed rejecting the petitioner's application under section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981.

(2.) The plaintiff brought a suit for eviction on the ground that the lease of the defendants had expired and in spite of demand the defendant, did not give up vacant possession. The defense was that he was a thika tenant. The earlier leases were executed for less than 12 years and at the time of the execution of the lease dated 1.4.59 he was not agreeable to execute a lease of 15 years, but under the misrepresentation and undue influence of the plaintiff he had to execute the lease and this thika tenancies has been continuing. So he was not liable to be evicted.

(3.) This learned Munsif decided the preliminary issue and found that even though the last lease was for a term of 15 years it was really an amalgamation of two leases for two separate periods for 18 years and 7 years and as the defendant was already a thika tenant, the last lease for a term of 15 years did not alter his position and he was still a thika tenant and so the suit for eviction was not maintainable in the civil court. Being aggrieved, the plaintiff preferred an appeal before the learned District Judge. The appeal was heard by the learned Additional District Judge who held that the learned Munsif was not correct as the lease was for a term of 15 years and the defendant was not a thika tenant under that lease in view of the definition of "thika tenant" under section 2(5)(b) of the Calcutta Thika Tenancy Act, 1949. It was argued by the appellant that in the circumstances, the judgment and decree under appeal should be set aside and the suit should be decreed as on the expiry of the lease for 15 years the defendant had no right to remain on the land any more. The learned Judge accepted the argument and held. "In the instant case the last lease dated 1.4.59 was for a term of 15 years and so the defendant holding under that lease cannot be holding thika tenancy even though under the earlier lease he had been a "thika tenant". The learned Judge also found that the suit was maintainable in the civil court because it was not a suit for ejectment of a thika tenant. Though the learned Judge found so, he sent the case back on remand because the learned Judge thought that even if the suit, as framed, is maintainable, a decree cannot be given to the plaintiff by the appellate court. The learned Judge directed the trial court to frame a specific issue and after taking evidence to decide whether the lease dated 1.4.59 was vitiated by misrepresentation and undue influence. The learned Judge directed that if the finding goes in favour of the defendant then the suit would be dismissed as not maintainable in the civil court. On the other hand, if the finding be in favour of the plaintiff, then the suit would be maintainable and the trial court would dispose of the suit giving the plaintiff such relief's as she will be entitled to. Against the said order of remand the defendant came up to this court in second appeal but the second appeal was dismissed under Order 41, Rule 11 of the Code of Civil Procedure. After the case was sent back, the petitioner filed an application under section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 praying that according to section 19 of the Act, the Court should record abatement of the suit. The application was opposed by the plaintiff. The learned Munsif was of the opinion that it has been decided up to this court that the suit is not governed by the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and so the present petition was not maintainable and, in that view of his finding, the learned Munsif rejected the application. As has been indicated earlier, the learned Additional District Judge, though sent the case back on remand, has found that on the face of the lease the defendant was not a thika tenant in view of the definition given in section 3(5)(b) of the Calcutta Thika Tenancy Act, 1949. He has also found that the suit is maintainable in the Civil Court because it is not a suit for ejectment of a "Thika Tenant". He sent the case back only for deciding an issue whether the lease-dated 1.4.59 was vitiated by misrepresentation and undue influence. Only for that, it cannot be said that the provisions of section 19 of the Calcutta Thika Tenancy (Acquisition & Regulation) act, 1981 are attracted to this case. Section 19 of the said Act reads as follows: