SANTILATA DE Vs. SARAJU BALA DEVI AND ORS.

JUDGEMENT

(1.) This revisional application arises out of (Title Suit No. 255 of 1951) suit for ejectment ' instituted by the petitioner before us against the opposite parties in the Court of First Additional Munsiff, Alipore. The plaintiff seeks to eject the opposite parties from municipal premises No. 32|A, Mahanirban Road, with the rooms and structures thereon. The plaintiff alleged that the tenancy of defendant No. 1 had been terminated by notice to quit, that the defendants 2 to 10 are sub-tenants under the defendant No. 1 and that the plaintiff required the premises for her own residence and that rent of the premises was in arrears. Non-payment of rent was expressly taken as a ground of ejectment. The plaintiff claimed ejectment and recovery of arrears of rent.

(2.) The defendants filed written statements and took inter alia the plea that the defendant No. 1 was a thika tenant. The defendant No. 1 filed a petition praying for determination of the question whether the suit was governed by the provisions of the Calcutta Thika Tenancy Act. The learned Munsiff tried the question as a preliminary issue. He came to the conclusion that the defendant No. 1 was a thika tenant. Accordingly he allowed the petition of defendant No. 1 on contest and directed the parties to write to the District Judge for transfer of the suit to the file of the local Munsiff, 1st Court, as he had no jurisdiction to try the suit. On appeal, the learned Additional District Judge agreed with the view that the defendant No. 1 was a thika tenant and accordingly dismissed the appeal.

(3.) At the outset, it must be pointed out that the order directing the parties to write to the District Judge for transfer of the suit is, in any event wrong and cannot be supported. The suit was instituted after the commencement of the Thika Tenancy Act and section 29 of the Act which has since been repealed had no application. Assuming that the defendant No. 1 was a thika tenant and also assuming that the suit was barred by section 5 of the Calcutta Thika Tenancy Act, 1949, there is no provision of law under which the suit could be transferred. If the suit, so far as it asked for ejectment of the Thika tenant was barred by section 5, the suit to that extent had to be dismissed on the ground that the Court had no jurisdiction. The suit, as far as it asked for recovery of rent, however, could not be dismissed on the grounds of want of jurisdiction. Evert assuming that the defendant No. 1 was a thika tenant, the learned munsif was bound to try the suit as far as it asked for recovery of arrears of rent.