SOVA RANI DASI Vs. PARUL RANI CHOWDHURY

JUDGEMENT

(1.) This application by the Petitioner thika tenant under Article 227 of the Constitution of India is for setting aside the orders rejecting the Petitioner's application under Sec. 7A of the Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as 'the Act'), as amended by the Calcutta Thika Tenancy (Second Amendment) Act, 1969 (W.B. XXIX of 1969), both by the Thika Controller as also by the appellate Tribunal.

(2.) The facts leading up to the present application may briefly be stated The Petitioner was a thika tenant in respect of about three cottahs of land, which was purchased, by the opposite parties' predecessor under a registered instrument on March 1,1959 On January 7,1961, the opposite parties' predecessor instituted a suit for eviction of the Petitioner under Sec. 5(3) of the Act from the disputed land on the ground of his own occupation The application was allowed on contest, on July 14, 1962 and an engineer -commissioner was thereafter appointed to report about the valuation of the structures While the valuation matter was pending before the learned Thika Controller, the Calcutta Thika Tenancy (Second Amendment) Act, 1969, came into force on and from October 30, 1969 and Sec. 7A was introduced into the Statute empowering the Controller to set aside orders for ejectment in certain cases On December 23,1969, the Petitioner filed an application under Sec. 7A of the Act for setting aside the order of eviction dated July 14, 1962, inter alia, on the ground that some portion of the disputed property was pucca and he was not, therefore, liable to be evicted from the land It was further sought to be contended before the learned Thika Controller that the opposite parties no longer required the land for their own occupation inasmuch as they had entered into an agreement for sale of the same to a third party The learned Thika Controller refused to accept any of the aforesaid contentions of the Petitioner and held that the Petitioner was not, therefore, entitled to get any relief under the provisions of Sec. 7A of the Act Accordingly, the application was rejected The Petitioner thereupon preferred an appeal to the appellate Tribunal which was heard by the Additional District Judge, Seventh Court, Alipore The learned appellate Tribunal upheld the finding of the Thika Controller in so far as the nature and character of the structure was concerned and dismissed the appeal Against this decision the Petitioner moved this Court under Article 227 of the Constitution of India and obtained this instant Rule.

(3.) Mr. Chakravarty, the learned Advocate appearing for the Petitioner, has canvassed two main grounds in this Rule He has also filed a petition annexing therewith the copy of a judgment passed in T S No. 103 of 1968 of the Subordinate Judge, First Court, Alipore, between the opposite parties on the one hand and one Kalpana Das on the other, over the disputed property and prays for taking this decision into consideration as a subsequent event In fact, Mr. Chakrabarty's main contention is that as a result of that decision in T S No. 103 of 1968 of the First Court of Subordinate Judge at Alipore on May 29,1975, the opposite parties have lost their title to the disputed property and have been directed to execute a registered sale deed in respect thereof in favour of the Plaintiff of the said suit and it cannot be contended any longer that the opposite parties required the land for their own occupation within the meaning of Sec. 3(1)(ii) of the Act The decision which had been made annex 'A' to the affidavit affirmed on behalf of the Petitioner shows that one Sm. Kalpana Das filed a suit for specific performance of contract admittedly for the sale of the disputed property and obtained a decree for specific performance of contract directing the present opposite parties to execute and register a sale deed in favour of the Plaintiff of the said suit upon receipt of the balance of the consideration money within a certain period Mr. Ganguli appearing for the opposite party landlord has put in, an affidavit -in -opposition to the Petitioner's application and affidavit for consideration of subsequent event and has contended that although the suit for specific performance was decreed against his client, they ' have filed a fresh suit, being T S No. 92 of 1976 of the Second Court of Munsif at Alipore for a declaration that the impugned decree referred to above was illegal, void and inoperative and for a permanent injunction Mr. Ganguli further contends that the alleged agreement for sale on the basis for which the suit for specific performance of contract was instituted, came to be executed on or about March 30,1968, that is long after the ejectment case was allowed against the Petitioner and this Court should not take this subsequent contract or the decree based thereon into consideration in an application under Article 227 of the Constitution In fact, Mr. Ganguli contends that the material date for consideration of the Court would be the date on which the order for eviction was passed and what transpired subsequent thereto could not be taken into consideration, more particularly as this is an application under Article 227 of the Constitution of India and not an appeal against the decision of the Thika Controller.