BHOLANATH JAISWAL Vs. URMILA DEVI JAISWAL

JUDGEMENT

(1.) The revisional application, at the instance of the defendant judgment debtor no. 7 in the ejectment suit, is directed against the order no. 53 dated May 17, 2016 passed by the learned Judge, 6th Bench, Presidency Small Cause Court, Calcutta in connection with Miscellaneous Case No. 146 of 2013, arising out of Ejectment Execution Case No. 24 of 2013, in connection with Ejectment Suit No. 528 of 2002.

(2.) The short point of law raised in the revisional application is whether in view of Sec. 8(3) and Sec. 11(6) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, (hereinafter referred to as "the Act of 2001"), read with Sec. 21 thereof, the Civil Court lacks the jurisdiction to execute an ejectment decree passed by it under Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (hereinafter referred to as "the Act of 1981") before Nov. 2010.

(3.) The facts, in short are that in the year 2002 the opposite party nos. 1 to 7 claiming themselves as thika tenants, filed the ejectment suit before the learned Judge, 6th Bench, Presidency Small Cause Court, Calcutta claiming a decree for recovery of possession of the suit property by evicting the proforma opposite party nos. 1 to 9 and the present petitioner, the defendant no. 7 in the suit. The ejectment suit was contested by the defendants, issues were framed and the parties adduced their respective evidence before the learned trial Judge. By a judgment dated April 24, 2009 the learned trial Judge held that the plaintiffs opposite party nos. 1 to 7, as the thika tenants of the suit property, are entitled to file the ejectment suit and decreed the suit. Against the said judgment and decree for eviction passed by the learned trial Judge the defendants preferred an appeal, being Title Appeal No. 21 of 2009 before and the same was dismissed on merit. The defendants judgment debtors, however, did not deliver vacant possession of the suit property to the plaintiffs opposite party nos. 1 to 7. In the year 2013, the plaintiffs opposite party nos. 1 to 7, the decree holders filed the Execution Case No. 24 of 2013 before the learned executing Court, that is, the learned Court below and a writ of possession was issued directing the bailiff of the Court to recover possession of the suit property by evicting the defendants judgement debtors. However, judgment debtors, including the present petitioner resisted the Court bailif to execute the decree. Therefore, the present opposite party nos. 1 to 7, as the decree holders filed an application before the learned Court below praying for, police help to the bailiff for execution of the eviction decree. During the pendency of the said application, the present petitioner filed an application under section 151 of the Code of Civil Procedure praying for, dismissal of the execution case. In her said application the petitioner alleged that in view of the amendment of the Act 2001, in the year 2010, particularly Sections 8(3) and Sec. 11(6) thereof, the bar of Sec. 21 of the Act comes into play and the Civil Court lacks the jurisdiction to entertain the execution case filed by the plaintiffs decree holders and it is Thika Controller with whom the jurisdiction vests to execute an eviction decree obtained by a thika tenant. By order dated May 17, 2016 the learned Court below held that as per the provisions in Sec. 27 of the Act of 2001 the contention raised on behalf of the petitioner challenging the jurisdiction of the Civil Court to execute the aforementioned eviction decree is not tenable and rejected the application filed by the petitioner. It is the said order dated May 17, 2016 which has been assailed by the petitioner in this revisional application.