RANJIT KUMAR SAHA Vs. SUDHIR KUMAR DEY

JUDGEMENT

(1.) -On the 12th February, 1976 the petitioner as plaintiff had instituted Ejectment Suit No. 154 of 1976 against the opposite party as defendant in the City Civil Court, Calcutta. On 31st July, 1979 the learned Judge of the 12th Bench, City Civil Court, Calcutta passed a decree for recovery of khas possession against the defendant apposite party. On 21st February, 1980 the petitioner as decree-holder started Ejectment Execution Case No. 65 of 1980 in the Court below for obtaining delivery of khas possession of the suit premises. On the 7th April, 1982 upon an application made by the judgment-debtor opposite party, the Executing Court has recorded that the execution case had abated under Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981,

(2.) Being aggrieved thereby, the petitioner obtained the present Rule from a Single Bench of this Court. Sankar Bhattacharya, J. has referred this Rule to the Division Bench. In our view, Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 was not applicable to the present proceeding for execution of the Civil Court's decree pending before the Court below. The Court below had committed an error apparent on the face of the record by overlooking that the said Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 has provided for abatement only of the different proceedings under the Calcutta Thika Tenancy Act, 1949. The said Section 19 did not at all refer to suits, appeals or proceedings for execution of Civil Court decrees pending before the Civil Court. In the instant case, the petitioner obtained a decree for khas possession from the City Civil Court and he has filed the execution case before the same Court. No doubt, along with the Thika tenant, the expression "bharatia" appears in Section 19' of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. But Section 19 of the Act, as already stated, expressly mentions proceedings including appeals and all proceedings including appeals under Calcutta Thika Tenancy Act, 1949. Therefore, only in case the proceedings were under the Calcutta Thika Tenancy Act, orders passed in the said proceedings for ejectment of Thika tenant and "bharatia" under the same Act would stand abated under Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. In this connection, we may refer to Sections 3, 5, and 10 of the Calcutta Thika Tenancy Act, 1949. Under Sub-section (2) of Section. 10 of the said Act of 1949, when any structure standing on any holding of a thika tenant vested in the landlord, Sub-section (1) of Section 10 of the Act otherwise than as a result of ejectment of the thika tenant from the holding on the ground specified in Clause (iv) of Section 3 of the Act, any bharatia in possession of such structure or any part thereof became entitled to continue in possession of such structure or part thereof and became a tenant directly under the landlord. Only in case the landlord obtained from the Thika Controller an eviction order against his thika tenant on the ground that the land was required by him for his own occupation in terms of Section 3(iv) of the Calcutta Thika Tenancy Act, 1949, the said eviction order was binding both upon the troika tenant and his bharatia. In other cases of ejectment of the thika tenant or upon his abandonment or surrender his bharatia continued in possession as a tenant of the structures under the owner of the land. Any bharatia in possession became entitled to continue in possession and became a tenant under the landlord. In order to protect bharatias from eviction order passed under the provisions of Section 3 read with Sections 6 and 10 of the Calcutta Thika Tenancy Act, 1949, the West Bengal Legislature enacted the Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 providing for abatement of all proceedings including those under Section 27(4) of the Calcutta Thika Tenancy Act, 1949 both against the thika tenants and the bharatias.

(3.) The learned Judge of the Court below has referred to Section 4 of the Calcutta Thika Tenancy Stay of proceedings (Temporary Provisions) Act, 1978. In our view, the provisions of Section 4 of the said Calcutta Thika Tenancy Stay of proceedings (Temporary Provisions) Act, 1978 were not really relevant for determining applicability or otherwise of Sec. 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. Secondly, the difference between the language used in Section 4 of the said Stay of Proceedings (Temporary Provisions) Act, and those in Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 was very significant. Unlike Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 Section 4 of the said Act of 1978, expressly provided for stay while the said temporary Act continued to be in force, of suits, appeals or proceeding in execution of orders for ejectment of any bharatia. An eviction order passed under Calcutta Thika Tenancy Act, 1949 was executable by the Controller in the manner provided in the Civil Procedure Code (Subsection (6) of Section 27 of the Calcutta Thika Tenancy Act, 1949). Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 may affect the said execution case under Section 27(6) of the Thika Tenancy Act of 1949. As already stated, Section 19 of the later Act of 1981 does not further provide for abatement of suits, appeals and execution proceedings of decrees pending before the Civil Court. Before us the question of vires of the Calcutta Thika Tenancy Act (Acquisition and Regulation) Act, 1981 was not raised and accordingly we keep open the said question.