SADHU CHARAN GOSWAMI Vs. GORA CHAND BURAL

JUDGEMENT

(1.) THIS first appeal is at the instance of a plaintiff in a suit for declaration of title and permanent injunction and is directed against the judgement and decree dated March 30, 1998, passed by the learned Judge, Tenth Bench, City Civil court at Calcutta, in Title Suit No. 2294 of 1984, thereby dismissing the suit on the ground that the plaintiff, being out of possession of the property in question, was not entitled to maintain a suit for declaration in the negative form and for permanent injunction without praying for recovery of possession.

(2.) THE case made out by the plaintiff was that one Shyma Sundari was a thika tenant in respect of the suit property under the predecessor-in-interest of the defendants and that she created a Debattor estate by installation of two deities. According to the plaintiff, after the death of the said Shyma Sundari, the thika tenancy devolved upon the two shebaits of those deities appointed by shyma Sundari viz. Madan Mohan and Bhagawan Das and those two persons were exercising their right as thika tenants by realising rents from the existing bharatiyas under them. The predecessor-in-interest of the defendants, the plaintiff alleged, filed a proceeding under Section 9 of the Calcutta Thika Tenancy act, 1949, (hereinafter referred to as 1949 Act) against Madan Mohan and bhagawan Das and got an ex parte order of resumption of possession, although, at that time, one of the thika tenants, viz. Madan Mohan was dead. Subsequently, Bhagawan Das, the other shebait, the father of the plaintiff, filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the said ex parte order for resumption of possession but during the pendency of the said proceedings, the Calcutta Thika Tenancy Acquisition and regulation Act, 1981, (hereinafter referred to as the 1981 Act) having been promulgated, the said proceeding abated. After the death of Bhagawan Das, according to the plaintiff, all the heirs of both Madan Mohan and Bhagawan Das nominated him to act as the sole shebait of the deities. The plaintiff asserted that after the coming into operation of the 1981 Act, the defendants, whose interest in the property vested in the State, were trying to realise rent from the Bharatias of the plaintiff and thus, they created a cloud over the right of the plaintiff, as the shebait of the deities, in the property as a thika tenant and hence, the suit was filed for declaration that the defendants had no subsisting right in the property and for permanent injunction restraining the defendants from collecting rents from the Bharatias of the plaintiff in the suit property.

(3.) THE suit was contested by the defendants by filing written statements thereby denying the allegations made in the plaint and contending, inter alia, that after the passing of the order against Madan Mohan and Bhagawan Das under Section 9 of the 1949 Act, the plaintiff or their predecessors had no subsisting interest in the property and thus, the plaintiff had no right to file the suit. The right of the deities as thika tenant in the property was also denied.