SHIB SANKAR DEY Vs. SABITRI DEBI SARAFF

JUDGEMENT

(1.) THIS Rule arises on an application under Article 227 of the Constitution of India and is directed against the order passed by the learned Chief Judge, Small Causes Court, calcutta, dated April 28, 1976 in Thika tenancy Appeal No. 3 of 1976 affirming that of the Thika Tenancy Controller in Thika Tenancy Case No. 7 of 1973 dated December 10, 1975. The facts of the case may, briefly, be stated as follows : -

(2.) THE petitioners are two sons of late Satish Chandra Dey who died about 9 years back. About 30 years back satish Chandra was inducted as a tenant in the suit premises by the predecessors-in-interest of the opposite parties. The induction was for residential purpose and after constructing a two storied pucca structure for residential purpose the petitioners started residing there along with his family. The area of the suit land is 14 chataks 9 sift The opposite Parties became owners on the basis of a purchase dated october 1, 1962. In March, 1973 the opposite parties filed an application before the Thika Tenancy Controller for eviction from the suit land. In the said application, it was admitted by the opposite parties that the petitioners are monthly thika tenants by constructing structure thereon for residential purpose. It was alleged that subsequently the petitioners erected construction for business purpose also. No statement with regard to the nature of the structures was, made in the said application. It was alleged that the opposite parties are residing in a rented house and they require the suit land for the purpose of residence of their family members where they propose to construct a building. It was further stated that for the purpose of construction of the proposed building the opposite parties submitted a plan to the Corporation of Calcutta. But the Corporation of Calcutta has informed that the same cannot be sanctioned until the structures are removed from the premises. The opposite parties pleaded service of the required notice upon the petitioners. The petitioners filed written objection denying the material allegations. Though the opposite parties examined 3 witnesses no evidence was adduced regarding the nature of the structures, rather it was admitted that (he petitioners had their structures, on the suit land at the time of purchase of the opposite parties. The petitioners examined 3 witnesses in sup port. of their case. It was stated In evidence that the structures were raised in 1940. There are 4 pucca walls of he structure and the structure is a two storied one with tile roofs. The structure was stated to be of partly concrete and partly wooden. The floor was stated to be of concrete. The petitioner No. 1 further stated that the structure is for resifential purposei. It is stated that the opposite parties sought eviction of the petitioners on the ground mentioned in section 3 (1) (ii) of the Calcutta Thika tenancy Act, 1949. The opposite parties are not entitled to an order for eviction of the petitioners without proving that the structures erected were not for residential purpose and were not pucca structures. The opposite parties in their application did not state, that the structures are not pucca structures, nor they said a word about the nature of the structures in their evidence. On the other hand, as has already been stated the petitioner led evidence regarding the nature of the structures. Inspite of that, the learned Thika Tenancy courtlier allowed the application of the opp. parties holding that the opp parties proved their case of reasonable requirement and that the structures in question were not pucca structures. The petitioners being aggrieved preferred an appeal before the learned Chief judge. The learned Chief Judge dismissed the appeal. But strangely enough the learned Chief Judge omitted to make any finding regarding the nature of the structures. Hence, the present application.

(3.) MR. Tapash Kumar Roy, learned advocate appearing on behalf of the petitioners, contends that both the Thika controller and the appellate authority were wrong to hold that the: opposite parties ware entitled to an order for eviction. Both the authorities failed to note that it was incumbent on the opposite parties to prove that the structure in question is not pucca structure. Unless that is proved the opposite parties are not entitled to get an order for eviction. Mr. Roy referred to Section 3 (1) (ii) which reads as follows: -