NARAYAN CH SAHA Vs. JIBAN BALLAV ADDYA

JUDGEMENT

(1.) The petitioner was a thika tenant under the opposite party in respect of the holding No.118D, Ananda Palit Road, P.S. Entally, District 24-Parganas. The opposite party had filed an application before the Thika Tenancy Controller under S. 3(1)(ii) of the Calcutta Thika Tenancy Act, 1949 inter alia alleging that he required the land and premises in the said holding for his own occupation. The petitioner contested the said case by filing a written objection.

(2.) The learned Munsif, 3rd Court, Sealdah acting as the Thika Tenancy Controller, by his Order No.98 dated 14th July, 1977, allowed the said application under S. 3(1)(ii) of the opposite party subject to the payment of compensation for the structures standing on the land by the applicant to the Thika tenant. In case the compensation was not amicably settled, the parties were given liberty to apply for appointment of a valuation commissioner to assess the compensation amount. The present petitioner being aggrieved by the said decision preferred an appeal under S. 27 of the Calcutta thika TenancyAct, 1949. The petitioner before the said appellate authority filed application for amendment of his original written objection. He also applied for leave to adduce additional evidence about the age of the structures upon the holding and for appointment of an Engineer Commissioner. He made the said applications inter alia on the ground that he had erected permanent pucca structures on the disputed land "since long before the institution of the case".The present opposite party had opposed the said prayers of the present petitioner. The learned Additional District Judge, 5th Court, Alipore, as the appellate authority, dismissed the appeal of the present petitioner. By the same order the petitioner's prayers for amendment of his written objection and for adducing additional evidence were disallowed. Thereafter the petitioner obtained the present Rule.

(3.) Mr. Sett, learned Advocate for the petitioner, has submitted that the landlord opposite party in his application under S. 3 of the Act did not plead that he required the land comprised in the holding for building and rebuilding. Without such pleading the opposite party was allowed to lead evidence that he proposed to pull down the structures on the suit land and thereafter to construct a new building for accommodation of himself and the members of his family. Mr. Sett submitted that as no case of building and rebuilding having been pleaded the learned Controller an the appellate Authority acted illegally and with material irregularity in the exercise of their jurisdiction by allowing the opposite party to rely upon the evidence regarding building and rebuilding. Mr. Sett secondly submitted that under S. 3(1)(ii) as amended by the Calcutta thika Tenancy (Second Amendment) Act, 1969 building and rebuilding is no longer a ground for ejectment of a thika tenant. Therefore, the order of eviction made in the instant case is without jurisdiction.