2001 Supreme(Cal) 62

High Court Of Calcutta
KALYAN JYOTI SENGUPTA
RADHA RAMAN JEW - Appellant
Versus
SHALIGRAM SUBHA KARAN KHEMANI - Respondent
C. S.  2928  Of  1954
Decided On : 02/08/2001

The right to challenge the executability of a decree accrues from the date of threat of dispossession, and the application must be filed within 30 days of such threat. The protection against eviction under the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 is not available to persons who claim thika tenancy rights that were created after the passing of the decree for eviction. The principle of constructive res judicata applies to prevent the raising of points that could have been raised on earlier occasions when the same set of applicants had advanced a different case. The vesting of lands in the State of West Bengal under the Act requires a valid and lawful relationship between the occupants and the landlord in relation to the alleged bustee land.

Headnote:

EXECUTION OF DECREE - CHALLENGING EXECUTABILITY - THIRKA TENANCY - OCCUPANTS OF BUSTEE LAND - VESTING OF LAND IN STATE - APPLICABILITY OF CALCUTTA THIRKA AND OTHER TENANCIES AND LANDS (ACQUISITION AND REGULATION) ACT, 1981 - LIMITATION - RES JUDICATA - CONSTRUCTIVE RES JUDICATA - MAINTAINABILITY OF APPLICATION.

Fact of the Case:

The decree holder obtained a decree for khas possession in 1964, which became final after the dismissal of the appeal. The decree was executed, and the judgment debtors resisted it unsuccessfully up to the Supreme Court. The judgment debtors then sought to review the Division Bench judgment and order of execution. Meanwhile, occupants claiming to have been brought in by the judgment debtors or sub-tenants challenged the executability of the decree. Some of the occupants had previously tried to resist execution by setting up a plea of adverse possession unsuccessfully. The occupants came to resist execution, setting up their independent right to get a declaration of the instant decree being non-executable.

Finding of the Court:

1. The applications challenging the executability of the decree were not barred by limitation. The right of making the application accrued in 1995 when the Police went to dispossess them, and the applications were filed within 30 days of the threat of dispossession. 2. The contention of right of thika tenancy was not tenable, and protection against eviction was not available under the provisions of the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981. The applicants' claims and contentions were based on transactions that took place after the decree was passed, which were invalid and not binding on the decree holder. 3. The points raised by the applicants were hit by the principle of constructive res judicata as they could have been raised on earlier occasions when the same set of applicants had advanced the case of adverse possession. 4. The lands in question had not vested unto the State of West Bengal on the date of commencement of the Act, as there was no valid and lawful relationship between the occupants and the landlord in relation to the alleged bustee land.

Issues: 1. Whether the applications made by the aforesaid applicants are barred by limitation or not. 2. Whether the contention of right of thika tenancy is tenable and protection against eviction are available under the provision of Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 or not. 3. Whether these points can be allowed to raise on this application, in other words, the aforesaid issues are hit by the principle of contructive res judicata or not. 4. Whether on the facts and circumstances of this case these lands have vested unto State of West Bengal or not.

Ratio Decidendi: 1. The right to make an application challenging the executability of a decree accrues from the date of threat of dispossession, and the application must be filed within 30 days of such threat. 2. The protection against eviction under the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 is not available to persons who claim thika tenancy rights that were created after the passing of the decree for eviction. 3. The principle of constructive res judicata applies to prevent the raising of points that could have been raised on earlier occasions when the same set of applicants had advanced a different case. 4. The vesting of lands in the State of West Bengal under the Act requires a valid and lawful relationship between the occupants and the landlord in relation to the alleged bustee land, which was not present in this case.

Final Decision: All the applications challenging the executability of the decree were dismissed with costs. The Police were directed to carry out the earlier order of providing police help for the execution of the decree.