K. J. SENGUPTA, J.

(1) THE applicant before us having lost in eviction suit (Ejectment Suit No. 369 of 2004) before the learned 6th Court of Civil Judge (Junior Division) at Alipore had preferred appeal before the West Bengal land Reforms and Tenancy Tribunal (hereinafter referred to as the said tribunal) challenging the said decree of dismissal. The learned Tribunal by brief judgment and order dated 12th March, 2007 rejected such challenge. The applicant before us has impugned both the judgment and order. The applicant filed the suit for eviction against the respondent on the ground of default, reasonable requirement, building and re-building. At the time of hearing of the suit before the learned Civil Judge the ground for reasonable requirement was not pressed. The other grounds were examined by the learned Civil Judge and found the plaintiff viz. the applicant had failed to prove the case of default and also building and re-building.

(2) MR. Tapan Kumar Mukherjee, learned Advocate, appearing in support of this application, contends that under mistaken advice of law his client filed an application before the learned Tribunal to challenge the decree of dismissal of the learned Civil Judge. He submits that this order of learned tribunal should be set aside and liberty be given to him to file appeal before the appropriate Civil Appellate Court as by virtue of amended West Bengal premises Tenancy (Amendment) Act, 2002 which has been given effect from 10th July, 2001, the Controller is no longer competent to entertain the ejectment suit, the learned Civil Judge having jurisdiction over the matter has now been conferred with this power. He says, drawing our attention to section 43 of the West Bengal Premises Tenancy Act, 1997, that the Tribunal is a competent forum in entertaining appeal against the order of the controller not against the order of the Civil Judge. As such, the learned tribunal is incompetent to entertain any challenge against order of the learned Civil Judge in view of lack of inherent jurisdiction. According to him the provision of Civil Procedure Code read with Bengal, Agra, Assam civil Courts Act will be applicable in this matter. His further contention is that a Division Bench of this Court in case of Pashupati Adhikary vs. Pradyut kumar @ Tarapada Adhikary reported in 2003 (4) CHN 347 has held that the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 cannot take away the power and authority of the Civil Judge under Bengal, Agra and Assam Civil Courts Act, 1887.

(3) ON merit he contends that both the learned Tribunal and Civil Judge have not correctly appreciated the evidence and wrongly dismissed the suit.

(4) MR. A. N. Banerjee, learned Counsel for the State and Mr. Upendra roy, learned Counsel for the respondent No. 2, who is the tenant, submit that by virtue of sections 6, 7 and 8 of the Tribunal Act the Tribunal is the only forum to entertain challenge against the eviction decree passed under the Tenancy Act (as amended). According to them, section 43 of the Tenancy act should not be read in conflict with and in contra to the provision of the said Tribunal Act. On merit their contention is that both the for a have examined that the plaintiff/applicant has failed to prove the case of default, building and re-building.

(5) BESIDES, they say that the applicant after having filed application before the Tribunal is estopped from questioning the jurisdiction of the learned tribunal and this point could have been raised before the learned Tribunal at the first instance. Actually, the applicant/appellant had taken a chance and having found themselves unsuccessful this frivolous contention has been raised before this Court for the first time.

(6) WE have examined the contentions of the learned Counsels both on law and fact and we have also read the respective pleadings and the impugned two judgment and order of both the fora. Before we decide the factual issue we have to examine the legal issue