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2013 Supreme(Cal) 45
IN THE HIGH COURT OF CALCUTTA
TARUN KUMAR GUPTA, J.
Abid Hossain – Appellant
Vs.
Abdul Kuddus – Respondent
S.A. No. 387 of 1996
Decided On: 31.01.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: S.P. Roychowdhury, Bhaskar Ghosh, Syed Nurul Arefin and Dipannita Ganguly
For Respondents/Defendant: Saptangshu Basu and Subhayu Banerjee
The surrender of thika tenancy must be genuine and supported by proper evidence to be effective, and the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 vested the thika tenanted land to the State, affecting the ownership rights of the original landowners.
Headnote:
Thika Tenancy - Surrender of Tenancy - Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 - Effect on Ownership - Eviction Suit - Maintainability.
Fact of the Case:
Plaintiffs filed an eviction suit against the defendant, alleging that they purchased the suit premises from its owner and permitted the defendant to occupy a room and some open space as a licensee for two months without any license fee. The defendant claimed to be a thika tenant under the original owner and inducted the defendant in the southern half of the three cottahs of the land. The defendant produced an agreement with the thika tenant for purchasing his Thika Tenancy Right in the suit property and a tripartite agreement with the plaintiff and the thika tenant, acquiring thika tenanted land of the thika tenant.
Finding of the Court:
1. The document of surrender of thika tenancy by the thika tenant in favor of the owner was not genuine and could not be relied upon. 2. The thika tenancy of Nazir Ahmed continued, and the property under his possession vested to the State in terms of the relevant provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. 3. The plaintiffs did not acquire any title over the same through their purchase deeds dated 12.03.1983.
Issues: 1. Whether the document of surrender of thika tenancy was genuine and could be relied upon to establish the plaintiffs' title to the suit property? 2. Whether the thika tenancy of Nazir Ahmed continued, and the property under his possession vested to the State in terms of the relevant provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981? 3. Whether the plaintiffs acquired any title over the same through their purchase deeds dated 12.03.1983?
Ratio Decidendi: 1. The document of surrender of thika tenancy (Ext. 4) was suspicious, lacked a genuine date, and was not supported by the evidence on record. 2. The thika tenancy of Nazir Ahmed continued as the surrender document was not genuine, and the property under his possession vested to the State in terms of the relevant provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. 3. The plaintiffs did not acquire any title over the suit property through their purchase deeds dated 12.03.1983 as the land vested to the State under the Act of 1981.
Final Decision: The appeal filed by the plaintiffs was dismissed, and the concurrent findings of the lower courts that the plaintiffs were not entitled to get a decree of eviction against the respondent defendant were upheld.
Tarun Kumar Gupta, J.
1. The plaintiffs are the appellants against the judgment of affirmation. The plaintiffs filed the suit for eviction alleging that they purchased the premises No. 14B Samsul Huda Road, Kolkata-17 from its owner Shantimoy Banerjee through a kobala. The plaintiff permitted the defendant to occupy one room and some open space of said premises as a licensee for two months without any licence fee. As the defendant did not vacate the suit premises in spite of repeated requests, the plaintiff was compelled to file the suit for eviction after revocation of the licence. The defendant contested said suit by filing a written statement followed by an additional statement. It is alleged that one Jumrati was the thika tenant in the suit property under its original owner Shantimoy Banerjee and that on his death said thika tenancy devolved upon his only son Nazir Ahmed. Nazir Ahmed inducted the defendant in the southern half of the three cottahs of the land at a monthly rental of Rs. 55/-. The defendant started his business by raising new structures on said land. After passing of Thika Tenancy Act, 1981 thika tenants become direct tenants under the State and Shantimoy Banerjee had no saleable interest in the suit property and hence plaintiff did not get any title to the suit property on the alleged purchase of the same from Shantimoy Banerjee. On 22.09.1977 the defendant Abid Hossain entered into an agreement with Nazir Ahmed for purchasing his Thika Tenancy Right in the suit property. It was further case that there was a tripartite agreement dated 22.09.1977 in between the defendant, plaintiff No. 1 and Nazir Ahmed and accordingly plaintiff No. 1 and the defendant acquired thika tenanted land of Nazir Ahmed, each of them having one and half cottahs of land. The defendant submitted returns to the Kolkata Thika Controller after coming into operation of Thika Tenancy (Acquisition and Regulation) Act of 1981. The defendant was never inducted in the suit premises by the plaintiff as a licensee and the suit was liable to be dismissed.
2. Learned Trial Court dismissed the suit by holding that the plaintiffs failed to establish that the defendant was inducted in the suit property as a licensee under them as plaintiffs purchased the suit property only in 1983 whereas it was proved that the defendant was in possession of the same since 1973 and running a business thereupon.
3. The plaintiffs filed an appeal (Title Appeal No. 169 of 1994) against said judgment of dismissal. However, said appeal was also dismissed by learned Additional District Judge, 11th Court, Alipore vide judgment dated 12.09.1995 after contested hearing. Hence is this second appeal.
4. The appeal was heard on the following substantial questions of law.
(1) Whether learned Court of Appeal substantially erred in law by ignoring the document of surrender of Thika Tenancy by thika tenant Nazir Ahmed in favour of owner Shantimoy Banerjee (Ext. 4) on the ground of it being an undated one though a date was affixed in the document.
(2) Whether learned Court below substantially erred in law by observing that plaintiff failed to establish that Shantimoy Banerjee had transferable right of the suit land to the plaintiff and that plaintiff was not entitled to file a suit for eviction.
(3) Whether learned Court below substantially erred in law by observing that plaintiff was not entitled to get a decree of eviction by applying wrong legal test.
5. Mr. S. P. Roychowdhury, learned senior counsel appearing for the plaintiffs/appellants, submits that plaintiffs' vendor Shantimoy Banerjee was admittedly the owner of the suit property including other properties. According to him, Nazir Ahmed, the thika tenant occupying the suit property which is a part of premises No. 14 Samsul Huda Road and has since renumbered as 14B, Samsul Huda Road, surrendered his thika tenancy right in respect of the suit premises on receipt of compensation for the structure from the owner by a surrendered
