1998 Supreme(Cal) 268

IN THE HIGH COURT AT CALCUTTA
Nirendra Krishna Mitra, J.
Sudhir Kr. Sarkar - Petitioner
Versus
M/s Bharat Sheet Metal Industries Ltd. - Opposite Party
C.O. No. 2274 of 1984
Decided on : 30th June, 1998

Headnote:

THIKA TENANCY - Applicability of Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 - Lease expired - Structures erected by lessee not removed within stipulated period - Vesting of structures in landlord - Subsequent payment of rent - Creation of new tenancy - Res judicata - Applicability to execution proceedings.

Fact of the Case:

Petitioner filed a suit for eviction of the opposite party from a piece of land with structures at 22, Birpara Lane, P. S. Chitpur, which the opposite party had taken on lease for a period of 10 years commencing from 1st January, 1958, at a rental of Rs.105/- per month. The lease was registered on 8th October, 1958. It was stipulated in the lease that the opposite party could raise structures on the land for their enjoyment and the structures so erected would have to be removed within a fortnight from the determination of the lease, failing which, the structures would vest in the landlord and would become a part and parcel of the property demised. The opposite party failed to deliver up possession of the disputed holding on the expiry of December 1967 in spite of the written notice given to the opposite party. The structures vested in the landlord/petitioner. The petitioner thereafter, put the said appellate decree into execution and Title Execution Case No. 119 of 1977 was started. In the said execution proceeding, the petitioner made an application for police help for obtaining possession. The opposite party duly appeared in the said execution proceeding and submitted that it would have no objection in delivering possession and as such, there was no need for granting of any police help and the application for police help which gave rise to Misc. Case No. 223 of 1979, was thus disposed of accordingly, but when the bailiff went to take possession, the opposite party did not hand over possession. Thereafter, the opposite party filed an objection under Section 47 of the Code of Civil Procedure in the said title execution case which gave rise to Misc. Case No. 136 of 1980. In the said Misc. Case, the opposite party alleged inter alia, that it was a thika tenant in respect of the disputed holding and as such, could not be evicted under the law, and hence, the execution case should be dismissed. The said Misc. Case was contested by the petitioner by filling written objection stating inter alia, that the contention of the opposite party as raised in the said Misc. Case that it was a thika tenant, was already rejected by the trial Court, while disposing of the title suit filed by the petitioner against the opposite party as referred to above, and the opposite party did not challenge the said finding in any proceeding nor had challenged the said finding even in the appeal preferred by the petitioner, and hence, the objection under Section 47 of the Code of Civil Procedure was not maintainable. At the time of hearing of the said Misc. Case, the judgment-debtor/opposite party referred to Section 19 of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 and submitted that by virtue of the said Section 19, the abovementioned title execution case stood abated. The executing Court, however, by its order No. 64 dated February 16, 1982 dismissed the said objection under Section 47 of the Code of Civil Procedure holding inter alia, that the judgment-debtor/opposite party had no right or reason to stay or strike off the execution proceeding, as the question, whether the opposite party/judgment-debtor was a thika tenant, and whether the property was a thika tenancy property, was already decided against opposite party/judgment-debtor by the trial Court in the title suit filed by the petitioner as aforesaid and in appeal, the plea of thika tenancy was not raised and as such, the said finding of the trial Court remained as it was and hence became conclusive and final. It was further held by the executing Court, that the executing Court could not go behind the decree.

Finding of the Court:

The Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 does not apply to the facts of the present case. The executing Court wrongly held that the lease with the judgment-debtor was for 10 years, and by virtue of the said lease the judgment debtor become a thika tenant in view of the definition under Section 3(8) of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, inasmuch as, the lease admittedly, was not subsisting on the day when 1981 Act came into force, nor on that date, the opposite party/judgment debtor was liable to pay rent. Section 4 of the said Act also would not apply to the facts of the present case for the reasons as aforesaid. The impugned order, accordingly, is set aside. The civil order is thus allowed. The application for addition of party is also allowed. There would be no order as to costs.

Issues: Whether the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 applies to the facts of the present case.

Ratio Decidendi: The Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 does not apply to the facts of the present case because the lease with the judgment-debtor was not subsisting on the day when the 1981 Act came into force, nor on that date, the opposite party/judgment debtor was liable to pay rent. Section 4 of the said Act also would not apply to the facts of the present case for the reasons as aforesaid.

Final Decision: The impugned order is set aside. The civil order is thus allowed. The application for addition of party is also allowed. There would be no order as to costs.