JUDGMENT :

Biswaroop Chowdhury, J.

1. The petitioner before this Court is a plaintiff in an Ejectment Suit in the learned Court below and is aggrieved by an order dated 18-06-2022 passed by Learned Civil Judge Senior Division 3rd Court Alipore in Ejectment Suit No. 26 of 2021 in directing the petition under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act 1997 for consideration along with the preliminary issue of the suit. The petitioner being aggrieved by the said order has come up with the instant application.

2. The case of the plaintiff/petitioner may be summed up thus :

1. The petitioner has filed a suit for eviction and damages against the opposite parties before the Learned Civil Judge (Senior Division) 3rd Court at Alipore and the same has been registered as ejectment suit No. 26 of 2021.

2. The ground for ejectment in the suit is that the father of the opposite parties died on 25-03-2010, leaving behind his wife and the opposite parties. The opposite parties therefore became the joint tenants in respect of the suit property as the mother of the opposite parties relinquished her right of tenancy. The mother of the petitioner also died and the petitioner become the sole owner of the suit property.

3. According to the petitioners the right of tenancy of the opposite parties subsisted for a period of 5 years from death of their father and as such they have become trespassers in respect of the suit property.

4. The petitioners requested the opposite parties to vacate the suit property but the opposite parties did not do the same. Hence the suit.

5. In the said suit the opposite parties filed an application under Section 7(2) of the West Bengal Premises Tenancy Act 1997 and the petitioner filed objection thereto. In the said application the opposite parties stated that the opposite parties are the tenants under the petitioner in respect of the suit property at the rate of Rs. 600/-per month. It was further contended that the opposite parties paid the rent up-to-October 2019, and the petitioner issued rent receipts and after that the petitioner refused to accept the rent.

6. The petitioner filed an application challenging the maintainability of the petition filed by the opposite parties under Section 7(2) and 7(1) of the West Bengal Premises Tenancy Act 1997, on the ground that since the opposite parties are trespassers in respect of the suit property, the provisions of West Bengal Premises Tenancy Act 1997 would not be applicable in the instant suit. The opposite parties filed objection to the said petition.

7. The Learned Court below by Order dated 18/06/2022 was pleased to observe and direct as follows :

‘On perusal of the materials on record it appears to me that the plaintiff filed this suit claiming the defendant the statutory trespasser under Section 2(g) of WBPT Act and the defendant are claiming them statutory tenant under the plaintiff on the basis of agreement dated 21-01-2012. Defendant already filed the written statement in this case. So the matter in issue is closely related with the main issue ‘whether the defendant is a tenant under the plaintiff or trespasser in respect of the suit premises? This issue is framed as a preliminary issue and will be considered by taking evidence. The present petition of the plaintiff and the petition under Section 7(1) and 7(2) of WBPT Act will be considered with the above issue.

To 19.07.2022 for evidence in respect of preliminary issue.’

3. The petitioner being aggrieved by the order dated 18-06-2022 passed by the Learned Court below has come up with the instant application.

4. It is contended by the petitioner/plaintiff that the Learned Trial Court erred in law by not considering that the suit is a suit for eviction of trespassers and the provisions of West Bengal Premises Tenancy Act 1997 do not apply. It is further contended that the Learned Trial Court erred in law by not considering that the opposite parties have filed the application under Section 7(2) of the West Bengal