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IN THE HIGH COURT AT CALCUTTA
Supratim Bhattacharya, J.
Sandhya Shaw - Appellant
Vs.
Durgaprasad Kanu - Respondent
S.A. 202 of 2018
Decided On : 16-04-2024
Lease - Thika Tenancy - Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981; Transfer of Property Act, 1882 - The court interpreted Sections 6(3) and 7(1) of the 1981 Act, determining that the lease was void as it contravened the Act's provisions regarding thika property, influencing the decision to uphold the First Appellate Court's ruling.
Fact of the Case:
The appellant, a lessee, contested a First Appellate Court ruling that declared a lease deed void, which the lessor claimed was fraudulent and invalid under the Thika Tenancy Act. The Trial Court had previously upheld the lease's validity.
Finding of the Court:
The court found that the lease deed was not valid as it violated the provisions of the Thika Tenancy Act, which restricts the transfer of thika property. The Civil Court lacked jurisdiction to decide on the matter, which should have been addressed by the Controller.
Issues: Whether the First Appellate Court correctly determined the lease deed was void and whether the Civil Court had jurisdiction to hear the case.
Ratio Decidendi: The court held that the lease deed was void under the Thika Tenancy Act, as it was not permissible to transfer thika property to a non-co-sharer, and the Civil Court lacked jurisdiction to adjudicate the matter.
Result: The appeal is allowed, reversing the First Appellate Court's decision.
JUDGMENT :
Supratim Bhattacharya, J.
1. This instant appeal has been preferred by the appellant being aggrieved by and dissatisfied with the judgment dated 18th of January 2017 passed by the Ld. Civil Judge (Sr. Divn.), 3rd Court Howrah in Title Appeal No. 18 of 2016.
2. The appellant herein is the lessee who was the defendant before the Trial Court and respondent before the First Appellate Court while the respondent herein was the plaintiff before the Trial Court and appellant before the First Appellate Court.
3. Facts before the Trial Court:
The instant lis has been initiated by the lessor in the year 2005 by instituting a suit being Title Suit No. 14 of 2005. In the said suit the plaintiff/lessor by filing a plaint among other things had prayed for a declaration that the deed of lease dated 03.05.2002 in favour of the defendant/lessee allegedly executed by the plaintiff is fraudulent, invalid and inoperative and the defendant/lessee has neither any locus standi nor he is entitled to extend the extent of the ‘B’ schedule property (which is the suit property in question) that is all the peace and parcel of property consisting of five (5) rooms with brick build was and tile shed ebing a portion of and included within the Howrah Municipal corporation holding No. 44, Bhot Bagan Lane, Ghusuri, PS Malipanchghara, Distrtict-Howrah and permanent injunction restraining the defendant and her men and agents from making any further encroachment of any portion of the ‘A’ schedule property (which is the suit holding) which is all that peace and parcel of property consisting of thika land measuring about 3 cottas together with structure made with split bamboo wall and tile shed having about 15 rooms, holding No. 44, Bhot Bagan Lane, Ghusuri, PS Malipanchghara, Distrtict-Howrah and committing any illegal or unlawful act.
The defendant/lessee entered appearance in the said title suit and contested the same filing a written statement through which he prayed for dismissal of the said suit.
On consideration of the pleadings of the parties the Ld. Trial Judge was pleased to frame the following issues:
2. Is the suit bad for joinder and/or mis-joinder of parties?
3. Is the description of Schedule A and B of the plaint vague and insufficient?
4. Is the defendant a premises tenant in respect of the suit property?
5. Has the plaintiff any cause of action to sue?
6. Is the plaintiff entitled to get any decree as prayed for?
7. To what other relief/reliefs to which the plaintiff is entitled to in law and equity?
8. Is the deed of lease dated 3.5.2002 void, illegal as per the provision of Thika Tenancy Act ?”
After elaborate discussion the Ld. Trial Judge had come to the conclusion that the impugned lease deed bearing the no. 2835 of 2002 executed on 03.05.2002 is binding upon the parties in its terms and conditions and had passed the order “that the instant suit be and the same is hereby dismissed on contest. There shall be no order as to costs. The suit is thus disposed of.”
4. Facts before the First Appellate Court
Being aggrieved by and dissatisfied with the judgment passed by the Ld. Trial Court the lessor preferred the first appeal. The Ld. First Appellate Court framed the following points for decision:
2. Whether the appellant /plaintiff has been able to prove his case?”
The Ld. First Appellate Court during elaborate discussion has observed that the deed of lease bein
The lease deed dated 03.05.2002 is void as it contravenes the Thika Tenancy Act, prohibiting transfer to non-co-sharers, and the Civil Court lacks jurisdiction in such matters.
The court held that expired leases do not create continuing tenancies without mutual consent, rejecting claims based on former rental agreements and emphasizing statutory authority for tenure determi....
The main legal point established in the judgment is that the absence of a thika tenancy at the time of the suit and the continuation of the tenancy on a month-to-month basis rendered the suit for evi....
The Thika Tenancy Act bars Civil Court jurisdiction over tenant disputes; however, eviction suits against trespassers are maintainable.
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