IMPORTANT POINT
The determination of Thika Tenancy rights must be adjudicated by the Thika Tenancy Tribunal, not a civil court, as per the provisions of the West Bengal Thika Tenancy Act.

JUDGMENT :

(AJOY KUMAR MUKHERJEE, J.)

This review application has been preferred in connection with order dated June 23rd, 2023 passed by this court while disposing C.O. 3396 of 2018. By the impugned order the aforesaid application was allowed thereby the order impugned being order no. 25 dated 04.09.2018 passed by the Court below was set aside.

2. It has been contended by the petitioners that the petitioners are the Thika Tenants in respect of the suit property. The opposite parties/plaintiff no. 1 to 35 herein filed Title Suit no. 147 of 2015 seeking partition of the suit property along with other reliefs. The petitioners of the said application being C.O. 3396 of 2018 appeared in the said suit and filed an application under order XIV rule 1 and 2, challenging maintainability of the suit being barred under the provision of West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001. Plaintiff opposite parties filed written objection and after contested hearing the Trial Court rejected defendants application under order XIV rule 1 and 2 with the observation that the present suit is a suit for partition and as such it is maintainable.

3. Being aggrieved by that order aforesaid Revisional Application being C.O. 3396 of 2018 had been preferred before this Court. This Court while disposing the said application held that the main question which is required to be adjudicated in the present context is whether Hazi Sukhoo was the original Thika Tenant in respect of the suit property and after his death all his legal heirs namely parties in the suit have inherited the suit property or Hazi Kuddus, one of the grandson of Hazi Shukoo was the sole Thika Tenant in respect of the suit property and after his death only his legal heirs i.e. the petitioners of the said application/contesting defendants became sole Thika Tenant in respect of the suit property.

4. Accordingly this court further held that the question of partitioning the suit property will come only when it would be adjudged that Hazi Shukoo was the original Thika Tenant and after his death all his legal heirs i.e. the parties in the said suit have become cosharer in respect of the suit Thika Tenanted property. In such view of the matter this court concluded by the aforesaid order impugned that for the purpose of determination as to whether the heirs of Hazi Kuddus are sole tenant or all the legal heirs of Hazi Shukoo are the Thika Tenant in respect of the suit property can only be adjudicated by the Thika Tenancy Tribunal and the suit before a civil court for determination of said question is barred under section 5 (3) of the Act of 2001.

5. Mr. Gopal Ghosh learned counsel appearing on behalf of the petitioner submits that since no affidavit in opposition was called for, therefore the applicants could not bring on the record one order dated July 20, 2016 passed in Misc. Case no. 28 of 2015 by the Deputy Controller, Kolkata Thika Tenancy, declaring all the legal heirs of Hazi Shukoo as the Thika Tenants in respect of the Suit property. He further submits thereafter on the basis of said order the name of the legal heirs of Hazi Sukhoo has been mutated as Thika Tenants in respect of the suit property by the Thika controller. Mr. Ghosh accordingly submits that as Deputy Thika controller already decided the issue, which could not be brought on record at the time of hearing, declaring the parties as Thika Tenants and which order has attained its finality, the observation of this court in order dated June 23, 2023 passed in C.O. No. 3396 of 2018 is an error which is apparent on the face of the record and since no question of determination of Thika Tenancy is involved in the aforesaid suit so, the order impugned is required to be reviewed for sufficient reason.

6. Mr. Sibnath Ganugully learned counsel appearing on behalf of the opposite parties herein, submitted that this Court rightly passed the order impugned and there is no question of exercising jurisdiction under order XLVII rule 1 r