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IN THE HIGH COURT AT CALCUTTA
SUPRATIM BHATTACHARYA, J.
Sandhya Shaw – Appellant
Versus
Durgaprasad Kanu – Respondent
S.A. 202 of 2018
Decided on : 16-04-2024
(A) Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 - Sections 6(3) and 7(1) - Transfer of thika property - Lease deed dated 03.05.2002 declared void as it contravenes the provisions of the 1981 Act, which prohibits transfer of thika property to non-co-sharers - Civil Court lacks jurisdiction to adjudicate on matters pertaining to thika tenancy as per Section 23 of the Act. (Paras 19, 21, 27)
(B) Jurisdiction - Civil Court's jurisdiction is excluded in matters governed by the Thika Tenancy Act, and disputes regarding the validity of lease deeds must be resolved by the Controller. (Paras 21, 28)
Facts of the case:
The appellant, a lessee, contested a suit initiated by the lessor claiming the lease deed was fraudulent and void under the Thika Tenancy Act. The Trial Court dismissed the suit, but the First Appellate Court reversed this decision, declaring the lease void.
Findings of Court:
The lease deed is not enforceable as it violates the provisions of the 1981 Act, and the Civil Court lacked jurisdiction to decide the matter.
Issues: The main issues were whether the First Appellate Court correctly reversed the Trial Court's decision and whether the lessee had the right to the lease under the Thika Tenancy Act.
Ratio Decidendi: The court held that the lease deed was invalid as it contravened the Thika Tenancy Act, and the Civil Court did not have jurisdiction to adjudicate the matter.
Result: The appeal is allowed, and the First Appellate Court's judgment is set aside.
Court: High Court at Calcutta (Supratim Bhattacharya, J.)
Date: 16-04-2024
Subject: Property Law - Thika Tenancy Law
Acts Referred: Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (Sections 6(3), 7(1), 10, 12, 23); West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (Section 21, 27); Registration Act, 1908 (Section 32); Transfer of Property Act, 1882 (Section 105) [judgement_act_referred] (!) (!) (!) (!)
JUDGMENT :
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.
The Ld. Trial Court through the judgment had reached to the conclusion that the lease deed in question bearing the number 2835 of 2002 executed on 03.05.2002 is binding upon the parties, thereby had passed the order that the suit be dismissed on contest.
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 shedebing a portion of and included within the Howrah Municipal corporation holding No. 44, Bhot Bagan Lane, Ghusuri, PS Malipanchghara, District-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, District-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
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 being dated 03.05.2002 and the suit being institu
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.
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