IMPORTANT POINTS
(1) Though suit for eviction may not be maintainable against Thika Tenant, but suit against trespasser would not be barred under Thika Tenancy Act – In order to ascertain maintainability of suit Court is required to go into pleadings of parties.
(2) Merely by raising an issue that suit is not maintainable will not take away jurisdiction of Court.

JUDGMENT

Dinesh Kumar Sharma, J.—Present petition has been filed challenging the order dated March 15, 2022 passed by Learned Second Judge City Civil Court at Calcutta in Misc. Case No. 597 of 2020 (arising out of Title Execution Case No. 53 of 2011), whereby the Learned Trial Court while deciding an application of the opposite party under Order 21 Rule 101 and 104 read with Section 47 and Section 151 of the CPC set aside the ex parte judgment and decree passed by the Court in Title Suit 2 No. 1897 of 2003 as having been passed without jurisdiction and further directed to restore back possession to the petitioners of the suit property.

2. Briefly stated the facts as emerged are that initially a Title Suit No. 1897 of 2003 was filed by the petitioner herein against amongst others, the deceased father of the opposite party no. 2 and 3, namely, Rup Chandra Rajak Alias Das, inter alia, praying for a decree of declaration and recovery of Khas possession of the suit property in the premises no.B12/1/H/5 Ram Chand Ghosh Lane, Police Station-Burtolla, Kolkata-700006. The said suit was decreed ex parte by judgment and decree dated June 9, 2011. An application was filed under Order 9 Rule 13 of the CPC along with Section 5 of the Limitation Act bearing Misc. Case No. 819 of 2011 for setting aside the ex parte decree, which was dismissed in default on September 5, 2014. This led to filling of another Misc. Case No. 1892 of 2015 under Order 9, Rule 13 CPC, the same was also dismissed after contest vide order dated February 13, 2020. It is pertinent to mention here that setting aside of ex parte judgement/decree was prayed for primarily on the ground that their earlier advocate did not pursue the case diligently. In the meanwhile a title suit was also filed by the opposite party for partition bearing Title Suit No. 383 of 2015.

3. The petitioner challenged the impugned order passed in Misc. Case No. 597 of 2020 on the ground that the learned Court exceeded its jurisdiction and committed material irregularity by entertaining and deciding the present application. Learned counsel submitted that an application under Order 21, Rule 101 of the CPC can be entertained only where a third party to the suit seeks to establish its independent title to the decretal property. Such an application cannot be moved by the judgment debtor, who had suffered the decree. The petitioner also submitted that Section 47 of the CrPC has not been followed by the Learned Trial Court as Section 47 is limited to the execution, discharge and satisfaction of the decree.

4. The petitioner further submitted that the Learned Trial Court has committed grave illegality by holding that the Civil Court did not have jurisdiction. Learned counsel submitted that the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, hereinafter referred as Thika Tenancy Act, is applicable for a eviction of a tenant and for eviction of Bhartia by the tenant. The petitioner submitted that other nature of the suits in between the persons holding right attached thereto can always be adjudicated by the Civil Court.

5. Learned Counsel for the petitioner submitted that in fact Late. Rup Chandra Rajak traespassed in the ground floor of the petitioner, for which the petitioner filed suit no. 1897 of 2003 for recovery of the possession. Learned Counsel submitted that the defendants in the suit were duly served. However, they did not contest the suit which resulted into ex parte decree dated June 9, 2011. The petitioners filed a Title Execution Case No. 35 of 2011. In the said Misc. case on the resistance being offered by Late. Rup Chandra Rajak the petitioners were granted police help in Misc. Case 795 of 2012 vide order dated July 25, 2014. Pursuant to this the petitioner got possession of two rooms on February 27, 2015 and Execution Case was disposed of with satisfaction, vide order dated March 27, 2015. Learned Counsel submitted that Late. Rup Chandra Rajak filed an application under Order 9