JUDGMENT 1. This second appeal is on behalf of the defendant No. 1 in a suit for a declaration that the plaintiffs and the proforma-defendants are the thika tenants under defendants no. 1 in respect of the disputed property. It is stated that one Sukkur Choudhury the predecessor-in-interest of the plaintiffs and the proforma-defendants held a thika tenancy under the defendants No. 1's predecessor. The defendant No. 1 after the death of Sukkur Choudhury in the year 1946 purchased the shares of Ayesha Bibi and halima Bibi in the tenancy. Ayesha bibi was a widow and Halima Bibi was the mother of Sukkur Choudhury. The defendant No. 1 thus purchased a share in the aforesaid thika tenancy. Having purchased some share in the thika tenancy, the defendant No. 1 purchased the interest of the landlord of Sukkur choudhury and the defendant No. 1 thereafter caused a notice to be served under section 9 (2) of the Calcutta thika Tenancy Act. Some proceedings under section 9 (3) were taken by Baitan Bibi, one of the widows of Sukkur Choudhury, who married one Tozamal hussain. The plaintiffs averred that they were not bound by the order under section 9 (2), but the order under section 9 (2) having clouded their title, they applied for a declaration of their tenancy rights under the defendant no. 1. The defence that the defendant no. 1 took was that the suit was barred under section 42 of the Specific Relief act ; and his further defence was that the remedy to the tenants being provided under section 9 (3) of the Calcutta Thika Tenancy Act and the plaintiffs not having applied for that remedy which was their only remedy, the present suit was impliedly barred. It is this latter aspect of the matter which has been urged in this Court and we shall consider only that aspect. Section 9 of the Code of Civil Procedure says, "the Courts. . . . . have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. " The question therefore is whether the cognizance of the present suit is expressly or impliedly barred by any statute. Section 9 of the Code of Civil Procedure says, "the Courts. . . . . have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. " The question therefore is whether the cognizance of the present suit is expressly or impliedly barred by any statute. On general principles also the Judicial Committee in the case between (1) Secretary of State v. Mask and Co., reported in 67 Indian Appeals, 222, at p. 236 observed as follows: "it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. " It goes further and says, "it is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. " 2. The first question is whether there is any explicitly expressed exclusion of jurisdiction of the Civil Court under the provisions of the Calcutta Thika tenancy Act. For that purpose we shall examine the provisions of the act. Section 5 relates to proceedings for ejectment. It begins by saying, "notwithstanding anything contained in any other law for the time being in force a landlord wishing to eject a thika tenant. . . shall apply in the prescribed manner to the Controller for an order in that behalf. . . " Here it is clear that notwithstanding the provisions contained in section 9 of the Code of Civil Procedure, a landlord wishing to eject a thika tenant must apply to the Controller. Here it has been explicitly expressed that the jurisdiction of the Civil Court will be excluded. Section 9 (1) of the Calcutta Thika tenancy Act relates to abandonment. It says, "when a thika tenant voluntarily abandons his holding without notice to the landlord and without arranging for the payment of his rent as it falls due, the landlord may, at any time after the expiration of a period of two months from the date of such voluntary abandonment, file the notice referred to in sub-section (2. . . . . . ". . . . . . ". Sub-section (2) provides: "a landlord who intends to enter on a holding under this section shall file a notice in the prescribed form with the Controller, stating that he has treated the holding as abandoned and intends to enter on it accordingly. . . . . " Sub-section (3) provides: "after the publication of the notice under subsection (2), the thika tenant may apply to the Controller at any time not later than the expiration of one month from the date of the publication of such notice for the cancellation of such notice and thereupon the Controller may, on being satisfied after such enquiry as he considers necessary. . . . cancel the notice and direct that the thika tenant shall continue in possession. . . . If the thika tenant does not make any application under this sub-section or his application is rejected, the landlord may enter on the holding subject to the provisions of section 10. " We have to consider this section 9 and see whether the jurisdiction of the Civil Court has been excluded either expressly or impliedly. The Trial Court found that the plaintiffs were not parties to the proceedings under section 9 (3). Baitan Bibi's application was rejected but that has not affected the rights of the plaintiffs at all and the Trial Court further found that the order of the Controller passed under section 9 was without jurisdiction so far as the plaintiffs are concerned. It is needless to say that the plaintiffs not being parties to the proceedings, there is no question of jurisdiction over the plaintiffs. All that may be said is that the plaintiffs are not bound by the order under section 9 (3). The Trial Court did not consider the last sentence of section 9 (3) which says that if the thika tenant does not make any application under this subsection, the landlord may enter subject to provisions of section 10. The attention of the Trial Court was not drawn to this provision and, therefore, he has not considered it. The Trial Court did not consider the last sentence of section 9 (3) which says that if the thika tenant does not make any application under this subsection, the landlord may enter subject to provisions of section 10. The attention of the Trial Court was not drawn to this provision and, therefore, he has not considered it. The Appellate Court has referred to the aforesaid case between (1) Secretary of State v. Mask and Co., and has come to the conclusion that the plaintiffs not being given an opportunity to place their views before the Controller, the fundamental principle of judicial procedure has been violated and he therefore found that a suit was maintainable. But the answer is in the Act itself. Section 9 (2) does not contemplate any judicial enquiry. The landlord is to file a notice and the controller shall cause the notice so filed to be published in the prescribed manner. There is no provision under subsections (1) and (2) to make an enquiry. The notice is published so that the thika tenants may apply under section 9 (3). If they do apply, there would be a judicial enquiry and the question would then arise whether in conducting the enquiry the fundamental principles of judicial procedure have been violated or not. Baitan Bibi filed an application ; that was considered and it was rejected. An appeal was filed the appeal was also dismissed. No judicial enquiry is contemplated at the stage of section 9 (2. The plaintiffs never having filed a petition under section 9 (3), there was no question of judicial enquiry and therefore no question of violation of fundamental principles of judicial procedure. Therefore, we are not satisfied with the reasons given by either of the Courts below and we have got to enquire into the matter more fully. So far as Baitan bibi is concerned, she filed an application under section 9 (3); the Controller dismissed that application. Therefore, we are not satisfied with the reasons given by either of the Courts below and we have got to enquire into the matter more fully. So far as Baitan bibi is concerned, she filed an application under section 9 (3); the Controller dismissed that application. Against that, there was an appeal and under the provision of section 27 (6) of the Calcutta Thika Tenancy Act "an order under sub-section (4) made by the chief Judge or the District Judge or a person appointed under sub-section (2), as the case may be or, subject to such order, if any, an order made by the Controller under this Act, shall, subject to the provisions of sub-section (5) be final and may be executed by the Controller. " Therefore, so far as Baitan Bibi is concerned, there may be an abandonment of the holding and, therefore, the exclusion of jurisdiction may be implied. With regard to that, I shall refer to (1) Secretary of State v. Mask and Co. It was observed in that case that there was a provision for appeal in the Customs Act and it was also observed that there was power of revision and then the Judicial Committee observed, "by sections 188 and 191 a precise and self-contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil courts. " The observation of the Judicial Committee is that in case of obligations which are created by the statute itself, if there is a provision for appeal, if there is a provision for revision, the provision that the determination shall be final, can mean nothing else than that the jurisdiction of the Civil court should be excluded. The Judicial Committee further considered the well known judgment of willes, J. in (2) Wolverhampton New water Works Co. The Judicial Committee further considered the well known judgment of willes, J. in (2) Wolverhampton New water Works Co. v. Hawkesford, reported in (1859) 6 C. B. (N. S.) 336 and further found in the aforesaid case of (1) Secretary of State v. Mask and Co., that the question in the present case fell under the third class stated by willes, J. as follows: "where a liability not existing at common law' is created by a statute which at the same time gives a 'special and particular remedy by enforcing it'. With respect to that class it has always been held that the party must adopt the form of remedy by the statute. " Their Lordships finally therefore concluded that the Subordinate judge was right and the Court have no jurisdiction to entertain the suit. The net result of the decision in (1) Secretary of State v. Mask and Co. is the adoption of the principles in (2) Wolverhampton New Water Works Co. v. Hawkesword. With regard to a case which comes within the third class as referred to in (2) Wolverhampton's case, the Judicial Committee was of opinion that the jurisdiction would be excluded for the reason that the Act created a special obligation not existing at common law. That Act provided a remedy ; that Act further provided that the order of the trial authority could be challenged in appeal. The order could also be challenged in revision and their Lordships said that it was difficult for them to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts. " 3. But on the facts in the present case the statute that we shall refer to, stands on a completely different footing from the Customs Act which was considered in (1) Secretary of State v. Mask and co. We are now considering the Act named as the Calcutta Thika Tenancy act. The preamble of the Act of 1949 says, "whereas it is expedient to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta etc. " The preamble does not purport to be a complete Code with regard to the law of landlord and tenant in Calcutta but that the Act purports to make some better provisions relating to the law of landlord and tenant. " The preamble does not purport to be a complete Code with regard to the law of landlord and tenant in Calcutta but that the Act purports to make some better provisions relating to the law of landlord and tenant. The law of landlord and tenant is well defined in India in the Transfer of Property Act which, we can say is the ordinary law of the land. For purposes of the present case the Transfer of Property Act may correspond to common law in England at the time when the decision in (2)Wolver Hampton's case was made in 1859. Therefore, there is an ordinary law in India and the Calcutta Thika tenancy Act does not create entirely new law relating to the law of landlord and tenant. The old law exists but to some extent new provisions have been made. One of those new provisions specifically excludes the jurisdiction of a Civil Court in matters of ejectment and we have already referred to section 5. The non-obstinate clause in section 5 of the Calcutta Thika tenancy Act says that a suit could not be entertained for ejectment of a thika tenant in terms of the main provision of section 9 of the Code of Civil Procedure but that an application under section 5 of the Calcutta Thika Tenancy act has to be made. There we get exclusion of jurisdiction of the Civil Court. The right to eject a tenant exists and the ordinary law of the country, namely, the Transfer of Property Act has been modified by section 3 of the Calcutta Thika Tenancy Act. Therefore, there is a special provision with regard to ejectment and the ordinary right of landlord to eject has been over-ruled and special procedure and special grounds for ejectment have been laid down. I have no hesitation, following the principles in (1) Secretary of State v. Mask and Co., in holding that a suit for ejectment would be barred. But section 9 of the Calcutta thika Tenancy Act does not stand on the same footing as section 5 of that act. The first matter that we observe is that section 9 does not create any new right. The ordinary law of abandonment is there. But section 9 of the Calcutta thika Tenancy Act does not stand on the same footing as section 5 of that act. The first matter that we observe is that section 9 does not create any new right. The ordinary law of abandonment is there. It accepts the ordinary right of landlord to enter on abandonment by a tenant but what it provides is that before entering into the possession the landlord may cause a notice to be served under section 9 (2)and after the notice is served, under sub-section (3) the tenants are given a remedy to apply for cancellation of the notice within a period of one month. There is no non-obstinate clause in any part of section 9. Secondly, there is no order directed to be made under section 9 (2). The only provision is that the Controller shall cause a notice to be published and this is no order determining the rights of the parties. If this is no order determining the rights of the parties, section 27 of the Thika tenancy Act will not come into play. Section 27 says that an order of the appellate authority or of the Controller under the Thika Tenancy Act shall be final and if it is final, it may exclude the jurisdiction of the Civil Court. But no order being contemplated under section 9 (2), the finality of the order under section 27 (6) is not attracted nor are any principles laid down in (1)Secretary of State v. Mask and Co., attracted. As sections 9 (1) and 8 (2) do not contemplate any order by a Controller or by an appellate authority, the finality referred to in section 27 (6) has no application. We have now to consider the effect of section 9 (3) of the Thika tenancy Act. Section 9 (3) contemplates an order and contemplates cases where tenants do not file an application under section 9 (3. Therefore, that section requires more careful consideration. Before we go to that matter, we have to consider which of the principles in (2) Wolverhampton's case is to be applied to the rights and obligations created by the Calcutta thika Tenancy Act. In Wolverhampton New Water Works Co. Therefore, that section requires more careful consideration. Before we go to that matter, we have to consider which of the principles in (2) Wolverhampton's case is to be applied to the rights and obligations created by the Calcutta thika Tenancy Act. In Wolverhampton New Water Works Co. v. Hawkesford, Willes, J. made the following observation: "there are three classes of cases in which liability may be established by statute, (i) There is that class where there is a liability existing at common law, which is only remedied by the statute with a special form of remedy: thus, unless the statute contains words expressly excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. (ii) Then there is a second class, which consists of those cases in which a statute has created a liability, but has given no special remedy for it: Thus the party may adopt an action of debt or other remedy at common law to enforce it. (iii) The third class is where a statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it. . . . . . With respect to that class it has always been held that the party must adopt the form of remedy given by the statute. " When a tenant abandons his holding the landlord may have a right to enter and treat the tenancy as determined. The determination of tenancy by abandonment is not specifically provided for in section 111 of the Transfer of Property Act. That may come under one or other of the sub-clauses under section 111 according to the circumstances of this case. But there is no doubt that in our country this right of landlord to enter an abandonment is a civil right and a suit relating to that would be a suit of a civil nature within the meaning of section 9 of the Code of Civil Procedure. According to the phraseology in (2)Wolverhampton's case that would be a "liability existing at common law". The landlord's right to enter on the abandonment of the tenancy is not one created by the Calcutta Thika Tenancy act. Sections 9 (1) and 9 (2) merely recognize that right but do not create that right. It only lays down the procedure by which the landlord would reenter. The landlord's right to enter on the abandonment of the tenancy is not one created by the Calcutta Thika Tenancy act. Sections 9 (1) and 9 (2) merely recognize that right but do not create that right. It only lays down the procedure by which the landlord would reenter. But sub-section (3) provides a procedure by which the tenant may have his remedy by cancellation of notice on terms. That right of the tenant to recover possession from the landlord or for a declaration that the re-entry was unlawful would be one relating to a right of a civil nature. But the cancellation of the notice under section 9 (2) is a special remedy, because the provision for notice is created by the statute. Even if the notice is not cancelled, the tenants right is not extinguished. Ail that section 9 (3) says is, if the thika tenant does not make any application under this sub-section, the landlord may enter on the holding subject to the provisions of section 10. Within one month from the date of the publication the tenant may make an application for cancellation of the notice. If he does not, his right to cancellation of the notice is gone. But there is no provision in the Calcutta thika Tenancy Act which extinguishes the rights of the tenant to recover possession by suit. Section 9 (3) is limited in two ways ; first, it confers a right to the tenant to apply for cancellation of the notice within a month from the date of the publication of the notice and (ii) the relief that can be obtained is only for cancellation of the notice on payment of arrears of rent and not for declaration of the tenant's right. I am, therefore, of opinion that neither section 9 nor section 27 affects the plaintiffs who were no parties to the proceedings under section 9 (3). The right of the tenants being a right of a civil nature, the right to sue remains and there is no provision by which that right is excluded. The scope of an enquiry under section 9 (3) is limited. The order is of a summary nature and the order merely relates to cancellation of the notice under section 9 (2) of the Calcutta thika Tenancy Act. An order in a summary proceeding is not a final determination of the rights of the parties. The scope of an enquiry under section 9 (3) is limited. The order is of a summary nature and the order merely relates to cancellation of the notice under section 9 (2) of the Calcutta thika Tenancy Act. An order in a summary proceeding is not a final determination of the rights of the parties. Refer Rama Rao v. Venkataratnam, reported in (3) A. I. R. 1947 P. C. 88. Hence, I agree with the Courts below that the plaintiffs may be entitled to a declaration but that does not solve the problem. 4. The Courts are always reluctant to make declarations which are of no useful purpose. Ordinarily a thika tenant is for a particular period and thereafter he continues from month to month by holding over. If a landlord recovers possession of a tenant's property while he had been holding over, the tenant's right ordinarily ceases with effect from the expiry of the last term "held over". A tenancy by holding over continues so long as the landlord consents to such possession but once the landlord recovers possession even by force there cannot be any further holding over within the meaning of section 116 of the transfer of Property Act. Hence, ordinarily the effect is that tenancy after the expiry of the last term "held over'' ceases and the tenant has no right to recover thereafter. But in case of a protected tenancy, the position is different ; the tenant does not continue in possession because of the consent of the landlord but is protected from eviction notwithstanding dissent of the landlord. A thika tenant is entitled to such protection. Hence, a thika tenant has not merely a right to continue in possession but he has also the right to recover possession from the landlord in a base where the landlord prevents the tenants from getting possession. I may refer to (4) Demman v. Brise, (1949)1 K. B. 22: (1948) 2 All E. R., 141. Hence, we conclude that the thika tenants had a right to remain in possession at the date when the landlord attempted to take possession of the entire tenancy but succeeded in getting possession of a part. The question further is whether they still have the same right or whether they had the same right at the dates of the declaration by the Courts below. The question further is whether they still have the same right or whether they had the same right at the dates of the declaration by the Courts below. Under the Calcutta Thika Tenancy Act the tenant will be protected from eviction in cases other than those referred to in the different grounds from (i) to (vi) of section 3 of the Calcutta Thika Tenancy act. Hence referring to ground 3 (i), if the tenant has defaulted in payment of rent, he would not be protected from eviction. In that case even if a declaration be made, he would be immediately disposed by a proceeding under section 5 of the said Act. The question is whether in such circumstances a declaration should be made. Under section 42 of the Specific Relief Act the court has a discretion in the matter of declaration. We are not inclined to exercise our discretion under section 42 of the Specific Relief Act if the result of such declaration is a proceeding for ejectment which will make the declaration futile. It is well settled that no declaration should be made which would be useless, futile or infructuous. Refer (5) A. I. R. 1943 Pat., 34 (6) A. I. R. 1941 Oudh, 422. But section 6 of the Calcutta Thika Tenancy Act says, if the thika tenant deposits all arrears of rent with interest, the tenant would be protected. Hence an imposition of condition as in section 6 of the Thika Tenancy Act will prevent the declaration from being made infructuous, futile or useless. Section 9 (3) of the thika Tenancy Act also supports imposition of such a term. It provides inter alia. . . "the Controller may, on being satisfied. . . . . . that the thika tenant is entitled to continue in possession, cancel the notice and direct that the thika tenant shall continue in possession subject to payment of the arrears of rent due. . . . . . ". Hence the provisions of section 6 and section 9 (3) of the Act clearly show that the right of a thika tenant to continue in possession is dependent on payment of all arrears of rent. None of the Courts below considered this aspect of the case. We would therefore set aside the judgment and decree of the Courts below. 5. Hence the provisions of section 6 and section 9 (3) of the Act clearly show that the right of a thika tenant to continue in possession is dependent on payment of all arrears of rent. None of the Courts below considered this aspect of the case. We would therefore set aside the judgment and decree of the Courts below. 5. The next question is whether the tenant is liable to pay all arrears of rent or arrears of rent for the last three months. I have considered that aspect in a case between (7) Gagan kumar v. Chintamani, reported in 65 Calcutta Weekly Notes, 639. Bachawat, j. in a case between (8) Prakash Chandra and Surendra in Civil Revision Case 125/1954 (not yet reported)took the same view. The tenant is liable for all arrears of rent as a condition for his protection and therefore as a condition for his declaration. Hence the tenant must pay or deposit all arrears of rent whether a proceeding for recovery of arrears by landlord is barred or not. We would, therefore, declare the tenants' right provided the tenants deposit all arrears of rent up to the date of calculation of such arrears of rent. As I have discussed the matter already, the tenants have no rights under the Calcutta Thika Tenancy Act unless they are protected under section 6. But if the superior landlord has realised rent during the period from the sub-tenants, they should be taken into account. 6. Therefore, we would set aside the judgments and decrees made by the courts below. We would direct the trial Court (i) to calculate all arrears of rent together with interest from the date of default till the date of calculation, (ii) to calculate the amount the landlord-defendants may have realised directly from the sub-tenants within the said period and (iii) then adjust item No. (ii) against item No. (i) and will find out the arrears of rent still payable to the landlords together with interest at the rate of 6 per cent, pen annum. The Court will thereafter pass a conditional decree that in case the amount so found due be deposited by the tenants within the time granted by the Trial Court, the suit will stand decreed. In case there is a default, the suit would stand dismissed. The Court will thereafter pass a conditional decree that in case the amount so found due be deposited by the tenants within the time granted by the Trial Court, the suit will stand decreed. In case there is a default, the suit would stand dismissed. The result is that the findings of the Courts below are substantially affirmed, but the orders of the Courts below are set aside and the Trial Court is directed to assess sums as referred to above and to pass a decree thereafter in terms referred to above. Each party will bear his own costs up to the present stage.