JUDGMENT 1. THIS Rule arises on an application under Article 227 of the Constitution of India and is directed against the order passed by the learned Chief Judge, Small Causes Court, calcutta, dated April 28, 1976 in Thika tenancy Appeal No. 3 of 1976 affirming that of the Thika Tenancy Controller in Thika Tenancy Case No. 7 of 1973 dated December 10, 1975. The facts of the case may, briefly, be stated as follows : - 2. THE petitioners are two sons of late Satish Chandra Dey who died about 9 years back. About 30 years back satish Chandra was inducted as a tenant in the suit premises by the predecessors-in-interest of the opposite parties. The induction was for residential purpose and after constructing a two storied pucca structure for residential purpose the petitioners started residing there along with his family. The area of the suit land is 14 chataks 9 sift The opposite Parties became owners on the basis of a purchase dated October 1, 1962. In March, 1973 the opposite parties filed an application before the Thika Tenancy Controller for eviction from the suit land. In the said application, it was admitted by the opposite parties that the petitioners are monthly thika tenants by constructing structure thereon for residential purpose. It was alleged that subsequently the petitioners erected construction for business purpose also. No statement with regard to the nature of the structures was, made in the said application. It was alleged that the opposite parties are residing in a rented house and they require the suit land for the purpose of residence of their family members where they propose to construct a building. It was further stated that for the purpose of construction of the proposed building the opposite parties submitted a plan to the Corporation of Calcutta. But the Corporation of Calcutta has informed that the same cannot be sanctioned until the structures are removed from the premises. The opposite parties pleaded service of the required notice upon the petitioners. The petitioners filed written objection denying the material allegations. Though the opposite parties examined 3 witnesses no evidence was adduced regarding the nature of the structures, rather it was admitted that (he petitioners had their structures, on the suit land at the time of purchase of the opposite parties. The petitioners examined 3 witnesses in sup port of their case. The petitioners filed written objection denying the material allegations. Though the opposite parties examined 3 witnesses no evidence was adduced regarding the nature of the structures, rather it was admitted that (he petitioners had their structures, on the suit land at the time of purchase of the opposite parties. The petitioners examined 3 witnesses in sup port of their case. It was stated in evidence that the structures were raised in 1940. There are 4 pucca walls of he structure and the structure is a two storied one with tile roofs. The structure was stated to be of partly concrete and partly wooden. The floor was stated to be of concrete. The petitioner No. 1 further stated that the structure is for resifential purposei. It is stated that the opposite parties sought eviction of the petitioners on the ground mentioned in section 3 (1) (ii) of the Calcutta Thika tenancy Act, 1949. The opposite parties are not entitled to an order for eviction of the petitioners without proving that the structures erected were not for residential purpose and were not pucca structures. The opposite parties in their application did not state, that the structures are not pucca structures, nor they said a word about the nature of the structures in their evidence. On the other hand, as has already been stated the petitioner led evidence regarding the nature of the structures. Inspite of that, the learned Thika Tenancy courtlier allowed the application of the opp. parties holding that the opp. parties proved their case of reasonable requirement and that the structures in question were not pucca structures. The petitioners being aggrieved preferred an appeal before the learned Chief judge. The learned Chief Judge dismissed the appeal. But strangely enough the learned Chief Judge omitted to make any finding regarding the nature of the structures. Hence, the present application. Mr. Tapash Kumar Roy, learned advocate appearing on behalf of the petitioners, contends that both the Thika controller and the appellate authority were wrong to hold that the: opposite parties ware entitled to an order for eviction. Both the authorities failed to note that it was incumbent on the opposite parties to prove that the structure in question is not pucca structure. Unless that is proved the opposite parties are not entitled to get an order for eviction. Mr. Both the authorities failed to note that it was incumbent on the opposite parties to prove that the structure in question is not pucca structure. Unless that is proved the opposite parties are not entitled to get an order for eviction. Mr. Roy referred to Section 3 (1) (ii) which reads as follows:- "notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall, subject to the other provisions of, this Act, be liable to ejectment from his holding on one or more of the following grounds and not otherwise, namely :- (ii) except during any period limited by a registered lease under which a thika tenant may hold the land comprised in the holding and subject to the provisions of sub-section (2), (3) and (4), on the ground that the land is required by the landlord for his own occupation. Mr. Roy contends that in the present case sub-section (4) is relevant. Sub-section (4) reads as follows :- "where the thika tenant has erected or acquired a pucca structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part, if any, of such land as does not appertain to the pucca structure. " 3. RELYING on, these provisions Mr. Roy contends that in order to get an order for eviction on the ground of own occupation a landlord must prove that the structure in question is not a pucca structure. Admittedly, there are structure on the lard. So, it was very much necessary for the authorities below to find clearly regarding the nature of the structures. Mr. Roy in this connection submits that not a word has been stated in the application filed by the opposite parties regarding the nature of the structures, nor any evidence has been adduced on behalf of the opposite parties. On the other hand, the petitioners have adduced evidence which very clearly leads to the conclusion that the structures are pucca structures. Inspite of that the learned Thika Controller has come to the finding that the structures are not pucca structures and the appellate authority has made no finding on this very vital point. 4. MR. On the other hand, the petitioners have adduced evidence which very clearly leads to the conclusion that the structures are pucca structures. Inspite of that the learned Thika Controller has come to the finding that the structures are not pucca structures and the appellate authority has made no finding on this very vital point. 4. MR. Roy with much emphasis argues that the landlord in order to get an order for eviction of a thika tenant on the ground that he requires the land for his own occupation must satisfy the Thika Controller that the shnctures erected on the said land by the thika tenant are not permanent structures. If that is not proved a landlord is not entitled to get an order for eviction. It has been admitted by the landlord in paragraph 2 of the petition that the thika tenant is in occupation of the land by constructing structures on the said land mainly for residential purpose and subsequently erected by them for business purpose also. Though so much was admitted by the landlord, yet they omitted to say that the structures not pucca structures. This being the position; the petitioners were under no obligation to state that the structures existing on the land are pucca structures. Mr. Nirmal Kumar Chakraborty, learned advocate appearing on be half of the opposite parties, submits that sub-section (4) of section 3 of the Calcutta Thika tenancy Act gives a protection to the tenant in a proceeding for ejectment on the ground of own use and occupation and it is for the tenant to raise the plea that the structures in question on the land are pucca structures and the landlord is not entitled to get an order for eviction. No such plea has been taken by the tenant in his written objection. Some evidence was adduced at the time of hearing. The learned thika Controller on the evidence on record found that the structures are not pucca structures. It is true that the appellate authority has not come to a positive finding regarding the nature of he structures. But he has affirmed the findings' of the Thika Controller. Mr. Chakraborty contends that the petitioner cannot be allowed to raise a point at this stage in an application under Article 227 of the Constitution which was never taken in the Tribunals below. In support of his contention, Mr. But he has affirmed the findings' of the Thika Controller. Mr. Chakraborty contends that the petitioner cannot be allowed to raise a point at this stage in an application under Article 227 of the Constitution which was never taken in the Tribunals below. In support of his contention, Mr. Chakraborty first refers to a decision reported in A. I. R. 1930 P. C. 57 (Siddi Mahomed Shah v. Staran). It was been laid down by the Judicial Committee that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward". He also seeks reliance from a decision reported in. A. I. R. 1957 S. C. 133 (Deoki nandan. v. Murlidhar), The next case referred to by Mr. Chakraborty has teen reported in A. I. R. 1977 S. C. 2262 (Chander Kali Bail v. Jagadish Singh Tihakur). In this case, their Lordships relied on the same proposition of law laid down in A. I. R. 1930 P. C. 97. On the same point, Mr. Chakraborty refers to 8 Indian Law Reports Calcitta 975 (Joytar a Dassee v. Mahomed mobaruck ). Mr. Chakraborty next relies on a decision reported in 20 C. W. N. 874 (Ashmatulla Sarkar v. Ran Mahmud chowdhury). In this, case, it has been held that "the agriculturist whose house is protected from attachment by sec. 60 (c) of the Code of Civil Procedure is rote belonging to the class of common agriculturists that are known in Bengal, whose main source of livelihood is be cultivation, the raiyat who tills the field. The plea that he is an agriculturist within the; meaning of the section has got to be set up and proved by the judgment-debtor". Relying on this decision Mr. Chakraborty contends that in this case also in order to get protection from eviction on the ground that the structures existing on the land are pucca structures, the onus is entirely upon the petitioner to prove the same and the opposite parties were under no obligation to prove that the structures are not pucca structures. The parties are never required to prove a negative fact. In this connection, Mr. Chakraborty also seeks reliance from a decision reported in 16 C. W. N. 779 (Hari Moni Debi v. Moti Sheikh). The parties are never required to prove a negative fact. In this connection, Mr. Chakraborty also seeks reliance from a decision reported in 16 C. W. N. 779 (Hari Moni Debi v. Moti Sheikh). It has been held in this case that "in a suit by a purchaser of a tenure or holding at a rent sale to annul an alleged in cumbrance the onus is in the first place on the plaintiff to show that the interest sought to be annulled is an "in cumbrance", but when once that is established the onus shifts on to the encumbrances to prove that his in cumbrance is saved through being a "protected interest". Relying on this decision Mr. Chakraborty submits that in this case also the landlord is entitled, to get an order for eviction on the ground of own use and occupation if other conditions are satisfied. If it is the tenant's case that the landlord is not entitled to get an order for eviction as the structures on the land are pucca structures it is for the tenants to raise the plea. The next case relied on by mr. Chakraborty has been reported in a. I. R. 1974 S. C. 708 (Baclan Singh v. Dihian dass). In this case, it has been held that "the question whether the suit properties were not family properties should not be allowed to be raised for the first time in second appeal as a decision on that point involves determination of question of fact. Mr. Chaltraborty also relies on a Supreme Court decision reported in A. I. R. 1966 S. C. 1861 (Bhagat Singh v. Jaswant Singh). In this case also their Lordships laid down the same proposition as propounded in A. I. R. 1930 P. C. 57, (Supra). 5. AS against all these decisions Mr. Roy, however, contends that these decisions are not applicable to the facts of the present case. In the present case section 3 read as a whole very clearly lays down that a landlord can get an order for eviction if certain conditions are fulfilled. Those conditions are laid down in Section 3 (1) (i), (ii) and (iii). In the present case we, are concerned with sec. In the present case section 3 read as a whole very clearly lays down that a landlord can get an order for eviction if certain conditions are fulfilled. Those conditions are laid down in Section 3 (1) (i), (ii) and (iii). In the present case we, are concerned with sec. 3 (1) (ii) as the landlord is seeking eviction on the ground that he requires the land for his own use and occupation., Sec. 3 (1) (ii)provides that a tenant is liable to ejectment from his holding if the landlord requires the land for his own occupation except during any period limited by a registered lease under which a thika tenant may hold the land comprised in the holding and subject to the provisions of sub-sec. (2), (3) and (4 ). Sub-section (4) provides that where a thika tenant has erected or acquired a pucca structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part, if any, as such land does not appertain to the pucca structure. Mr. Roy submits that a landlord is not entitled to get an order of eviction until he proves that the structures in question are not pucca structures. As has already been pointed out nothing has been said in the application by. the land lord regarding the nature of the structures and that being so, the tenants were under no obligation to say anything regarding the nature of the structures and in such circumstances, the decisions referred to above by Mr. Chakraborry have no application in the present case, Mr. Roy further submits that in this case, the tenants have adduced sufficient evidence to show that the structures in question are pucca structures and the finding of the Thika Controller. Regarding the nature of the structure is not: correct. 6. MR. Chakraborty in the next place contends that even assuming that the finding arrived at by the Thika controller is not correct and that the appellate authority has not made any finding regarding the nature of the structures, even then the petitioners cannot get any remedy in an application under Article 227 of the Constitution of India as the scope of the said Article is very much limited In support of his contention Mr. Chakraborty first refers to a decision reported in A I. R. 1951 Calcutta 103 (Dalmia Jain Airway vs. Shikumar Mukhwerjee). In this case, it has been held that "though under article 227 of the Constitution, the High court has a right to interfere with decisions of Courts and Tribunals under its power of superintendence, that right must be exercised most sparing and only in appropriate case. In general words the High Court's power of superintendence is a Power to been subord "dinette courts within the bounds of their authority, to see that the do what the dilly reneges and that they do it in a legal manner. It is not a power given to correct errors, otherwise it would be tantamount to a right to entertain appeals on law and facts. The right should be exercised only in cases where the courts have clearly done something which they were not entitled to do". The same proposition of law has been laid down in a case reported in A. I. R. 1954 S.C. 215 (Waryam Singh vs. Amarnatih). 29 Considering the facts and circumstances pf the case, I am of opinion that in this case it was absolutely necessary for the Thika Controller and the appellate authority to come to a definite finding that the structures in question are not pucca structures. The evidence on record cannot lead to a firm conclusion that the structures are pucca structures. That being so, it is necessary that the matter should be fully investigated. For that purpose both the parties should be allowed opportunities to adduce further evidence. The landlord may be allowed to make a prayer for appointment of a Commissioner for local inspection. 7. IT the result, the application succeeds and the Rule is made absolute. The orders passed by the Thika Controller and the appellate authority are set aside. The case is sent back to the learned Thika Controller who is directed to decide the question afresh on the evidence already on record and also on any new evidence that may be adduced by the parties. He will also give the landlord an opportunity to make a prayer for appointment of a Commissioner for local inspection. There will be howled, no order for costs in this Rule. Let the records go down early. Rule made absolute and no order as to costs.