Pravin Chandra Liladhar v. Madan Mohan Jaidka — 1988 DIGILAW 271 (CAL)

JUDGMENT Sudhanshu Sekhar Ganguly, J. 1. This plaintiff appellant’s appeal has been preferred from the decision of Shri B.K. Dutta, Additional District Judge, 8th Court, Alipore dated 9.3.81 in T.A. No. 229 of 1979 reversing the decision of Shri A.K. Dasgupta, Assistant District Judge, 4th Court, Alipore in T.S. No. 32 of 1974 dated 22.12.78. 2. Admittedly Madan Mohan Jaldka, the respondent defendant No.1 (respondent henceforward) took lease of 8 cottahs and odd of land being premises No.1, Chakraberia Road South, Police Station, Bhowanipur, District-24 parganas at a rental of Rs. 199/- per month from Bai Hem Kaur, the mother of the appellant plaintiff (appellant henceforward) by a registered deed dated 29.4.46 (Ext. G). The lease commenced with effect from 1.5.46 expiring on 30.4.56 with right of renewal for five years more at the option of the respondent at the same rent. Admittedly the tenancy continued even after 30.4.56 renewed on exercise of the right of renewal by the respondent, so says the appellant. The respondent did not vacate the suit land with the expiry of the terms of the renewed lease which continued till the end of April, 1961. Meanwhile Bai Hem Kaur died in or about June, 1955. On a partition between the appellant and his co-sharers, the suit property fell to the share of the appellant exclusively. 3. In December, 1962 the appellant served a notice to quit upon the respondent describing him as a thika tenant and requiring him to vacate the disputed property within March, 1963. Thereafter, he filed Misc. Thika case No.64 of 1963 in the court of the Thika Controller, Alipore for eviction of the respondent from the suit land. but subsequently this proceeding was withdrawn. Thereafter he filed the present suit for eviction of the respondent as he did not vacate the suit land in spite of service of notice to quit. 4. The appellant contends that by forging the signature of his mother Bai Hem Kaur, the respondent got a plan sanctioned from the Calcutta Corporation and on the strength of this plan he has constructed a building wherein he has inducted the other defendant-respondents without the consent of the appellant or his mother. 5. The defence of the respondent no.1 is that he became a thika tenant of the suit land for ten years on the strength of the deed of lease. 5. The defence of the respondent no.1 is that he became a thika tenant of the suit land for ten years on the strength of the deed of lease. On the expiry of the period of the lease, the lease was not renewed – as alleged – but the respondent no.1 continued as a monthly thika tenant of the suit land by holding over on payment and acceptance of rent. This tenancy is still continuing. Bai Hem Kaur willingly signed the plan and the building on the suit land was constructed with her and the appellants consent. The respondent no.1 also pleaded that the suit was barred by limitation and that he had required the interest of a thika tenant in the suit land by adverse possession. 6. The defence of the other defendant-respondents is that they have been occupying different portions of the suit-premises as tenants under the respondent no.1. 7. Relying on Satadal Basini Vs. Lalit Mohan, 68 CWN 1086 the learned Assistant District Judge held that since the respondent No.1 had exercised his option of renewal (Ext.2 2(a) the lease became one for fifteen years though to start with it was one for ten years and that therefore, the tenancy was not a thika tenancy in view of the provisions of s.2(5) (b) of the Calcutta Thika Tenancy Act. The learned Judge held further, that the suit was not barred by limitation and adverse possession. In the circumstances stated the learned Judge granted a decree to the appellant enabling him to recover khas possession of the suit land evincing respondents therefrom, but denying him a decree for mandatory injunction for removal of the structure built by the respondent No.1 on the suit land. 8. The appeal from this judgment being T.A. No. 229 of 1979 was heard by Shri B.K. Dutta, the learned Additional District Judge, 8th Court, Alipore and he disposed of it by an elaborate and well discussed judgment. On a consideration of the materials on record he held agreeing with the reasonings given and the conclusion reached by the learned Assistant District Judge that the respondent no.1 was not a thika tenant. On a consideration of the materials on record he held agreeing with the reasonings given and the conclusion reached by the learned Assistant District Judge that the respondent no.1 was not a thika tenant. Finding that the lease with the renewed period of five years had come to an end with the expiry of 30/4/56 but that the respondent No.1 had put up his claim of being a monthly thika tenant by holding over for the first time in his objection petition to the Misc. Thika case No.64 of 1963 dated 23/7/63 the learned Additional District Judge held that the respondent No.1 had not acquired the limited right of a thika tenant by the prescription since twelve years had not intervened between that date, viz 23/7/63 and 3/6/74 being the date on which the present suit had been filed. Finding, however, that the suit which being one for recovery of possession of a leasehold on expiry of the term of the lease should have been filed within twelve years from the date of expiry of the lease, viz 30/4/56 but was actually filed on 3/6/74, the learned Additional District Judge held that the suit was hit by Article 67 of the Limitation Act. In coming to this conclusion the learned Judge held that the appellant was not entitled to exclude the period in between the filing of the Thika Tenancy case No.64 of 1963 i.e. 4/5/63 and the date of its withdrawal viz 1/6/74 under the provisions of s.14 of the Limitation Act read with Order 23, Rule 1 of the Civil Procedure Code. In the result the learned Additional District Judge allowed the appeal and dismissed the appellants suit Hence, the Second Appeal. 9. Before us it is urged from the side of the appellant that since the leaned Additional District Judge himself concluded that the respondent No.1 was not a thika tenant and the learned Thika Controller had no jurisdiction to entertain the case he should have allowed the appellant to exclude the period spent by him in prosecuting the thika tenancy case No.64 of 1963. The learned Advocates of the two parties have addressed us on two points viz (1) whether the respondent No.1 was a thika tenant of the disputed land and as to (2) whether the suit was barred by limitation. 10. The learned Advocates of the two parties have addressed us on two points viz (1) whether the respondent No.1 was a thika tenant of the disputed land and as to (2) whether the suit was barred by limitation. 10. So far as the first point is concerned it may as well be stated here that under s.2(5)(b) of the Calcutta Thika Tenancy Act a tenant holding under a registered lease in which the duration of the lease was expressly stated to be not less than 12 years would not be a thika tenant. There is no dispute that the respondent No.1 would be a thika tenant as per the definition in s.2(5)(b) of the Calcutta Thika Tenancy Act if it be held that the renewed lease of five years formed a lease separate from the original lease of ten years; and that conversely he would not be a thika tenant if it be held that the renewed lease formed part of the original lease and that together they formed one and a single lease for fifteen years. A point similar to the one that has arisen in the present case also arose for decision in Syed Ali Kaiser Vs. Mstt. Ayesha Begum, 1977 (1) CLJ 345 (DB). In this case, after the expiry of the lease period of 15 years the lessee exercised his option for renewal of the leese for one year. The defence was that there was a fresh lease for one year after the expiry of the lease period of 15 years. It was held in this case unequivocally that the subsequent period of one year of the lease could not be said to be a fresh lease, it being a mere continuation of the lease as originally executed. In coming to this decision the Division Bench relied upon the Division Bench decision of this Court in Satadal Basini Vs. Lalit Mohan, 68 CWN 1036 where after the expiry of the initial lease period of twenty years the lessee exercised his option for renewal of the lease for six years more. It was held by their Lordships that the original lease continued with the exercise of the option of renewal. In Syed Ali Kaiser’s case ( 1977(1) CLJ 345 ) their Lordships also considered the decisions in Basanta Vs. Rajani, 26 CWN 711 and Purushottom Vs. Harendra 1975 (1) CLJ 581 . It was held by their Lordships that the original lease continued with the exercise of the option of renewal. In Syed Ali Kaiser’s case ( 1977(1) CLJ 345 ) their Lordships also considered the decisions in Basanta Vs. Rajani, 26 CWN 711 and Purushottom Vs. Harendra 1975 (1) CLJ 581 . In the first there was a leave for three years with option of renewal for three years more. In a proceeding before the expiry of the initial period of three years. It was held that the lease could not be considered to be one for a period of “over five years” as per the requirement of the Calcutta Rent Act of 1920. The decision was distinguished since it decided the period of the lease with reference to its initial period of three years and before exercise of the option of renewal. In the second i.e. Purushottam Das Murarka’s case, 1975 (1) CLJ 581 the lease was initially for five years with a condition that at the desire of the lesses the lessor would “grant fresh lease for a term of seven years”. It was held under such circumstances that the periods of the two leases could not be added up together to make it a lease of not less than twelve years as per the requirement of s. 2(5) (b) of the Calcutta Thika Tenancy Act. This case was distinguished as there was no renewal of the original lease but a fresh lease was executed. We are respectfully in agreement with the manner in which these two decisions have been dealt with and distinguished by their Lordships in Syed Ali Kaiser’s case ( 1977(1) CLJ 345 ) and following their lead we hold that the facts of the two cases viz. Basanta Vs. Rajani, 26 CWN 711 and Purushottom Vs. Harendra 1975 (1) CLJ 581 – both cited before us by the learned Advocate for the respondent no.1 being materially different the decisions therein have no application to the facts of present case. 11. The facts of the present case are on all fours with the facts of Satadal Basini’s case and Syed Ali Kaiser’s (68 CWN 1036 and 1977 (1) CLJ 345 ) and we are respectfully in agreement with the decisions rendered therein. 11. The facts of the present case are on all fours with the facts of Satadal Basini’s case and Syed Ali Kaiser’s (68 CWN 1036 and 1977 (1) CLJ 345 ) and we are respectfully in agreement with the decisions rendered therein. Following these decisions we feel no hesitation in holding that the lease in the case at hand which originally was for ten years became one for fifteen years after the exercise of the option of renewal by the respondent no.1. 12. The learned Advocate for the respondent no.1 argued that it was unreasonable and irrational to hold that the lease in this case which being for a period of ten years was within the ambit of the Calcutta Thika Tenancy Act, ceased to be so when the lessee exercised his option of renewal. We do not see any incongruity in the situation. A lease with an option of renewal differs from a lease without any option in this that it contains a latent possibility of increment in the period of the lease. The latent possibility becomes patent with the exercise of the option. If with the exercise of the option, the period of the lease increase and the lease leaves the area of one Act and enters the area of another, that has to be accepted as a natural consequence of events. Reference may be made in this connection to Baker Vs. Merckel reported in (1960) 1 All ER 668 cited by the learned Advocate for the appellant. This decision follows with approval the dictum of Maugham, J. In Re : Savile Settled Estates, (1931) All ER 557 which runs in the following way :- “I should add that, In my opinion, an alteration of an existing lease, so that it will operate for a term extending beyond the original term, can operate in law only as a surrender of the old lease and a grant of a new one......................” 13. The dictum must have been made in a case where the initial term of the lease was extended by a subsequent deed during the continuance of the initial term which is not the case here. The dictum must have been made in a case where the initial term of the lease was extended by a subsequent deed during the continuance of the initial term which is not the case here. That makes very little difference since in the case of a lease with an option of renewal the means of extending the initial period of the lease is contained within the deed itself in the shape of one of its terms and conditions. The dictum may or may not apply fully to a lease with a condition of renewal as in the present case, but the idea behind it certainly does, since a lease with its period extended by exercise of the lessee’s option or renewal will be a lease different from the same lease with its period unextended; for, the period of the two will be different. We do not find, therefore, any great merit in the objection raised by the learned Advocate for the respondent no.1 14. In view of what has been stated above we hold agreeing with the learned Assistant District Judge and the learned Additional District Judge that the lease in this case with the right of option exercised by the respondent no.1 was not governed by the Calcutta Thika Tenancy Act and that neither was the respondent no.1 a Thika tenant in respect of the disputed land. 15. We turn next to the point of limitation. The learned Additional District Judge finds that the suit being filed long after twelve years since the date of termination of the extended lease was barred by limitation under the provisions of Article 67 of the Limitation Act. The learned Judge considers the question as to whether the period spent by the Appellant in filing and continuing with the Misc. Thika Tenancy case No.64 of 1963 (4.5.63 – 1.6.74) could be excluded under s.14(1) of the Limitation Act to bring the suit within the limit of Art.67 and he concludes that this cannot be done. Whereas we are in agreement with the learned Judge in his conclusion that the suit was prima facie barred by limitation on the date it was filed and for the reasons given by him, we are not in agreement with him as regards the reasons given by him for depriving the plaintiff of the benefit of s.14(1) of the Limitation Act. 16. 16. The appreciate the reasons given by the learned Additional District Judge it becomes necessary to set out the relevant provisions of s.14 of the Limitation Act, 1963 and Order 23 of the Civil Procedure s.14 of the Limitation Act lays down that in computing the period of limitation for any suit, the time spent by the plaintiff in prosecuting an earlier suit with the same matter in issue with due diligence and good faith shall be excluded where the earlier court – for defect of jurisdiction or other cause of a like nature – was unable to entertain it. Order 23 Rule 1(1) of the Code permits a plaintiff to abandon his suit or part of his claim against all or any of the defendants Order 23, Rule 1 (3) of the code lays down that where a suit is bound to fail for some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit, the court may permit the plaintiff to withdraw from such suit with liberty to file a fresh suit in respect of the same subject matter of the suit or part of a claim. Order 23, Rule 1(4) of the Code debara a fresh suit in respect of the same subject matter or part of the claim where the plaintiff has abandoned the suit or part of the claim under Order 23, Rule 1(1) or withdrew from the suit or part of the claim without permission of the court for filing a fresh suit as per Order 23, Rules 1(3). Order 23, Rule 2 of the Code lays down that in any suit filed afresh on permission of the court as per Order 23, Rule1(3) of the Code, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. Order 23, Rule 2 of the Code lays down that in any suit filed afresh on permission of the court as per Order 23, Rule1(3) of the Code, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. The harshness of the provisions of Order 23, Rule 2 of the Code is more apparent then real, since s.14 of the Limitation Act is also a part of the law of limitation and this has been declared unequivocally by s.14(3) of the Limitation Act which clearly lays down that provision of s.14(1) will apply notwithstanding the bar of Order 23, Rule 2 of the Civil Procedure Code where a fresh suit has been instituted on permission granted by the court under Order 23, Rule 1(3) of the Code on the ground that the earlier suit was bound to fall by reason of a defect in the jurisdiction of the court or other cause of a like nature. 17. From the above it becomes quite clear that the defect of jurisdiction on the part of the earlier court to entertain the earlier suit is one of the condition precedents of applicability of the provisions of s.14(1) of the Limitation Act to the subsequent suit. Section 14 (1) of the Limitation Act, presumably, has no application to a case, where the earlier court did not suffer, from any lack of jurisdiction and was perfectly capable of entertaining the earlier suit which was withdrawn under the provisions of Order 23, Rule 1(3) of the Civil Procedure Code. 18. It appears that it was submitted before the learned Additional District Judge by the learned Advocate for the respondent no.1 that the learned Thika Controller would have to go into the merits of the Misc. Thika Tenancy case before he could have dismissed it – presumably for lack of jurisdiction – that he could as well have decided on interpretation of the lease that the respondent no.1 was thika tenant and that therefore this was not a case where there was an initial lack of jurisdiction. The learned Judge found force in this argument. We do not. The learned Judge found force in this argument. We do not. To decide whether it has jurisdiction to entertain a matter, a court has to consider the facts of the case bearing on the point and this the court does merely for the purpose of finding out as to whether it has jurisdiction pecuniary, territorial or otherwise to try and decide the real matter in controversy between the parties. From that it does not follow that such a court has jurisdiction to entertain the matter. In the present case the learned Additional District Judge himself concluded agreeing with the learned Assistant District Judge that the respondent was not a thika tenant of the disputed land and we have also confirmed this decision of theirs. In that view of the matter it cannot be held that the learned Thika Controller had jurisdiction to entertain the case Hypothetically, the learned Thika Controller might have concluded that the he had jurisdiction to entertain the case. That would not have given him the jurisdiction to entertain or try the case. The decision of the learned Additional District Judge that the learned Thika Controller had jurisdiction to entertain the earlier filed Thika Tenancy case and that therefore, the benefits of s.14(1) of the Limitation Act would not be available to the later filed present suit cannot, therefore, be upheld. 19. The learned Additional District Judge cites Ram Manohar Vs. Baboo Singh, AIR 1937 Allahabad 124 for holding that the appellant will not get any benefit under s.14 of the Limitation Act since he withdrew the earlier case-presumably-under Order 23, Rule 1 of the Civil Procedure Code. The relevant portion of this decision runs as follow : “It has been held by a Full Bench of this Court in 1934 ALJ 535 that where a plaintiff chooses to withdraw his suit under Order 23, Rule1 he is not entitled to the benefit of s.14, Limitation Act in a subsequent suit founded on the same cause of action, because it cannot be considered that the previous suit failed on account of defect of jurisdiction or other cause of like nature. it is, therefore, clear that the plaintiff is not entitled to the exclusion of the period during which the plaint in the previous suit was pending.” 20. it is, therefore, clear that the plaintiff is not entitled to the exclusion of the period during which the plaint in the previous suit was pending.” 20. The cited decision and the decision relied on by it obviously refer to the pre amended provisions of Order 23, Rule 1 of the Code, the relevant portions of which ran as follows: “Order 23, Rule 1. At any time after the institution of the suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. Rule-2. Where the court is satisfied – (a) that a suit must fall by reason of some formal defect, or- (b) that there are other sufficient grounds for allowing the plaintiff to Institute a fresh suit for the subject matter of a suit or part of a claim, it may on such terms as it thinks fit grant the plaintiff permission to with draw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim”. See Ramamurthi Vs. Rajeshwar Rao, AIR 1973 SC 643 , 646 21. In a case therefore where there was withdrawal of a suit under Order 23, Rule 1 of the old Code simpliciter, the plaintiff would not be entitled to get the benefit of s.14 of Limitation Act unless he showed that he prosecuted the earlier suit in good faith in a court which for defect of jurisdiction or other cause of like nature was unable to entertain it. In the cited case the plaintiff filed the earlier suit for a mere declaration of his title when as per his own admission at the time of trial he was out of possession. It is under these circumstances that the plaintiff applied for the court’s permission to withdraw the suit with liberty to bring a fresh suit. As per the decision of the court, cited above, the benefit of s.14 of the Limitation Act was denied to him as the previous suit did not fall on account of defect of jurisdiction or other cause of like nature. As per the decision of the court, cited above, the benefit of s.14 of the Limitation Act was denied to him as the previous suit did not fall on account of defect of jurisdiction or other cause of like nature. The decision, presumably, has no application to the facts of the present case as here we have already conclude agreeing with the learned Assistant District Judge and the learned Additional District Judge that the respondent was not a thika tenant and that, therefore, the learned Thika Controller has no jurisdiction to entertain and try the earlier filed Misc. Thika Tenancy case. 22. The learned Judge finds next that the “matter in issue” in the Thika Tenancy case was not quite the same as the matter in issue” In the suit since the former was instituted on the ground that the land was required by the appellant for his, own occupation, whereas the latter was filed by the appellant on the ground of expiry of the period of the lease. We do not find any great merit in this argument too. It is quite obvious that both the Misc. Thika case and the suit were filed and continued with for one and the same relief, viz. recovery of possession of the suit land by the appellant evicting the respondents therefrom. So the real ‘matter in issue’ in both was quite the same i.e. whether the appellant was entitled to recover khas possession of the suit land evicting the respondents therefrom, though the grounds on which the self same relief was asked for were different. It cannot be said, therefore, that the matter in issue in the case was different from that in the suit. 23. The real trouble for the appellant however, lies elsewhere. As the learned Advocate for the respondent no.1 argues, under the provisions of Order 23, Rules1(3)(4) of the Civil Procedure Code, the court may permit a plaintiff to withdraw from a suit with permission to sue afresh in respect of the same subject matter; but where the plaintiff withdraws from the suit without permission to sue afresh he “shall be precluded from instituting any fresh suit in respect of such subject matter” In the petition for withdrawal filed in Misc. Thika case no. Thika case no. 64 of 1963 (Ext B(2) the appellant recited that there were legal defects in the framing of the said case including jurisdiction, that the appellant was advised not to prosecute the said case but to file a comprehensive suit relating to the matter in suit and that he was to file a fresh suit in a proper form and he followed up the recitals with a prayer for allowing him “to withdraw the suit and pass necessary orders for ends of justice”. On this prayer the learned Thika Controller passed an order (Ext. D(1) permitting him to withdraw from the case subject to payment of Rs.64/- as costs to the opposite party. By this petition for withdrawal of the case the appellant did not specifically ask for an order permitting him to sue afresh on the matter in issue in that case and neither did the learned Thika Controller give him any such permission by his order specifically. In that view of the matter the present suit, so argues the learned Advocate for the respondent No.1 was barred under the provisions of Order 23, Rule 1(4) of the Civil Procedure Code. 24. The learned Advocate for the appellant makes a two fold argument against this attack. He argues first, that since the learned Thika Controller had no jurisdiction to entertain the Misc. Thika Case No. 64 of 1963. It is immaterial whether he permitted the appellant to sue on the same subject matter or not when he permitted him to withdraw from the case and that as such the appellant was perfectly entitled to get the benefit of s.14(1) of the Limitation Act. We find a lot of strength in this argument. It has been held by the learned Assistant District Judge that the respondent no.1 was not a thika tenant in respect of the suit land and his conclusion in this regard has been upheld by the learned Additional District Judge and also by us. Under such circumstances it automatically follows that the learned Thika Controller had no authority to entertain the Misc. Thika case or to pass any valid order in it. Had the learned Controller passed an order authorising the appellant to file a fresh suit on the same subject matter, that would not have been a valid order for want of jurisdiction on the part of the learned Controller. Thika case or to pass any valid order in it. Had the learned Controller passed an order authorising the appellant to file a fresh suit on the same subject matter, that would not have been a valid order for want of jurisdiction on the part of the learned Controller. That by his order he did not so authorise the appellant is a circumstances to which also therefore no importance can be attached and for the same persons. From this it is only one step to reach the conclusion that the provisions of s.14(1) of the Limitation Act will apply to the facts of this case with full force since they apply to a case where the “proceeding relates to the same matter in issue and is prosecuted in good faith in a court which from defect or jurisdiction or other cause of a like nature is unable to entertain it”. In the present case the appellant had indeed been pursuing the self same relief before another Tribunal on the bona fide belief that the said Tribunal was the only forum which could grant him his desired relief and we have already seen that the said Tribunal had no jurisdiction to entertain the case. The appellant is, therefore, perfectly entitled to deduct the period that he had spent in prosecuting the Thika Tenancy case before the learned Thika Controller under the provisions of s. 14(1) of the Limitation Act. For the self same reason the suit will not also be barred by the provisions of Order 23, Rule 2 of the Code, since that Rule applies to a case where the court granting permission has jurisdiction to entertain the suit or case, Ramdeo Dass Vs. Ganesh Narain, 1908 ILR 35, Cal. 924, Mohanlal Vs. Maulavi Tabizuddin Ahmed, AIR 1932 Calcutta, 625 (DB). 25. The learned Advocate for the appellant argues next that even granting that the learned Thika Controller had jurisdiction to entertain the case it is to be presumed that by the order that he had passed, the learned Commissioner had actually permitted the appellant to file a fresh suit in respect of the same subject matter. We find a lot of sense in this argument too. In Golam Md. Vs. Shibendra, 1908 ILR 35, Cal. We find a lot of sense in this argument too. In Golam Md. Vs. Shibendra, 1908 ILR 35, Cal. 930 (DB) where in the application there was a distinct prayer to be allowed to withdraw from the suit only should be heard along with the application on which it was passed. In Khudi Rai Vs. Lalo Rai, AIR 1926 Pat. 259 (DB) where the circumstances were the same. it was held following Golam Md. Vs. Shibendra (supra) that the order ought to be read along with the petition and construed as granting permission to file a fresh suit. Both these decisions were followed in Muralidhar Vs. Lalit Mohan, AIR 1962 Orissa 86 where also the facts were similar. The petition for withdrawal of the suit in the case at hand (Ext. B(2) recites that the petitioner (i.e. the appellant) was given to understand that there were legal defects in the framing of the case including jurisdiction, that as per instruction he intended not to continue with the case but to institute a fresh suit in a proper form in respect of the same subject matter and, therefore, he requested the learned Controller to allow him “to withdraw the suit and pass necessary orders for ends of justice”. In effect therefore, the appellant prayed for an order permitting him to file a fresh suit on the same cause of action apart from an order permitting him to withdraw from the case. In the background of his statement that he intended to institute a fresh suit on the same cause of action, his prayer to the learned Controller for passing necessary orders for ends of justice after allowing him to withdraw from the suit leads only to that conclusion. The order passed by the learned Controller permitting the appellant to withdraw from the case (Ext. D(1) should, therefore, be read along with the petition for withdrawal (Ext. B(2) and construed to mean that the learned Controller permitted him to institute a fresh suit on the same cause of action apart from allowing him to withdraw from the case. 26. We must add here, however, that the learned Advocate who filed the petition for withdrawal (Ext. B(2) should have been more careful while drafting it and the learned Munsif, who acted as the learned Thika Controller on that occasion also should have been more careful while passing the order. 26. We must add here, however, that the learned Advocate who filed the petition for withdrawal (Ext. B(2) should have been more careful while drafting it and the learned Munsif, who acted as the learned Thika Controller on that occasion also should have been more careful while passing the order. There joint efforts ended in the passing of an order which instead of doing the appellant any good was about to do him incalculable harm. It is desirable that while dealing with such matters the learned Advocates and the learned Judges pay proper attention to the matters in their hands so that the interest of the litigant public concerned is not jeopardised in any way. 27. In view of what has been stated above we uphold both the contentions of the learned Advocate for the appellant. We hasten to add however that we prefer his first argument that since the learned Thika Controller had no jurisdiction to entertain the Misc. Thika Tenancy case No. 64 of 1983, the order passed by him permitting the appellant to withdraw from the case was of no effect and that as such the appellant was fully entitled to deduct the period spent by him on the filing and prosecuting the said Misc. Thika Tenancy case from the period of limitation under the provisions of s.14(1) of the Limitation Act. As we have already said. It is admitted on all hands that in case the appellant is found entitled to the benefit of s.14(1) of the Limitation Act, his suit cannot be said to be barred by the provisions of Limitation Act. 28. Agreeing with the learned Additional District Judge we hold therefore, that the respondent No.1 was not a Thika Tenant of the disputed land but disagreeing with him we also hold that the suit i.e. T.S. No. 32 of 1974 was not barred by limitation. In the result the appeal must succeed. 29. The appellant wanted as per the prayer portion of his plaint a decree for eviction against all the defendant-respondents. The appellant has proved his case against the respondent defendant No.1 and he may certainly get a decree for eviction against him. Since the defendant respondent nos.2 to 6 are in possession of different portions of the disputed land through the defendant-respondent No.1, the plaintiff is also entitled to get a decree for eviction against all of them. The appellant has proved his case against the respondent defendant No.1 and he may certainly get a decree for eviction against him. Since the defendant respondent nos.2 to 6 are in possession of different portions of the disputed land through the defendant-respondent No.1, the plaintiff is also entitled to get a decree for eviction against all of them. It appears that the plaintiff has also asked for a decree for khas possession of the suit land removing or demolishing there from all the structures raised on it by the respondent No.1. He asked for a decree of mandatory injunction directing the respondent No.1 to remove all the structures at his own costs falling which the appellant was to be authorised to demolish the said building and structures standing on the suit land at the cost of the respondent no.1. It appears that the Assistant District Judge denied the appellant a decree for mandatory injunction in the manner stated above as he was of the view that the structures must have been made within his knowledge or the knowledge of his predecessor. The learned Judge himself has mentioned in his judgment that as per the evidence of P.W.1 the structures were made in between 1946-1956 and that the plaintiff-appellant who came to Calcutta in 1958-59 saw the structure. Presumably the plaintiff-appellant saw the construction in a finished stage and that is also what appears from his evidence where he says clearly and specifically that he was out of Calcutta at the time of construction of the building. In that view of the matter the conclusion arrived at by the Assistant District Judge in this regard cannot be supported. There is nothing on record to show that the construction was made to the knowledge of the plaintiff’s mother late Hem Kaur. In the circumstances stated we are of view that the plaintiff-appellant is also entitled to get a decree for mandatory injunction as prayed for. 30. In view of what has been stated above it is hereby ordered that the appeal is hereby allowed against al the respondents. The decree passed by the learned Additional District Judge in T.A. No. 229 of 1979 of the 8th Court of the Additional District Judge, Alipore is hereby set aside. The judgment and decree passed by the learned Assistant District Judge in T.S. no. The decree passed by the learned Additional District Judge in T.A. No. 229 of 1979 of the 8th Court of the Additional District Judge, Alipore is hereby set aside. The judgment and decree passed by the learned Assistant District Judge in T.S. no. 32 of 1974 of the court of the 4th Subordinate Judge, Alipore are here by restored subject to this that the plaintiff-appellant apart from getting a decree for recovery of khas possession of the disputed property after evicting the defendant-respondents therefrom, do also get a decree for mandatory injunction as prayed for The defendant-respondents No.1 is hereby directed to remove all structures at his own costs from the disputed lands within a period of 6 months from this day. In default the plaintiff-appellant will be at liberty to demolish the said building and structures at his own costs which he will subsequently realise from the defendant respondent No.1. The plaintiff-appellant do get full costs of the suit all through from the defendant respondent no.1. Monoj Kumar Mukherjee, J.: I agree Appeal allowed with costs all through; respondent no.1 directed of remove all structures from the disputed land within six months.