JUDGMENT This civil order is directed against the judgment and order No. 106 dated 14th June, 1984 passed by the learned Munsif, 1st Court at Sealdah in Misc. Case No. 141 of 1982. 2. The case as made out by the petitioner in the Revisioinal Application inter alia, is that the petitioner instituted Title Suit No. 401 of 1970 in the 1st Court of the learned Munsif at Sealdah against the opposite party for its eviction from a piece of land with structures at 22, Birpara Lane, P. S. Chitpur, which the opposite party had taken lease for a period of 10 years commencing from 1st January, 1958, at a rental of Rs.105/- per month, besides the municipal taxes payable for the holding, and the deed of lease was registered on 8th October, 1958. It was inter alia, stipulated in the said lease, that the opposite party could raise structures on the land for their enjoyment and the structures so erected would have to be removed within a fortnight from the determination of the lease, failing, which, the structures would vest in the landlord and would become a part and parcel of the property demised. Since the opposite party failed to deliver up possession of the disputed holding on the expiry of December 1967 in spite of the written notice given to the opposite party, the structures vested in the landlord/petitioner. 3. The opposite party contested the suit by filling written statement, denying and disputing the allegations made in the plaint and also raising inter alia, the plea that the opposite party was a thika tenant and that the suit was barred under the provisions of the Calcutta Thika Tenancy Act; that the structures constructed on the disputed land belonged to the opposite party; that the lease did not expire by efflux of time; that the opposite party had paid rent upto October 1970 and thereafter the same was being deposited in Court; the tenancy of the opposite party had not been determined and even if it was determined, there was creation of a new tenancy by subsequent acceptance of rent. 4. 4. The learned Munsif, however, by his judgment and decree dated March 27, 1976 though came to a clear finding that the opposite party was not a thika tenant, however, dismissed the suit holding inter alia, that after the expiry of the lease there was creation of a new yearly tenancy. 5. Against the said judgment and decree, the petitioner preferred Title Appeal No. 549 of 1976 in the 14th Court of the learned Additional District Judge, Alipore and in spite of service of notice, the opposite party did not contest the said title appeal and the learned Judge, by his judgment and decree dated February 22, 1977 ex parte allowed the said appeal on merit reversing the judgment and decree of the trial Court and decreeing the suit, holding inter alia, that possession of the opposite party after the expiry of the lease was that of a trespasser and the opposite party having failed to remove the structures within a fortnight after the expiry of the lease, the structures had vested in the petitioner as per the terms of the said lease. 6. The petitioner thereafter, put the said appellate decree into execution and Title Execution Case No. 119 of 1977 was started. In the said execution proceeding, the petitioner made an application for police help for obtaining possession. The opposite party duly appeared in the said execution proceeding and submitted that it would have no objection in delivering possession and as such, there was no need for granting of any police help and the application for police help which gave rise to Misc. Case No. 223 of 1979, was thus disposed of accordingly, but when the bailiff went to take possession, the opposite party did not hand over possession. Thereafter, the opposite party filed an objection under Section 47 of the Code of Civil Procedure in the said title execution case which gave rise to Misc. Case No. 136 of 1980. In the said Misc. Case, the opposite party alleged inter alia, that it was a thika tenant in respect of the disputed holding and as such, could not be evicted under the law, and hence, the execution case should be dismissed. The said Misc. Case was contested by the petitioner by filling written objection stating inter alia, that the contention of the opposite party as raised in the said Misc. The said Misc. Case was contested by the petitioner by filling written objection stating inter alia, that the contention of the opposite party as raised in the said Misc. Case that it was a thika tenant, was already rejected by the trial Court, while disposing of the title suit filed by the petitioner against the opposite party as referred to above, and the opposite party did not challenge the said finding in any proceeding nor had challenged the said finding even in the appeal preferred by the petitioner, and hence, the objection under Section 47 of the Code of Civil Procedure was not maintainable. At the time of hearing of the said Misc. Case, the judgment-debtor/opposite party referred to Section 19 of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 and submitted that by virtue of the said Section 19, the abovementioned title execution case stood abated. The executing Court, however, by its order No. 64 dated February 16, 1982 dismissed the said objection under Section 47 of the Code of Civil Procedure holding inter alia, that the judgment-debtor/opposite party had no right or reason to stay or strike off the execution proceeding, as the question, whether the opposite party/judgment-debtor was a thika tenant, and whether the property was a thika tenancy property, was already decided against opposite party/judgment-debtor by the trial Court in the title suit filed by the petitioner as aforesaid and in appeal, the plea of thika tenancy was not raised and as such, the said finding of the trial Court remained as it was and hence became conclusive and final. It was further held by the executing Court, that the executing Court could not go behind the decree. 7. Against the said rejection, the opposite party moved a Revisioinal Application in this Hon’ble Court being C. O. No. 3119 of 1982. In the said Revisional Application the opposite party contested inter alia, that the aforesaid decree was not executable against it, in view of the provisions of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981. The said Revisional Application however, was rejected by P. K. Banerjee, J. (As His Lordship then was) on 6th October, 1982. 8. The said Revisional Application however, was rejected by P. K. Banerjee, J. (As His Lordship then was) on 6th October, 1982. 8. Thereafter, the opposite party filed Title Suit No. 265 in 1982 in the 1st Court of the learned Munsif at Sealdah, against the petitioner for a declaration that the judgment and decree passed in Title Appeal No. 549 of 1976 of the 14th Court of the learned Additional District Judge, Alipore, as referred to above, were not binding upon it, and for permanent injunction restraining the petitioner from disturbing the opposite party’s possession in the suit property, but the said suit was dismissed for default on 2nd June, 1983. Again, the opposite party in the names of two of its darwans, filed a declaratory suit being Title Suit No. 126 of 1982 in the 3rd Court of the learned Munsif at Sealdah, against the petitioner in respect of the self-same property and though the Trial Court granted an ad interim injunction in the said suit, ultimately, the same was vacated by the Trial Court on 4th April, 1983 and subsequently, the suit was also dismissed for default by the trial Court by its order No. 26 dated December 23, 1983. 9. Subsequently, on or about October 14, 1982 the opposite party again filed an objection under Section 3(8), 4 and 5 of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 read with Sections 47 and 151 of the Code of Civil Procedure in the executing Court, for striking out the petitioner’s aforesaid execution proceeding, contending inter alia, that under the provisions of Section 4 of the said Act, the opposite party was to be treated as a thika tenant and under Section 5 of the said Act the entire interest in the disputed land had vested in the State Government, and as such, the petitioner/decree-holder had no right to continue with the execution proceeding, that Misc. Case No. 136 of 1980 was filed on a wrong footing merely relying upon Section 19 of the aforesaid Act, and as such, the subsequent application as filed by the opposite party was not barred under the principle of res judicata or estoppel. 10. Case No. 136 of 1980 was filed on a wrong footing merely relying upon Section 19 of the aforesaid Act, and as such, the subsequent application as filed by the opposite party was not barred under the principle of res judicata or estoppel. 10. The petitioner contested the said application by filing written objection alleging inter alia, that the said application was barred by the principles of res judicata, waiver, estoppel and acquiescence, and the aforesaid Act having no retrospective effect, could not take away any right already vested in the petitioner. By his order No. 16 dated June 14, 1984 the learned Munsif, 1st Court, Sealdah, however, allowed the said Misc. Case filed by the opposite party holding inter alia, that as per the provisions of Section 3(8) of the aforesaid 1981 Act the opposite party was a thika tenant and the said Act would apply in the case of the opposite party and the decree of the appellate Court as referred to above would have no effect in view of the 1981 Act. The said order had been challenged in the present civil order. 11. Mr. Mukherji, learned Senior Counsel appearing for the petitioner, submits that in order to be a thika tenant, the tenancy must be continuing on the day of coming into force of the 1981 Act, and there was liability to pay rent by the tenant, but in the present case, the petitioner gave lese of more or less 1 (one) bigha of land at 22, Birpara Lane, P. S. Chitpur to the opposite party for a period of 10 years commencing from January 1, 1958. It was a registered lease and the lese expired with the expiry of the month of December 1967 and in 1970 an ejectment suit being Title Suit No. 401 of 1970 was filed by the petitioner against the opposite party for his eviction from the said land, which the opposite party occupied after expiry of the lease as a trespasser, and though the suit was dismissed on 27th March, 1976 the appeal preferred by the petitioner against the said dismissal of suit being Title Appeal No. 549 of 1976 was allowed on 22nd February, 1977 by the lower appellate Court. Therefore, on the date of commencement of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, the defendant was not a tenant at all, as he had no liability to pay rent on that date, and thus, according to Mr. Mukherji, the said Act of 1981 had no manner of application to the facts and circumstances of the present case. 12. Secondly, Mr. Mukherji contends that as per said deed of lease, the defendant could erect structures and instal plant and machinery upon the demised land and those were to be removed by the defendant within fortnight from the date of expiry of the lease, and it was categorically stated inter alia, in the said lease, that if the structures were not so removed, the same would vest in the landlord and would become part and parcel of the property demised. The lease expired with the expiry of the month of December 1967 and prior to that, the plaintiff had intimated the defendants about such expiry and also asked him to deliver up possession of the property demised on the expiry of the said lease, but the defendants had failed to vacate and also to remove the structures as per the provisions of the said lease, as a result of which, the structures had vested in the plaintiff, who was thus entitled to recover possession of the entire property. 13. Mr. Mukherji refers to Mulla’s Transfer of Property Act, Sixth Edition, page 702, which speaks of lessee’s rights to remove fixtures under Clause (h) of Section 108 of the Transfer of Property Act. It is stated inter alia, therein, that the said section is subject to a contract to the contrary and has no application, if there is special stipulation in the lease as to the lessee’s right of removal and of compensation. If, on a true construction of such a lease, the buildings to be erected thereon are deemed to be the property of the lessor, and re leased back to the lessee, they are part of the demised premises and the lessee is entitled to the benefit of the Rent Acts; where, however, the building remains the property of the lessee during the pendency of the lease, on its expiry, the lessee is not entitled to claim the protection of such Acts qua the building. In support of the said contention Mr. In support of the said contention Mr. Mukherji refers to a decision of this Hon’ble Court in the case of (1) M/s Cook & Co. v. C.L. Phillips & Ors., 34 CWN 785. 14. Referring to the said decision and the lease entered into by and between the petitioner and the opposite party in the present case, Mr. Mukherji contends, that since the lessee did not remove the constructions raised by it on the disputed land during the pendency of the lease and/or within the stipulated period after the expiry of the lease, the right over the fixtures had passed onto the lessor. Mr. Mukherji also refers to two judgments of the Supreme Court namely, (2) M/s. Bhatia Co-operative Housing Society Limited v. D. C. Patel, AIR 1953 SC 16 and (3) Dr. K.A. Dhairyawan and Others v. J.R. Thakur and Ors., AIR 1958 SC 789 . 15. Mr. Mukherji next argues that Sections 5 and 19 of the aforesaid Act of 1981 would not apply to the facts and circumstances of the present case, inasmuch as, no thika tenancy of the opposite party was subsisting on the date of commencement of the said Act so that under Section 5 of the said Act the land comprised in the disputed tenancy would vest in the State. With regard to Section 19 of the said Act, Mr. Mukherji contends that it is stated inter alia, therein that all proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978 for the ejectment of thika tenants and bharatias shall stand abated with effect from the said date, as if, such proceedings including appeals or execution proceedings had never been initiated. According to Mr. Mukherji, in the present case, it was declared by the competent Civil Court that the opposite party was not a thika tenant in respect of the disputed premises, and as such, under Section 19 of the aforesaid Act, the execution proceeding started by the plaintiff/decree-holder, did not abate, inasmuch as, it was not an execution proceeding in connection with any proceeding taken under the Calcutta Thika Tenancy Act, 1949, but started pursuant to the decree for ejectment passed by a competent Civil Court in a regular suit. In support of his said contention, Mr. Mukherji refers to the Bench Decision of this Hon’ble Court in the case of (4) Mrs. In support of his said contention, Mr. Mukherji refers to the Bench Decision of this Hon’ble Court in the case of (4) Mrs. Qaiser Jahan v. Mohammad Yawoob, 1982(2) CLJ 143 . 16. According to Mr. Mukherji, since it was declared in the ejectment suit, filed by the petitioner against the opposite party as referred to above, that the opposite party was not a thika tenant in respect of the disputed premises, the provisions of the 1981 Act including Section 19, thereof as referred to above, would not apply to the facts and circumstances of the present case. 17. Mr. Mukherji contends further that since title to the demised premises including structures raised thereon had been conclusively determined in favour of the petitioner in Title Appeal No. 549 of 1976, wherein the learned Additional District Judge, 14th Court, Alipore held inter alia, that the possession of the opposite party after the expiry of the lease was that of a trespasser, and the opposite party having failed to remove the structures within a fortnight from the date of expiry of the lease, as per the terms of the deed of lease, the structures had vested in the petitioner, even if the erstwhile lessee had paid rent to the landlord after the original tenancy was determined, such payment would not create any new tenancy in favour of the opposite party as was decided by the Privy Council in the case of (5) Adyanath Ghatak v. Krishna Prasad, AIR 1949 Privy Council 124. 18. Mr. Mukherji also contends that since, the previous objection under Section 47 of the Code of Civil Procedure filed by the opposite party/judgment-debtor being Misc. Case No.136 of 1980 filed In the aforesaid title execution case No.119 of 1977 was dismissed by the executing Court holding inter alia, that the question, as to whether the opposite party was a thika tenant and that the property was a thika tenancy property, was decided against the opposite party/judgment-debtor in the title suits as referred to above, which finding was not challenged or reversed in appeal, the said finding of the trial Court remained in force against the judgment-debtor, and so long as the said finding was not reversed by any higher Court, such finding would hold good and also would operate as res judicata. Regarding the question, as to whether Section 11 of the Code of Civil Procedure or the principle of res judicata or constructive res judicta under the said section would apply to execution proceedings, Mr. Mukherji refers to the judgments of the Supreme Court in (6) Prem Lata Agarwal v. Lakshman Prasad Gupta and Others, AIR 1970 SC 1525 ; (7) Kani Ram and Another v. Smt. Kazani and Others, AIR 1972 SC 1427 and (8) Mohanlal Goenka v. Benoy Krishna Mukherjee and Others, AIR 1953 SC 65 . Thus according to Mr. Mukherji, the impugned order cannot be sustained in law for the reasons as aforesaid and should be set aside. 19. Mr. Roychowdhury, learned Senior Counsel for the opposite party contends, that since the 1981 Act had taken off the restrictive definition of 'thika tenant', upon a proper consideration of the facts and circumstances or the present case, the opposite party should have been held to be a 'thika tenant'. Mr. Roychowdhury, also refers to the judgment of the learned Munsif, 1st Court at Sealdah, passed in Title Suit No. 401 of 1970 which was a suit filed by the petitioner for eviction against the opposite party from the demised premises and also for mesne profits, specially pages 8, 10 and 11 of the said decision, wherein it was held by the learned trial Judge that if it was found that the defendant became a thika tenant on the date of the execution of the lease deed for a period of 10 years. It could not cease to be so merely by virtue of the provisions in the deed that after the expiry of the lease period, it would have to yield up the demised land with structures to the lessor. It may be mentioned, however, that the learned Munsif in his judgment had held clearly that the opposite part, was not a thika tenant. 20. Mr. Roychowdhury also relies upon the decision of this Hon’ble Court in the case of (9) Abdul Gani & Ors. v. Dvid Jacob Cohen, 57 CWN 313, wherein it was held inter alia, that the phrase ‘thika tenant’ meant and included a person who was a thika tenant against whom the decree for possession had been passed and who continued to be in possession. According to Mr. v. Dvid Jacob Cohen, 57 CWN 313, wherein it was held inter alia, that the phrase ‘thika tenant’ meant and included a person who was a thika tenant against whom the decree for possession had been passed and who continued to be in possession. According to Mr. Roychowdhury therefore, the definition ‘thika tenant’ also includes ex-thika tenant and thus, the provisions of the lease deed regarding yielding up of the land and structures to the lessor after the expiry of the lease period, would not take the opposite party outside the definition of ‘thika tenant’, if other conditions of the said definition are satisfied. 21. Mr. Roychowdhury further contends that when the question of jurisdiction of the Court to entertain a suit or an issue, is raised, the principle of constructive res judicata would not apply and refers to a decision of the Supreme Court in the case of (10) Mathura Prasad Sarjoo Jaiswal & Ors. v. Dassibai N.B. Jeejeebhoy, AIR 1971 SC 2355 . 22. Mr. Roychowdhury adds to contend that since the Amendment Act of 1981 came into force when the execution proceeding was still continuing, in view of the well-settled principle that tendency legislation being a beneficial legislation for the tenants, has to be given a liberal interpretation, and in support of his contention refers to the decision of the Supreme Court in the case of (11) H. Shiva Rao and Another v. Cecilla Pereira and Others, AIR 1987 SC 248 . 23. Mr. Roychowdhury further contends that in view of the settled principle of law as enunciated by the above Supreme Court decision, Sections 3(8), 4, 5 and 19 of the Calcutta Thika and other Tenancies and Lauds (Acquisition and Regulation) Act, 1981 would also apply to the facts and circumstances of the present case. 24. Mr. Roychowdhury further contends that the change of law during the pending proceedings has to be looked into even in the execution stage and refers to Sections 4 and 5 of the Amendment Act of 1981 as, according Mr. Roychowdhury, when the execution proceeding is pending in the matter, no finality has yet been reached so far as the disputed tenancy of his client is concerned, and refers to the decisions of the Supreme Court in (12) Lakshmi Narayan Guin & Ors. v. Niranjan Modak, AIR 1985 SC 111 ; (13) Haji Sk. Roychowdhury, when the execution proceeding is pending in the matter, no finality has yet been reached so far as the disputed tenancy of his client is concerned, and refers to the decisions of the Supreme Court in (12) Lakshmi Narayan Guin & Ors. v. Niranjan Modak, AIR 1985 SC 111 ; (13) Haji Sk. Subhan v. Madhorao, AIR 1962 SC 1230 and H. Shiva Rao & Anr. v. Cecilla Pereira & Ors., AIR 1987 SC 248 . 25. Lastly, Mr. Roychowdhury also contends that neither res judicata nor the principles of constructive res judicata would apply to the facts of the present case as the decisions of the Civil Courts on the earlier occasions were based on an erroneous interpretation of statutes and refers to the decision in (14) Juthika Basu v. Parul Bala Kundu, 89 CWN 792. 26. Mr. Mukherji in reply, reiterates his submissions already made that provisions of Section 3(8) of the 1981 Act cannot be taken back to the time when the decree was passed by the lower appellate Court as referred to above, and since Section 19 of the Act referred to proceedings and decrees passed under the Calcutta Thika Tenancy Act, 1949 and does not speak of other decrees, if other decrees also are to be included within its fold, then its scope has to be widened to a large extent, which is not permissible in law, inasmuch as, whatever right has been given to the thika tenant under the 1989 Act, that must remain confined to that Act only. 27. Mr. Mukherji adds to submit that the Section 5 of the Amendment Act of 1981 deals with the existing state of things and Sections 5 and 19 of the said Act are to be read together. Mr. Mukherji also refers to the Bench decision of this Hon'ble Court in the case of (15) Biswa Bhusan Bose & Anr. v. Smt. Kusum Agarwalla, 1981 (1) CLJ 1 ; and contends referring to Paragraph 24 of the said decision that, rights of the parties with regard to the matters in controversy and adjudicated by the Court in a suit, are finally determined by the judgment passed. Decree is merely the formal expression of such adjudication so that if the Court has the necessary jurisdiction to adjudicate, there is no reason to think why it will not have the jurisdiction to formally express the adjudication. Decree is merely the formal expression of such adjudication so that if the Court has the necessary jurisdiction to adjudicate, there is no reason to think why it will not have the jurisdiction to formally express the adjudication. Under Order XXI Rule 6 of the Code of Civil Procedure, the decree must agree with the judgment and variance between the decree and the judgment is a matter of error to be corrected under the material provisions of the Code. Such an error, however, does not render the decree a nullity. 28. In find there is much substance in the arguments advanced by Mr. Mukherji. In order to attract the provisions of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 specially, Section 4, 5 and 19 thereof it has to be seen whether any thika tenancy was subsisting on the date of commencement of the said Act, as in Section 5 it is stated inter alia, that the land comprised in and/or appurtenant to a thika tenancy would vest in the State, and Section 19 of the said Act inter alia, states that all proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978 for ejectment of thika tenants, shall stand abated with effect from that date. (Emphasis added) 29. In the case of Mr. Qaiser Jahan v. Mohd. Yawoob, 1982(2) CLJ 143 , as referred to by Mr. Mukherji, it was held inter alia, that reading Section 19 of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981. In the background of the new definition of 'Thika Tenancy' and the provisions of Section 5 of the said Act. It docs not appear that the Intention of the legislature was to mean and include in the term of all proceedings under Section 19, including a suit for eviction of a lesseee on the ground of forfeiture of his lease. The vesting of the landlord's or lessors' interest under Section 5 is independent of Section 19. Section 19 refers to proceedings of various nature, but all under the Calcutta Thika Tenancy Act, 1949. The vesting of the landlord's or lessors' interest under Section 5 is independent of Section 19. Section 19 refers to proceedings of various nature, but all under the Calcutta Thika Tenancy Act, 1949. That Act having been repealed by Section 21 of the 1981 Act, the legislature intended and directed all proceedings under such repealed Act to abate by virtue of the statutory mandate incorporated in Section 19. 30. In the present case, however, the lease granted in favour of the opposite party expired by efflux of time, and as the opposite party did not vacate the disputed premises after the expiry of the least, an ejectment suit was filed by the petitioner against the opposite party for its eviction from the disputed premises which it was holding after the expiry of the said lease as trespasser. In the suit, the opposite party raised the plea of thika tenancy and though the suit was dismissed, the trial Court made clear finding that the opposite party was not a thika tenant and the appellate Court reversed the judgment and decree passed by the trial Court and allowed the appeal decreeing the ejectment suit in favour of the petitioner. Before the appeal Court, the aforesaid specific finding of the trial Court, however, was not challenged and the said finding of the trial Court thus remained valid and operative against the opposite party. 31. In the execution proceeding filed by the petitioner for eviction of the opposite party from the disputed premises pursuant to the aforesaid decree, the opposite party filed an objection under Section 47 of the Code of Civil Procedure alleging that it was a thika tenant, but the said objection was dismissed by the executing Court holding inter alia, that the question, whether opposite party was a thika tenant and/or whether the disputed tenancy was a thika tenancy, had already been decided against the opposite party by the trial Court in the title suit filed by the petitioner as referred to above, and the executing Court would not go behind the decree. The said order was challenged in revision in this Hon’ble Court, but Revisional Application was also rejected, ultimately by this Hon’ble Court. 32. The said order was challenged in revision in this Hon’ble Court, but Revisional Application was also rejected, ultimately by this Hon’ble Court. 32. All the above facts, therefore, would clearly show, that the opposite party not a thika tenant at all under the petitioner; that the lease enjoyed by the opposite party had expired by efflux of time and as the opposite party was still now enjoying the disputed premises after such expiry of lease, a title suit was filed by the landlord against such erstwhile tenant for its eviction, in which, a decree was passed against the erstwhile tenant treating the possession of the erstwhile tenant after the expiry of the lease as that of a trespasser. No where, the plea of thika tenancy, as raised by the opposite party vas accepted even upto this Hon'ble Court. 33. Accordingly, in the present case, it is thus quite clear, that on the date of the commencement of the aforesaid 1981 Act, neither any thika tenancy was subsisting, nor any proceeding for eviction of a thika tenant under the Calcutta Thika Tenancy Act, 1949 or an execution proceeding started in connection with such eviction proceeding was pending and as such, neither Section 5 nor Section 19 of the aforesaid Act of 1981 does apply to the facts and circumstances of the present case. 34. In the case of Abdul Gani and Ors. v. David Jacob Cohen reported in 57 CWN 313, no doubt, it was held inter alia, referring to the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 that the words ‘thika tenant’ within the meaning of the Calcutta Thika Tenancy Act, 1949 as amended by the above ordinance, meant and included a person who was a thika tenant against whom the decree for possession had been passed, but who continued to be in possession. The words ‘thika tenant’ were used so as to include an ex-thika tenant also. However as it has already been held hereinbefore, that the opposite party was not a thika tenant under the petitioner, the above judgment has no manner of application to the facts of the present case. 35. The words ‘thika tenant’ were used so as to include an ex-thika tenant also. However as it has already been held hereinbefore, that the opposite party was not a thika tenant under the petitioner, the above judgment has no manner of application to the facts of the present case. 35. So far as the plea taken by the opposite party, that since as per the lease deed the opposite party was entitled to raise construction on the disputed land, and was also entitled to remove the same after the expiry of the lease within the stipulated period the opposite party was a thika tenant in respect of the disputed holding as under the aforesaid 1981 Act, a thika tenant means any person who occupies, whether under a written lease or otherwise, land under another person and has erected or acquired by purchase or gift any structure on such land, is concerned, the facts of the present case, however, would prove it otherwise, inasmuch as, though there was a stipulation in the lease deed that the defendant would be allowed to remove the structure and/or construction raised by it on the disputed land within a fortnight from the date of termination of lease, nonetheless, it was also stipulated therein, that in default, the same would vest in the landlord and would become part and parcel of the property demised. In the present case the lease expired with the expiry of the month of December 1967, but the opposite party failed to remove the structure raised by it on the disputed holding as per the provisions of the said lease, as a result of which, the structure had vested in the landlord or petitioner who was thus entitled to recover the possession of the entire property including the structure. 36. In the case of M/s Cook and Co. v. Mr. C.L. Phillips, 34 CWN 785, in the deed of lease, which was the subject matter of Challenge in that case, stipulated inter alia, that all erection raised by the lessee on the premises after the lease, would being to the lessor at the expiration or sooner determination of the lease but it would be lawful for the lessee, after payment of all rent or performance of all conditions, to remove the fixtures for his own benefit at such expiration or sooner determination or within two calendar months thereafter. The lessor was to have a right or re-entry on the rent remaining unpaid for 15 days. In that case, the rent having so fallen into arrear, the lessee wrote to the lessor’s agent that the rent of the demised premises was in arrear and the landlord of the premises desired to take over possession of the premises in accordance with the terms of the lease and entered into possession. 37. The Division Beach of this Hon'ble Court in that case held inter alia, that there was no surrender in the sense, that the lessor and the lessee had both agreed to forego their rights under the lease so that only the ordinary law of fixtures would apply, but the lessee had consented to the exercise by the lessor of his right under the conditions of the lease to put an end to the terms with the consequences provided by the lease to take effect in that event. That right had been effectively exercised by taking possession so that the right to the fixtures had passed to the lessor. 38. In the present case also lessee namely, the opposite party, had not removed the structures, raised by it on the disputed land during the pendency of the lease, within the stipulated period after the expiry of the lease as provided in the lease deed which also started that on the failure to remove such structure by the lessee within the stipulated period after the expiry of the lease, the structure should vest in the landlord, and thus, the lessee by his conduct had allowed the lessor to exercise his right under the conditions of the lease over the structures and as such, the right to the said structures had passed to the lessor. 39. So far as the plea of creation of a new tenancy by acceptance of rent by the landlord after the expiry of the lease in the present case, as raised by Mr. 39. So far as the plea of creation of a new tenancy by acceptance of rent by the landlord after the expiry of the lease in the present case, as raised by Mr. Roychowdhury is concerned, title to the demised premises including structures raised thereon had been conclusively determined in favour of the petitioner in the appeal by the lower appellate Court holding inter alia, that the possession of the opposite party after the expiry of the lease was that of a licensee, and as the opposite party had failed to remove the structures after the expiry of the lease, within the stipulated period as mentioned therein, the said structures had vested in the landlord/petitioner and as such, no matter whether the erstwhile lessee had paid rent to the landlord even after the original tenancy was terminated, such subsequent payment would not amount to rent as the possession or such erstwhile lessee would only be that or a licensee, as has been held in the case of Adyanath Ghatak v. Krishna Prasad Singh & Anr., AIR 1949 Privy Council 124. 40. Moreover, when in the title suit filed by the petitioner against the opposite party for his eviction from the disputed premises, it was decided by the trial Court that the opposite party was not a thika tenant under the petitioner in respect of the disputed premises, and when the objection under Section 47 of the Code of Civil Procedure filed by the opposite party in the execution proceeding started by the decree-holder/petitioner against the judgment-debtor/opposite party. In which the judgment-debtor/opposite party prayed for striking off the said title execution proceeding alleging that be was a thika tenancy and also the owner or the structures raised by him on the suit premises, was dismissed by the executing Court holding inter alia, that the question as to whether judgment-debtor/opposite party and the disputed property was a thika tenancy property was already decided against the judgment-debtor/opposite party in the title suit and in the appeal, which decision and/or finding was not reversed by the High Court, the said decision remained in force and would operate as res judicata against the judgment-debtor/opposite party. 41. The question, as to whether, Section 11 of the Code of Civil procedure of the principle of res judicata would apply and/or constructive res judicata to the execution proceeding, is no longer res integra. 41. The question, as to whether, Section 11 of the Code of Civil procedure of the principle of res judicata would apply and/or constructive res judicata to the execution proceeding, is no longer res integra. It has always been held uniformly by the Courts of law that the general principles of ‘res judicata’ as also principles of constructive 'res judicata' apply to execution proceedings. 42. The Privy Council in the case of (16) Mongul Prasad Dichit v. Girija Kanti Lahiri, 8 IA 123, had held that principles analogous to the principle or res judicata would apply to execution proceeding. The said judgment of the Privy Council was also taken care of by the Committee in us subsequent judgment in the case of (17) Ram Kripal Shukul v. Mussumat Rup Kuari, 11 IA 37, which also held that the principle of res judicata would also apply to execution proceeding. The Privy Council in its subsequent decision in the case of (18) Sha Shivraj Gopalji v. Edappakath Ayissa Bi and Others, AIR 1949 PC 302, also reiterated the same principle of law observing inter alia, that the principle of contractive res judicata would apply to execution application also. 43. A Bench Decision of our High Court in the case of (19) Annada Kumar Roy & Anr. v. Sheikh Madan & Ors., AIR 1934 Calcutta 472, also reiterated the said principle of law. The Patna High Court also held in a Division Bench judgment in the case of (20) Mahadeo Prasad Bhagot v. Bhagwat Narain Singh, AIR 1938 Patna 427, that explanation 4 to Section 11 of the Code of Civil Procedure also applied to proceeding under Section 47 of the said Code, i.e., in execution proceedings. Both the above decisions of the Calcutta and Patna High Court were relied upon by the Apex Court of this Court in the case pf Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 , wherein it was held in clear terms, that the principle of constructive res judicata is applicable to execution proceedings, is no longer open to doubt. The same principle of law was also reiterated by the Supreme Court in its decision in the case of Prem Lata Agarwal v. Lakshman Prasad Gupta & Ors., AIR 1970 SC 1525 . The Supreme Court in its latter judgment in the case of Kani Ram & Anr. The same principle of law was also reiterated by the Supreme Court in its decision in the case of Prem Lata Agarwal v. Lakshman Prasad Gupta & Ors., AIR 1970 SC 1525 . The Supreme Court in its latter judgment in the case of Kani Ram & Anr. v. Smt. Kazani & Ors., AIR 1972 SC 1427 , had also held that, though in execution proceeding Section 11 of the Code of Civil Procedure does not apply in terms, but the rule of constructive res judicata has always been applied. 44. Mr. Roychowdhury no doubt had contended that neither res judicata nor the principle of constructive res judicata would apply to the facts of the present case, as the decisions of the civil Court on the earlier occasion were based on an erroneous interpretation of statute and referred to the decision in 89 CWN 792 and argued that when the question of jurisdiction of the Court to entertain a suit or an issue is raised, the principle of constructive res judicata would also not apply and referred to the decision of the Supreme Court in the case of Mathura Prasad Sarjoo Jaiswal and Other v. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355 , wherein it was held inter alia, that a question relating to jurisdiction of a Court could not be deemed to have been finally determined by an erroneous decision of that Court. It by an erroneous interpretation of the statute, the Court held that it had no jurisdiction, the question could not operate as res judicata. Similarly, by an erroneous decision, if the Court assumed jurisdiction which it did not possess under the statute, the decision could not operate as res judicata between the same parties whether the cause of action in the subsequent litigation was the same or otherwise because, if that decision was considered as conclusive. It would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court is derogation of the rule declared by the legislature. 45. However, in the present case there was no wrong assumption of jurisdiction by the civil Court entertaining the suit filed by the petitioner against the opposite party. It would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court is derogation of the rule declared by the legislature. 45. However, in the present case there was no wrong assumption of jurisdiction by the civil Court entertaining the suit filed by the petitioner against the opposite party. A special plea was taken by the opposite party that he was a thika tenant in respect of the dispute land, which plea was negatived by the trial Court and was not even challenged before the appeal Court. In the execution proceeding, started by the petitioner against the opposite party for executing the decree for possession obtained by the petitioner against the opposite party in respect of the self-same land, the opposite party filed all objection under Section 47 of the Code of Civil Procedure, wherein it was specifically alleged, that since the opposite party was a thika tenant; the decree was not binding on it, which plea was, however, negatived by the executing Court and also negatived by the Hon'ble Court in Revision. Therefore, in the present case the civil Court assumed the jurisdiction rightly in entertaining the suit filed by the petitioner against the opposite party and deciding the same as the civil Court had the jurisdiction to entertain such suit. Accordingly, the above judgment of the Supreme Court as cited by Mr. Roychowdhury does not apply to the facts of the present case. 46. Accordingly, I hold that the impugned order cannot be sustained in law, inasmuch as, the provisions under Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 do not apply to the facts of the present case. The executing Court wrongly held that the lease with the judgment-debtor was for 10 years, and by virtue of the said lease the judgment debtor become a thika tenant in view of the definition under Section 3(8) of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, inasmuch as, the lease admittedly, was not subsisting on the day when 1981 Act came into force, nor on that date, the opposite party/judgment debtor was liable to pay rent. Section 4 of the said Act also would not apply to the facts of the present case for the reasons as aforesaid. The impugned order, accordingly, is set aside. Section 4 of the said Act also would not apply to the facts of the present case for the reasons as aforesaid. The impugned order, accordingly, is set aside. The civil order is thus allowed. The application for addition of party is also allowed. There would be no order as to costs.