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2008 DIGILAW 571 (CAL)

Sadhu Charan Goswami v. Gora Chand Bural

2008-06-04

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

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Judgment : BHASKAR BHATTACHARYA, J. (1) THIS first appeal is at the instance of a plaintiff in a suit for declaration of title and permanent injunction and is directed against the judgement and decree dated March 30, 1998, passed by the learned Judge, Tenth Bench, City Civil court at Calcutta, in Title Suit No. 2294 of 1984, thereby dismissing the suit on the ground that the plaintiff, being out of possession of the property in question, was not entitled to maintain a suit for declaration in the negative form and for permanent injunction without praying for recovery of possession. (2) THE case made out by the plaintiff was that one Shyma Sundari was a thika tenant in respect of the suit property under the predecessor-in-interest of the defendants and that she created a Debattor estate by installation of two deities. According to the plaintiff, after the death of the said Shyma Sundari, the thika tenancy devolved upon the two shebaits of those deities appointed by shyma Sundari viz. Madan Mohan and Bhagawan Das and those two persons were exercising their right as thika tenants by realising rents from the existing bharatiyas under them. The predecessor-in-interest of the defendants, the plaintiff alleged, filed a proceeding under Section 9 of the Calcutta Thika Tenancy act, 1949, (hereinafter referred to as 1949 Act) against Madan Mohan and bhagawan Das and got an ex parte order of resumption of possession, although, at that time, one of the thika tenants, viz. Madan Mohan was dead. Subsequently, Bhagawan Das, the other shebait, the father of the plaintiff, filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the said ex parte order for resumption of possession but during the pendency of the said proceedings, the Calcutta Thika Tenancy Acquisition and regulation Act, 1981, (hereinafter referred to as the 1981 Act) having been promulgated, the said proceeding abated. After the death of Bhagawan Das, according to the plaintiff, all the heirs of both Madan Mohan and Bhagawan Das nominated him to act as the sole shebait of the deities. After the death of Bhagawan Das, according to the plaintiff, all the heirs of both Madan Mohan and Bhagawan Das nominated him to act as the sole shebait of the deities. The plaintiff asserted that after the coming into operation of the 1981 Act, the defendants, whose interest in the property vested in the State, were trying to realise rent from the Bharatias of the plaintiff and thus, they created a cloud over the right of the plaintiff, as the shebait of the deities, in the property as a thika tenant and hence, the suit was filed for declaration that the defendants had no subsisting right in the property and for permanent injunction restraining the defendants from collecting rents from the Bharatias of the plaintiff in the suit property. (3) THE suit was contested by the defendants by filing written statements thereby denying the allegations made in the plaint and contending, inter alia, that after the passing of the order against Madan Mohan and Bhagawan Das under Section 9 of the 1949 Act, the plaintiff or their predecessors had no subsisting interest in the property and thus, the plaintiff had no right to file the suit. The right of the deities as thika tenant in the property was also denied. (4) THE learned Trial Judge, although came to the conclusion that the installation of the deities in the suit property by the erstwhile thika tenant was not proved, yet, accepted the position that Madan Mohan and Bhagawan Das were, at one point of time, joint thika tenants in respect of the property. The learned Trial Judge further came to the finding that an order under Section 9 of the 1949 Act did not extinguish the thika tenancy right of a thika tenant, but according to him, after suffering such order, it was the duty of the thika tenants to file a suit for recovery of possession. The learned Trial Judge consequently held that the successor of the former thika tenants could not challenge the order of resumption of possession without praying for recovery of possession and that the plaintiff having failed to prove actual possession and interest in the property was not entitled to get a decree for declaration in the negative form or any decree for permanent injunction. The suit was accordingly dismissed. (5) BEING dissatisfied, the plaintiff has come up with the present first appeal. The suit was accordingly dismissed. (5) BEING dissatisfied, the plaintiff has come up with the present first appeal. (6) AFTER hearing the learned counsel for the parties and after considering the provisions contained in 1949 Act, we agree with Mr Basu, the learned counsel appearing on behalf of the appellant that an order under Section 9 of the 1949 act does not by itself extinguish the right of a thika tenant in the property as the scope of enquiry under the said section is limited and merely relates to cancellation of notice under Section 9 (2) thereof. The order does not finally determine the rights of the parties as pointed out by a Division Bench of this court in the case of Manindra vs. Joygunnessa reported in 67 C. W. N 907. (7) IN the case before us, admittedly, one of the tenants was dead at the time of passing of the order under Section 9 of the 1949 Act and an application was filed by the other surviving tenant for recalling the order although the application was wrongly described as one Order IX Rule 13 of the Code and such provision has, strictly speaking, no application to the proceedings under Section 9 of the act. The said application was, however, not heard on merit in view of the promulgation of the 1981 Act. (8) THEREFORE, after the coming into operation of the 1981 Act, a person claiming to be successor of the erstwhile thika tenant is entitled to maintain a suit for declaration that after the passing of the 1981 Act, the owners of the land had lost interest in the property and had no right to create any obstruction in the realisation of rent from the Bharatias inducted by the thika tenants. But such a suit cannot be effectively decided unless the State of West Bengal is made parties to such proceedings as pointed by a Division Bench of this Court in the case of mrs. Quiser Jahan vs. Mohammad Yawoob reported in 1982 (1) CLJ 143. (9) IF a plaintiff alleges possession through his tenants, his suit for declaration of right in the property and for permanent injunction is maintainable although he is not in actual physical possession of the property. Quiser Jahan vs. Mohammad Yawoob reported in 1982 (1) CLJ 143. (9) IF a plaintiff alleges possession through his tenants, his suit for declaration of right in the property and for permanent injunction is maintainable although he is not in actual physical possession of the property. Therefore, the learned Trial judge erred in law in holding that without the prayer for recovery of possession, the plaintiff was not entitled to maintain the suit in question. Even in a case for declaration of title and permanent injunction, if it is established at the time of trial that the plaintiff is not in possession of the property but his right to get back possession has not been extinguished, the Court should instead of dismissing the suit, give an opportunity of amending the plaint by incorporation of the prayer for recovery of possession. There are instances where a Court instead of formal amendment of the plaint has moulded the relief by granting a decree for recovery of possession after passing a direction upon the plaintiff to put in further court fees for recovery of possession. (10) THEREFORE, in this case, there was no justification of dismissing the suit altogether on the ground that the plaintiff should have prayed for recovery of possession. (11) THE questions whether the tenancy was continuing in the names of Madan mohan and Bhagawan Das in their individual capacity or as shebaits of the deities as asserted by the plaintiff, or whether the previous thika tenancy extinguished altogether before coming into operation of the 1981 Act as advanced by the defendants, in our opinion, should be decided in the presence of the State of West Bengal and accordingly, we refrain from entering into those questions on the basis of materials on record because such finding will not be binding upon the State of West Bengal. (12) WE, therefore, hold that the learned Trial Judge erred in law in dismissing the suit on the ground that the suit was not maintainable without the prayer of recovery of possession and accordingly, set aside the judgement and decree impugned in this appeal. We give liberty to the appellant to implead the State of west Bengal as a defendant after giving notice under Section 80 of the Code of civil Procedure. Such notice be given within a month from today. The suit after remand be stayed for four months. We give liberty to the appellant to implead the State of west Bengal as a defendant after giving notice under Section 80 of the Code of civil Procedure. Such notice be given within a month from today. The suit after remand be stayed for four months. All the points involved in the suit are kept open and it is needless to mention that the parties in the suit including the State of West Bengal would be entitled to lead further evidence in support of their respective claims in addition to the evidence already on record. (13) THE appeal, thus, is allowed. In the facts and circumstances, there will be, however, no order as to costs.