G.A. Nos. 1034, 1035, 1036, 1038 of 2011, EC No. 90 of 2011 and EOS No. 3 of 2003. Case: Lalit Kumar Bagla and Ors. Vs Rajiv Kumar Poddar and Ors.. Calcutta High Court

Case Number:G.A. Nos. 1034, 1035, 1036, 1038 of 2011, EC No. 90 of 2011 and EOS No. 3 of 2003
Party Name:Lalit Kumar Bagla and Ors. Vs Rajiv Kumar Poddar and Ors.
Counsel:For Appellant: Bhaskar Ghose, Sr. Adv., Sukumar Bhattacharya and Dipendra Nath Chunder, Advs. and For Respondents: Abhrajit Mitra, Sr. Adv., Satadeep Bhattacharya and S.S. Bhutoria, Advs.
Judges:Soumen Sen, J.
Issue:Bengal General Clauses Act, 1899 - Section 8; Calcutta Thika and Other Tenancies And Lands (Acquisition and Regulation) Act,1981 - Section 3(8); Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 - Section 6; Calcutta Thika Tenancy Act, 1949 - Sections 2(5), 29; Constitution of India - Articles 25, 25(1), 26; General Clauses Act 1897...
Judgement Date:September 23, 2015
Court:Calcutta High Court


Soumen Sen, J.

  1. This application has been filed by M/s. Patel Timber Industries (hereinafter referred to as the "applicant") for a declaration that the decree dated 11th August, 2010 passed in A.P.O No. 455 of 2005 arising out of E.O.S. No. 3 of 2003 is a nullity and not executable against the applicant.

  2. The basis of the application in short are stated hereinafter.

  3. The applicant is a registered partnership firm carrying on its business at Premises No. 149/13, J.N. Mukherjee Road, P.S.-Malipanchghora, P.O.-Salkia, District- Howrah-711106 since 1964. The applicant claims to be a thika tenant in respect of the land measuring about 14 Cottahs 10 Chittaks in respect of the aforesaid premises. Poddars as lessee of the said property settled and/or granted the said land to the applicant and received rent per month from the said applicant showing the applicant as a thika tenant. The applicant raised substantial structure thereto with the consent and knowledge of the Poddars. After the Calcutta Thika Tenancies and Lands (Acquisition and Regulation) Act, 1981, (hereinafter referred to as the "1981 Act") the applicant has been paying rent (khazna) to the State of West Bengal. The Thika Controller, Howrah in a proceeding being MP-3/83-84 initiated sometimes in 1984 provisionally recorded the status of the petitioner as thika tenant and received provisional rent from the petitioner through challans being satisfied with the nature of possession of the applicant and has allowed the applicant to pay Khazna to the State. After the aforesaid 1981 Act came into force there is no relationship of landlord and tenant between Poddars and the applicant. The applicant is not a premises tenant in the suit property under the Poddars.

  4. Subsequently, the Thika Controller, Howrah on September 29, 2010 passed a final order recording the name of the applicant as permanent thika tenant in respect of the holding in question in view of the provisions of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter referred to as the "2001 Act") and issued a "No Objection Certificate". Thereafter the applicant has deposited and is depositing the rent for the land with the office of the Thika Controller, Howrah against proper receipt as permanent thika tenant. Thereafter, the Municipal authority on the basis of the final order of the Thika Controller revised the assessment record deleting the name of superior landlord, namely, Baglas as owner thereof and incorporating the name of State of West Bengal as owner of the holding in question. The Municipality has also started raising property tax bill since November 30, 2010 for payment of tax in respect of the applicant's portion of the holding in question as an occupier wherein the name of the Government of West Bengal, Controller of Thika Tenant, Howrah has been recorded as owner. The applicant has deposited tax as an occupier with the Municipal authority.

  5. In or about 1987, Smt. Sarada Devi Podder, one of the heirs of the original lessee filed a Title Suit No. 133 of 1987 in the Court of 5th Munsif at Howrah for eviction of the applicant firm as premises tenant. In the said proceeding, the applicant has filed a written statement claiming maintainability of the suit in view of the provisions of the 1981 Act. In disposing of the application under Section 17(2)(2A) of the West Bengal Premises Tenancy Act, 1956 wherein the relationship of landlord and tenant was disputed, the learned Court below by an order dated 20th May, 1992 held that the applicant firm is a thika tenant and dismissed the suit as not maintainable.

  6. Podders being aggrieved by the aforesaid order of the Civil Judge preferred an appeal being Misc. Appeal No. 150 of 1992 which was allowed by the learned District Judge by a judgment and order dated 5th April, 1999. The applicant challenged the said order by a revision before this Court being C.O. No. 1912 of 1999. The revisional Court set aside the order passed in Misc. Appeal on the ground that the order impugned dated 20th May, 1992 could not have been challenged by a Misc. Appeal and the only remedy to the Podders was to prefer a revision. The said revisional application was allowed with liberty to challenge the order of the Munsif. However, Podders did not challenge the said order.

  7. In 1990 Podders filed a suit against Baglas in T.S. No. 240 of 1990 praying, inter alia, for specific performance of contract for renewal of lease which was subsequently transferred to this Court and numbered as E.O.S. No. 4 of 2003.

  8. In or about 20th August, 1991 Baglas filed a suit being T.S. No. 232 of 1991 in the Howrah Court against Podders for eviction on the ground of expiry of lease which was transferred to this Court and was numbered as E.O.S. No. 3 of 2003.

  9. On 30th June, 2005, the suit filed by the Baglas being E.O.S. No. 3 of 2003 for recovery of possession against the Podders was dismissed. As a consequence of the said dismissal, the suit filed by the Podders succeeded. In view thereof, on 11th August, 2010, two appeals were preferred by the Baglas as lessor of the said property. Both the appeals were disposed of by the Hon'ble Division Bench by an order dated August 11, 2010 in favour of the Baglas. The Division Bench decreed the suit for eviction against the Podders after taking into consideration the subsequent events, namely, that even the period of renewed lease stood expired by efflux of time and the Podders did not dispute the said fact. The Podders were permitted to vacate the suit premises to the Baglas by 31st December, 2010 subject to filing an undertaking that the Podders shall vacate the suit premises in favour of the Baglas on or before 31st December, 2010 and payment of arrear occupation charges at the rate of Rs. 10,000/- per month till the possession is handed over.

  10. Subsequent thereto, on September 29, 2010, the Thika Controller in exercise of his power under Section 5 sub-section 3 of the 2001 Act passed an order in MP-3/83-84 holding that on verification of the documents filed by the applicant Sri Bhimji Patel on behalf of Patel Timer Industries the applicant is a thika tenant under Section 5(3) of 2001 Act in respect of holding No. 149/13 J.N. Mukherjee Road, Howrah.

  11. Mr. Bhaskar Ghose, the learned Senior Counsel appearing on behalf of the applicant submits that the plaintiffs have due knowledge of the order passed by the Thika Controller which would be evident from the cause title of W.P. No. 18008 (W) of 2010 filed by six thika tenants for payment of Municipal Tax in which the Baglas were added as parties. Notwithstanding the knowledge about the status of the applicant in February, 2011 Execution Case No. 90 of 2011 was filed. In view of the order dated 20th May, 1992 passed in T.S. No. 133 of 1987 that the defendant is a thika tenant the decree obtained by the plaintiff dated 11th August, 2010 is not enforceable against the applicant.

  12. In T.S. No. 138 of 1987 between the Podders and the applicants, one of the issues raised was whether the applicant is a thika tenant. It is submitted that the trial Court on consideration of the materials on record as well as the evidence adduced by the parties arrived at a finding that the Podders as plaintiffs were unable to prove that at the time of giving possession of the land in question to the applicant there was any structure and had failed to establish that any structure was constructed prior to 1981. Under such circumstances, the issue raised with regard whether the applicant is a thika tenant was answered in favour of the applicant and the suit was dismissed. The Podders are relations of the Baglas. The Podders were parties to the said suit. Podders knew that by reason of the aforesaid decree, the applicant is a thika tenant and as such it was the duty of Podders in the litigations pending before the High Court to bring to the attention of the Court that there is already a subsisting order in favour of the applicant recognizing their status as thika tenant in respect of the holding in question.

  13. Mr. Ghose would further submit in a partition suit being No. 1 of 1952 between Baglas and Podders pending before the Bombay High Court, on 25th March, 1958 final decree was passed under which the Howrah property was exclusively allotted to Podders as their share. Sri Lalit Kumar Bagla is the maternal uncle of Rajiv Kumar Poddar. Hence, it prima facie appears that the lease deed dated 11th November, 1965 between Baglas and Poddars was a fake transaction and such deed was created for some ulterior purpose.

  14. Mr. Ghose has referred to the decision of the Hon'ble Supreme Court in S.P. Chengal Varaya Naidu v. Jagannath & ors. reported at (1994) 1 SCC 1 and Ram Chandra Singh v. Savitri Devi & Ors. reported at (1997) 6 SCC 143 and submits that since the fraud is perpetrated on the Court by the Podders in deliberately not disclosing that the applicant is a thika tenant, the decree passed by this Court is a nullity and not enforceable against the applicant. It is further submitted that by obtaining such collusive decree, the order of the Thika Controller passed in 2009 cannot be bypassed and rendered otiose. The remedy, if any of the Baglas is to approach the West Bengal Land Reforms and Tenancy Tribunal and so long the order of the Civil Court and the order of the Thika Controller subsists, the decree cannot be executed against the applicant.

  15. Mr. Ghose has referred to the judgment in the suit while dismissing the suit filed by the Baglas against Poddars, the Hon'ble Court in the judgment dated 30th June, 2005 arrived at a finding that the contention raised by the Poddars that they are thika tenants cannot be accepted on the grounds that there is a pucca structure on the suit property and in arriving at such a conclusion, the learned single Judge has relied upon answer to question Nos. 410 to 416 given by Mahesh Poddar. This judgment in Extraordinary Original Suit No. 3 of 2003 runs...

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