Sri Samarendra Nath Das @ Samar Das Versus M/s. Bengal Central Building Society Limited and others[ALL HC CALCUTTA 2015 MAY]

KEYWORDS:-THIKA TENANCY- JURISDICTION OF CIVIL COURT-

KHC

DATE:-6th May, 2015

In the High Court at Calcutta
Civil Appellate Jurisdiction

Present: The Hon’ble Justice Nishita Mhatre And The Hon’ble Justice Asha Arora

F.M.A No. 761 of 2015 With C.A.N No. 1543 of 2015

Sri Samarendra Nath Das @ Samar Das Versus M/s. Bengal Central Building Society Limited and others

For the appellant: Mr. Biswajit Basu, Mr. Kishore Mukherjee, Mr. Soumyajit Mukherjee For the respondent no. 1: Mr. Probal Kumar Mukherjee, Mr. Suhrid Sur.
Mr. Nilanjan Hazra For the respondent no. 2: Mr. Sakti Nath Mukherjee, Mr. Shyama Prasanna Roychowdhury, Mr. Asit Baran Raut, Mr. Tuhin Subhra Raut Heard on: 28th April, 2015.

Judgment on: 6th May, 2015.

Asha Arora, J:

1.) Considering the short question for determination in this appeal, filing of Paper books has been dispensed with at the request of the learned Counsels for the parties.

2.) The present appeal at the instance of the plaintiff/appellant arises out of Order No. 13 dated 4th February, 2015 passed by the Civil Judge (Senior Division) Sealdah in Title Suit No. 48 of 2014. By the impugned order the learned Trial Court rejected the plaint of the abovementioned suit under the provisions of Order 7 Rule 11 (d) of the Civil Procedure Code as being barred by Section 21 of the West Bengal Thika Tenancy Act. The aforesaid order was passed on the basis of an application under Order 14 Rule 2 read with Order 7 Rule 11 of the Civil Procedure Code filed on behalf of the defendants which was allowed on contest.

3.) Being aggrieved, the plaintiff/appellant brought the matter in appeal. Before referring to the contentions on behalf of the appellant, let us advert briefly to the plaint case.

4.) Plaintiff filed a suit for declaration and mandatory injunction in the Court of Civil Judge (Senior Division) at Sealdah asserting that the property described in Schedule A of the plaint originally belonged to one Amrita Nath Das who died sometime in the year 1921 leaving behind his four sons namely, Anibendra Nath Das, Atindra Nath Das, Abani Nath Das and Anadi Nath Das. The said Atindra Nath Das filed a suit for partition in the Original Side of the High Court, Calcutta being Suit No. 841 of 1937 and in the final decree passed in the said suit the schedule ‘A’ property was exclusively allotted to said Atindra Nath Das. The father of the plaintiff Debendra Nath Das was a tenant under the said Amrita Nath Das in respect of demarcated 2 Cottahs of land out of the total land comprised in the schedule ‘A’ property. It is further alleged that the father of the plaintiff became a thika tenant in respect of schedule ‘C’ property as soon as the Calcutta Thika Tenancy Ordinance, 1948 came into force and the said Ordinance was replaced by the Calcutta Thika Tenancy Act, 1949. The tenancy of the plaintiff’s father in respect of schedule ‘C’ property by virtue of the said Act of 1949 became heritable and transferable, as such, on the death of the father, the plaintiff became the thika tenant in respect of the suit schedule ‘C’ property. The Calcutta Thika Tenancy Act, 1949 was repealed and replaced by Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 whereby the plaintiff became a direct thika tenant under the State of West Bengal. The said Atindra Nath Das by a Deed of Conveyance dated 9th April, 1949 sold the schedule ‘A’ property to the defendant No. 1 and delivered possession thereof excepting the areas of schedule ‘A’ property which were under the possession of the tenants of said Amrita Nath Das which includes the schedule ‘C’ property. The plaintiff started residing at Garia sometime in the year 2005. In the later period, after his shifting to Garia, on the request of the local people plaintiff allowed a local registered club under the name and style of “Roy Para Athletic Club” to use the structure on the schedule ‘C’ property as the registered office of the said club. The said club since then was in possession and enjoyment of the said structure and land appertaining thereto as the licensee of the plaintiff till dispossessed illegally and forcibly by the defendant No. 1. It is the further case of the plaintiff that on 20th March, 2014 the defendant No. 2 with some of his associates demolished the structure on the schedule ‘C’ property and has taken forcible possession of the same. Defendant No. 2 is claiming right, title and interest over the schedule ‘B’ property on the strength of a registered purchase deed executed by the defendant No. 1 on 27th July, 2011 in his favour. The schedule ‘B’ property is comprised in thika tenancy as such the transfer of such property in favour of defendant No. 2 by defendant No. 1 offends the provision of the West Bengal Thika Tenancy Act, 2001 and consequently renders the said Deed of Conveyance void. With these averments plaintiff prayed for the following reliefs:
(a) A decree for declaration that the defendant No. 3 is a licensee under the plaintiff in respect of suit schedule ‘C’ property.
(b) A decree of mandatory injunction directing the defendant Nos. 1 and 2 to restore the possession of the plaintiff and /or the defendant No. 3 over the suit schedule ‘C’ property.
(c) A decree of mandatory injunction directing the defendant No. 2 to restore the structure at the suit schedule ‘C’ property in its original shape, size and dimension at their cost.
(d) A decree of permanent injunction directing the defendant not to interfere with the possession of the suit schedule ‘C’ property.

5.) In assailing the impugned order of the Trial Court, Mr. Basu, Learned Counsel for the appellant submitted that unless the suit reaches the stage of settlement of issues, there is no scope for framing a preliminary issue regarding the maintainability of the suit. The Lower Court therefore palpably erred in allowing the application under Order 14 Rule 2 read with Order 7 Rule 11 of the Civil Procedure Code (for short referred to as the C.P.C). It has further been argued that disputed questions cannot be decided at the time of considering an application under Order 7 Rule 11 of the C.P.C as it applies only to those cases where statements made in the plaint, without any doubt show that the suit is barred by any law. Learned Counsel for the appellant also contended that the relief prayed for in the suit can only be granted by the Civil Court as the Thika Controller appointed under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (for brevity the W.B.T.T Act) is not empowered to grant such relief. So the bar under Section 21 of the Act does not exclude the jurisdiction of the Civil Court to decide the matter. It has also been canvassed that so long as the dispute or question raised before the Civil Court does not fall within the exclusive power vested in the Thika Controller under the W.B.T.T Act, the jurisdiction of the Civil Court to entertain the suit in relation to such question cannot be said to be barred. Learned Counsel for the appellant asserted that even if a statute gives finality to the order of Tribunal, it has to be considered whether the Tribunal has the jurisdiction to grant relief which is normally granted by the Civil Court. To buttress his submissions Mr. Basu placed reliance on the decision of the Apex Court reported in (2008) 15 SCC 517 (N. Padmamma and others versus S. Ramakrishna Reddy and others), AIR 1969 Supreme Court 78 (Dhulabhai versus State of Madhya Pradesh and another), (1985) 4 SCC 10 (State of Tamil Nadu versus Ramalinga Samigal Madam) and AIR 2010 Supreme Court 2897 (Ramesh Gobindram (deceased by LRs.) versus Sugra Humayun Mirza Wakf.).

6.) Repudiating the argument advanced on behalf of the appellant, Mr. Mukherjee appearing for the respondent No. 2 in his usual fairness conceded that though the jurisdiction of the Civil Court is excluded by a statute only in exceptional cases, a meaningful reading of the plaint with reference to the reliefs prayed for by the plaintiff discloses that the suit is barred under Section 21 of the West Bengal Thika Tenancy Act, 2001. Referring to the case of T. Arivandandam versus T.V. Satyapal and another reported in AIR 1977 Supreme Court 2421 Mr. Mukherjee submitted that considering the plaint averments the Trial Court was justified in exercising its power Under Order 7 Rule 11 (d) of the C.P.C. Leading us through the relevant paragraphs 6 and 13 of the plaint, learned Counsel for the respondent No. 2 contended that as the plaintiff has challenged the transfer in favour of defendant No. 2, in view of the W.B.T.T Act, the reliefs in terms of prayer (b) and (c) cannot be granted without declaring the deed of conveyance void which is within the exclusive jurisdiction of the Controller as per Sub-Section (2) of Section 6 of the W.B.T.T Act, 2001.

7.) The core question for determination is whether the dispute raised before the Civil Court is required to be decided by the Thika Controller under the W.B.T.T Act, 2001. We are not unmindful of the provision of Section 9 of the Code of Civil Procedure which provides that the Civil Courts have the jurisdiction to try all suits of a civil nature excepting those of which their cognizance is expressly or impliedly barred. It necessarily follows that any statute which excludes such jurisdiction is an exception which cannot be readily inferred by the Courts.

8.) In our instant case a plain reading of the averments in the plaint shows that in the garb of a decree for declaration and mandatory injunction plaintiff has assailed the transfer in respect of ‘B’ schedule property in favour of defendant No. 2 by virtue of the deed of conveyance dated 27th July, 2011. In paragraph 13 of the plaint it has been stated that the schedule ‘B’ property is comprised in Thika tenancy and as such the transfer of the said property by the defendant No. 1 offends the provision of the W.B.T.T Act 2001 and consequently renders the deed of conveyance void. Manifestly, without declaring as invalid the said deed of conveyance, the reliefs sought for by the plaintiff in the suit cannot be granted. Sub-Section (2) of Section 6 of the W.B.T.T Act 2001 clearly provides that any transfer or agreement for transfer, whether oral or in writing or any activity in contravention of the provisions of Sub-Section (4) or Sub- Section (5) of Section 5 or proviso to Sub-Section (1) of this Section, shall be declared invalid under an order of the Controller. The power to declare as invalid the deed of conveyance in question which has been challenged by the plaintiff in Paragraph 13 of the plaintiff exclusively vests with the Controller in view of Sub-Section (2) of Section 6 of the Act. Therefore the jurisdiction of the Civil Court to decide the issue has been completely excluded. In Paragraph 8 of the plaint it has been mentioned that schedule ‘B’ property is a part of schedule ‘A’ property whereas the suit schedule ‘C’ property is a part of schedule ‘B’ property. The relief sought for by the plaintiff is in respect of schedule ‘C’ property which is, as per the above statement in the plaint, a part of schedule ‘B’ property which is the subject of the impugned deed of conveyance dated 27th July, 2011. Section 21 of the W.B.T.T Act clearly bars the jurisdiction of the Civil Court to deal with or to decide any question, or to determine any matter, which, by or under this Act, is required to be, or has been, decided or dealt with, or which is to be or has been, determined by the Controller, or the appellate or other authority specified in the provisions of this Act. The fact that the plaintiff has challenged the sale deed in question is also clear from Paragraph 14 of the plaint wherein it has been averred that the cause of action of the suit arose on diverse dates starting from the month of July, 2011 with the execution of the sale deed between the defendant No. 1 and the defendant No. 2. Evidently, a bare perusal of the plaint itself reveals that the crux of the dispute is the impugned deed of conveyance dated 27th July, 2011. Without declaring the aforesaid deed as void, a decree for restoration of possession in respect of schedule ‘C’ property as prayed for by the plaintiff cannot be granted. As already mentioned, Sub-Section (2) of Section 6 of the W.B.T.T Act authorises the Controller to decide the aforesaid dispute raised by the plaintiff in the suit.

9.) The decisions referred by the learned Counsel for the appellant are clearly distinguishable on facts from our present case. In the case of State of Tamil Nadu versus Ramalinga Samigal Madam reported in (1985) 4 SCC 10 it was held that the Settlement Officer’s decision regarding grant or refusal to grant ryotwari patta in respect of land would not bar or exclude the Civil Court’s jurisdiction to determine the nature of the land. This judgement differs on facts from our present case. In Dhulabhai’s case reported in AIR 1969 Supreme Court  the principles regarding exclusion of jurisdiction of the Civil Court have been laid down. It has been held in the aforesaid decision that where the statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. In our instant case the plaintiff/appellant’s specific case in the plaint is that the subject of the deed of conveyance dated 27th July, 2011 is schedule ‘B’ property which is comprised in thika tenancy and as such the transfer of such property offends the provision of W.B.T.T Act 2001 and consequently renders the deed of conveyance void. In Paragraph 8 of plaint it has been mentioned that schedule ‘B’ property is a part of schedule ‘A’ property whereas schedule ‘C’ property is a part of schedule ‘B’ property. In view of Sub- Section (2) of Section 6 of the W.B.T.T Act 2001, it is within the exclusive jurisdiction of the Controller to declare the impugned transfer of such property as invalid which the plaintiff virtually seeks from the Civil Court in terms of prayers (b), (c) and (d) of the plaint. Granting the aforesaid reliefs to the plaintiff would be tantamount to declaring as invalid the alleged transfer of the property in question by virtue of the impugned deed of conveyance. The above mentioned provision of the W.B.T.T Act clearly excludes the Civil Court’s jurisdiction to deal with the matter. The judgements reported in (2008) 15 SCC 517 (N. Padmamma and others versus S. Ramakrishna Reddy and others) and AIR 2010 Supreme Court 2897 (Ramesh Gobindram (deceased by LRs.) versus Sugra Humayun Mirza Wakf.) are also of no avail to the appellant for the simple reason that from the statements in the plaint itself, the suit appears to be barred by Section 21 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

10.) We are therefore convinced that the Trial Court did not err in exercising its power under Order VII Rule 11 Clause (d) of the C.P.C in rejecting the plaint of Title Suit No. 48 of 2014.

11.) The impugned order passed by the Civil Judge (Senior Division) Sealdah in Title Suit No. 48 of 2014 is hereby affirmed.

12.) The appeal stands dismissed without any order as to costs.

13.) Pursuant to the dismissal of the appeal, the connected application for interim relief being CAN No. 1543 of 2015 has become infructuous and is accordingly dismissed.

14.) Photostat certified copy of this judgement, if applied for, shall be supplied to the parties subject to compliance of requisite formalities.

(Asha Arora, J.)

(Nishita Mhatre, J.)

6th May, 2015