Sugato Majumdar, J.:

1. This is a suit for declaration, recovery of possession, mesne profits and other reliefs.

2. The nutshell of the plaint case is that one Nagendra Nath Sett, by an indenture of trust dated 12/03/1946 created a trust estate appointing his wife Kshetramani Dassi as one of the trustees. The said Kshetramani Dassi, since deceased, executed a registered deed of lease on 11/10/1966 commencing on and from 01/09/1966 for a period of nine years at a monthly rent, in favor of the Defendant No.3, a partnership firm. This lease was executed in respect of a piece and parcel of land admeasuring 6 cottahs 9 chittacks 31 sq. ft. with structures standing thereon situated at 45, Chittaranjan Avenue, Kolkata (“the suit property” in short). This tenancy became subject matter of Ejectment Suit No. 806 of 1976 instituted in the City Civil and Sessions Court of Calcutta.

3. The original Plaintiffs purchased the suit property from one of the beneficiaries of the aforesaid trust Dhirendra Nath Sett, by a registered deed of sale dated 18/07/1981. Thereafter, the original Plaintiffs were arrayed as defendants in the aforesaid pending suit. The suit was ultimately dismissed for non- prosecution on 22/03/1991.

4. The Defendant No.1 is the State of West Bengal and the Defendant No.2 is the Thika Controller. Sometime immediately before 20/01/1995 the Defendant No.1 and the Defendant No.2 declared that the Defendant No.1, being the State of West Bengal, became the owner of the suit property by way of vesting under the provisions of the Calcutta Thika and Other Tenancies and Lands (Acquisition & Regulation) Act, 1981 (in short, “the Act of 1981”). The Defendant No.3 was recognized as a thika tenant. The Defendant No.3 approached the Calcutta Municipal Corporation to recognize and record the Defendant No.3 as thika tenant. The Calcutta Municipal Corporation issued a notice to the original Plaintiffs bearing number A/XIV/94 dated 20/01/1995 stating that the Defendant No.3 had applied for recording name as a thika tenant on the strength of some challans issued by the Defendant No.2 in favor of the Defendant No.3. In a reply letter dated 15/05/1995, the original Plaintiffs denied any right of the Defendant No.3 as thika tenant. Despite the same, the Calcutta Municipal Corporation recorded the name of the Defendant No.3 as a thika tenant. Against this, the original Plaintiffs preferred a writ petition before the Calcutta High Court where interim relief was granted. In appeal, the Division Bench set aside the order passed by the Calcutta Municipal Corporation and directed that the parties should get their respective titles decided by appropriate forum. This order was passed on 03/10/1996.

5. It is further averred in the plaint that since the defendants jointly and severally purported to deny the right, title and interest of the original Plaintiffs by setting up adverse title, the original Plaintiffs determined the tenancy of the Defendant No.3 in terms of a notice dated 12/03/1997 and called upon the Defendant No.3 to vacate and hand over peaceful possession of the suit premises to the original Plaintiffs on expiry of the month of the April, 1997. Since the Defendant No.3 neglected and failed to hand over possession of the suit premises, the instant suit was instituted by the original Plaintiffs praying for declaration that the original Plaintiffs are the absolute owners of the suit premises; declaration that the suit premises has not vested unto the Defendant No.1, the State of West Bengal under the Act of 1981; decree for possession of the suit premises; decree for mesne profits along with other prayers.

6. The Defendants contested the suit by filing written statements. Separate written statements were filed by the Defendant No.1 & 2 as well as the Defendant No.3.

7. Contentions of the Defendant No.1 in the written statement is that the suit is barred by the law of limitation. The suit is not maintainable in law in view of the fact that the Act of 1981 had been repealed and new statute was enacted in the year 2001 abolishing the post of Controller created by the Calcutta Thika Tenancy Act, 1949 (in short “the Act of 1949”) as well as by the Act of 1981. Therefore, the suit is bad for non-joinder and misjoinder of parties. It is another contention of the State that under the provisions of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 (in short “the Act of 2001”), this court has no jurisdiction to entertain the instant suit. It is further stated in the written statement that the Defendant No.3 was initially granted lease on 31/07/1956 for vacant land for a period of 10 years. Subsequent lease on 11/10/1966 was for a period of 9 years. Thus, the total period of lease was 19 years. The suit premises vested in the State and the Defendant No.3 deposited ground rent in respect of the suit premises. The original Plaintiffs filed no objection with the concerned authority since 1987. In view of vesting of the suit premises, the Plaintiffs are entitled to get compensation. According to the Defendant No.1, the suit is liable to be dismissed.

8. The Defendant No.3 in its separate written statement raised the plea of limitation, ouster of jurisdiction under section 23 of the Act of 1981, bar of the suit under the principles of estoppel, waiver and acquiescence, non- disclosure of cause of action, defect for no-joinder of necessary party and others.

9. Factual aspect, canvassed in the written statement of the Defendant No.3, is that originally the premises no.45, Chittaranjan Avenue was a vacant land admeasuring about 7 Cottahs 5 chittacks 37 sq. ft. owned by Kshetramani Dassi as a sole trustee of the trust estate of Nagendra Nath Sett. The said Kshetramani Dassi let out the entire vacant land to one Abdul Rassul for use of the same as a yard for stocking barrels and drums. During 1950/1951, the said Md. Rassul, out of the entire holding of 7 Cottahs 5 Chittaks 37 sq. ft., sub-let a portion of land measuring about 6 Cottahs 9 Chittacks 31 sq. ft. to one Premji Khimji then carrying on business under the name and style of M/S Vijoy Timber Co. The said M/S Vijoy Timber Co. raised some kutcha structure on the land for carrying out a business of timber. The rest of the portion of the premises were occupied by the said Md. Rassul and other occupants. Subsequently, the said M/S Vijoy Timber Co. sold and transferred its business together with all structures including shop, stock-in-trade, furniture and fixtures at premises no.45, Chittaranjan Avenue for valuable consideration to the Defendant No.3 on 08/11/1951. On the same date, by another indenture, the Defendant No.3, M/S K. G. Patel & Co. became sub-tenant under M/S Vijoy Timber Co. in respect of the land comprised in premises no.45, Chittaranjan Avenue and obtained possession thereof which is being still continued. To cut short the matter, after a round of litigation, the aforesaid Kshetramani Dassi, since deceased, agreed to execute a deed of lease in favour of the Defendant No.3 and she would realise the entire decretal amount in Suit No.775 of 1955 being the arrear of rent payable by Md. Rassul, from the Defendant No.3. Pursuant thereto, the said Kshetramani Dassi accepted a sum of Rs.5,958/- from the Defendant No.3 and executed a deed of lease on 30/07/1956 in favour of the Defendant No.3 for a period of 10 years commencing from 01/08/1956. It was stipulated that on expiry of lease, the Defendant No.3 would quit and vacate the land removing the structures. The said lease deed was duly registered. This lease was granted in respect of the land admeasuring about land measuring about 6 Cottahs 9 Chittacks 31 sq. ft., being the subject matter of the present suit. It is contended in the written statement that on execution of the deed of lease, the Defendant No.3 became a thika tenant within meaning of section 2(5) of the Act of 1949. The Defendant No.3, with written consent of the said Kshetramani Dassi, since deceased and on obtaining sanction of plan from Calcutta Municipal Corporation, constructed bath-rooms, privy, kitchen, veranda and other structures beside addition and alteration of the existing structure. On expiry of the original lease, a second lease for a further period of 9 years was executed on 11/10/1966 effective from 01/09/1966. It is contended in the written statement that the Defendant No.3 had leasehold rights in respect of the suit land and ownership of structures standing thereon.

10. The Defendant No.3 denied and disputed all the allegations contained in the plaint. Defense is taken that in view of dismissal of the earlier ejectment suit, the Plaintiff is not entitled to institute the present suit. The Defendant No.3 asserted that the suit land is vested in the State and the Defendant No.3 is a thika tenant now. The Defendant No.3 challenged determination of tenancy in view of vesting under the Act of 1981. In nutshell, according to the Defendant No.3, the suit is liable to be dismissed being not tenable.

11. On the basis of rival pleading the following issues were framed:

"1. Whether the suit is maintainable in the eye of law or fact

2. Whether the suit is barred by any law or principle of estoppels and acquiescence

3. Whether the suit discloses any cause of action and such cause of action is proved

4. Whether the suit is bad for non-joinder and misjoinder of cause of action

5. Whether the suit is properly valued

6. Whether the Court has pecuniary jurisdiction to entertain the suit

7. Whether the suit property is vested with the State of West Bengal under the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981

8. Whether the Plaintiff is entitled to the declaratory decrees prayed for

9. Whether the Defendant No3 was a tenant or the Defendant No.3 acquired title by way of adverse possession If tenant, whether the tenancy is under West Bengal Premises Tenancy Act, 1956 or under Transfer of Property Act, 1882

10. Whether the tenancy of the Defendant No.3 was terminated If so, on which date such tenancy was terminated and whether such termination was properly done or not

11. Whether the Plaintiff is entitled to any rent, mesne profit or otherwise from the Defendant No.3 before termination of tenancy

12. Whether the Plaintiff is entitled to the relief of delivery of possession

13. Whether the Plaintiff is entitled to other reliefs as prayed for"

12. Judges’ Brief of Documents are filed. Both the Plaintiff and the Defendants adduced oral and documentary evidence.

ISSUE NO.1 & 2:

13. The first Issue invites for consideration whether this suit is maintainable in view of bar of jurisdiction of civil court, imposed by both the Act of 1981 and the Act of 2001 and whether this Court has jurisdiction to decide on the status of the Defendant No.3 as thika tenant or not and whether the suit property has been vested in the State or not.

14. Ms. Banerjee, the Learned Counsel on behalf of the State, the Defendant No.1 and Thika Controller, the Defendant No.2 urged vehemently that the suit is not maintainable. It was submitted that final adjudication of the issue as to whether the suit property is vested in the State or not can be made only by the statutory authority namely, the Defendant No.2. Division Bench of this Court, in terms of the Order dated 03/10/1996 observed that the question of mutation can be decided by the appropriate authority. The appropriate authority, today, is the Defendant No.2, the Thika Controller. Jurisdiction of the civil court to decide on the issue is ousted both by Section 21 of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 (In short “the Act of 2001”) as well as under the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (In short “the Act of 1981”). The Act of 1981 was repealed by the Act of 2001 with retrospective effect from January, 1981. At the time of filing of the suit, Section 23 of the Act of 1981 ousted the jurisdiction of civil courts. Since 2001 amendment of Section 5(3), w.e.f 01/11/2010, any question, whether a person is a thika tenant or not or the land in question is a thika land or not, the Controller after giving the “persons interested” an opportunity of being heard upon examining all documents and particulars, may decide such issues. Earlier, Section 23 of the Act of 1981 also specifically barred jurisdiction of civil courts to decide or deal with any question or any matter required to be dealt with or determined by the Thika Controller or Appellate or other authority. The Controller has all the powers of a civil court under the Act of 2001. The Plaintiff is an “interested person” within meaning of section 5(3) of the Act of 2001, as amended w.e.f 01/11/2010, and is entitled to a hearing before the Controller. It is submitted that even if a declaration of title simplicitor is maintainable, the moment the defendants raised an issue within meaning of section 5(3) of the Act of 2001, the same cannot be gone into and adjudicated by the civil court.

15. Referring to Saghira Bano vs Mahmood Alam [(2019) 5 CHN 504], Ms. Banerjee submitted that it was held by this Court therein that though the dispute between the parties apparently seems to be title, when an adjudication of parties’ occupation as thika tenant comes into question, the same is barred under section 5(3) of the Act of 2001. Then Ms. Banerjee referred to a decision of this Court in Smt. Suchitra Ruia & Ors. Vs. Vikas Fabrics Pvt. Ltd. & Ors. [(2016) 3 CHN 376]. In this case an order of the trial court, dismissing an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was under consideration in a revision application. This Court set aside the order holding that a meaningful reading of the plaint disclosed that the fate of the suit hinged upon the status of the defendant as a thika tenant. It was observed that there was enough merit in the application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908. Then reference was made to Prabash Aich Vs. Shiv Shankar Aich [(2018) 4 CHN 74]. In this case, observation was that in view of express provision of section 5(4) of the Act of 2001, as amended, jurisdiction of the civil court is ousted. Ms. Banerjee also referred to Gundajee Satwajee Shindhe Vs. Ram Chandra Bhikaji Joshi [(1979) 2 SCC 495] where the Supreme Court of India considered an ouster clause in respect of Bombay Tenancy & Agricultural Land Act, 1948; Prime Timbers Vs. S.B.I [(2010) 1 CHN 86] on section 34 of R.D.D.B.I Act 1993; Saddan Khan & Anr. Vs. Ariff Rahman & Ors. [(2018) SCC OnLine Cal 6769] in respect of Waqf Act, 1995; M/S Hoogly Building & Investment Co. Ltd. Vs. Janab Syed Asghar Hussain Ismail & Ors. [(2015) 1 Cal. L. J 107].

16. Per contra, Mr. Ganguly, the Learned Counsel for the Plaintiff, referring to the writ petition, filed earlier by the Plaintiff, argued that the Division Bench was concerned with writ petition which was filed under section 8 of the West Bengal Land Reforms and Thika Tenancy Act, 1997 (In short “the Act of 1997”). Section 8 of the act of 1997 provided that only Division Bench of the High Court could entertain a writ petition. The original jurisdiction of the Tribunal which is an authority under Article 323A of the Constitution of India, was restricted to hearing appeals from any order of an authority in terms of section 6 of the Act of 1997. According to Mr. Ganguly, the Order passed by the Division Bench was in different context and is not relevant to decide upon the instant issue.

17. It is further submitted that the Act of 1981 did not clothe the Thika Controller with power to decide questions of title or whether the land or nature of relationship attract the provisions of the Act of 1981. Rigors of Section 23 applied only in respect of the matters defined in Section 13 of the Act of 1981. In any event, it is settled law that any clause of a statute, which ousters jurisdiction of civil court, is to be strictly construed. A complete ouster is possible when a substituted forum has the power to grant all the reliefs claimed. In the instant suit, one of the reliefs is recovery of possession which cannot be granted by the Thika Controller. Referring to Section 27 of the Act of 2001, the Learned Counsel submitted that the instant suit is not barred and this Court being a civil court exercising Ordinary Original Jurisdiction, is not incompetent to decide upon the issues.

18. Before adverting to rival submissions, it is necessary to look into Section 21 and Section 27 of the Act of 2001. Section 21 of the Act of 2001 states:

“21. Bar to jurisdiction.- No civil court shall have jurisdiction to decide, or to deal with, 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, and no order or judgment passed, or proceedings including execution proceedings commenced, under the provisions of this Act shall be called in question in any civil court.”

Next, Section 27 of the Act of 2001 states:

“27. (1) With effect from the date of commencement of this Act, the Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, shall stand repealed.

(2) Notwithstanding the repeal of the said Act, such repeal shall not—

(a) affect the previous operation of the said Act or anything duly done or suffered thereunder; or

(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Act; or

(c) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the said Act; or

(d) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.”

19. It is also necessary to look into the provisions of Section 6(e) of the General Clauses Act, 1977:

"6. Effect of repeal.— Where this Act, or any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

******

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.”

20. Before deciding on applicability of the aforesaid provisions in the instant case, it is apt to consider certain decisions necessary for clarification. In Manujendra Dutt Vs. Purnedu Prosad Roy Chowdhury [AIR 1967 SC 1419] the Supreme Court of India considered the effect of the deletion of Section 29 of the Calcutta Thika Tenancy Act, 1949, by the Calcutta Thika Tenancy (Amendment) Act, 1953 so far as the pending litigations were concerned. The suit for ejectment against a tenant was instituted in a civil court in 1947. In view of Section 29 of the Thika Tenancy Act, 1949, the suit was transferred to the Controller. During the pendency of the suit before the Controller, Section 29 was deleted by the amending Act. The question that arose was whether by deletion of Section 29 the jurisdiction of the Controller over a pending suit was taken away. It was observed:

“The contention of Mr Agarwal was that since it was only by reason of Section 29 that the suit had been transferred to the Controller the deletion of that section from the Act by Section 8 of the Amendment Act of 1953 had the effect of depriving the Controller of his jurisdiction to try the suit and therefore the judgment and order passed by him though confirmed by the learned Subordinate Judge and the High Court was without jurisdiction and therefore bad. In our view, this contention has no force. Though Section 29 was deleted by the amendment Act of 1953 the deletion would not affect pending proceedings and would not deprive the Controller of his jurisdiction to try such proceedings pending before him at the date when the amendment Act came into force. Though the amendment Act did not contain any saving clause, under Section 8 of the Bengal General Clauses Act, 1899, the transfer of the suit having been lawfully made under Section 29 of the Act its deletion would not have the effect of altering the law applicable to the claim in the litigation. There is nothing in Section 8 of the amending Act of 1953 suggesting a different intention and therefore the deletion would not affect the previous operation of Section 5 of the Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under Section 29. That being the correct position in law the High Court was right in holding that in spite of the deletion of Section 29 the Controller still had the jurisdiction to proceed with the said suit transferred to him.”

21. In CIT Vs. Dhadi Sahu [1994 Supp (1) SCC 257], effect of change of forum by amendment of a statute, here the Income Tax Act, 1961, came up for consideration. The Supreme Court of India held:

“18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them.”

22. It was further observed in this case:

“21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums.”

23. In Ambalal Sarabhai Enterprises Limited Vs. Amrit Lal and Co., [(2001) 8 SCC 397] it was held by the Supreme Court of India that a law which brought about a change in forum would not affect pending actions unless the intentions to the contrary was clearly shown. In Videocon International Limited Vs. Securities and Exchange Board of India [(2015) 4 SCC 33] the Supreme Court of India was envisaged with the same issue. The point of consideration was effect of amendment of Section 15 (z) of the Securities and Exchange Board of India Act, 1992. The Supreme Court of India referred to various authorities on the issue. The Court considered previous authorities on the issue including those mentioned above and also took into consideration the ratio of Hitendra Vishnu Thakur Vs. State of Maharashtra [(1994) 4 SCC 602]. In Hitendra Vishnu Thakur’s case, the Supreme Court of India observed:

“(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly-defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospective where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”

24. The Supreme Court of India also considered Dhadi Sahu’s case (supra) wherein it was held that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them. It was held that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums. In Videocon International Limited’s case (supra) the Supreme Court of India was concerned with available appellate remedy in view of subsequent amendment of statute and change in forum. It was observation of the Supreme Court of India

“39. As illustrated above, an appellate remedy is available in different packages. What falls within the parameters of the package at the initial stage of the lis or dispute, constitutes the vested substantive right of the litigant concerned. An aggrieved party, is entitled to pursue such a vested substantive right, as and when, an adverse judgment or order is passed. Such a vested substantive right can be taken away by an amendment, only when the amended provision, expressly or by necessary intendment, so provides. Failing which, such a vested substantive right can be availed of, irrespective of the law which prevails, at the date when the order impugned is passed, or the date when the appeal is preferred. For, it has repeatedly been declared by this Court, that the legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps, are connected by an intrinsic unity, and are regarded as one legal proceeding.”

25. The instant suit was instituted when the Act of 1981 was in force. Subsequently, the Act of 2001 was passed with effect from 01/03/2003. Section 27 of the Act of 2001, as mentioned above, saves the pending litigations from encroachment by the Act of 2001. In spite of subsequent amendment of the Act of 2001 by West Bengal Act XXV of 2010 with effect from 01/11/2010 and insertion of new Section 5(3), Section 27 was not amended. Neither the Act of 2001 nor the subsequent amendments made it expressly known that either Act of 2001 or subsequent amendments would have retrospective effect. Observation of Dhadi Sahu’s case may be considered herein as quoted above. There is no clause or provision under which the pending proceedings were to be transferred to the Thika Controller. Unlike some other amending Acts which bring about a change in forum with a further provision that pending suits or proceedings should be transferred to the newly created forum, Section 27 of the Act of 2001 saves the pending legal proceedings. Section 27(2) of the Act of 2001 introduces a legal fiction in respect of any investigations, legal proceedings or remedy which had been instituted, continued and enforced as if the Act of 2001 had not been passed. The present suit was instituted praying for declaration along with other remedies that there was no vesting of the suit property under that Act of 2001 and the original Plaintiff was the owner of the suit property. On death of the original plaintiff, her legal heirs were substituted and the declaration is sought to the effect that the present plaintiffs are the owners of the suit property and the same has not been vested under the Act of 1981. Since this proceeding was instituted in respect of the Act of 1981, enactment of the subsequent Act of 2001 has no effect on the present suit by virtue of saving provision and the legal fiction contained in Section 27 of the Act of 2001. A conjoint reading of Section 6 (e) of the General Causes Act and Section 27 of the Act of 2001 makes it abundantly clear that the Act of 2001 is not applicable to the present proceedings. Therefore, in deciding the instant suit, there is no need to look into the provisions of the Act of 2001. So far as this suit is concerned, consideration of the Act of 1981 shall come into the foreground. The argument made by Mr. Banerjee, as stated above holds no ground.

26. Once it is decided that the instant suit will be decided with reference to the Act of 1981, the next question to consider is whether the jurisdiction of this Court to consider the question of vesting is barred by the Act of 1981 under provision of section 23 of the said Act.

27. Section 23 of the Act of 1981 states:

“23. No civil court shall have jurisdiction to decide or deal with any question or to determine any matter which is by or under this Act required to be or has been decided or dealt with or to be determined or has been determined by the Controller or the appellate or other authority specified in the provisions of this Act and no order or judgment passed or proceedings including' execution proceedings commenced under the provisions of this Act shall be called in question in any civil court.”

28. It is settled law that ouster of jurisdiction of the Civil Court should not be readily inferred. Section 9 of the CPC provides that a Civil Court can entertain any suit unless expressly barred. Bar imposed by Section 23 is in respect of those matter which can be determined by the controller or the appellate authority. Single Bench of this Court in Shayamal Atta & Ors. Vs. State of West Bengal, the Ld. Thika Controller & Anr. [(1998) SCC OnLine Cal 303] held that under the Act of 1981 Thika Controller is not vested with the power to adjudicate whether a person is a thika tenant or not. In Indira Devi Rajak Vs. Thika Controller [(1999) SCC OnLine Cal 286] Division Bench of this Court held:

“25. While sub-section (2) of section 7 of the 1981 Act indicates that any transaction entered into in respect of a thika tenanted property after the coming into operation of the 1981 Act would be void, the same would have to be declared as void not by the Thika Tenancy Controller, Howrah, but by the Civil Court. The Thika Tenancy Controller, Howrah, being a creature of the Statute he has to confine himself to the powers vested in him by the Statute. There is nothing in the Statute to indicate that the Thika Tenancy Controller, Howrah, could adjudicate on the validity of a document of title, notwithstanding the provisions of sub-section (2) of section 7 of the 1981 Act.”

29. In Shrenik Kumar Singhee Vs. State of West Bengal & Ors. [(2005) SCC OnLine Cal 610] Justice Jyotirmay Bhattacharya (as His Lordship then was) referring to Shayamal Atta’s case (supra) and Indira Devi Rajak’s case observed that the power to adjudicate as to whether a person is a thika tenant or not, was not been vested with Thika Controller under the provisions of the Act of 1981. In fact, such a dispute which requires declaration of title of rival claimants, can only be resolved by a civil court of competent jurisdiction. This judgment was approved by the Division Bench of this Court in Jyoti Prova Mullick Vs. Gouri Sankar Sarda [(2016) SCC OnLine Cal 4232]. Approving the ratio laid down in Shrenik Kumar Singhee’s case (supra) it was held:

“30. The dispute so raised by Mr. Basu is no longer a res integra in view of the decision of this Hon'ble Court in the case of Shrenik Kumar Singhee v. State of West Bengal reported in 2006 (1) CHN 540 wherein it was held that the Thika Controller was not vested with the power to adjudicate any dispute regarding the title to a property of the rival claimants. It was also held therein that the power to adjudicate as to whether a person is a thika tenant or not has not been vested with the Thika Controller under the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. It was further held therein that such a dispute which requires declaration of title of the rival claimants can only be resolved by the civil court of competent jurisdiction. If this test is applied in the present case, then we have no hesitation to hold that the Thika Controller has no jurisdiction to decide the issue relating to vesting of the landlord's interest in the land with the State and consequently creation of a new relationship of landlord and tenant between the State and the defendant. As such, we cannot accept such contention of Mr. Basu.”

30. The decisions referred to by Mr. Banerjee are all decisions of in respect of applicability of Section 5 (3) of the Act of 2001 as amended by West Bengal Act of XXV of 2010. Those decisions are not applicable in the present case.

31. For reasons discussed above, it is very clear that this Court has jurisdiction to decide on the title of the Plaintiffs and the question of vesting. I agree with the argument of Mr. Ganguli. It is decided that the suit is maintainable on this scope.

32. Another point raised by the Learned Counsel for the Defendant is that the suit is barred by limitation.

33. It is argued by Mr. Banerjee that prayer for declaration is barred by limitation; under Article 58 of the Limitation Act is to obtain declaration when the right to sue first accrues. The Plaintiff came to know about vesting in the previous suit from the written statement filed by the Defendants on 28th April, 1980; this came to the knowledge of the Plaintiff that the Defendant No. 3 claimed himself be a thika tenant. The stand taken by the Defendant that issuance of notice of the Kolkata Municipal Corporation on 20th January, 1995 informing the Plaintiff that the Defendant No. 3 and applied for mutation as thika tenant, offering thereby of hearing, would not extend the period of limitation and would not give a fresh cause of action to institute a new suit. Referring to Khatri Hotels Private Limited and Another Vs. Union of India and Another [(2011) 9 SCC 126] it is submitted that if a suit is based on multiple cause of action. The period of limitation will begin to run from the date when the right to sue first accrues. The Plaintiff had knowledge by virtue of a written statement filed in an earlier suit of 1990 that the property had already been vested. The cause of action should run from that date. The Learned Counsel also refers to L.C. Hanumanthapa Vs. H.B. Shivakumar [(2016) 1 SCC 332] to support his contention. According to the Learned Counsel for the State the cause of action of a landlord to recover possession of property from a tenant is twelve years from the date the tenancy is determined in terms of Article 67 of the Limitation Act. In this case such cause of action arose on 16th January, 1976 when first eviction notice was given. It expired on 15th January, 1988 at a time when the Plaintiff had already stepped into the sues of the previous owner and admittedly got themselves substituted and added as a party to the previous suit in February 1982. According to the Learned Counsel Ms. Banerjee, the suit for eviction is also barred by limitation.

34. Mr. Ghosh, the Learned Senior Counsel representing the Defendant No. 3 also submitted that the suit is barred by law of limitation. The argument advanced by Mr. Ghosh is that Article 58 of the Limitation Act, 1963 provides that for a suit to obtain any other declaration, the period of limitation is three years from a point of time “when the right to sue first accrues”. After the original Plaintiffs in the present suit purchased the suit property from the erstwhile owner, they were added as a party in the suit pending in the City Civil Court. Right to sue for a declaration in terms of prayer (a) and (b) of the instant plaint first accrued on 13th April, 1982 and period of three years expired on April 12, 1985. The suit was filed on 12/05/1997. According to the Mr. Ghosh, declaratory decree is barred by law of limitation. It is further argued by Mr. Ghosh that prayer for recovery of possession is also barred by law of limitation. According to Mr. Ghosh, Article 67 of Schedule I of the Limitation Act, 1963 provides that period of limitation for a suit by a landlord to recover possession from a tenant is twelve years from when the tenancy is determined. In the instant case, as Mr. Ghosh submitted tenancy was determined in the year 1978 and the instant suit was filed in the year 1997. According to him, very clearly the suit is barred.

35. Mr. Ganguly, the Learned Counsel appearing for the Plaintiff, refuted the argument that the suit is barred by limitation. According to him, the Plaintiff sued the Defendants both for declaration of title as well as recovery of possession on the basis of title. The original Plaintiff’s title was denied in the subsequent events and in the course of disputes. According to Mr. Ganguly, mere claiming thika tenancy in the written statement of a pending suit without filing the return, as prescribed in law, does not have any relevance. Such assertion does not constitute an appropriate notice on the Plaintiff with regard to such a claim of thika tenancy. A claim made in course of a suit has no relevance outside the suit. It is further argued that Defendant No. 3, independently, cannot claim thika tenancy to defeat the Plaintiff’s title unless the Defendant No. 1 claimed the same or it is established that the Defendant No. 1 is the owner. The entire process of vesting under the Act of 1981 would have been started only when the Defendant No. 1 had knowledge of existence of the thinka tenancy in the property and such knowledge arises when the alleged thika tenant files a return. It is further stated that process of vesting commences only when the return is filed. In the absence of filing of return under the Act of 1981 there cannot be any vesting although plea was taken of such vesting under 1981 Act. According to the Learned Counsel for the Plaintiff, Defendant No.3 applied for correction of assessment role of the Kolkata Municipal Corporation on 21st February, 1992. In Paragraph 7 of the plaint, it is stated that the state had declared the Defendant No. 3 as thika tenant sometimes before 20th January, 1995. Therefore, according to Mr. Ganguly, right to sue first arose on 20th January, 1995. Therefore, according to him, the suit is not barred by limitation.

36. I have heard rival submissions.

37. The suit has two principal reliefs, one is a declaration of title of the Plaintiff and the other is recovery of possession along with other reliefs. The recovery of possession is based on a termination notice dated 12th March, 1997 whereby tenancy of the Defendant No. 3 was determined. Cause of action for recovery of possession is that notice. For limited purpose of consideration of the issue of limitation, period of limitation starts from that point of time. Whether that determination is proper or not would be discussed subsequently. Since the recovery of possession is sought for, on the basis of this notice of determination and the suit is filed within period of limitation the suit is not barred by law of limitation so far as recovery of possession is concerned.

38. The Act of 1981 came into operation w.e.f 13th April, 1982. Under Section 5 of the Act of 1981, thika land stood vested from the date of coming into effect of the Act. If the argument of Mr. Ghosh is accepted that the period of limitation started from that date, this Court would be trapped into a fallacy of prejudged presumption that the suit property is a thika tenancy, discarding the scope of adjudication as to whether the property is a thika land or not. The plaintiffs, neither the original nor the substituted one accepted any compensation as contemplated under section 8 of the Act of 1981. Process of vesting is still not complete. The original Plaintiff filed writ petition in this Court. The matter went to the Division Bench. The Division Bench, in terms of the Order dated 3rd October, 1996 disposed of the appeal directing the parties to get their respective titles decided in an appropriate forum. This Judgment of the Division Bench allowed liberty to the original plaintiff to agitate the dispute on title in proper forum. In the next year the instant suit was filed by the original plaintiff being confronted with rival claim of title. Therefore, this Court is of opinion that so far as declaration of title is concerned, the suit is filed within the period of limitation.

39. So far as the issues on acquiescence and estoppel is concerned, perusing the pleading of the parties, appreciation of evidences adduced and hearing rival submission, this Court is of opinion that the suit is not barred by the principle of estoppel and acquiescence.

40. For discussions and reasons stated above, this Court comes to the conclusion that Issue No. 1 and 2 are in favour of the Plaintiff.

ISSUE NO.3, 4, 5 & 6:

41. The instant suit is filed with multiple cause of actions, as disclosed in the plaint. The first cause of action is in respect of declaration of title of the Plaintiff in the suit property and on the question of vesting with the State. As discussed above, the suit is not barred by limitation, so far as cause of action in respect of these prayers are concerned. The Defendants set up rival title to the suit property in the form of vesting, adverse to that of the Plaintiff. That is disclosed in the plaint. Evidences and rival pleadings are also with the in consonance to the pleading. Therefore, it is clear that the instant suit discloses cause of action so far as these set of prayers are concerned.

42. The issue whether the suit discloses any cause of action in respect of recovery of possession will be discussed later on.

43. So far as the plea of non-joinder of parties are concerned, a plea is taken in the written statement by the Defendant No.1 & 2 that on repealing of the Act of 1981, the post of Controller under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1949 (in short “the Act of 1949”) and the Act of 1981 had ceased to exist. Hence the suit is bad for non-joinder and misjoinder of parties. But this plea is not acceptable in view of the fact that the State is made party herein to represent the extant authority. It can be concluded, therefore, that the suit is not bad for non-joinder of necessary party or parties.

44. So far as valuation of the suit and pecuniary jurisdiction is concerned, Mr. Ghosh, the Learned Senior Counsel for the Defendant No.3 argued strenuously that the suit is over-valued. According to Mr. Ghosh, suit of the landlord ought to have been valued under Section 7(iii)(d) of the Court Fees Act, 1970. The Learned Counsel also referred to Section 7(xiii)(d) of the West Bengal Court Fees Act, 1970 to argue that in a suit by a landlord for recovery of immovable property from a tenant including a tenant by holding over after determination of tenancy, valuation of the suit should be based on annual rent payable by the tenant. The Defendant No.3 is a monthly tenant protected by West Bengal Premises Tenancy Act, 1956 and after termination of contractual tenancy by notice dated 12th March, 1997 the Defendant No.3 became a statutory tenant. Since the Defendant No.3 is a statutory tenant, his possession is not wrongful unless and until a decree of eviction is passed against him and till then he is not liable to pay any mesne profit. It is contention of Mr. Ghosh that valuation of the suit should be based on annual rent last payable and such valuation is far below the pecuniary jurisdiction of this Court. In fact, the Plaintiff has inflated valuation of the suit making it over-valued to bring the suit within jurisdiction of this Court. Thus, according to Mr. Ghosh the suit is over-valued and this Court has no pecuniary jurisdiction to decide the instant lis. Mr. Ghosh relied upon two decisions of the Supreme Court of India namely Provash Chandra Dalui & Another Vs. Biswanath Banerjee & Anr. [(1989) Supp (1) SCC 487] and Nellimarla Jute Mills Co. Ltd. Vs. Rampuria Industries & Investment Ltd. [(2004) 13 SCC 448].

45. Per Contra, Mr. Ganguli, the Learned Counsel for the Plaintiff argued that the instant suit is for declaration of title and recovery of possession on the basis of title. The claim of the Defendant No.3 is not simply that he is an alleged thika tenant. The Defendant No.3 also disputed the title of the Plaintiff. Reliefs claimed in the suit are intricately connected and the suit is in the nature of a suit under Section 5 of the Specific Relief Act. Valuation of the suit was made treating the suit as a suit for declaration of title and consequential relief of eviction of trespasser; it is not simply a suit for eviction under the West Bengal Premises Tenancy Act, 1956. It is further argued by Mr. Ganguly that expert valuer had given opinion to the Plaintiff that the Plaintiffs are entitled to mesne profit at a rate of Rs. 5000/- per diem. This is also in the evidence of P.W.2. That is why the Plaintiffs are entitled to mesne profit and the suit is valued accordingly, as submitted by Mr. Ganguly.

46. There are two aspects of the issue. Firstly, as argued by Mr. Ganguly, the suit is not a suit for recovery of possession from a tenant or trespasser. There are multiple cause of action and the plaint contains multiple prayers like declaration of title, claim of mesne profit. All these prayers are intricately woven. The suit is valued on the basis of all the prayers. In that case Section 7(iii)(d) or Section 7(xiii)(d) of the Court Fees Act, 1970 is not applicable. Although Mr. Ghosh referred to two decisions of the Supreme Court of India in Provash Chandra Dalui & Another Vs. Biswanath Banerjee & Anr. [(1989) Supp (1) SCC 487] and Nellimarla Jute Mills Co. Ltd. Vs. Rampuria Industries & Investment Ltd. [(2004) 13 SCC 448], those cases were decided on different factual matrix other than the present one. Those decisions are not applicable in this case. I rather agree with the submission of Mr. Ganguly.

47. The second aspect of the matter is consideration of section 21 of the Code of Civil Procedure, 1908.

“Section 21. Objection to jurisdiction. (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.”

48. The original Section 21 was renumbered as sub-section (1) of that section and after sub-section (1), so renumbered, sub-sections (2) and (3) were inserted by the Code of Civil Procedure (Amendment) Act, 1976. What the sub-section (2) contemplates is that objection on pecuniary jurisdiction should be raised at the earliest opportunity and there must be a consequent failure of justice. Observations of the Supreme Court of India in R.S.D.V. Finance Co. (P) Ltd. Vs. Shree Vallabh Glass Works Ltd., [(1993) 2 SCC 130] on section 21 of the Code of Civil Procedure, 1908 is relevant :

“Sub-section (1) of Section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been consequent failure of justice. The above provision clearly lays down that such objection as to the place of suing shall be allowed by the appellate or revisional court subject to the following conditions:

(i) That such objection was taken in the court of first instance at the earliest possible opportunity;

(ii) in all cases where issues are settled then at or before such settlement of issues;

(iii) there has been a consequent failure of justice.”

49. Objection as to jurisdiction is raised in the written statement. Plea of over valuation is also therein. But the written statement failed to plead or disclose “consequential failure of justice” which should be understood conjointly with the rest of the sub-section (2). Therefore, a case of ouster of jurisdiction on pecuniary ground also fails herein.

50. For reasons, as aforesaid, these Issues are decided in favour of the Plaintiffs.

ISSUE NO. 7 & 8:

51. The suit is filed by the Plaintiff confronting with threat of vesting of the property in the state under the Calcutta Thika Tenancy (Acquisition and Regulation Act of 1981).

52. The first leg of argument of Mr. Ganguly, the Learned Counsel for the Plaintiff is that a plain reading of Section 2 (5) of the Act of 1949 clearly indicates that a person can be thika tenant.

"i) If he has taken on a monthly rental,

ii) With or without a written document,

iii) Only vacant land,

iv) Set up a structure which is not permanent or purchase from an earlier occupant similarly holding vacant land and setting up structure,

v) The lease is not more than twelve years."

53. Up to 1961, nature of structure holds primacy to determine the nature of tenancy. If a tenant erected or was a transferee of a pucca structure then there was no thika tenancy under the Act of 1949 until 1969 amendment of the same. After amendment in 1969 and introduction of Section 2(4a) and Section 10A purpose of holding tenancy gained importance. Only a person holding land for residential purpose was allowed to raise pucca structure. No person other than a lawful title holder of the land could create thika tenancy in favour of a person who is a subordinate right holder. Further, a person whose entry is unlawful, his erection of kutcha structure would not attract the provisions of Act of 1949. Such illegal transfer cannot create thika tenancy. Mr. Ganguly refers to Ext. 56 and Ext. 57 being the plaint file by Kshetramani Dassi, since deceased, against Md. Rassul and the decree passed in the suit, respectively. The said plaint shows that occupants other than Mahammad Rassul were unauthorised occupiers. Defendant No. 3 stated in his deposition that Mahammad Rassul had no right to induct tenancy. Ext. 6 being a deed executed between Ms. Bijoy Timber and the Defendant No. 3 is relied upon by Mr. Ganguly to submit that business and goodwill was sold to the Defendant No. 3 along with kutcha structure. This deed was executed between two altogether unauthorised occupants. It is pointed out by Mr. Ganguly that purchase of any structure in course of illegal transaction cannot bestow any legal title. The second point of argument of Mr. Ganguly is that the structure in the suit land was permanent pucca structure. Referring to Ext. 25, Mr. Ganguly argued that there was shop room with permanent structure. Execution of the deed of 1956 between Kshetramani Dassi and the Defendant No. 3 (Ext.15) shows there were pre-existing structures. The lease deed does not reflect that the Defendant no. 3 was owner of the structure. The Defendant No. 3 became lessee under the original owner in respect of the structures too. According to Mr. Ganguly it is clear from Ext. 6, Ext. 23 and Ext. 24 that permanent structure existed prior to lease deed of 1956.

54. In advancement of further argument of Mr. Ganguly referred to Ext. 24 which is a sanction letter issued by the then Calcutta Municipal Corporation for alteration or repair in respect of masonry structure. There is no evidence that kutcha structure was raised earlier. This established that masonry structure was part of what Defendant No. 3 was in possession whether from 1951 or from 1956. Mr. Ganguly referred to Ramdas bansal Vs. Kharg Sing Baid [(2012) 2 SCC 548], Sri Satyanarayan Vs. SC Chunder[(2001) 3 CHN 641], Nemai Chandra Vs. Mani Square [(2002) SCC OnLine SC 920] to justify his conclusion that neither the Plaintiff is a thika tenant, nor the suit land is a thika land or a thika property nor the property is liable to be vested in the State either under the Act of 1981 or under the Act of 2001.

55. Ms. Banerjee, Learned Counsel for the State, on the other hand, submitted that initially the lease deed was between Kshetramani Dassi and the Defendant No. 3 was for a period of ten years. Clause 1 of the deed records that after expiry of the lease, the lessee would vacate the premises by removing structures. Clause 15 of the lease provides that the lessee would be entitled to raise C.I. shed or asbestos shed, privy on the part of the land and would be entitled to carry on business of storing. A second lease was executed between the aforesaid Kshetramani Dassi and the Defendant No. 3 which expired in the year 1978. On coming into force of the Act of 1981, suit property became vested in the State as per statutory requirement. Ad hoc ground rents were being paid since 1982 in favour of the State as is evident from various challans marked as Ext. 47, under Section 6(2) of the Act of 1981. Spot verification report shows that there was kutcha structure. In evidence, Defendant No. 3 did not say anything of pucca structure; rather on cross-examination the Plaintiff admitted existence of kutcha structure. According to Ms. Banerjee, the suit property consisted of kutcha structure and became vested in the State on coming into effect of the Act of 1981. According to Ms. Banerjee, conspectus of facts do not admit of application of the rulings, mentioned by Mr. Ganguly.

56. Mr. Ghosh, the Learned Senior Counsel appearing for the Defendant No. 3 also supported this stand taken by the State referring to exhibits adduced in evidence. It is strongly urged by Mr. Ghosh that from the beginning there was a thika tenancy and the Defendant No. 3 was a thika tenant under the Act of 1949 as well as under the Act of 1981.

57. Confronted with the threat of vesting under the Act of 1981, Mr. Ganguly, the Learned Counsel for the Plaintiff made too pronged argument. The first point raised by him is that the Defendant No. 3 purchased the structure from Ms. Bijoy Timbers when both were illegal occupants. Subsequent lease was made by Khetra Mani Dashi in respect of the land and not the structure. The second argument of Mr. Ganguly is that the Defendant No. 3 made pucca structure in the land so leased out by Kshetramani Dassi.

58. It would be not out of context to consider the genesis of legislation and necessary provision in this regard.

59. Thika Tenancy Act of 1949 was enacted “for the protection of the thika tenants of Calcutta and the Howrah Municipal area against arbitrary eviction and enhancement of rent.” The said Act provided various provisions regarding the extent of thika tenancies, the grounds on which a thika tenant could have been ejected; the procedure relating to the proceedings for ejectment; the regulation of rent and its payment; provision for appeals and other matters. This Act was published in Calcutta Gazette extra ordinary on 28/02/1949. In 1969 the Act was amended and Section 2(4a) was introduced. Section 2(4a) states:

“(4a) pucca structure” means any structure constructed mainly of brick, stone or concrete or any combination of these materials.”

60. Similarly, Section 10A was introduced giving right to a thika tenant to erect pucca structure. A thika tenant, according to Section 10A using land comprised in his holding for a residential purpose might erect a pucca structure on such land for such purpose with previous permission of the controller.

61. Act of 1981 replaced the Act of 1949 with extensive changes. Section 3(7) of Act of 1981 defined “pucca structure” as any structure constructed mainly of brick, stone or concrete or any combination of these materials, or any other material of a durable nature. Section 8 defined thika tenant as follow:

“ (7) "thika tenant" means any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person.”

62. It manifest that the Act of 1949 authorised a thika tenant to construct a pucca structure with prior permission of the Thika Controller for residential purpose only. There is no provision to make pucca structure for non-residential purpose. The issues were considered from time to time by this High Court. In Jatadhari Daw & Grandsons Vs. Smt. Radha Devi [1986 (1) CHN 21], Division Bench of this Court observed that construction of permanent structure did not make one thika tenanant under the Act of 1949. In Lakshmi Moni Das Vs. State of West Bengal [AIR 1987 Cal 326], a Full Bench of this Court considered this issue in respect of the Act of 1981. One of the findings of the Bench was that within the scope and ambit of Section 5 of the impugned Act only lands comprised in thika tenancies within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising a kutcha structure and/or a pucca structure constructed for residential purpose with the permission of the Controller under the Calcutta Thika Tenancy Act, 1949 and khatal lands held under a lease shall vest and save as aforesaid no other land and structure vest under the impugned Act. In Sri Satyanarayan Vs. SC Chunder [(2001) 3 CHN 641] Division Bench by this Court, on considering previous decisions of this Court in case of Kshiroda Moyee Sen Vs. Ashutosh Roy [63 CWN 565], Monmatha Nath Mukherji Vs. Smt. Banarasi [63 CWN 824] and Jatadhari Daw & Grandsons Vs. Smt. Radha Devi [1986 (1) CHN 21] observed:

“20. The question which automatically comes to one's mind is that if construction of any structure make one a thika tenant then there would be a duplication of the rent laws. A tenant would be protected, if he constructs or obtains a permanent structure on land, both by the Thika Tenancy Laws and by the Rent Control Legislation. However, this unwholesome anomaly has been avoided from the very beginning by means of judicial decisions whereby the words “any structure” in the Thika Tenancy Act have been consistently held to mean kutcha or temporary structure. There is the case of Kshirodamoyee Sen, reported at 63 CWN 565, the case of Monmatha Nath Mukherji, reported at 63 CWN 824 and the case of Jatadhari Daw, reported at 1986 (1) CHN page 21. Even in the case given by Mr. Sen, being that of P.D. Murarka, reported at 79 CWN 852 there are indications in the Division Bench judgment delivered by M.M. Dutt, J. (When his Lordship was at Calcutta) that pucca structures are not the subject matter of thika tenancy and those can be got demolished by the landlord by compellint the thika tenant to demolish those. Mr. Sen however cited this case for trying to show that if pucca structures are built by a thika tenant or a tenant he might become a thika tenant. We find that this case only decides that subject to the right of the landlord to have the pucca structures demolished, the building of pucca structures themselves would not rob a thika tenant of his status by reason of the building of such pucca structures alone. The case is not at all an authority for the proposition that a person can become a thika tenant if he builds a pucca structure as opposed to a kutcha one.”

63. It was further observed that thika tenancy must involve kutcha structure. If no kutcha structure was constructed, there was no thika tenancy. Then in Nemai Chandra Kumar (D) Thr. Lrs. and Ors. Vs. Mani Square Ltd. and Ors. [(2022) SCC OnLine SC 920] the Supreme Court India considered the decisions of the Calcutta High Court in Jatadhari Daw and grandsons Vs. Smt. Radha Devi [(1986) 1 CHN 21], Laxsmi Mani Das Vs. State of West Bengal [AIR 1987 Cal 326] noting that the expression “any structure” in Section 2 (5) of the Act of 1949 had been interpreted to mean only temporary or kutcha structure and not permanent or pucca structure. It was observed that nature of structure, if put up by a tenant had a bearing over the questions relating to thika tenancy. Referring to and upholding the decisions of this Court in Jatadhari Daw & Grandsons (supra) as well as Laxsmi Mani Das (supra) it was concluded that the appellants therein was not a thika tenant for one of the reasons that the structure in question was pucca structure. Certain observations of the Supreme Court of India in this case are relevant in the present context:

“114. There are several indications which unfailingly lead to the conclusion that “any structure” which was employed in the Act of 1949 and was further employed in the Act of 1981 and also in the Act of 2001 for the purpose of creation of thika tenancy referred only to kutcha structure until the year 2010. The first and foremost indication comes from the amendment of the Act of 1949 by Act of XXIX of 1969 whereby clause (4a) was inserted to Section 2 and then Section 10A was inserted to the enactment which, in effect, invested a right in the thika tenant to erect a pucca structure when using the land in question for a residential purpose but only with permission of the Controller. If pucca structure was a part of the definition of thika tenant in clause (5) of Section 2, Section 10A was never required to be inserted to the Act of 1949. Then, in the Act of 1981, even when the legislature provided for acquisition of land comprised in thika tenancy and other lands, the principal part of the definition of thika tenant remained the same; only the other three exclusion conditions, as occurring in clause (5) of Section 2 of the Act of 1949 were removed. However, the Act of 1981, as originally enacted, never provided for creation of thika tenancy by the event of tenant erecting or acquiring by purchase or gift, any pucca structure.

115. Of course, by amendment of Section 5 by the Amendment Act of 1993, it was introduced that even “other land” under lease could be acquired but, the purpose and object of the enactment did not provide for such a broad and all-pervading legislative fiat. This aspect of the matter does not require any further elaboration in the present case for the fundamental reason that claim of the appellants had only been of thika tenancy and when they do not answer to the description of thika tenant, there would arise no question of operation of Section 5 of the Act of 1981, whether in its unamended form or in its amended form.

116. Significant it is to notice that even in the Act of 2001, as originally enacted, the definition of thika tenancy in clause (14) of Section 2 thereof retained more or less the same expressions as were there in the Act of 1981; and the expression “any structure including pucca structure” came to be inserted to this clause only by the Amendment Act of 2010. Moreover, the Amendment Act of 2010 was given only prospective effect from 01.11.2010 and not the retrospective effect, as was earlier given to the original Section 4 of the Act of 2001. Thus, acquisition of the land comprising thika tenancy with even erection or acquisition of pucca structure by the thika tenant came to be provided for in specific terms by the legislature only from 01.11.2010 and not before. As noticed, before 01.11.2010, so far as the lease in question was concerned, the same had ceased to subsist and there was no existing lease which could have taken the appellants within the frame of thika tenancy on 01.11.2010.”

64. Conspectus of facts of the instant suit should be judged following the principles of law so enunciated.

65. Coming to the case in hand, on behalf of the Plaintiff Sagarmal Bothra deposed in this case he stated in evidence that property was purchased along with structure. It was stated that there is office room and bathroom. When question was put to him in cross-examination whether KG Patel & Company constructed temporary structure or not on the lease hold land, he could not answer properly. He further stated in cross-examination that there was wooden structure and also some structure and other structures; that there are office room, bathroom and privy and that place for storing wood was kutcha structure. The Defendant No. 3 is in possession of the property for long there, of course, in a better position to state about the nature of structure since it is within domain of their specific knowledge. Babulal Patel was examined on behalf of the Defendant No. 3, he stated that KG Patel & Company purchased structure. He further stated that privy and bathroom was constructed after first lease deed was made on 30th July, 1956. Oral evidence of D.W. 1 is not very specific on whether structure was pucca or kutcha. D.W. 1 also produced documentary evidences.

66. Deed of lease was executed between Kshetramani Dassi and Defendant No. 3 in respect of land only where permission was given to make construction, though not permanent construction. The second deed of lease also permitted construction though not permanent structure but Clause 11 of the deed of lease dated 30th July, 1956 permitted making brick built wall with corrugated sheet though not pucca structure.

67. Next lease deed dated 11/10/1996 was executed between the same parties. Schedule shows existence of C.I shed, privy and bathroom. Ext. 22 and 23 are relevant where the Corporation of Calcutta passed sanction order for construction of masonry building. Ext. No. 50 are certified copies of plaint and written statement along with order sheets of ejectment Suit No. 806 of 1978. The suit was instituted by the erstwhile owner against the Defendant No. 3, KG Patel in respect of the present suit property namely, premises no. 45, Chittaranjan Avenue, Calcutta. Schedule of the plaint shows that the area of the land is 6 kottah 9 chittak 31 sq. ft. together with C.I. shed structure, building, privy, bathroom and pucca boundary wall. The Defendant No. 1 therein, namely, the present Defendant No. 3, specifically averred in the para.10 of the written statement :

“That after having been admitted as lease the defendants with written consent of the lessor and in terms of clause II of the said deed of lease dated 30th July, 1956, constructed pucca bath and privy and caused addition and alteration to the existing structures (of which the lessee defendants were the owners) in accordance with the plan duly sanctioned by the Corporation of Calcutta and consented to by the lessor”

68. It is averment in consonance with a sanctioned plan of Calcutta Municipal Corporation for masonry work.

69. As mentioned above, pucca structure means any structure constructed mainly of brick or concrete or any combination of this material, of course, inviting masonry work. There is no cavil that the lease was for running business. This documentary evidence, as mentioned above, very clearly indicate that there was pucca structure which may be in part and which, as stated by DW 1, was constructed after execution of first deed of lease. It is very clear that the Defendant No.3 created pucca structure and the same is for and incidental to running business in the suit premises. Following the ratio of Nemai Chandra Kumar (D) Thr. Lrs. and Ors. Vs. Mani Square Ltd. and Ors. [(2022) SCC OnLine SC 920] it is inevitable conclusion that the suit property is not a thika property or one of thika tenancy and there cannot be any question of vesting under the Act of 1981.

70. In view of discussion made above and in view of proof of title of the Plaintiff and the Plaintiff is entitled to declaration that they are the owners of the suit property and the suit property is not vested in the State under the Act of 1981.

71. Issue no. 7 & 8 are accordingly decided in favour of the Plaintiff.

ISSUE NO. 3, 9, 10, 11 & 12:

72. Next points for consideration are whether the lease or tenancy was validly terminated and whether the Plaintiffs are entitled to recovery of possession. It will also be considered whether the suit discloses any cause of action in respect of these issues and prayer for recovery of possession or claim of mesne profits.

73. There is no dispute that the original Plaintiff became owner of the suit property by virtue of purchase by registered deed of sale. Title of the original plaintiff or the present Plaintiffs are challenged on the ground of vesting.

74. Mr. Ganguly, the Learned Counsel appearing for the Plaintiff submitted that plaint filed in T.S. 806 of 1978 (Ext. 50) amply clarifies that relationship of lessor and lessee stood extinguished. According to him, it is admitted fact that no rent was paid by the Defendant No. 3 either to the present Plaintiff or to the erstwhile owner. Referring to Ext. 1 he submitted that Defendant No. 3 denied the Plaintiff as landlord along with denial of title of the Plaintiff. Even in course of submission the Learned Counsel for the Defendant No. 3 relied upon Section 116 of the Evidence Act, 1882 claiming that relationship of lessor and lessee came to an end and there is no embargo raising dispute to the title. Accordingly, Mr. Ganguly submitted that the Defendant No. 3 is nothing but a trespasser endeavouring to deny the Plaintiff’s title to the suit premises setting up adverse title of the third party, namely, the State. Defendant no. 3 is thus a trespasser and is liable to be evicted.

75. Mr. Ghosh, the Learned Senior Counsel appearing for the Defendant no. 3 submitted that according to the Plaintiff, as pleaded in Paragraph 16 of the plaint total monthly rent for three years that is up to April 1997, amounts of Rs.12,600/- which means monthly rent was calculated at Rs.350/- per month. By notice dated 12/03/1997 (Ext. D), the Plaintiff determined the monthly tenancy and called upon the Defendant No. 3 to quit and vacate the suit property and to deliver a peaceful vacant possession thereof to the Plaintiffs with expiry of the month of April 1997. In Paragraph 13 of the plaint the Plaintiffs have claimed mesne profit at the rate of Rs.5000/- per diem from May 1995 till vacant possession of the suit premises is made over by the Defendants to the Plaintiffs. Referring to the notice dated 12/03/1997 (Ext. D), Mr. Ghosh invited attention to the Court that in the said notice Plaintiffs have described the Defendant No.3 as monthly tenant. The case made out by the Plaintiffs in the aforesaid notice as well as in plaint clearly shows that according to the Plaintiffs the Defendant was a monthly tenant in respect of the suit premises at a monthly rent of Rs.350/- for a period of three years up to April, 1997. In the present case, the Defendant No. 3 was not a trespasser from the very beginning as in terms of the earlier notice dated 16/04/1976 issued by the then landlord to the Defendant no. 3, the Defendant No. 3 became a tenant-at-sufferance after expiry of month of February 1978. Mr. Ghosh relied upon Section 116 of the Transfer of Property Act. It is contention of the Mr. Ghosh that on expiry of the original lease the Defendant No. 3 became tenant-at-sufferance. It is admitted that the Plaintiff did not accept any rent in the termination notice (Ext. D) the Plaintiffs not only determined the tenancy but called for payment of rent with retrospective operation. This amounts to ascent as contemplated in Section 116 of the Transfer of Property Act for continuation of possession of Defendant No. 3. The very letter of termination is rather a letter of revival of tenancy by virtue of which the Defendant No. 3 became a tenant by holding over. Before recovery of possession, that living and revived tenancy should be determined; otherwise, the suit is bad because there is no cause of action for recovery of possession having no determined tenancy. According to Mr. Ghosh, there is no scope of recovery of possession and consideration of mesne profit since the tenancy is presently subsisting.

76. I have heard rival submissions.

77. The first deed of lease was executed between Kshetramani Dassi and the Defendant No.3 on 30th July, 1956 for a period of 10 years (Ext.15). On its expiry, another registered deed of lease was executed 11th November, 1966 (Ext.19). This later lease expired on the last day of August, 1975. The erstwhile owner of the suit property, Dhirendra Nath Sett initiated legal proceeding by institution of Ejectment Suit No.806 of 1978 against the present Defendant No.3 for recovery of possession. Subsequently, during pendency of the suit, the suit property was transferred to the Plaintiff No.1(a) t0 1(d) by virtue of a registered deed on 18th July, 1981. The subsequent owners were arrayed as a party to the suit as co-plaintiffs. The said suit was dismissed for default in terms of the order dated 22nd March, 1991. The said suit was not restored. P.W.1 stated in his oral evidence that no step was taken for restoration of the suit. It is also in the oral testimony of P.W.1 that since purchase of the suit property in the year 1981, the present Plaintiffs neither received any rent nor demanded the same. The Defendant No.3 continued possession of the suit property without payment of any rent. This continued even after dismissal of the previously instituted Ejectment Suit No. 806 of 1978. In terms of the letter dated 12th March, 1997, written by the Attorney of the original Plaintiff, Smt. Chandra Devi Bothra, since deceased, the Defendant No.3 was stated to be a monthly tenant and was asked to vacate the suit premises. Since the Defendant No.3 did not vacate the suit premises, the instant suit has been instituted for recovery of possession along with other prayers. Prayer (g) of the instant suit is decree for recovery of arrear of rent for 3 years up to the month of April,1997.

78. In these conspectus of facts, Mr. Ghosh, the Learned Senior Counsel for the Defendant No.3 argued that prayer (g), that contains claim of arrear of rent, virtually carries assent of the landlord, herein the Plaintiffs, in favor of the Defendant No.3 to continue possession. This is assent as contemplated in section 116 of the Transfer of the Property Act. Therefore, and thereby, the Defendant No.3 became a tenant by holding over. Unless this renewed tenancy is determined, there cannot be a suit for recovery of possession since the tenancy is living and the Defendant No.3 transformed into a tenant by holding over.

79. It is apt to look into the provision of section 116 of the Transfer of Property Act before consideration of the argument of Mr. Ghosh.

“116. Effect of holding over.— If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.”

80. Commenting on section 116 of Transfer of Property Act, Three Judges’ Bench of the Supreme Court of India observed in Karnani Industrial Bank Ltd. Vs. Province of Bengal, (AIR 1951 SC 285):

“21. A reference to Section 116 of the Transfer of Property Act will show that for the application of that section, two things are necessary : (1) the lessee should be in possession after the termination of the lease; and (2) the lessor or his representative should accept rent or otherwise assent to his continuing in possession. The use of the word “otherwise” suggests that acceptance of rent by the landlords has been treated as a form of his giving assent to the tenant's continuance of possession. There can be no question of the lessee “continuing in possession” until the lease has expired, and the context in which the provision for acceptance of rent finds a place clearly shows that what is contemplated is that the payment of rent and its acceptance should be made at such a time and in such a manner as to be equivalent to the landlord assenting to the lessee continuing in possession.”

81. Subsequently in Bhawanji Lakhamshi Vs. Himatlal Jamnadas Dani [(1972) 1 SCC 388], it was further observed:

“What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden [(1949-50) FCR 262] the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukharjea, J., speaking for the majority said, that the tenancy which is created by the “holding over” of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it.”

82. Coming to the case in hand, as stated above, P.W.1 deposed that there was neither any tender of rent by the Defendant No.3 nor was there any acceptance or demand for rent on the part of the Plaintiffs. What Mr. Ghosh harps on is prayer for recovery of arrear rent. As observed in Karnani Industrial Bank Ltd.’s case (supra), there must be very clear indication by the landlord acceptance of rent by the landlord must be treated as a form of his giving assent to the tenant's continuance of possession. There must be a bilateral act of both the landlord and the tenant, as stated in Bhawanji Lakhamshi’s case. So far as the Defendant No.3 is concerned, the suit is for recovery of possession. No evidence is there that there was or is consent of the Plaintiffs of the continued possession of the Defendant No.3. In that context mere claim of arrear of rent cannot be treated as assent of the landlord, namely the Plaintiffs of the Defendant No.3’s continuation of possession as contemplated in Section 116 of the Transfer of Property Act. I disagree with the argument of Mr. Ghosh. Surrounding circumstances do not support his contention.

83. Still there is another aspect of the matter. It is in evidence of P.W.1 that the earlier ejectment suit was instituted for recovery of possession of the suit premises from the Defendant No.3 as lease had expired. He specified that lease was expired in the year 1975. It is also in the deposition of the P.W.1 that mistakenly the Defendant No.3 was described as tenant in the letter dated 12th March,1997.

“There were no tenants. There was only occupier. The word ‘tenancy’ was written by mistake.” (Answer to Q.133).

84. As stated above, there was neither tender, nor payment of rent on the part of the Defendant No.3; there was neither any demand nor any acceptance of rent by the Plaintiffs. It is further stated by P.W.1 in evidence:

“Yes, this is that notice but the word ‘tenancy’ is wrongly appearing because tenancy of 11th October, 1966 had already been expired in the year 1975” (Answer to Q.138)"

85. Evidence clearly establish that tenancy of the Defendant No.3 expired in the year 1975 on expiry of the lease dated 11th October, 1966. There was no renewal of the lease; there was no evidence to show that the Defendant No.3 is a tenant by holding over since the later continued possession without any assent of the Plaintiffs. The tenancy is a dead tenancy leaving no scope of further determination or termination. A live tenancy can be terminated or determined. When the tenancy expired in the year 1975 and did not revive again by any manner whatsoever, and when evidence of the P.W.1 is that the word tenancy was used mistakenly in the letter dated 12th March, 1997 and the Defendant No.3 is mere occupier, the said letter dated 12th March, 1997 cannot be treated or accepted as a letter determining the tenancy. Cause of action for recovery of possession should rather be the expiry of lease and consequent end of the tenancy of the Defendant No.3. But the cause of action of the suit is based on the letter dated 12th March, 1997. Tenancy of the Defendant No.3 did not expire with end of the month of April, 1997; it expired with expiry of the month of February, 1976. A dead and expired tenancy cannot expire further. This is evident from the deposition of the P.W.1.

86. The said suit was dismissed for default in terms of the order dated 22nd March, 1991 for absence of the Plaintiffs. In the order sheet, the Learned Court noted that the Defendants filed Hazira, evidencing presence in the court. The said suit was not restored. P.W.1 stated in his oral evidence that no step was taken for restoration of the suit. Since the suit was dismissed for default for absence of the Plaintiffs but the Defendant was present, it was dismissed under Order IX Rule 8 of the Code of Civil Procedure, 1908. Under Order IX Rule 9, a plaintiff is precluded from bringing a fresh suit on the same cause of action. It is clear that in order to avoid the rigour of Order IX Rule 9, the Plaintiffs crafted a cause of action by artificially terminating a dead tenancy to constitute a fresh cause of action. Evidence of P.W.1 shows, as discussed above that the suit is for recovery of possession from the Defendant No.3 since lease expired earlier in the year 1975. Therefore, this cause of action is a sham cause of action, not the actual cause of action. The suit is instituted on the basis of a wrong cause of action. In other words, the suit failed to establish a cause of action for recovery of possession from the Defendant No.3. Therefore, considering the evidence adduced, this Court is of opinion that the instant suit failed to disclose any cause of action in respect of prayers for recovery of possession. As such prayer of recovery of possession of the suit premises fails.

87. Since, a decree for recovery of possession is rejected, under Order XX Rule 12 of the Code of Civil Procedure, 1908, the Plaintiffs are not entitled to any mesne profit, as claimed.

88. These Issues are decided against the Plaintiffs.

89. In nutshell, the suit is partly allowed without cost.

90. It is conclusion and decision of this Court and ordered that:

"a) The Plaintiffs are owners of the suit property as on today and the suit property is not vested in the State under Calcutta Thika and Other Tenancies and Lands (Acquisition & Regulation) Act, 1981.

b) Prayer of recovery of possession of the suit premises, prayer for mesne profit and all other prayers from prayers (c) to (m) are refused."

91. The instant suit along with all pending applications stands disposed of.

92. Let the decree be drawn up.

93. Urgent certified copies may be provided to the parties on application.