Bishewahar Dawn and Ors. Vs Maloy Dawn and Anr. — Calcutta HC (2025) — LawSathi Research

Bishewahar Dawn and Ors. Vs Maloy Dawn and Anr. — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the second appeal is maintainable, given the respondents' reliance on the appellants' written objection (to a police help application) as an admission binding them to the preliminary decree under challenge. +2 more

Court's answer

The statements in the appellants' written objection to the police help application (offering to assist the commission work and avoid police presence) did not concede the preliminary decree; the objection per se is not an admission of the correctness and legality of the impugned judgment and decree and cannot be a bar to the present appeal.

Ratio / Principle

The Rules framed under the 2001 Act come into play only if the jurisdiction of the Thika Controller is invoked in the first place, which can happen only where there is a dispute as to whether a person is a thika tenant or the land in question is thika land within the contemplation of Section 5(3) of the 2001 Act; here the courts below proceeded on the premise that the suit is not barred under the 2001 Act, and this Court agrees with such concurrent findings.

Key takeaways

In the present case the Thika Controller's jurisdiction is not invoked, since the dispute does not pertain to whether the suit property is thika land: the plaintiffs themselves claim it to be thika land and no specific dispute on that status has been raised by the defendants requiring adjudication.ratio¶¶19
The scope of adjudication in the partition suit is merely to declare the respective titles and shares of the parties to ensure partition within the periphery of the boundaries of the suit property.ratio¶¶18

Detailed headnote1 paragraphs

Second appeal (SAT No. 245 of 2024) against a judgment of affirmance upholding a preliminary decree of partition – heard and dismissed at the threshold under Order XLI Rule 11 CPC, no substantial question of law being involved. (i) Maintainability: respondents argued that the defendants-appellants' written objection to a police help application – wherein they undertook to assist the Partition Commissioner and abide by the preliminary decree – amounted to an admission barring the appeal. Held: the statements were made in the context of a police help application, merely to avoid police deployment at the premises and to offer no resistance to commission work; they nowhere conceded the challenged decree, so the objection per se is not an admission of the correctness or legality of the impugned judgment and decree and cannot bar the appeal. (ii) Jurisdictional bar: appellants contended that under Section 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 read with Rule 3(H) of the corresponding Rules, measurement of thika properties and maintenance of boundaries fall to the Thika Controller, making the civil suit barred. Held: the Rules operate only once the Thika Controller's jurisdiction is invoked, i.e., on a dispute whether a person is a thika tenant or the land is thika land under Section 5(3); here the plaintiffs themselves claim the property is thika land, the defendants raise no specific dispute on that status, and the suit's scope is confined to declaring respective titles and shares within the suit property's boundaries. The Thika Controller has limited jurisdiction and cannot decide title and partition questions; hence the suit is not barred by the 2001 Act or its Rules, both courts below rightly assumed jurisdiction and decreed partition, and consequentially CAN 1 of 2024 also stands dismissed with no order as to costs.

D/L. 33 March 4, 2025 MNS

Mr. Sudeep Sanyal, Mrs. Tutun Das, Mr. Chandrachur Lahiri

….for the appellants.

Mr. Rabindranath Mahato, Mr. Aritra Shankar Ray

The present second appeal has been preferred against a judgment of affirmance, whereby the first appellate court has affirmed the preliminary decree passed by the trial court in a suit for partition.

Learned counsel for the respondents, by placing reliance on a written objection filed by the appellants in the trial court, as referred to in our order dated February 26, 2025, submits and reiterates that in view of the admission of the defendant/appellants in such objection that they would assist the learned Partition Commissioner for holding the commission work and abide by the preliminary decree, which is the subject-matter of challenge before this court, the present appeal against such preliminary decree at their behest is not maintainable.

2

A copy of the said written objection was handed over to us on the last occasion. Learned counsel for the appellants rightly contends that the appellants, in the said objection, merely stated that they were always ready and willing to assist the learned Commissioner for holding the commission work, though they have never disturbed and/or put up resistance to the commission work on earlier occasions. As also rightly contended by learned counsel for the appellants, we find that the said “admission” was made in the context of a police help application. Learned counsel for the appellants submits that the appellants being aged persons of some repute in the locality, wanted to avoid the ignominy of police presence at the premises and, as such, merely stated that they would assist the commission work and no police was required to be deployed.

We do not find within the four corners of the said written objection to the police help application filed by the respondents, which is kept on record, that at any point of time the appellants conceded to the preliminary decree which is in challenge before this court. Rather, the statements made in the objection were only to the effect that no resistance to the commission work would be offered by the appellants, on which ground they sought to avoid police being deployed at the premises. Thus, the said written objection per se does not tantamount to an admission of the correctness and legality of the impugned judgment and decree and, as such, cannot be a bar to the present appeal.

3

Hence, the second appeal is taken up for hearing under Order XLI Rule 11 of the Code of Civil Procedure.

Learned counsel for the appellants submits that, according to the plaint case, the property is a thika tenancy.

It is contended on behalf of the appellants that in terms of Section 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 [in short “the 2001 Act”], read with Rule 3(H) of the corresponding Rules, it is for the Thika Controller to measure the thika properties as well as to ensure that the land boundaries are kept intact.

Hence, it is contended that the suit is barred by the provisions of the 2001 Act and the corresponding Rules, since it is the Thika Controller under the said Act, and not the civil court, which has exclusive jurisdiction to decide the issues raised in the suit.

We find from the judgments of both the courts below, particularly the First Appellate Court, that the said contentions have been dealt with extensively by both the courts. The learned First Appellate Judge as well as the learned Trial Judge proceeded on the premise that the suit is not barred under the provisions of the 2001 Act.

We agree with such concurrent findings, since the corresponding Rules framed under the 2001 Act come into play only if the jurisdiction of the Thika Controller is invoked in the first place, which can only happen if there is a dispute as to whether a person is a thika tenant or whether the landin-question is a thika land within the contemplation of Section 5(3) of the 2001 Act.

4

In the present case, the scope of adjudication in the partition suit is merely to declare the respective title and shares of the parties to ensure partition within the periphery of the boundaries of the suit property.

Thus, in the first place, the jurisdiction of the Thika Controller is not invoked, since the dispute does not pertain to a question as to whether the suit property is a thika land or not. The plaintiffs/respondents have claimed such suit property to be a thika land, regarding which no specific dispute has been raised by the defendants/appellants which is required to be adjudicated.

Moreover, the Thika Controller has limited jurisdiction under the 2001 Act and the corresponding Rules and is not competent to decide questions of title and partition, which are invariably involved in adjudication of a partition suit.

As such, the suit cannot be said to be barred by any of the provisions of the 2001 Act and/or the Rules framed thereunder.

Thus, both the trial court and the first appellate court were justified in law in assuming jurisdiction and passing the impugned preliminary decree of partition.

Accordingly, we find that no substantial question of law is involved in the present second appeal.

Hence, SAT No. 245 of 2024 is dismissed under Order XLI Rule 11 of the Code of Civil Procedure.

Consequentially, CAN 1 of 2024 also stands dismissed.

There will be no order as to costs.

(Uday Kumar, J.) (Sabyasachi Bhattacharyya, J.)