Decided on January 05,1961

ABDUL GOFFUR Respondents


- (1.) THIS appeal, at the instance of the plaintiff, is directed against an appellate decree, reversing title decree passed by a learned Munsif. It has been referred to a Division Bench by Bhattacharya, J. Under the plaintiff, Abdul Rahim (defendant No. 1) and Amiran Bibi were originally tenants in respect of a plot of land measuring 1 Cottah 8 Chittaks and bearing premises No. 6/l, Shibtolla Lane, Entally, Calcutta. Abdul Hamid (defendant No. 2) succeeded Amiran Bibi. The entire tenancy ultimately passed on to Abdul Gaffur, by right of purchase. The tenancy was determined by a notice to quit. Thereafter, the plaintiff brought a suit, on June 18, 1948, against the defendants claiming possession and mesne profits.
(2.) THE suit was contested by defendant No. 3. There were different heads of defence raised by the defendant, including the plea of defect of parties and invalidity of the notice to quit. The defenses were negative by the trial court and the suit was decreed, on March 18, 1949. The decree was affirmed in appeal, on November 11, 1949. There was a second appeal taken to this Court, being S. A. No. 194 of 1950, which came up for hearing before P. N. Mookerjee, J. His Lordship remanded the appeal with the following observation:- "before the lower appellate court, however a question was raised that the above appellant was entitled to protection under the Calcutta Thika Tenancy Act of 1949. At that time the unamended Thika Tenancy Act was in force and the court of appeal below rightly held that the appellant was not a tenant within the meaning of that Act and that, accordingly, he was not entitled to any protection under the same. Thereafter, the present appeal was filed in this court and, during the pendency of this appeal, the Thika Tenancy Act was amended twice, once by the Ordinance of 1952 and later on, again, by Act VI of 1953. It is the Thika Tenancy Act, as amended by Act VI of 1953, which is now in force. "
(3.) THERE can be no question, having regard to the language of the amending statute of 1953, that, if the Thika Tenancy Act applies to the present case, it is the amended Act after the amending Act of 1953 which will apply. The question, however, is whether the Thika Tenancy Act will at all apply to this case and whether the defendant-appellant will be a Thika tenant under the new amended Act and if so, what will be his rights under the same. The question involves consideration of the effect of the amending Act including the proviso to sec. 1 (2) in the light of the facts of the present case. For that purpose, the matter will have to go back to the lower appellate Court and that Court will decide the case after considering the relevant aspects of the matter in accordance with law.;

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