JUTHIKA ROY Vs. SHANTI NATH PANDIT
LAWS(CAL)-1961-1-23
HIGH COURT OF CALCUTTA
Decided on January 06,1961

Juthika Roy Appellant
VERSUS
Shanti Nath Pandit Respondents

JUDGEMENT

- (1.) This second appeal is on behalf of the Plaintiff who claims to have acquired the status of a Bharatiya within the- meaning of Calcutta Thika Tenancy Act and for an injunction restraining the Respondents, the superior landlords, from ejecting her in execution of an order obtained by her under the Calcutta Thika Tenancy Act II of 1949. Under Section 5 of the Thika Tenancy Act the landlords instituted a proceedings against the thika tenant and got an order for ejectment. The result of the order was that the structure vested in the landlords even though it was erected by the thika tenant. Under Section 10(2) of that Act any person, who is inducted into the land by the thika tenant, would become a Bharatiya and would have the status of a monthly tenant under the West Bengal Premises Rent Control; (Temporary Provisions) Act of 1948. The Plaintiff claims that advantage and that is why the Plaintiff instituted the present suit. The defence of the landlords was that, as the Plaintiff was not in actual possession but in constructive possession, by letting it out to some other Bharatiya she is not entitled to be protected. The trial court dismissed that suit and held that the Plaintiff is not entitled to a declaration because she was not in actual possession but was in constructive possession. An appeal to the Appeal Court has also been dismissed and the present second appeal has been filed: against that decree. Two points have been urged before me. Section 10(2) of the Calcutta, Thika Tenancy Act is as follows: Notwithstanding anything to the contrary contained in any contract on the determination of the interest of a thika tenant in the land comprised in a holding as a result of ejectment from the holding....any structure standing upon such land and existing on the date of such determination shall vest in the landlord. It is submitted that this provision that structure raised by the thika tenant vests in the landlord is contradictory to the provision of Section 108(h) of the Transfer of Property Act which provides as follows:
(2.) The lessee may-even after the determination of the lease remove all' things which he has attached to the earth. It is therefore submitted that Section 108(h) specifically says that the structure could be removed by the thika tenant; whereas Section 10(2) of the Thika, Tenancy Act says that it would vest in the landlord. It is further submitted that there is a provision that Section 10(2) would apply notwithstanding anything contained in any contract but it has not been stated that it would apply notwithstanding anything contained in any. other law for the time being in force. Hence, it is submitted that Section 108(h) holds the field and therefore the provision of Section 10(7) is void. It should be mentioned that the Calcutta Thika Tenancy Act of 1949 is an Act which got the assent of the Governor General and is a valid piece of legislation with regard to the field occupied by the Transfer of Property Act. Hence, the provision in the Transfer of Property Act is a general provision and the provision in the Calcutta Thika Tenancy Act is a special provision. I should say that this special provision in the Thika Tenancy Act excludes the genera) provision under the Transfer of Property Act. I may refer to a decision of the Supreme Court in the case of Kedar Lal Seal v. Harilal Seal, 1952 SCR 179, where the Supreme Court held that when there is a general law and a special law dealing with a particular matter the special excludes the general. Hence, the Thika Tenancy Act excludes the Transfer of Property Act. This is so, under Section 107(2) of the Government of India Act. I may also say that this may be considered from another view. It is quite clear that there is a contradiction between the two statutes. Secondly, if the provisions of a later Act are shown inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by the later (Refer to Maxwell's Interpretation of Statutes, 9th Ed. pp. 1(53-166). I must therefore hold that the structures vested in the landlords.
(3.) The next question is whether the fact that the Plaintiff Bharatiya is not in actual possession would make any difference in interpretation of Section 10(2) of the Calcutta Thika Tenancy Act. The word "Bharatiya" has been defined as follows: Bharatiya means any person by whom or on whoso account rent is payable for any structure or part of a structure erected by a thika tenant in his holding. The definition therefore would include a Bharatiya not in actual possession but in constructive possession as well. Then we shall refer to Section 10(2). That subjection is "when any structure "standing on any holding of a thika. tenant vests in the landlord "under Sub-section (1) any Bharatiya, in possession of "such structure or any part thereof shall without any application, "being made, be entitled to continue in such possession and shall "be deemed to be a tenant within the meaning of the West "Bengal Premises Rent Control (Temporary Provisions) Act, "1948, West Ben. Act XXXVIII of 1948.;


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