Decided on June 10,1983



- (1.) THIS rule arises out of a judgment and order passed by thee additional District Judge, Alipore on 29. 6. 82 dismissing an appeal from an order dated 4. 11. 81 passed by the learned Munsif, Second Court, Sealdah.
(2.) I may state the facts here in below which led to the passing of the said order by the learned Munsif dismissed in appeal by the 1st Add. District Judge M/s. Koley Properties (Pvt. Ltd.) was the landlord of one batjnath Shaw who was the thika tenant in respect of the premises no. 2/2, Canal east Road, Ultadanga measuring more or less 3 Cottahs and 8 Chittacks of land. He for more then 50 years at a rent of Rs. 73. 70 and the present plaintiffs namely, methailal Shaw Bejoy Kumar Shaw Raj Kumar shaw and Shew Kumar Shaw hereinafter to be referred to as "the said Shaws" are the sons of the said Baijnath. The case of the koley Properties Pvt. Ltd. is that "the said shaws voluntarily abandoned the thicka holding within the meaning of Section 9 of the Thicka Tenancy Act and on 10th November, 1979 an order was made permitting the landlord to re-enter on the said holding in view of voluntary abandonment of the thicka tenant after having defaulted in payment of rent.
(3.) ON 3rd January, 1980 the landlord made an application for execution of the order referred to hereinbefore. On 21st of january, 1980 "the said Shaws" appeared and prayed for filing objection to the said execution. On 28th January, 1980 writ of possession was issued under Order 21, rule 35 of the Code of Civil Procedure. On 30th January, 1980, Nazir handed over the writ of possession to the Bailif of the Court and at 12 noon he made over the possession of the said Premises to the Koley Properties' representative. An application however was made under Section 47 of the code of Civil Procedure for stay of execution by the judgment debtor and an order to that effect was made and the said order was received by the said Nazir at 5 PM on the same date. On 1312. 80 a title suit was filed by Smt. Jasoda Shaw wife of baijnath Shaw and his sons "the said shaws" for declaration and permanent injunction against the Koley Properties Pvt. Lid. , the petitioner herein. The said Title Suit no. 45 of 1980 that was filed by "the said shaws and their mother Jasoda was for a declaration that the decree obtained in the thicka tenancy case for possession (Misc. Case No. 99 of 1979) was void on the ground that it was procured by fraud and also for being vitiated by non-service of notice and collusion with the Bailiff "the said Shaws" also prayed for permanent injunction restraining the Koley Properties pvt. Ltd. from disturbing the possession by the said Koley Properties.;

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