- (1.) A suit for eviction of the opposite party no.1 from the suit property instituted by the petitioner, on the ground of reasonable requirement, was dismissed on September 26, 2006 by the trial Court. The petitioner preferred an appeal, which succeeded. Decree for eviction and recovery of khas possession was passed on December 4, 2008. The opposite party no.1 carried the appellate decree in second appeal before this Court. While admitting the appeal under Order 41 Rule 11, Civil Procedure Code, Hon'ble Division Bench of this Court on May 8, 2009 stayed execution of the eviction decree. The appeal is pending.
(2.) In course of proceedings before the subordinate Courts, the opposite party no.1 did not claim that the suit property is a thika property and, thus, a civil suit would not lie in terms of the provisions contained in the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereafter the Thika Act).
(3.) It was only during pendency of the second appeal before this Court that the opposite party no.1, for the first time, claimed that the decretal property is a thika property and raised a dispute before the Controller under Section 8 of the Thika Act in respect of status of the decretal property. On or about October 15, 2010, the Officer-In-Charge, Tangra Regional Thika Tenancy Office, Government of West Bengal, issued a notice calling upon the petitioner to attend hearing on October 19, 2010 without fail with all supporting documents in respect of premises no. 77/1, Christopher Road, Kolkata- 700 046 in connection with Misc. Case No. 30 of 2010, which was registered on the application of the opposite party no.1. 4. After the aforesaid notice was issued by the said Officer-in-Charge, an application was filed by the opposite party no.1 in connection with its pending second appeal. A direction upon the Controller to dispose of the dispute raised by it was prayed for and till such time order is passed by the Controller on such dispute, it was also prayed that further proceedings of the second appeal may be stayed. A learned Judge of this Court disposed of the said application by order dated April 25, 2011. His Lordship was of the view that hearing of the second appeal ought to be adjourned till disposal of the dispute raised by the opposite party no.1 before the Controller and, accordingly, ordered stay of further proceedings of the second appeal. 5. The petitioner challenged the order dated April 25, 2011 before the Supreme Court by filing a special leave petition. By an order dated August 8, 2011, such petition was disposed of on consent of the parties. The order impugned was set aside and the second appeal pending before this Court was directed to proceed in accordance with law. It was further directed that proceedings in Misc. Case No. 30 of 2010 before the Controller should also proceed independently and on its own merits. It was observed that if before disposal of the second appeal Misc. Case No. 30 of 2010 is disposed of, it would be open to the opposite party no.1 to take appropriate steps in the light of the order that may be passed. Similarly, it was observed that if the second appeal is disposed of earlier to disposal of Misc. Case No. 30 of 2010 and the judgment is adverse to the opposite party no.1, it would not foreclose its remedy under the Thika Act. 6. Soon after disposal of the special leave petition, the petitioner filed a petition before the Controller objecting to maintainability of the dispute raised before him by the opposite party no.1. The grounds of objection are similar to the grounds raised in the special leave petition before the Supreme Court. The Controller heard the parties on the point of maintainability and by order dated November 16, 2011 disposed of the petition by holding that "the question of maintainability will be taken up at the time of passing decision in respect of the entire matter". 7. This order is under challenge in this revisional application under Article 227 of the Constitution of India.;