Salil Kumar Datta, J. - (1.) This is an appeal from the judgement and decree of Debiprosad Pal, J. dated the 30th July, 1973 affirming the judgment and decree passed by the learned judge, Second Bench, City Civil Court, Calcutta, dated the 6th September, 1963. The Plaintiff instituted the suit for recovery of possession of the suit land on eviction of the defendant therefrom on notice to quit. The plaintiff's case was that the defendant was monthly tenant under the debuttar estate of Sri Sri Iswar Sridhar Jew in respect of one plot of land surrounded on all sides by sides by brick built walls and sheds overhead on ground floor of premises No. 133 Acharya Prafulla Chandra Road Calcutta, at a monthly rent of Rs. 40/- according to the English Calender month. The tenancy was determined by a notice to quit dated the 27th July. 1961 determining the tenancy with the expiry of the last day of August 1961. The ground for eviction was default in payment of rent for more than four months within a period of 12 months and it was submitted that the defendant accordingly was not entitled to any protection against eviction under the West Bengal Premises Tenancy Act, 1956. In the schedule of the plaint the said premises are described as follows - "One plot of land surrounded on all sides by brick built walls and shed overhead measuring 528 sq. ft. on the ground floor at premises No. 133, Acharya Prafulla Chandra Road", and thereafter the boundary is given.
(2.) The suit was contested by the defendant, who filed a written statement contending that he was a thika tenant in respect of the suit land and not a tenant within the measuring of the West Bengal Premises Tenancy Act, 1956, and in respect of that land he took settlement on May 4, 1957 from the then Shebait, S. C. Srimani for the purpose of starting a factory and godown. It is his further case that he walled it up on two sides and constructed a tiled shed thereon for the purpose. It was further stated that the land measuring 528 sq. ft. including the land lying under the wall. It was denied that the landwas taken only for the purpose of godown. The validity as also the service of the notice to quit was disputed and it was contended that he tenancy was not determined. It was further denied that he was a defaulter and as the shebait of the plaintiff refused to accept rent the defendant tendered rent from January 1961 to April 1961 by money order, but the same was returned with the postal en-dorsement "owner out of Calcutta". Thereafter the defendant remitted the rent for May 1961 and on his refusal he had been depositing rent with the Thika Controller, Calcutta. It was denied that the provisions of the West Bengal Premises Tenancy Act had any application. It was accordingly submitted that the suit should be dismissed.
(3.) On a trial on evidence the learned Judge held that there was no structure on the land at the time of the creation of the tenancy in occupation of the defendant.The learned Judge further found that there was a boundary wall on the western side of the land separating the premises No. 133, Acharya Prafulla Chandra Road form the contiguos property and a part of the boundary wall formed the western boundary of the land let out to the defendant. The learned Judge further held that by mere existence of the wall on the west side of the suit premises the suit property did dot cease to be vacant land for the purpose of section 2(5) of the Calcutta Thika Tenancy Act, 1949. In the premises it was held that the defendant was a thika tenant and not a tenant under the West Bengal Premises Tenancy Act, 1956. Accordingly the court had no jurisdiction to try the suit for eviction as such jurisdiction was expressly conferred under the Calcutta Thika Tenancy Act, 1949 on the Thika Tenancy Controller. The learned Judge accordingly directed that the plaint should be returned on contest to the filling pleader of the plaintiff for starting appropriate proceeding before the Thika Controller.;