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Ramdhari Mahato Vs. Ranjit Kumar Banerjee and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1946 of 1952
Judge
Reported inAIR1954Cal211
ActsTenancy Law; ;Calcutta Thika Tenancy Act, 1949 - Section 27(1) and 27(2); ;Code of Civil Procedure (CPC) , 1908 - Section 21
AppellantRamdhari Mahato
RespondentRanjit Kumar Banerjee and anr.
Appellant AdvocateRanjit Kumar Banerjee and ;Soumendra Nath Mukherjee, Advs.
Respondent AdvocateSatya Charan Pain, Adv.
Excerpt:
- .....article 227 of the constitution against an order passed by sri syamadas chatterjee, subordinate judge, howrah. a suit numbered as title suit 347 of 1943 was filed by opposite party no. 1 for ejectment of the petitioner from a piece of land occupied by him as tenant. when the calcutta thika tenancy act, 1949, came into force, the suit was tried as a miscellaneous case for ejectment under the provisions of the calcutta thika tenacy act and the ejectment was allowed by an order of a munsif, howrah, acting as a controller under the calcutta thika tenancy act. there was an appeal filed under the provisions of section 27(1) (b) of the calcutta thika tenancy act 1949, to the district judge, howrah. the district judge by an order dated the 7th december, 1951 transferred the appeal to sri.....
Judgment:

Sen, J.

1. This is a revisional application under Article 227 of the Constitution against an order passed by Sri Syamadas Chatterjee, Subordinate Judge, Howrah. A suit numbered as Title Suit 347 of 1943 was filed by opposite party No. 1 for ejectment of the petitioner from a piece of land occupied by him as tenant. When the Calcutta Thika Tenancy Act, 1949, came into force, the suit was tried as a miscellaneous case for ejectment under the provisions of the Calcutta Thika Tenacy Act and the ejectment was allowed by an order of a Munsif, Howrah, acting as a Controller under the Calcutta Thika Tenancy Act. There was an appeal filed under the provisions of Section 27(1) (b) of the Calcutta Thika Tenancy Act 1949, to the District Judge, Howrah. The District Judge by an order dated the 7th December, 1951 transferred the appeal to Sri Syamadas Chatterjee, Subordinate Judge for disposal. Sri Syamadas Chatterjee heard the appeal on merits and dismissed the same on 3rd April, 1952.

2. In this revisional application filed by the petitioner, the only point urged is that the learned Subordinate Judge had no jurisdiction because in view of the provisions of Section 27(2) and (3) of the Calcutta Thika Tenancy Act the District Judge could transfer such an appeal for disposal only to a person specially appointed by the State Government to hear such appeals and Sri Syamadas Chatterjee was not appointed by the State Government to hear such appeals. Mr. Pain appearing for the opposite party has relied upon Notification No. 7634 L. Ref. dated the 10th July 1950 published in the Calcutta Gazette of the 20th July 1950 at page 1471. By this Notification, however, Sri Syamadas Chatterjee, Subordinate Judge, First Additional Court, Alipore, was authorised to hear the appeals presented under Clause (b) of sub-section (1) of Section 27 of the Calcutta Thika Tenancy Act to the District Judge of 24 Parganas.

Mr. Pain has urged that the Notification should be understood as meaning that Sri Syamadas Chatterjee, Subordinate Judge was authorised to hear such appeals in whatever district he might be acting, but it is clear that the terms of the Notification cannot be given such wide interpretation. Under the same Notification certain Subordinate Judges of Howrah by name were also authorised to hear similar appeals presented before the District Judge of Howrah.

Mr. Pain has urged in the alternative that it may be understood that the Subordinate Judges of Howrah by their designation were appointed by this Notification to hear such appeals presented to the District Judge of Howrah and that, therefore, since Sri Syamadas Chatterjee is now a Subordinate Judge of Howrah, the Notification covers him. But this argument also must be rejected because certain Subordinate Judges by name were appointed to hear appeals presented to the District Judge of Howrah. It is regrettable that the Notification was not widely worded so as to authorise the presiding officers of these subordinate Judges' courts to hear the appeals filed before the District Judge of the corresponding districts.

As the Notification stands, it has to be interpreted in the narrow sense that particular Subordinate Judges by name were authorised to hear appeals presented to the District Judges of the particular districts. In that view it must be held that Sri Syamadas Chatterjee. Subordinate Judge of Howrah was not a person authorised under Section 27 (2) of the Calcutta Thika Tenancy Act, 1949, to hear such an appeal and therefore the hearing of the appeal by him was without jurisdiction. This Court may. therefore, interfere under Article 227 of the Constitution.

3. Mr. Pain has also urged that since the appeal was transferred to Sri Syamadas Chatterjee on the 7th December 1951 and was not disposed of by him until the 3rd April 1952, the petitioner ought to have taken the objection as to jurisdiction before the learned Subordinate Judge, and that such objection not having been taken he would be barred under Section 21 of the Code of Civil Procedure from taking such an objection in this Court. Section 21 of the Civil Procedure Code, however, relates to objection as to the place of suing. It is no doubt true that the objection as to jurisdiction ought to have been taken at the earliest stage, but there is no provision that such objection except as to the place of suing cannot be taken before a superior Court.

4. This revisional application, therefore, succeeds and the Rule is made absolute. The order disposing of the appeal by Sri Syamadas Chatterjee, Subordinate Judge, Howrah, is set aside and the appeal is sent back to the District Judge of Howrah for disposal in accordance with law. In the circumstances of this case it is ordered that the parties will bear their own costs in this Court.

5. It appears that the Rule was discharged as against opposite party No. 2. The opposite party No. 2 is however, the previous tenant who has transferred his interest to the petitioner. He has no subsisting interest. Therefore the discharge of the Rule as against opposite party No. 2 does not affect the case of the petitioner.


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