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Judgment
Rai Chattopadhyay, J. :-
An order of the learned Civil Judge, Junior Division, Additional Court of Sealdah, dated September 11, 2025 in Title Suit No. 530 of 2018 is under challenge in the instant revision.
The revisionist/petitioner is the legal heir of the bharatiya of the original thika tenant, in respect of a thika tenanted property, who has filed the said title suit as plaintiff before the learned trial Court. The plaintiff/petitioner’s challenge in the instant revision is as regards the Court’s order, allowing the counter claim of the defendant in the suit, who happens to be the original thika tenant of the concerned landed property.
Learned advocate appearing for the petitioner has submitted with reference to sub-Section 3 of Section 8 and Section 21 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, that a counterclaim, which is an independent claim brought by a defendant against a plaintiff within an existing suit, shall not be maintainable in the instant case, at the instance of the thika tenant.
He has submitted that the defendant/opposite party is admittedly a thika tenant in respect of a thika tenanted property. In such circumstances by operation of sub-Section 3 of Section 8 of the 2001 Act any dispute regarding eviction of a bharatiya under the thika tenant, shall be maintainable only before the Thika Controller, the specified authority under the statute.
Therefore, the order impugned of the learned trial Court dated September 11, 2025 is challenged on the ground that the trial Court has exceeded its jurisdiction and acted illegally in allowing the counter claim of the opposite party in connection with the said Title Suit No. 530 of 2018. To buttress his argument the learned advocate for the petitioner has relied on the order dated 19.11.2018 passed by this Court in CO No.3381 of 2018 (Messers. Acme Estate Private Limited vs. Ramsakal Yadav & Ors.) and the judgment passed in the case of Saghira Bano vs. Mahmood Alam (CO 1973 of 2018) reported in 2019 SCC OnLine Cal 9303.
Learned advocate for the opposite party has raised strong objection as to the contentions and prayer of the petitioner in the instant revision. According to him, the counter claim by the opposite party/defendant is not for eviction of a bharatiya under the thika tenant but for eviction of a trespasser over the thika tenanted property. With reference to the plaint as well as the counter claim filed by the respective parties before the Court, the learned advocate for the opposite party has developed his argument that the plaintiff/revisionist, being the son and legal heir of the original bharatiya of the defendant/thika tenant, since deceased, was to be considered as a tenant under the opposite party/defendant for a period of five years after death of his predecessor, as per the statute. That the said prescribed period of five years having been elapsed after the death of the said original thika tenant i.e. the father of the plaintiff/petitioner, the status of the plaintiff/petitioner with respect to the said thika tenanted property is only that of a trespasser, in terms of Section 2(g) of the West Bengal Premises Tenancy Act, 1997. He further indicates that in the matters relating to payment of rent by bharatiya and their eviction by the thika tenant, the provisions of West Bengal Premises Tenancy Act, 1997 are applicable in terms of Section 8(1) of the Act of 2001. Since the period of five years has already elapsed from the date of death of the original tenant/bharatiya, who has expired on 27th July, 2013, his legal heir should be considered as a trespasser over the thika tenanted property, on and from 27th July, 2018, in terms of Section 2(g) of the West Bengal Premises Tenancy Act, 1997.
Learned advocate for the opposite party has specifically referred to the averments made in the counter claim to show that in the counter claim the opposite party/defendant’s the prayer is for eviction of trespasser/plaintiff, from the suit property. To buttress his argument the learned advocate for the defendant has relied on a judgment in the case of Md. Jamil Akhter vs. Abdul Majid reported in (2011) 1 CLJ CAL 308 and the order dated 13th May, 2026 passed by a Co-ordinate Bench of this Court in SAT 83 of 2026 (Husna Bano & Ors. vs. Mohammad Amiruzzaman and Anr.).
The issue therefore is as to whether the counter claim of the opposite party, who admittedly is the thika tenant under the State, with respect to a thika tenanted suit property, should be considered maintainable before the learned Trial Court in the Title Suit filed by the legal heir of the deceased bharatiya under the said thika tenant.
On careful reading of the provisions of law as discussed by the respective learned advocates for the parties as mentioned above and the judgments as mentioned above, this Court is of the considered opinion that after expiry of five years period from date of death of his father, that is the original bharatiya under the defendant/thika tenant, the plaintiff/petitioner ceases to have any right under the statute, as his legal heir, to continue with his possession over the said thika tenanted property, over which his deceased father has been possessing as a bharatiya. Thus, the opposite party/defendant has tried to emphasize and justifiably so, that after five years of date of death of the predecessor-in-interest who has been a bharatiya under the Act, the status of the successor in respect with the said property comes to be that of a trespasser. A trespasser has no legal relationship with either the State or the Thika tenant. They do not qualify as a bharatiya or a tenant under the statutory definitions of the Act.
Section 8 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 establishes the legal framework and incidents of tenancies of bharatias. It regulates the relationship between thika tenants (the structure owners) and bharatias (the actual occupants/sub-tenants) and delineates the exclusive power of the Thika Controller to manage their disputes. A Division Bench of this Court in Seema Begum and Another versus Marrium Bibi and Others (vide judgment dated February 14, 2011 in CO.LRT No. 02 of 2010) has held the legal position to be that the Controller is the exclusive authority to hear and dispose of any cases concerning the eviction of a bharatiya.
Md. Jamil Akhter versus Abdul Majir reported in 2010 SCC OnLine Cal 1941 is an earlier foundational judgment of this Court, establishing that a suit against an outsider/trespasser falls squarely under ordinary civil law jurisdiction. In Asit Chatterjee vs. Kanai Lal Das (S.A. No. 5 of 2022 dated March 21, 2022) the Division Bench has explicitly laid down that a suit for the eviction of a trespasser cannot be said to be barred under Section 8(3) or Section 21 of the 2001 Act. In Sri Manik Das versus Promila Das & Ors reported in 2025 SCC OnLine Cal 8150 this Court has reiterated that a suit for the eviction of a trespasser, even if it involves a thika tenanted property, remains fully maintainable before a Civil Court.
It has already been discussed above, that in accordance with the law, the petitioner, after five years of date of death of his father, who has been the original bharatia under the thika tenant, no longer remains to be a bharatiya, as a legal hair of his deceased father. On the other hand, the counter claim filed by the opposite party/defendant before the learned trial Court appears to be for eviction of a trespasser and not a bharatiya under the thika tenant. There is no embargo under the 2001 Act, for filing an action in the civil Court for eviction of a trespasser, over a thika tenanted property. In this regard the civil Court’s jurisdiction has not been ousted by operation of the law. The restrictions under Section 8(3) and Section 21 of 2001 Act strictly confine themselves to regulating the disputes between a thika tenant and a bharatia, or determining thika status. Because a trespasser lacks any status under the Act, the Thika Controller does not possess the inherent machinery or statutory power to try an action for pure tortious trespass or pass a decree for recovery of possession against them.
Hence, this Court does not find any jurisdictional error, illegality or manifest irregularity in the impugned order of the trial Court dated September 11, 2025 in Title Suit No. 530 of 2018. Therefore, there is no reason for interference into the same, as prayed for by the petitioner.
Considering all as above, the present revision is found meritless and the same is dismissed.
Learned trial Court shall proceed with the suit as well as the counter claim as expeditiously as possible, however, without being influenced by any of the observations of this Court as made in this order and the same has been done for the purpose of adjudication of the issues involved in the present revision only.