NARAYAN CHANDRA GHOSH AND ORS.versusKANAILAL GHOSH AND ORS.

                                                                      (_.




A                    NARA YAN CHANDRA GHOSH AND ORS.
                                    v.
                         KANAILAL GHOSH AND ORS.

                                NOVEMBER 16, 2005

B                    [B.N. AGRA WAL AND A.K. MA THUR, JJ.]


           Calcutta Thika Tenancy Act, 1949, Calcutta Thika Tenancy (Acquisition
     and Regulation) Act 1981-Sections 9 and 19-Eviction of Tenant-
C    Abatement of Eviction Suit-1948 Act not providing for eviction of Bharatias
     by Thika tenancy and Bharatias not protected by Premises Tenancy Ac/-
     Respondent being Thika tenants filing suit for eviction of Appellants
     Bharatias-Enactment of the 1981 Act while the suits were pending-New
     Act providing for protection of Bharatias as tenant under the Premises
     Tenancy Act-Respondents filing fresh suits for eviction on the ground that
.D   the earlier suits abated under section 19 of the 1981 Act-Held, on enactment
     of the 1981 Act the earlier suits abated and the fresh suits are maintainable.

            Eviction Suit-Bonafide Necessity-Thika tenant filing suit for eviction
     ofBharatias pleading bonafide need ofthe premises for their family members-
     Trial Court decreeing the suit-appellate court upholding the eviction decree
E    in respect of three rooms but reversing the decree in respect of one room-
     High Court restoring the decree of the Trial Court-On appeal, held, the
     eviction of tenant on the ground of bonafide necessity is justified-No
     interference called for with the High Court judgment.

            Respondents the Thika tenants filed suit for eviction against the
F    appellants who were Bharatias of the premises. Act of 1949 did not provided
     for eviction procedure of Bharatias by Thika tenants. 1981 Act was enacted
     while the suits were pending which provides for protection of Bharatias as
     tenants under the Premises Tenancy Act. Section 19 of the Act states that all
     proceedings for ejectment of Thika tenants and Bharatias shall stand abated
G    as if such proceedings had never been made. Respondents filed fresh suits
     for eviction. Trial Court decreed the suit. Lower Appellate Court upheld the
     eviction decree in respect of three rooms but reversed the decree in respect
     of one room. The High Court restored the decree of the Trial Court. Hence
     this appeal by appellant. The Question before the Court was as to whether the

H                                         250
                  NARA YANCHANDRAGHOSH v. KANAILALGHOSH                     251

earlier suits filed by thika tenant for ejectment of Bharatias abated under         A
se~tion 19 of the 1981 Act.


      Dismissing the appeal, the Court

      HELD: I. Under the 1949 Act, procedure was specifically provided for
ejectment of a thika tenant by making an application for ejectment before the       B
Controller but not for ejectment of a Bharatia by a thika tenant For ejectment
of a Bharatia, only a suit for ejectment could be filed by a thika tenant before
a Civil Court in case, he wanted to evict. a Bharatia. As Legislature of the
State of West Bengal was contemplating legislation providing therein for the
acquisition of interest of landlords in respect of lands comprised in thika
tenancy and certain other tenancies, pending its enactment, a further               C
legislation was enacted which was named. The Calcutta Thika Tenancy Stay
of Proceedings (Temporary Provisions) Act, 1978. This legislation was enacted
to provide for temporary stay of proceedings for ejectment of thika tenants
and Bharatias holding under thika tenants. (259-C, D, E, Fl
                                                                                    D
       2. Immediately after the 1978 Act expired, The Calcutta Thika Tenancy
(Acquisition and Regulation) Act, 1981 (hereinafter referred to as 'the 1981
Act') was enacted which came into force with effect from 18th January, 1982.
The said Act was enacted for the acquisition of interests of landlords in respect
of lands comprised in thika tenancy and certain other tenancies. Section 9 of
the 1981 Act lays down that monthly and other periodical tenancies of               E
Bharatias in respect of structures occupied by them on payments of rent to
the thika tenants shall, with effect from the date of coming into force of 1981
Act, be governed by the provisions of Premises Tenancy Act and for the said
purpose, owners of the structures shall be deemed to be landlords and
Bharatias shall be deemed to be tenants under the said Act. According to            F
Section 19 of the 1981 Act, all proceedings for ejectment of thika tenants
and Bharatias shall stand abated with effect from 19th day of July, 1978 as if
such proceedings had never been made. (260-H; 261-C, D, E, Fl

      3. Under 1949 Act, procedure was provided for ejectment of a thika
tenant only and no procedure whatsoever was prescribed for ejectment of a           G
Bharatia by a thika tenant. Therefore, a suit for ejectment could be filed by
a thika tenant for ejectment of a Bharatia before an ordinary civil court and
such Bharatia during the continuance of 1949 Act was not entitled to claim
protection under •the Premises Tenancy Act and could be evicted upon
determination of his tenancy by giving a notice under Section 106 of the
                                                                                    H
    252                     ... SUPREME CbUR't REPORTS (2005) SUPP. 5 S.C.R.

A   Transfer of Property Act Under 1981 the Act, it has been specifically provided
    that Bharatias are entitled to claim protection of the Premises-Tenancy Act
    meaning thereby that now they cannot be evicted unless grounds for eviction
    enumerated under the Premises Tenancy Act are proved and they cannot be
    ejected merely upon determining their tenancy by giving a notice under Section
B   106 of the Transfer of Property Act. (263-C, D, El

          4. Section 9 of the 1981 Act specifically lays down that from the date of
    coming into force of 1981 Act, i.e., 18th J~nuary, 1982, the tenancies of
    Bharatias shall be governed by the Premises J:enancy Act. On that date, both
    the suits earlier filed by the thika tenants for ejectment of Bharatias were
C   pending and when the same were filed, it was not required of the thika tenant
    to prove the grounds for eviction enumerated under the Premises Tenancy
    Act, but with effect from 18th January, 1982 even in those suits a thika tenant
    was required to prove grounds for ejectment under the Premises Tenancy Act
    in case it is held that the same did not abate~ Such suits cannot be effectively
    disposed of after the commencement of 1981 Act as earlier it was not neces~ry
D   to prove the grounds for eviction enumerated under the Premises Tenancy
    Act and the Bharatia would be thereby denied the protection granted to him
    under the Premises Tenancy Act although he was entitled to such protection
    even in pending suits. Thus the suits for ejectment filed by the thika tenants
    for ejectment of Bharatias which were pending before a civil court abated
E   under Section 19 of the 1981 Act, as such High Court was quite justified in
    holding that the present suits were maintainable. •263-C, D, E; 264, D, E)

          Ranjit Kumar Saha v. Sudhir Kumar Dey 91 CWN 1071 ; Ranjit Kumar
    Saha v. Sudhir Kumar Dey, 91 CWN 1090 and Mrs. Qaiser Jahan v. Mohammad
    Yawoob, (1982) 2 CLJ"•t43, disapproved.
F
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7091 of2001.

         From the Judgment and Order dated 8.12.2000 of the Calcutta High
    Court in S.A. No. 50of1997.

                                        WITH
G
          C.A. No. 7092 of2001.

         Bhaskar Prasad Gupta, Udayan Chakravarty,.Pradyot Kumar Chakravarty
    and Prasenjit Kumar Chakravarty . for the Appellants.

H
          NARAYANCHANDRAGHOSHv.KANAILALGHOSH[B.N.AGRAWAL,J.]                    253
     S.B. Sanyal and Vijay Hansaria, Jeevan Dutta Chatterjee, Rana Mukherjee,           A
D. Bharat Kumar, Anand, Abhijit Sengupta and Ms. lndrani for the
Respondents.

      The Judgment of the Court was delivered by

      B.N. AGRA WAL, J. These appeals by the defendants arise out of                    B
common judgment rendered by the High Court in second appeals.

       The short facts are that the plaintiffs filed two suits, viz., Title Suit Nos.
125 of 1978 and 146 of 1977 for eviction of defendants. Both the suits relate
to eviction of defendants from different portions of a house. The former suit
related to eviction from three rooms and the latter from one room. In both the          C
suits, the plaintiffs were thika tenants whereas defendants were Bharatias.
The grounds for eviction disclosed in the suits were default, causing nuisance
by the defendants and bona fide need of the plaintiffs for th~ premises .in
question as number of their family members had substantially increased.
 When the suits were filed, The Calcutta Thika Tenancy Act, 1949 (hereinafter           D
referred to as 'the 1949 Act') was in force. During the pendency of the
aforesaid suits, The Calcutta Thika Tenancy (Acquisition and Regulation)
Act, l 98 l (hereinafter referred to as 'the 1981 Act') was promulgated and as,
according to the plaintiffs, the said suits abated under Section 19 of the 1981
Act, the plaintiffs filed another suits giving rise to Title Suit Nos. 35 of 1983
and 22 of 1983 for eviction of defendants from the aforesaid four rooms                 E
stating therein the same grounds for eviction.

      Defendants contested the claim for eviction on grounds, inter alia, that
the subsequent suits were not maintainable as earlier suits did not abate
under Section 19 of the 1981 Act. They denied all the grounds for eviction.
                                                                                        F
       In support of their respective cases, both the parties led oral and
documentary evidence and upon conclusion of trial, the learned Munsiff held
that the suits were maintainable as the earlier suits abated under Section 19
of the 1981 Act. So far as the grounds for eviction are concerned, the trial
court d~creed the suits only on the ground of bona fide necessity as, in its            O
opinion, the plaintiffs failed to prove the other grounds. Challenging the
decrees of the trial court, when appeals were preferred, the lower appellate
court upheld the decree for eviction in relation to three rooms but reversed
the same in relation to one room and thereby dismissed suit for eviction in
relation to the same. Against the aforesaid decision, two appeals were preferred
                                                                                        H
    254                      SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A   before the High Court, one by the plaintiffs and other by the defendants. High
    Court upheld decision ofthe lower appellate court affinning eviction decree
    in relation to three rooms. So far as decree of the lower appellate court
    dismissing the eviction suit in relation to one room is concerned, the same
    has been reversed and the decree for eviction in relation to same passed by
B   the trial court has been restored. Hence, these appeals by special leave.

           Mr. Bhaskar Prasad Gupta, learned Senior Counsel appearing in support
    of the appeals raised various points but for the disposal of the appeals, only
    two points are relevant. Firstly, it _has been submitted that earlier two suits
    filed by the plaintiffs did not abate under Section 19 of the 1981 Act, as such
C   both the suits were liable to be dismissed on the ground that the same were
    not maintainable. Secondly, it has been submitted that the High Court was not
    justified in interfering with the finding of fact in relation to one room in a
    second appeal. On the other hand, Mr. S.B.Sanyal and Mr. Vijay Hansaria,
    learned Senior Counsel appearing for the respondents in their respective
    appeals, submitted that present suits were maintainable as earlier two suits
D   abated under Section 19 of the 1981 Act. Mr. Vijay Hansaria, appearing in
    support of the judgment of the High Court in relation to one room, submitted
    that the High Court was quite justified in reversing judgment rendered by
    lower appellate court and confinning the decree for eviction passed by the
    trial court.

E          Thus, the main question to be considered in the present appeals is as
    to whether the earlier suits abated under Section 19 of the 1981 Act? In this
     regard, it would be necessary to refer to the history of the legislation. The
     1949 Act was enacted for making better provision relating to the law of
     landlord and tenant in respect of thika tenancies in Calcutta. The expression
F   "thika tenant" has been defined under Section 2(5) of the 1949 Act to mean
    a person who holds a land under a lease or otherwise under another person
    on payment of rent and has erected structure thereon or acquired by purchase
    or gift any structure on such land for residential, manufacturing or business
    purpose. The expression "Bharatia" has been defined under Section 2(1) of
    the 1949 Act to mean any person by whom, or on whose account, rent is
G   payable for any structure or part of a structure erected by a thika tenant in
    his holding. Under Section 3 of 1949 Act, three grounds for eviction of Thika
    tenant have been enumerated, namely, (I) using the holding in such a manner
    so as to render it unfit; (II) bona fide necessity of the landlord for the
    holding; and (Ill) in a case of lease, other than for residential purpose, expiry
H   of the period of lease. Under Section 5 of the 1949 Act, procedure has been
                  NARAYAN CHANDRA GHOSH v. KANAI LAL GHOSH [B.N. AGRA WAL,J.)      25 5
     provided for eviction of thika tenant by the landlord by filing an application       A
     for ejectment before Controller appointed by the State Government as defined
     under Section 2(2) of the 1949 Act. At this stage, it would be useful to refer
     to the provisions of Sections 2(1), 2(2), 2(5), 3 and 5 of the 1949 Act which
'·
{    read thus:

            "2(1) "Bharatia" means any person by whom, or on whose account,               B
            rent is payable for any structure or part of a structure erected by a
            Thika tenant in his holding.
f
             2(2) "Controller" means an officer appointed as such by the State
            .Government for an area to which this Act extends and includes any
             officer appointed by the State Government to perfonn all or any of the       C
             duties imposed or to exercise all or any of the powers conferred by
             this Act, on the Controller.

            2(5) "thika tenant" means any person who holds, whether under a
            written lease or otherwise, land under another person, and is or but
            for a special contract would be liable to pay rent, at a monthly or at        D
            any other periodical rate, for that land to that another person and has
            erected or acquired by purchase or gift any structure on such land for
            a residential, manufacturing or business purpose and includes the
            successors in interest of such person, but does not include a person

            (a)     who holds such land under that another person in perpetuity; or       E
            (b)     who holds such land under that another person under a registered
                    lease, in which the duration of the lease is expressly stated to be
                    for a period of not less than twelve years; or

            (c)     who holds such land under that another person and uses or             p
                    occupies.such land as a khattal.

            3. Grounds on which a thika tenant may be ejected.

            (1) Notwithstanding anything contained in any other law for the time
            being in force or in any contract, a thika tenant shall, subject to the
            other provisions of this Act, be liable to ejectment from his holding         G
            on one or more of the following grounds and not otherwise, namely:-

           (i)      on the ground that he has used the land comprised in his holding
                    in a manner which renders it unfit for any of the purposes
                    mentioned in clause (5) of section 2;
                                                                                          H
    256                      SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A         (ii)   except during any period limited by a registered lease under
                 which a thika tenant may hold the land comprised in the holding
                 and subject to the provisions of sub-sections (2), (3) and (4), on
                 the ground that the land is required by the landlord for his own
                 occupation;

B         (iii) when he holds the land comprised in the holding under a registered
                lease for a purpose other than a residential purpose, on the
                ground that the tenn of the lease has expired.

          (2) No landlord shall be deemed to require the land comprised in the
          thika tenant's holding for his own occupation if he has a house of
c         his own in the city in which such land is situated and the
          accommodation available in such house is, in the opinion of the
          Controller, reasonably sufficient for him and his family.

          (3) Where the landlord requires the land comprised in the thika
          tenant's holding for his own occupation and the Controller is of
D         opinion that such requirement may be substantially satisfied by ejecting
          the thika tenant from a part only of his holding and allowing him to
          continue in occupation of the rest, then, if the thika tenant agrees to
          such occupation, the Controller shall make an order accordingly and
          fix the proportionate rent for the portion remaining in the occupation
          of the thika tenant.
E
          (4) Where the thika tenant has erected or acquired a pucca structure
          for a residential purpose on the land comprised in his holding, no
          order for ejectment shall be made against him except. in respect of
          such part, if any, of such land as does not appertain to the pucca
          structure.
F
          5. Proceedings for ejectment.-(1) Notwithstanding anything contained
          in any other law for the time being in force a landlord wishing to eject
          a thika tenant on one or more of the grounds specified in section 3
          shall apply in the prescribed manner to the Controller for an order in
          that behalf and, on· receipt of such application, the Controller shall,
G         after giving the thika tenant a notice to show cause within thirty days
          from the date of service of the notice why the application shall not
          be allowed and after making an inquiry in the prescribed manner either
          allow the application or reject it after recording the reasons for making
          such order, and, if he allows the application, shall make an order
H         directing the thika tenant to vacate the holding and, subject to the
              NARAYANCHANDRAGHOSHv.KANAILALGHOSH[B.N.AGRAWAL,J.]                257

            provisions of section 10, to put the landlord in possession thereof.        A
            (2) No order allowing an application under sub-section ( 1) shall be
            made in a case where compensation is payable under the proviso to
            section 4 unless and until the amount of compensation so payable has
            been either paid to the thika tenant or deposited with the Controller."
                                                                                        B
           It may be also useful to refer to the provisions of Sections 10 and 1OA
     of the 1949 Act which read thus:


..          "I 0. Consequences of the determination of interests of thika tenants
            in certain cases-(1) Notwithstanding anything to the contrary
            contained in any contract, on the detennination of the interest of a        C
            thika tenant in the land comprised in a holding as a result of ejectment
            from the holding of, or of surrender or abandonment of the holding
            by, the Thika tenant, or otherwise, any structure standing upon such
            land and existing on the date of such determination shall vest in the
            landlord.
                                                                                        D
            (2) When any structure standing on any holding of a Thika tena11t
            vests in the landlord under sub-section (l) otherwise than as a result
            of ejectment of the Thika tenant from the holding on the ground
            specified in clause (ii) of sub-section (l) of section 3, any Bharatia
            in possession of such structure or any part thereof, shall without any      E
            application being made be entitled to continue in such possession
            and shall be· deemed to be a tenant in respect of such structure or part.
            thereof, as the case may be, within the meaning of the West Bengal
            Premises Tenancy Act, 1956; holding under the landlord on the terms
            and conditions on which such Bharatia had been holding immediately
            before such structure vested in the landlord:                               F
                 Provided that nothing in this. sub-section shall prevent either the
            landlord or such Bharatia so deemed to be a tenant. holding under
            the landlord, from proceeding under the West Bengal Premises Teq.ancy
            Act, 1956, for fixing the standard rent payable in respect of such
            structure or part thereof, as the case may be.                !             G
            I OA. Right of thika tenant to erect pucca structures-( I) .
            Notwithstanding anything contained in any other law for the time
            being in force or in any contract, but subject to the provisions of sub-
            sections (2) and (3), a thika tenant using the land comprised in his
                                                                                        H
    258                      SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A           holding fot a residential purpose may erect a pucca structure on such
            land for such purpose with the previous permission of the Controller.

            (2) On an application made by a thika tenant in this behalf, the
                                     .                                            '
            Controller may grant hiin permission to erect a pucca structure, if the
            Controller is satisfied that· the thika tenant -
B
           (a)   is using the structure existing on the land comprised in his
                 holding for a residential purpose,
           (b)   intends to use the pucca structure to be erected on such land for
                 a similar purpose, and

c          (c)   has obtained sanction of a building plan. to erect the pucca
                 structure from the municipal authorities of the area in which such
                 land is situated.

            (3) No thika tenant shall be entitled to eject a Bharaiia from the
            structure or part thereof in the possession of the Bharatia for the
D           purpose of erecting a pucca structure :

                Provided that the thika tenant may by providing temporary
            alternative accommodation to a Bh.aratia obtain fr.om him vacant
            possession of the structure in bis possession on condition that
            immediately on the completion of the construction of the pucca
E           structure the thika tenant shall offer the Bharatia accommodation in
            the pucca structure at a rent which shall in no case exceed by more
            than twenty-five per centum the rent which the Bharatia was
            previously paying."

          Section 10(1) of the 1949 Act lays down that upon ejectment of a thika
F tenant, his interest in the holding shall be determined and the structures
    standin~ thereon shall vest in the landlord. Sub-section (2) of Section IO of
    the 1949 Act lays down that in case the order of eviction is on grounds (i)
    and (iii) of Section 3(1) of 1949 Act, in that eventuality, the Bharatia who is
    in possession of the structure shall be entitled to continue in such possession
G   and shall be deemed to be a tenant in respect of such structures within the
    meaning of the West Bengal Premises Tenancy Act, 1956 ( in s.hort 'the
    Premises Tenancy Act') in which he is residing and shall be holding the same
    under the landlord on the terms and conditions on which such Bharatia had
    been holding immediately before the structures vested in the landlord. Under
    proviso to Section I 0(2) of the 1949 Act, the landlord or the Bharatia would
H
          NARA YANCHANDRAGHQSHv. KANAILALGHOSH[B.N.AGRAWAL,J.]            259
be entitled to make an application for fixation of standard rent in respect of    A
such structure under the provisions of the Premises Tenancy Act and to that
extent only the provisions of the said Act were made applicable. According
to sub-section (3) of .section IOA of the 1949 Act no thika tenant shall be
entitled to eject a Bharatia from the structure for the purpose of erecting a
pucca structure but in case he intends to erect pucca structure, in the
premises in which a Bharatia is residing, he is required to provide temporary     B
alternative accommodation to the Bharatia before obtaining possession for
the purposes of putting pucca structure thereon and after completion thereof,
such Bharatia shall be entitled to be put in possession of the pucca structure
on payment of rent which shall in no case exceed more than 25% of the rent
which the Bharatia was previously paying.                                         C
       From the aforesaid provisions, it becomes plain that under the 1949 Act,
 procedure was specifically provided for ejectment of a thika tenant by making
 an applicatfon for ejectment before the Controller but not for ejectment of a
 Bharatia by a thika tenant. For ejectment of a Bharatia, only a suit for
 ejectment could be filed by a thika tenant before a Civil Court in case, he      D
 wanted to evict a Bharatia. As Legislature of the State of West Bengal was
 contemplating legislation providing therein for the acquisition of interest of
·landlords in respect of lands comprised in thika tenancy and certain other
 tenancies, pending its enactment, a further legislation was enacted which was
 named The Calcutta Thika Tenancy Stay of Proceedings {Temporary                  g
 Provisions) Act, 1978 (hereinafter referred to as 'the 1978 Act') which came
 into force on 19th July, 1978 and continued to remain in force for a period of
 three years and six months from the date of its commencement. This legislation
 was enacted to provide for temporary stay of proceedings for ejectment of
 thika tenants and Bharatias holding under thika tenants. It would be
necessary to refer to the provisions of Sections 3,4 and 5 of the 1978 Act        F
which read thus:-

        "3. Stay of proceedings for ejectinent of Thika tenants-
        Notwithstanding anything contained in the Calcutta Thika Tenancy
        Act, 1949, or in any other law for the time being in force, -
                                                                                  G
            (a) all applications for ejectment of Thika tenants,

            {b) all appeals from orders made on such applications, and

            (c) all proceedings in execution of orders for ejectment of Thika
                tenants.
                                                                                  H
    260                      SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A           under the provisions of the Calcutta Thika Tenancy Act, 1949, which
            are pending at the date of commencement of this· Act or which may
            be made, preferred or commenced after such date but before the expiry
            of this Act, in respect of any land which is ~ot a 'vacant land' within
            the meaning of the Urban· Land (Ceiling and Regulation) Act, 1976,
            shall be stayed for the period during which this Act continues in
B           force.

            4. Stay of suits and proceedings against Bharatias-No thika tenant
            shall, while thh Act continues in force, commence, or continue with,
            any suit, appeal or proceedings in execution of orders, for ejectment
            of any Bharatia and all pending suits, appeals or proceedings in
c           execution of orders, for ejectment of a Bharatia shall remain stayed.

            5. Saving of/imitation. In computing the period oflimitation prescribed
            by any law for the time being in force for an application for the
            ejectment of a thika tenant or for such a suit against a Bharatia or
            for an appeal from an order or decree made on such application or suit
D           or for the execution of an order or decree for ejectment of a Thika
            tenant or a Bharatia, as the case may be, the period during which this
            Act continues in force shall be excluded."

           Under Section 3 of the 1978 Act, all proceedings for ejectment of thika
E   tenant initiated under the 1949 Act, irrespective of its stage, meaning thereby
    whether it was pending before the original authority or in appeal or in
    execution, were required to be stayed during the period of enforcement of the
    1978 Act and no further proceeding could be initiated after its commencement.
    Under Section 4 of the 1978 Act a thika tenant was injuncted to commence
    any proceeding or continue such proceeding for ejectment of any Bharatia
F   and all such proceedings if commenced stood stayed. Section 5 of the 1978
    Act provided that in computing the period of limitation for making an application
    for ejectment of a thika tenant or for filing a suit against a Bharatia or for
    filing an appeal or for levying execution of an order or decree for ejectment
    of a thika tenant or a Bharatia, as the case may be, the period during which
G   1978 Act continued to remain in force had to be excluded.

          Immediately after the 1978 Act expired, The Calcutta Thika ·Te:tancy
    (Acquisition and Regulation) Act, 1981 (hereinafter referred to as 'the 1981
    Act') was enacted which came into force with effect from 18th January, 1982.
    The said Act was enacted for the acquisition of interests of landlords in
H   respect of lands comprised in ·thika tenancy and certain other tenancies.
          NARAYAN CHANDRA GHOSH v. KANAILALGHOSH [B.N. AGRAWAL,J.]         261
   According to Section 5 of the 198 l Act, with effect from the date of A
  commencement of said Act, interest of "the landlords in lands, inter a/ia,
  comprised in and appurtenant to tenancies of thika tenants including open
. areas, roads, passages, tanks, pools and drains vested iri the State free from
  all incumbrances but the vesting did not in any manner affect rights enjoyed
  by thika tenants and Bharatias. By virtue of Section 6 of the 198 l Act, in B       1


  spite of vesting, the thika tenant was entitled to continue in occupation of
  the said land, on such terms and conditions as may be prescribed, directly
  under the State as if the State had been the landlord in respect of that land
  and he would be liable to pay land revenue directly to the State. Under
  Section 7 of the 198 l Act, a thika tenant was not entitled to let out the vacant
  land to anybody but could create lease in respect of the structures. The C
  landlords were entitled to compensation for the lands acquired by the State
  ofI West Bengal in the manner provided under Section 8 of the 1981 Act.
  Section 9 of the 198 l Act lays down that monthly and other periodical
  tenancies of Bharatias in respect of structures occupied by them on payments
  of rent to the thika tenants shall, with effect from the date of coming into
  force of 1981 Act, i.e., 18th January, 1982, be governed by the provisions of D
  Premises Tenancy Act and for the said purpose, owners of the structures
  shall be deemed to be landlords and Bharatias shall be deemed to be tenants
  under the said Act. Section I ·I of the 1981 ·Act fays down that tenancy of
  Bharatia as a tenant under thika tenant shall not be extinguished because
  of subsequent non-existence of the structure which the Bharatia previously E'
  occupied under the thika tenant and its tenancy shall continue. According
  to Section 19 of the 1981 Act, all proceedings for ejectment of thika tenants
  and Bharatias shall stand abated with effect from 19th day of July, 1978 as
  if such proceedings had never been made. It may be useful to refer to the
  provisions of Sections 9, 11 and 19 referred to above which read thus:
                                                                                  F
        "9. Thika tenants and Bharatias to be governed by West Bengal Act
        12 of 1956 . (l) The monthly and other periodical tenancies of
        Bharatias in respect of structures occupied by them on payment of
        rents to Thika tenants shall, with effect from the date of coming into
        force of this Act, be governed by the provisions of the West Bengal
        Premises Tenancy Act, 1956, in all matters coming within the purview      G
        of the said Act and, for the said purpose, the owners of the structures
        shall be deemed to be landlords and the Bharatias shall be deemed
        to be tenants under the said Act.

        (2) Notwithstanding anything contained in this Act or in the West         H
    262                    SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A         Bengal Premises Tenancy Act," 1956, a Bharatia under a Thika tenant
          shall be entitled to take separate electrical connection from the
          electricity supplying agency or separate water supply connection
          from the appropriate agency for his own use.

          11. Tenancy of Bharatia to continue. (J)Notwithstanding anything to
B         the contrary con~ained in any other law for the time being· in force,
          the tenancy of a Bharatia as a tenant under a thika tenant .shall not
          be extinguished because of subsequent non-existence of the structure
          or a part thereof which the Bharatia previously occupied under the
          thika tenant.

c             (2) If any structure or part thereof which was in the occupation
          of a Bharatia as a tenant under a thika t~nant ceases to exist except
          under an ord~r of a court under· section I. SA of the West Bengal
          Premises Tenancy Act, 1956, the thika tenant shall reconstruct similar
          accommodation and restore possession to the Bharatia and put the
          Bharatia in possession of such accommodation within one month of
D
          such structure ceasing to exist, failing which the Bharatia may make
          an application to the Controller in. the prescribed manner~

              (3) On an application made by the Bharatia under sub-section (2),
          the Controller shall, after giving the thika tenant and the Bharatia an
          opportunity of being heard, direct the thika tenant to reconstruct
E
          similar accommodation and restore possession to the Bharatia within
          such time as Controller may decide.

              ( 4) If the thika tenant fails to comply with the orders of the
          Controller under sub-section (3), the Bharatia shall be entitled to
          reconstruct the structure and, for that purpose, may make an application
F
          to the Controller who shall, after giving the Bharatia and the thika
          tenant an opportunity of being heard, approve such cost of
          reconstruction as may appear to him to be fair and reasonable and,
          after such reconstruction, allow adjustment of the cost of such
          reconstruction from the rent payable by the Bharatia in such monthly
G         instalments as the Controller may think fit.

          (5) If there is any unlawful resistance by or on behalf of the thika
          tenant to the reconstruction by the Bharatia under sub-section (4),
          the Officer-in-charge of the local police station shall, on receipt of any
          requisition of the Controller in writing in this behalf, render all          <
H
          NARAYAN CHANDRA GHOSHv. KANAILALGHOSH [B.N.AGRA WAL,J.]          263
        necessary and lawful assistance to the Bharatia .                          A
        19. Proceedings including appeals and proceedings in execution of
        orders, etc. to abate . All proceedings including appeals and all
        proceedings in execution of orders passed in proceedings including
        appeals under the Calcutta Thika Tenancy Act, 1949, pending on the
        19th day of July, 1978, for the ejectment of thika tenants and Bharatias   a
        shall stand abated with effect from the 19th day of July, 1978, as if
        such proceedings, appeals or execution proceedings had never been
        made."

       In view of the aforesaid provisions, now the question to be examined
is as to whether in the present case, the earlier suits for ejectment filed by     C
the thika tenants for ejectment of Bharatias abated under Section 19 of the
1981 Act? Under 1949 Act, procedure was provided for ejectment of a thika
tenant only and no procedure whatsoever was prescribed for ejectment of a
Bharatia by a thika tenant. Therefore, a suit for ejectment could be filed by
a thika tenant for ejeciment of a Bharatia before an ordinary civil court and      D
such Bharatia during the continuance of 1949 Act was not entitled to claim
protection under the Premises Tenancy Act and could be evicted upon
determination of his tenancy by giving a notice under Section 106 of the
Transfer of Property Act. Under 1981 Act, it has been specifically provided
that Bharatias are entitled to claim protection of the Premises Tenancy Act
meaning thereby that now they cannot be evicted unless grounds for eviction        E
enumerated under the Premises Tenancy Act are proved and they cannot be
ejected merely upon determining their tenancy by giving a notice under
Section 106 of the Transfer of Property Act.

      Section 9 of the 1981 Act specifically lays down that from the date of
coming into force of 1981 Act, i.e., 18th January, 1982, the tenancies of          F
Bharatias .shall be governed by the Premises Tenancy Act. On that date, both
the suits earlier filed by the thika tenants for ejectment of Bharatias were
pending and when the same were filed, it was not required of the thika tenant
to prove the grounds for eviction enumerated under the Premises Tenancy
Act, but with effect from 18th January, 1982 even in those suits a thika tenant    G
was required to prove grounds for ejectment under the Premises Tenancy Act
in case it is held that the same did not abate.

     Learned Senior Counsel appearing on behalf of the appellants has
p\aced reliance upon three decisions of Calcutta· High Court in the case of
                                                                                   H
A
    264                      SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

    Ranjit Kumar Saha v. Sudhir Kumar Dey, 91 Calcutta Weekly Notes 1011.-
    Ranjit Kumar Saha v. Sudhir Kumar Dey, 91 Calcutta Weekly Notes 1090 and
                                                                                         -
    Mrs. Qatser Johan v. Mohammad Yawoob 1982 (2) Calcutta Law Journal 143.
    In these three decisions, it has been laid down that the provisions of Section
     I9 of the 1981 Act shall apply only in relation to those suits for eviction which
B   were filed before the Controller under the provisions of 1949 Act and were
    pending on the date of commencement of 1981 Act. It was further laid down
    therein that the said provisions shall have no application to the suits for
    ejectment filed before the civil court by a thika tenant for ejectment of a
    Bharatia and pending on the date of commencement of 1981 Act. In none
    of these three cases,-the provisions of Sections 9 and 11 of the 1981 Act have
C   been. considered.. Jn case it is held that such suits would not come within the
    mischiefofSection 19 of the 1981 Act, the provisions of Section 9 of the 1981
    Act would not apply to it although expressly Section 9 provides that from the
    date of commencement of 1981 Act, i.e., 18th January, 1982, the provisions of
    the Premises Tenancy Act would apply to Bharatias. Such suits cannot be
    effectively disposed of after the commencement of 1981 Act as earlier it was
D   not necessary to prove the grounds for eviction enumerated under the Premises
    Tenancy Act and the Bharatia would be thereby denied the protection
    granted to him under the Premises Tenancy Act although he was entitled to
    such protection even in pending suits. This being the position, we are clearly
    of the view that suits for ejectment filed by the thika tenants for ejectment
E   of Bharatias which were pending before a civil court abated under Section
    19 of the 1981 Act, as such High Court was quite justified in holding that the
    present suits were maintainable.

         Learned Senior Counsel appearing on behalf of the appellants next
  submitted that the High Court was notjustified in reversing the finding of fact
F recorded by the lower appellate court that plaintiffs failed to prove the bona
  fide necessity in relation to one room. In this regard, it may be stated that
  from the judgment of the High Court, it would appear that the lower appellate
  court affirmed finding of the trial court in relation to personal necessity of the
  plaintiffs with regard to three rooms which finding was as.sailed by the
G defendants before the High Court. The building is one in which eviction was
  sought by the plaintiffs from four rooms and evidence is also common. While
  considering correctness of finding of the lower appellate court in relation to
  three rooms, High Court came to the conclusion that the plaintiffs were
  having only two rooms and they required in all seven rooms, meaning thereby
  that they required five more rooms and in those circumstances, it was held
H that the plaintiffs succeeded in proving their case in relation to bona fide
         NARAYAN CHANDRA GHOSH v. KANAILALGHOSH [B.N.AGRAWAL,J.]          265
necessity with regard to all the four rooms, including one room for which A
eviction was refused by the lower appellate court. In view of the aforesaid
facts, we are not inclined to interfere with the impugned judgment rendered
by the High Court even with regard to eviction of the defendants from one
room, in the exercise of powers of this Court under Article 136 of the
Constitution of India.
                                                                                 B
      In the result, the appeals fail and the same are dismissed but in the
circumstances of the case, we direct that there shall be no order as to costs.

KG.                                                      Appeal dismissed.

                                                                                 c