In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Mr. Justice Sabyasachi Bhattacharyya

And

The Hon’ble Mr. Justice Supratim Bhattacharya

F.A. No. 140 of 2024

+

CAN 5 of 2026

Hindustan Petroleum Corporation Limited

Versus

Smt. Uma Gupta and Others

For the appellants : Mr. Suman Dutt, Sr. Adv.,

Mr. Supratim Dhar, Sr. Adv.,

Mr. Paritosh Sinha,

Mr. Amitava Mitra,

Mr. Shounak Bhattacharyya,

Mr. Rajdeep Mantha,

Mr. Naman Agarwal, …Advs.

For the respondents : Mr. Jaydip Kar, Sr. Adv.

Mr. Aniruddha Chatterjee, Sr. Adv.

Mr. Anirban Ray, Sr. Adv.,

Mr. Shayak Mitra,

Mr. Soumava Mukherjee,

Mr. Subhajit Seth, …Advs.

Heard on : 06.08.2026, 10.08.2026 & 11.08.2026

Reserved on : 11.08.2026

Judgment on : 21.08.2026

2

Sabyasachi Bhattacharyya, J.:-

1. The present first appeal has been preferred by the defendant in an eviction

suit on the ground of expiry of lease by efflux of time under the Transfer of

Property Act, 1882, (hereinafter referred to as “the TP Act”), assailing the

judgment and decree whereby such eviction was granted.

2. The brief facts of the case are that one Indira Gupta, since deceased, was

the owner of a portion of the Premises No. 8/1, Alipore Road, Police Station

– Alipore, Kolkata – 700 027, the suit property. By an indenture of lease

dated August 24, 1955, the said owner Indira Gupta granted lease in respect

of the suit property in favour of Caltex India Limited (the predecessor-in-

interest of the defendant/appellant) for an initial period of 10 years,

commencing from September 1, 1955 , with an option of renewal for 3

successive periods of 10 years each.

3. Since the said owner did not agree to renew the lease as per the renewal

clause, Caltex filed a suit, bearing no. 2380 of 1967, in the Original Side of

this Court, seeking specific performance of the renewal clause provided in

the indenture of lease.

4. The suit was decreed on compromise by a consent decree dated February

10, 1978, whereby the lease was extended , substantially on its original

terms, till August 31, 1995.

5. Subsequently, the present eviction suit was instituted on the ground of

expiry of the extended lease by efflux of time, since the appellant did not

vacate the premises even after such expiry in terms of the lease.

3

6. The learned Trial Judge, while decreeing the suit, adjudicated on the

question of maintainability, holding that the suit was maintainable, as well

as held on merits that the suit property was not a thika tenancy.

7. Meanwhile, the lessor filed a writ petition bearing WP 1499 of 2005, inter

alia seeking a declaration that the suit premises never stood vested with the

State and challenging the vires of the West Bengal T hika Tenancy

(Acquisition and Requisition) Act, 2001 (hereinafter referred to as “the 2001

Act”). During pendency of the writ petition, the Thika Controller issued a

notice of hearing to the lessor on September 13, 2005, which was stayed by

an order dated October 6, 2005 passed in GA No. 3210 o f 2005, an

interlocutory application filed in connection with the writ petition. The said

stay order is submitted to be still subsisting.

8. During pendency of the suit, the defendant/appellant filed an application

under Order XIV Rule 2 of the Code of Civil Procedure, 1908 (for short, “the

Code”), praying for dismissal of the suit on the ground of maintainability in

view of the power of adjudication as to whether a property is a thika tenancy

or not being vested in the Thika Controller. By an order dated October 12,

2011, the said application was allowed, dismissing the suit, against which a

first appeal, bearing FA no. 324 of 2012, was filed by the lessor. By a

judgment dated April 10, 2014, the said appeal was allowed, setting aside

the impugned judgment and decree and restoring the suit to be decided on

trial.

9. While disposing of the appeal, a co-ordinate Bench of this Court directed the

learned Trial Judge to frame the issue of bar of jurisdiction of the Civil Court

and the maintainability of the suit as a preliminary issue.

4

10. Learned senior counsel appearing for the appellant contends that Section 21

of the 2001 Act stipulates a bar to the jurisdiction of Civil Courts in respect

of matters which, under the said Act, are required to be or have been

decided or dealt with or which are to be or have been determined by the

Controller or the Appellate or other Authority specified in the Act. The said

bar, it is contended, has to be read in the context of Sections 5 and 8 of the

2001 Act. Sub-section (3) of Section 5 provides that if any question arises as

to whether a person is thika tenant or not or whether the land in question is

thika land or not, the Controller, either on his own motion or upon receiving

any information, may, after giving the persons interested an opportunity of

being heard and after examining such documents or particulars as may b e

considered necessary, enquire upon and decide such question.

11. On the other hand, sub-section (2) of Section 8 provides that if any question

arises as to whether a person is a Bharatia under a particular thika tenant,

the Controller may, either on his own motion or upon receiving any

information, after giving the persons interested an opportunity of being

heard and examining all documents and particulars considered necessary,

enquire upon and decide such question.

12. Sub-section (3) of Section 8 provides that any dispute regarding payment of

rent by the thika tenant to the State Government or by a Bharatia to a thika

tenant or any case of eviction of Bharatia shall be disposed of by the

Controller in such manner as may be prescribed. Thus, it is argued that the

present suit for eviction of a Bharatia ought to have been filed before the

Thika Controller. More importantly, the question as to whether the appellant

is a thika tenant or not and whether the land in question is a thika land or

5

not as well as whether the appellant is at all a Bharatia under a particular

thika tenant, were to be decided by the Thika Controller. By operation of

Section 21 of the 2001 Act, it is submitted, the Civil Court’s jurisdiction was

barred. Hence, the impugned judgment was passed de hors the law and

without jurisdiction.

13. By the 2010 Amendment to the 2001 Act, which came into force on and

from November 1, 2010, the powers of the Controller, it is argued, were

broadened by including the question as to whether the land in question is a

thika land or not, which is of much wider purport than it originally stood,

under which only the question as to whether a person is a thika tenant was

to be decided by the Controller.

14. Learned senior counsel argues that the consent decree of 1978 operates

between private parties and if the property has vested in the State by

operation of law, such decree is not binding.

15. It is argued that since the Civil Court inherently lacked jurisdiction to

entertain the suit, it vitiated the impugned judgment and rendered the same

a nullity. In support of such contention, learned counsel cites an unreported

judgment in Hindustan Petroleum Corporation Limited vs. Santanu Mallick,

Executor & Others, passed in APD No. 120 of 2015.

16. Learned senior counsel for the plaintiffs/respondents, on the other hand,

contends that undisputedly the appellant has been running a petrol pump,

with a pucca structure, on the suit property at all material points of time.

From the Surveyor’s report, which was a part of the records, it will be

evident that there is a pucca structure. Also, DW-1, in his cross-

examination, admitted that the landlord permitted them to raise pucca

6

construction of permanent nature on the suit property and that such pucca

construction was raised during continuance of the lease.

17. Thus, it is contended that there is no dispute between the parties that at the

relevant point of time, the appellant was running a petrol pump with

existing structures. At the juncture when the consent decree was passed in

the year 1978, the Calcutta Thika Tenancy Act, 1949 (for short, “the 1949

Act”) was already in vogue. Even in the purported Form-A submitted under

the Calcutta Thika and other Tenancies and L ands (Acquisition And

Regulation) Act, 1981 (in brief, “the 1981 Act”), which was never exhibited

before the Trial Court, the appellant did not claim itself to be a thika tenant

under the 1949 Act.

18. Learned senior counsel cites Jatadhari Daw & Grandshons v . Smt. Radha

Devi & Another, reported at (1986) 1 CHN 21, where it was held that a petrol

pump did not come under the purview of the 1981 Act, which view was

approved in Lakshmimoni Das v. State of West Bengal and Others, reported

at 1987 SCC OnLine Cal 140.

19. The Special Bench of this Court, in the latter judgment, observed that within

the scope and ambit of Section 5 of the impugned Act, only lands comprised

in thika tenancy within the meaning of the Calcutta Thika Tenancy Act,

1949, comprising a kutcha structure and/or a pucca structure constructed

for residential purposes with the permission of the Controller under the

1949 Act and khatal lands held under a lease shall vest and save as

aforesaid no other lands and structures vest under the impugned Act (the

1981 Act).

7

20. Thus, it is submitted that the lease was for commercial operation of a petrol

pump and was, thus, excluded from the definition of ‘thika tenancy’ under

the 1949 Act. The tenancy was not a thika tenancy under the 1949 Act,

though the lease commenced on August 24, 1955, when the said Act wa s in

vogue, since there existed pucca structures on the property. In the consent

decree dated February 10, 1978, the appellant admitted the lessor-lessee

relationship between the parties and never claimed thika tenancy.

21. Lastly, citing Nemai Chandra Kumar (Dead) through Legal Representatives

and Others v. Mani Square Limited and Others, reported at (2024) 17 SCC

743, it is argued that the Hon’ble Supreme Court settled the law therein,

approving the view taken by this Court in Lakshmimoni Das (supra)

1

. As per

the said judgment, in order to be a thika tenant under the 2001 Act, a

person had to satisfy the threshold criteria under the 1949 Act and the 1981

Act.

22. In order to come within the purview of the 2010 Amendment to the 2001

Act, the property, if pucca, had to be a residential building, constructed with

the previous permission of the Controller and/or on the strength of a

sanctioned building plan.

23. It is contended that this Court had also relied on the judgment in Mani

Square Limited (supra)

2

in a subsequent judgment of State of West Bengal

and Others v. Prabir Kumar Sarkar and Others, reported at 2025 SCC OnLine

Cal 9522, in such context.

1

Lakshmimoni Das v. State of West Bengal and Others, reported at 1987 SCC OnLine Cal 140

2

Nemai Chandra Kumar (Dead) through Legal Representatives and Others v. Mani Square Limited and

Others, reported at (2024) 17 SCC 743

8

24. Upon hearing learned senior counsel for the parties, we find the following

two cardinal questions to have arisen for consideration in the present

appeal:

(i) Whether the learned Trial Judge acted beyond jurisdiction in deciding

the suit to be maintainable in the teeth of the bar under Section 21 of

the 2001 Act;

(ii) Whether the appellant is a Thika tenant in respect of the suit property.

25. The above issues are answered as follows:

(i) Whether the learned Trial Judge acted beyond jurisdiction in

deciding the suit to be maintainable in the teeth of the bar

under Section 21 of the 2001 Act

26. As held in Mani Square Limited (supra)

3

, which approved of the view taken in

Lakshmimoni Das (supra)

4

, only lands comprised in thika tenancies within

the meaning of the 1949 Act, comprising kutcha structure and/or pucca

structure constructed for residential purpose with the permission of the

Controller under the 1949 Act and khatal lands held under the lease shall

vest, and save as aforesaid no other land and structure vests, under the

1981 Act. It was further observed that acquisition of land comprising thika

tenancy with even erection or acquisition of pucca structure by the thika

tenant came to be provided in specific terms by the Legislature only from

3

Nemai Chandra Kumar (Dead) through Legal Representatives and Others v. Mani Square Limited and

Others, reported at (2024) 17 SCC 743

4

Lakshmimoni Das v. State of West Bengal and Others, reported at 1987 SCC OnLine Cal 140

9

November 1, 2010, when the 2010 Amendment was effected to the 2001 Act,

and not before.

27. Thus, in respect of pucca structures which were already existent before

February 1, 2010, in order to be a thika tenancy within the contemplation of

the 2001 Act, the parameters laid down in the 1949 Act and the 1981 Act

are to be satisfied.

28. Mani Square Limited (supra)

5

lays at rest any dispute regarding whether the

expression “any structure” in the definition of thika land under the 1949

Act, the 1981 Act and the 2001 Act comprises of literally all structures or

kutcha structures. Only kutcha structures come by default within the

purview of thika property.

29. However, certain exceptions were made even in respect of pucca (permanent)

structures, which might also come within the fold of thika tenancies subject

to satisfaction of certain conditions.

30. In order to explore such conditions, we are to first look into Section 10A of

the 1949 Act. Under the said provision, a thika tenant using the land

comprised in his holding for a residential purpose may erect a pucca

structure on such land for such purpose with the previous permission of the

Controller.

31. Thus, three important criteria were to be met for a pucca structure to come

within the purview of a thika property within the contemplation of the 1949

Act –

(i) The thika tenant had to hold the property for a residential purpose;

5

Nemai Chandra Kumar (Dead) through Legal Representatives and Others v. Mani Square Limited and

Others, reported at (2024) 17 SCC 743

10

(ii) The pucca structure was to be erected for “such purpose”, that is, for

residential purpose; and

(iii) The construction had to be made with previous permission of the

Controller.

32. In the present case, at the juncture when the consent decree, containing the

last lease between the parties was passed, the 1949 Act was holding the

field. In the terms and conditions of lease enumerated in the said decree, the

parties categorically admitted the jural relationship between them to be

governed by the clauses of the original lease deed dated August 24, 1955,

barring modification to Clause 4(c). In Paragraph No. 5 of the “Terms and

Conditions” incorporated in the consent decree, it was categorically stated

that save as therein provided, all other terms and conditions of the lease

dated August 24, 1955, except for the renewal of the term, shall be

applicable and shall govern the said extended term.

33. Thus, at a juncture when the 1949 Act was fully in force, the appellant

admitted categorically that it was a lessee under the plaintiffs/respondents,

which is mutually exclusive with the concept of thika tenancy, where the

property vests in the State and the lessee becomes a thika tenant directly

under the State. There was no assertion of thika tenancy rights by the

appellant within the four corners of the consent decree, which contained the

terms of the lease.

34. Hence, the appellant had categorically waived any thika tenancy right by

signing the terms and conditions which were made a part of the consent

decree.

11

35. Secondly, the suit property has been admittedly used all along as a petrol

pump by the appellant and its predecessor -in-interest, and not for

“residential purpose” as mandatorily required under Section 10A of the 1949

Act, which was inserted by the Amendment of 1969.

36. Hence, Section 10A was fully operative at the juncture when the consent

decree was passed, thus precluding any scope of applicability of the

exemption provided therein in respect of the pucca construction standing on

the suit property.

37. It is also nobody’s case that any permission was previously taken from the

Controller before erecting the pucca structure.

38. In the absence of the aforesaid threshold criteria, there could not be any

manner of doubt that by entering into the jural relationship of lessor-lessee

with the plaintiffs/respondents by dint of the consent decree dated February

10, 1978, the defendant/appellant categorically waived any right to claim

thika tenancy. Since the plaintiffs/respondents acted on the said consent

decree to their detriment, by permitting user of the same by the appellant in

terms of the deed, the appellant is squarely barred by the principle of

Estoppel from claiming any thika tenancy right.

39. It is to be noted here that although there cannot be any Estoppel against the

law, the questions as to whether a person is a thika tenant or not or a

property is a thika tenancy or not are mixed questions of fact and law, which

require the foundational criteria of a thika tenancy to be fulfilled. Hence,

this is not a case where the appellant automatically became a thika tenant

by operation of law, but the appellant had to establish fulfilment of the pre-

conditions of being a thika tenant within the contemplation of the 1949 Act

12

as well as the 1981 Act and the 2001 Act in order to attract the operation of

the Statute. Thus, the concept of ‘Estoppel against the law’ is not applicable

to the question of thika tenancy and it is dependent on appreciation on a

case-to-case basis as to whether a particular property is a thika land or a

tenancy is in the nature of a thika tenancy. Hence, since the appellant, by

entering into the lease embodied in the consent decree of 1978, gave out and

admitted that it is a lessee under the plaintiffs/respondents in respect of the

subject property, which is admittedly comprised of a pucca structure used

for commercial purpose, at a point of time when the 1949 Act was operative,

the appellant is now barred by Estoppel from doing a volte face and claiming

thika tenancy under the State.

40. A purposive interpretation of Section 5(3) and Sections 8(2) and 8(3) would

clearly indicate that the “question” and/or “dispute” contemplated under the

said provisions have to be bona fide questions or disputes. In the present

case, in view of the above discussions, no real dispute or question regarding

thika tenancy remained to be decided. Hence, the ‘dispute’ / ‘question’ now

sought to be raised by the appellant in that regard is a sham and illusory

one.

41. Section 21 of the 2001 Act debars the jurisdiction of the Civil Court only in

respect of matters which are required to be dealt with or decided or

determined by the Controller or the authorities provided under the said Act.

In the absence of any further requirement being there for the issue to be

determined/decided, nothing remained to be adjudicated by the Thika

Controller.

13

42. Hence, the bar under Section 21, read with Section 5(3) and Sections 8(2)

and 8(3), of the 2001 Act did not apply in the present case at all.

43. Thus, this issue is decided against the appellant, by holding that the learned

Trial Judge was fully empowered and acted within jurisdiction to entertain

the suit and decide the same on merits.

(ii) Whether the appellant is a Thika tenant in respect of the suit

property

44. Taking a cue from the above discussions, the Hon’ble Supreme Court, in

Mani Square Limited (supra)

6

, has set at rest the previous contradictory

views as to whether a pucca structure can come within the expression ‘any

structure’ in the definition of a thika land. The controversy was set at rest by

laying down the proposition that unless the pucca construction was erected

or acquired post- November 1, 2010, it would not come within the ambit of

“thika tenancy” unless the baseline criteria provided in the 1949 and 1981

Acts were satisfied.

45. Since the lease evidenced by the consent decree of 1978 was entered into

between the parties long prior to the 2010 Amendment to the 2001 Act, that

is, November 1, 2010, and even the suit was instituted in the year 2007,

much prior thereto, the erection of pucca structure could not automatically

come within the purview of thika tenancy.

46. The view taken by the Division Bench of this Court in Jatadhari Daw

(supra)

7

and reiterated by the Three-Judge Bench in Lakshmimoni Das

6

Nemai Chandra Kumar (Dead) through Legal Representatives and Others v. Mani Square Limited and

Others, reported at (2024) 17 SCC 743

7

Jatadhari Daw & Grandshons v. Smt. Radha Devi & Another, reported at (1986) 1 CHN 21

14

(supra)

8

, as to a petrol pump falling outside the purview of thika tenancy,

has been affirmed in Mani Square Limited (supra)

9

, thus, leaving no manner

of doubt that the present suit property, which is admittedly a petrol pump,

fell outside the purview of thika tenancy.

47. Even otherwise, as discussed above, the foundational criteria stipulated in

Section 10A of the 1949 Act, which were very much in force at the time

when the jural relationship between the parties was entered into in 1978,

are not met in the instant case. Neither any previous permission of the

Controller nor residential use of the property beforehand, nor the erection of

the pucca structure being for the residential purpose has been established.

On the contrary, the suit property is admittedly comprised of a petrol pump

which is obviously used for commercial purpose.

48. Hence, since the aforesaid criteria are not met, there cannot be any manner

of doubt that the suit property in the instant case was never a thika

tenancy.

49. In order to come within the purview of thika tenancy as contemplated in the

2001 Act, as reiterated in Mani Square Limited (supra)

10

, the tenancy had to

be a thika tenancy from its inception. Although the initial lease deed was

executed in the year 1955, the same merged into the consent decree dated

February 10, 1978 which renewed the lease lastly, substantially in terms of

the original lease deed clauses, with minor variations and sans the renewal

clause. By entering into such lease and admitting the plaintiffs/respondents

8

Lakshmimoni Das v. State of West Bengal and Others, reported at 1987 SCC OnLine Cal 140

9

Nemai Chandra Kumar (Dead) through Legal Representatives and Others v. Mani Square Limited and

Others, reported at (2024) 17 SCC 743

10

Nemai Chandra Kumar (Dead) through Legal Representatives and Others v. Mani Square Limited and

Others, reported at (2024) 17 SCC 743

15

as lessors, the appellant gave a go-bye to any possible contrary and

mutually exclusive claim of thika tenancy under the State. In 1978, the

1949 Act was already in force. Since the jural relationship of the parties fell

outside the ambit of the 1949 Act at that juncture, it cannot be said that the

subsequent statutes of 1981 and 2001 conferred any better right on the

appellant, as a thika tenant.

50. In such view of the matter, this issue is also decided against the appellant,

holding that the appellant is not a thika tenant in respect of the suit

property.

CONCLUSION

51. In the light of the above observations, the learned Trial Judge was well

within her jurisdiction in assuming determination to decide the suit on its

merits by holding the same to be maintainable.

52. In view of the expiry of the lease by efflux of time and the appellant having

not vacated the suit property in terms of the consent decree dated February

10, 1978, evidencing the terms of lease between the parties, the eviction

decree passed by the impugned judgment and decree was sound in law and

perfectly justified.

53. Accordingly, the appeal fails.

54. F.A. No. 140 of 2024 is, accordingly, dismissed on contest without any order

as to costs, thereby affirming the impugned judgment and decree dated

December 22, 2023, passed by the learned Civil Ju dge (Senior Division),

Sixth Court at Alipore, District: South 24 Parganas, in Title Suit No. 57 of

2016.

16

55. Interim orders, if any, stand vacated.

56. A formal decree be drawn up accordingly.

57. The Trial Court Records be sent down at the earliest.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Supratim Bhattacharya, J.)

Later:

After the above judgment is passed, learned senior counsel for the

appellant makes a prayer for stay of operation of the above judgment.

However, since we are apprised that the appellant has already been

dispossessed pursuant to the eviction decree, which was impugned in the

appeal, there is no scope for stay of operation of the above judgment.

Accordingly, such prayer is refused.

(Sabyasachi Bhattacharyya, J.)

(Supratim Bhattacharya, J.)