Once a Thika Tenant, Always a Thika Tenant: Calcutta High Court Reaffirms Inheritance of Tenancy Rights Despite Ownership Claims

“Right of Thika Tenancy Not Revoked or Surrendered—Inheritance Claim Does Not Extinguish Tenancy” - In a significant reaffirmation of tenant protections under the West Bengal thika tenancy regime, the Calcutta High Court dismissed Second Appeal No. 350 of 2005, filed by the legal heirs of Sk. Abdus Sattar against Sayada Bibi and others. The Court upheld the first appellate court’s finding that Sk. Khalil Choudhury was the original thika tenant, and that his heirs validly continued such tenancy, even if ownership of the land was later claimed by another family member.

“If the right of thika tenancy was never revoked or surrendered, it continues under the new landlord”—held Justice Dr. Ajoy Kumar Mukherjee.

Thika Tenant Status Can Survive Ownership Claims by Another Family Member

The case revolved around the tenancy status of a property at 83E/1E Belgachia Road, Kolkata, originally occupied by Sk. Khalil Choudhury, who was said to be a thika tenant under a Zamindar. The dispute arose when Sk. Abdus Sattar, Khalil’s younger brother, got the property mutated in his name and later claimed ownership through purchase deeds dated 1957 and 1966.

The plaintiffs (legal heirs of Khalil) sought a declaration of their thika tenancy rights and possession of the property. The trial court had dismissed their suit, but the first appellate court reversed that decision, declaring Khalil as the original tenant.

The High Court upheld this finding: “From the available documents, there is nothing to show that Khalil’s thika tenancy was ever revoked or surrendered... Therefore, his legal heirs validly succeeded the tenancy right.”

Civil Courts Have Jurisdiction in Pre-2010 Cases to Decide Thika Tenancy

The appellants argued that post-2010 amendment to the West Bengal Thika Tenancy Act ousted civil court jurisdiction. However, the Court clarified that:

“Since the suit was instituted in 1978 and the appeal was filed before 2010, the civil court had jurisdiction to decide the thika tenancy status.”

This aligns with prior precedent that pre-2010 matters are not affected by the later exclusive jurisdiction clause conferred on Thika Controllers.

Ownership via Inheritance and Thika Tenancy Cannot Co-Exist

The defendants contended that the plaintiffs’ simultaneous claim of thika tenancy and ownership by inheritance was inherently contradictory. However, the Court held that:

“The court below rightly confined itself to deciding the question of tenancy alone, since the suit was originally framed for declaration of thika tenancy rights.”

Further, any will-based inheritance by Sattar’s grandchildren was also restricted under Mohammedan Law, which limits testamentary disposition to only one-third of the estate, unless consent is obtained from all legal heirs.

“The substituted defendants, being grandchildren, are not heirs under Mohammedan Law and cannot claim the entire estate under the will.”

Adverse Possession and Will Cannot Override Tenancy Protection

The appellants argued that Sk. Sattar's long possession or will gave him full ownership rights. The Court rejected this argument, finding:

“Even if Sattar acquired title over the land, the thika tenancy of Khalil subsisted under the new landlord. Purchase of land does not extinguish tenancy rights unless surrendered.”

The rent receipts, even though showing Sattar’s name first, also included Khalil’s name (sometimes within brackets or as “care of”), reinforcing the continued tenancy status of Khalil and his heirs.

Court Cautions Against Interference in Concurrent Factual Findings

The High Court invoked Gurnam Singh v. Lehna Singh [(2019) 7 SCC 641], reiterating that in second appeals under Section 100 CPC, interference is justified only if:

“Findings are perverse, based on no evidence, or contrary to mandatory law.”

As the lower appellate court had given detailed reasons, including admissions by the defendants and documents describing the property as thika tenanted, no interference was warranted.

Rejecting the second appeal, the High Court firmly ruled: “When the first appellate court found that the plaintiffs’ predecessor was the thika tenant, and there was no revocation or surrender, such finding based on evidence need not be disturbed.”

Thus, SA was dismissed, and the plaintiff’s tenancy rights as Khalil Choudhury’s legal heirs stood affirmed.

Date of Decision: 7 May 2025