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1995 DIGILAW 182 (GAU)

Dibyendu Bhowmik v. Jogesh Chandra Nath Poddar

1995-08-11

S.L.SARAF

body1995
This is an application against the judgment and decree dated 5.9.91 passed by the Assistant District Judge, Karimganj in Title Appeal No.42 of 1987 allowing the appeal reversing the judgment and decree dated 31.8.87 passed by the Munsiff No. 1, Karimganj in Title Suit No.302 of 1983. 2. In the instant case a suit was filed by the plaintiff/opposite party against the petitioner/defendant No.2 along with Jadgesh Chandra Nath Poddar defendant No. 1 on the ground of defaulter and bonafide requirement. It was further alleged that the defendant No.1 has unauthorisedly sublet the said premises to the defendant No.2. It was alleged that the defendants have been occupying the land and holding illegally and unauthorisedly. Under the law and equity, defendants are liable to be evicted and plaintiff are entitled to get the khas possession of the holdings by evicting the defendant Nos.1 and 2 and the recovery of rent and compensation. 3. The defendant No.1 did not contest the suit. The defendant No.1 filed one Sulenama entered into with the plaintiff stating that the decree be passed against his as per Sulenama. Defendant No.2 appeared and contested the suit by filing written statement denying the case of the plaintiff. It was averred in the written statement by the defendant No.2 that he was not a sub-lessee or sub-tenant under the defendant No. 1. The land and holding which he was occupying it was in his occupation as a tenant and that he was not a defaulter and no arrears of rent remain due to the plaintiff. It was stated that the plaintiff in collusion with the defendant No.1 have instituted the suit in order to evict the defendant No.2 without proving his right and interest in the said property. It was stated by the defendant No.2 that he was occupying a separate plot of holding than that of defendant No. 1 and plaintiff has been receiving rent for both the plots allotted to defendant Nos.1 and 2 and was issuing owner's receipt in the name of the defendant No.1 though rent was received from the defendant No.2 and his signature appears in all rent receipts. That the defendant No.2 has been paying all Municipal Taxes including electric charges Fire Insurance Premium all to the knowledge of the plaintiff for more than 30 years. On the basis of the aforesaid pleadings the issues were raised. That the defendant No.2 has been paying all Municipal Taxes including electric charges Fire Insurance Premium all to the knowledge of the plaintiff for more than 30 years. On the basis of the aforesaid pleadings the issues were raised. Issue No.9 reads as follows : "No.9. Whether the defendant No.2 is a sub-lessee and the defendant No.1 has sub-let the holding to the defendant No.2 without any permission of the plaintiff?" Defendant No.2 went in the witness box and also produced two other witnesses and he deposed to the truth and varacity of the statement which he has made in the written statement. He has deposed that he has been occupying the holding since 196/-68 which was no longer a part of the defendant No.1. He was also occupying a room which was also separate holding as such it was deposed that there was no case against the defendant No.2. It was further deposed that since 1945 the father of the defendant No.2 have been in possession of the holding since the days of the predecessor in the interest of the plaintiff and his name was mutated in the Municipal Record with full knowledge of the plaintiff. Even assuming a sub-lease was created the same was done much prior to the Act of 1972 coming into force, as such, Assam Urban Areas Rent Control Act, 1972 has no application. In support of the proposition AIR 1987 SC 176 was relied upon. The Court below after considering the above submissions decreed the suit against the defendant No.1 but the suit was dismissed as against the defendant No.2. On appeal the Assistant District Judge reappreciated the evidence and held that the defendant No.2 has failed to prove that he was not a sub-lessee but a tenant under the landlord. According to the learned Assistant District Judge the burden of proving sub-tenancy and tenancy vested on defendant No.2. The Court accepted the contents of the Sulenama as correct and true and held that since defendant No.1 is liable to be evicted the defendant No.2 being a sub-lessee has no locus standi and was also liable to be evicted from the said premises. 4. The Court accepted the contents of the Sulenama as correct and true and held that since defendant No.1 is liable to be evicted the defendant No.2 being a sub-lessee has no locus standi and was also liable to be evicted from the said premises. 4. I have considered the submission of facts and law made both before the trial Court and appellate Court and find that the appellate Court has failed to exercise the jurisdiction vested on it and have acted in excess of its jurisdiction, illegally and with material irregularity. Under section 102 of the Evidence Act, 1872 the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. In the instant case, the defendant No.1 did not contest the suit nor it filed any written statement nor it appeared as witness. The plaintiff himself did not appear at the time of the trial as a witness. The plaintiff produced a witness on his behalf in the suit. A document appertaining to be Sulenama between plaintiff and defendant No. 1 was produced and it appears that the same was exhibited. The respondent counsel on being asked by this Court was unable to inform the Court as to who proved the said document as to how the said document was exhibited. Be that as it may, the production of Sulenama is no evidence or proof of the contents of the Sulenama. Nobody has proved the contents of the Sulenama nor anybody has allowed himself to be cross examined on the truth or otherwise of the contents of the Sulenama. The Court cannot rely on certain allegations made in a document unless the parties in the suit relying on the contents thereof allow themselves to be cross examined by the party effected by the contents of such document. In my opinion the contents of the said document cannot be relied upon and it cannot be considered to be an evidence in the suit. 5. The burden of proving the case of sub-tenancy of the defendant No.2 was on the plaintiff. Admittedly he has not proved the same in the witness box. The plaintiff solely relies on the evidence of defendant No. 1 in the Sulenama. In my view, the same could not be of any avail to the plaintiff for reasons stated above. 5. The burden of proving the case of sub-tenancy of the defendant No.2 was on the plaintiff. Admittedly he has not proved the same in the witness box. The plaintiff solely relies on the evidence of defendant No. 1 in the Sulenama. In my view, the same could not be of any avail to the plaintiff for reasons stated above. The onus squarely lies on the plaintiff to prove that the defendant was a sub-lessee or sub-tenant of the plaintiff. Only thereafter the onus of proving tenancy would shift on the defendant No.2. Since allegation made in the plaint was not attempted to be proved by the plaintiff the plaintiff fails. Since the plaintiff has failed to prove the sub-tenancy, I quash and set aside the judgment and decree passed by the Assistant District Judge, Karimganj on 15.9.91 and upheld the judgment of the Court below that is the judgment dated 31.8.87 passed by the Munsiff No. 1, Karimganj. The revision application is allowed and there shall be no order as to costs.