The judgment and decree dated 4th December 1993 and 16th December, 1993 respectively passed by the learned Assistant District Judge No. 1, Kamrup, Guwahati in Title Appeal No. 10 of 1991 affirming the judgment and decree dated 2nd March, 1991 and 21st March, 1991 respectively passed by the learned Sadar Munsiff No. 1, Guwahati in Title Suit No. 122 of 1976 is the subject matter under challenge in this second appeal. 2. The plaintiff case in a short compass is that they are the owners of the land measuring 4-l2 lecha situated at MS Road, Guwahati under new Dag No.1932, KP Patta No.243 of old Dag No. 1259 and KP Patta No.375 which is herein after referred to as suit land; the suit land originally belonged to one late Nur Mahammad and after his death his two sons, namely Khalilur Rahman and Golam Rabbi and the daughter late Saira Khatun inherited the said lands: the said Khalilur Rahman also died in the year 1945 without leaving any heir and likewise. Golam Rabbi also died in the year 1950 leaving behind his wife and the plaintiffs; Saira Khatun also died in the year 1953 leaving 4 daughters as her heirs and that the widow of Golam Rabbi and 4 daughters of late Saira Khatun sold and transferred their respective shares of the said lands to the plaintiff No.l by registered sale deeds and delivered the possession of the same and that the plaintiffs became the absolute owner of the suit land. Initially, the suit land was let out to one Ganesh Thakur, the predecessor-in-interest of defendant Nos 1 and 2, the present appellants herein from 1.1.38 at an annual rent of Rs.15 and late Ganesh Thakur constructed temporary house over the suit land and used to pay annual rent and in the year 1945 the annual rent was raised to Rs. 35.
35. In the year 1953 the plaintiffs along with heirs of late Saira Khatun and Golam Rabbi instituted a Title Suit No. 226 of 1953 for ejectment of late Gobardhan Sharma, father of the defendant No.l but the said suit was dismissed on contest and, thereafter, late Gobardhan Sharma continued his tenancy with the old annual rent which was later on raised to Rs.35, and after the death of Gobardhan Sharma his son Gauri Shankar Sharma, defendant No. 1 and Sanchi Ram Sharma, the defendant No. 2, son of late Ganesh Thakur attorned the plaintiffs of the said suit No. 226 of 1953 as their landlord and continued to pay rent. However, the plaintiffs issued fresh ejectment notice on 26th June, 1976 through their Advocate terminating the tenancy of the defendant Nos 1 and 2 over the suit land by the end of 31st July, 1976 thus, demanding delivery of possession of the suit land. The notices were duly received by the defendants but they did not leave the possession and, accordingly, the plaintiffs instituted suit for ejectment and recovery of khas and vacant possession of the suit land as against the defendant Nos 1 and 2 and for arrear of rent. 3. The suit of the plaintiffs is contested by the defendant Nos 1 and 2 by contending inter alia, that the suit is not maintainable and there is no cause of action and that, there is no proper and valid notice terminating the tenancy; that there is no relationship of landlord and tenant within the plaintiffs and defendant Nos 1 and 2; that the suit is hit by section 108 and 109 of the Transfer of Property Act; that the defendants are protected under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act read with section 108 of the Transfer of Property Act. It is also the case of the defendants that late Ganesh Thakur took 10 lechas of land covered by old Dag No. 1259 as a permanent lessee at the annual rent of Rs.
It is also the case of the defendants that late Ganesh Thakur took 10 lechas of land covered by old Dag No. 1259 as a permanent lessee at the annual rent of Rs. 15 and he constructed house thereof and carried out his business thereat and after that late Ganesh Thakur and his heirs used to pay rent; that in the year 1953 the plaintiffs and proforma defendants filed Title Suit No.266 of 1953 but the same was dismissed on contest and thereafter on 25th December, 1953 the plaintiffs entered into a new agreement with the defendants and rent was increased to Rs.35 per year, that as per new agreement defendants gave up 5 lechas of land to the plaintiffs and they remained in possession of the remaining 5 lechas (now 4l/2 lechas) of land and they constructed Assam type permanent house in the year 1954-55 and continued their business thereat. 4. The learned trial Court decreed the suit of the plaintiffs which was also affirmed by the first appellate Court under the related judgment and decree dated 4th December, 1993 and 16th December, 1993 respectively. Being aggrieved by the impugned judgment and decree of the first appellate Court the present appellant (defendant) Nos 1 and 2 preferred this second appeal. At the time of the admission of this appeal on 22nd December, 1993 this Court formulated two specific substantial questions of law for just determination of the real points in controversy between the parties. Thus, substantial questions of law are quoted below : “(1) Whether the Court below erred in law in not considering the question as to whether notice under section 11 was valid notice or not, and (2) Whether the suit is barred by res judicata or not?” Mr. NM Lahiri, learned senior counsel assisted by Mr. AK Goswami, learned counsel for the appellants/defendants contended that there being no valid notice as required under section 11 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955 determining the tenancy, the learned Courts below erred in law in Decreeing the suit and, apart from it, the suit is barred by res judicata as the earlier suit being Title Suit No.226 of 1953 involving the same suit land have been dismissed but this important legal aspect was not properly examined by the learned Courts below. It is also submitted by Mr.
It is also submitted by Mr. NM Lahiri, learned senior counsel that the defendants having proved that their predecessors in interest had constructed permanent structures within 5 years of the commencement of the tenancy in 1938, the appellants defendants are entitled to the protection under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955. Supporting the case of the appellants, the learned senior counsel Mr. NM Lahiri cited and relied upon the decisions and judgments reported in AIR 1957 Assam 22, AIR 1959 Assam 174 and AIR 1964 SC 1511 . 5. At the hearing Mr. BK Goswami, learned senior counsel assisted by Mr. S. Ali, learned counsel for the plaintiffs/respondents argued that there are no permanent structures over suit land as required under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955 and there is no evidence on record for establishing the factum of existence of permanent structures as claimed by the defendants/appellants as required under section 5 of the said Act. Question of res judicata in the instant case shall not arise as the appellants/defendants have attorned the plaintiffs/respondents as their landlord and, apart from it, no evidence was adduced by the defendants-appellants to show that the suit is barred by res judicata in view of the earlier Title Suit No. 226 of 1965. It is also contended by Mr. Goswami, learned counsel that there is no infirmity in the related notice under section 11 of the Assam Non Agricultural Urban Areas Tenancy Act and that it was a valid notice. Mr. Goswami went on to contend that both the learned Courts below made concurrent findings on the related issues and, as such, such concurrent findings should not be interfered with in the second appeal. Mr. Goswami, learned counsel, in support of the case of the plaintiff-respondents cited and relied upon the decision and judgments reported in AIR 1966 SC 1908 , AIR 1959 Assam 174 and AIR 1966 Assam and Nagaland 118. 6.
Mr. Goswami, learned counsel, in support of the case of the plaintiff-respondents cited and relied upon the decision and judgments reported in AIR 1966 SC 1908 , AIR 1959 Assam 174 and AIR 1966 Assam and Nagaland 118. 6. Now, this Court is to see and examine as to whether the first appellate Court had acted illegally or with material irregularity while passing the impugned judgment and decree and that whether the learned Courts below erred in law in not considering the question as to whether notice under section 11 was valid notice or not and, whether the appellants/defendants shall get the protection under section 5 of the said Act or not? 7. I have perused the related eviction notice marked as Ext 4. In my considered view, it is a valid notice as required under section 11 of the said Act inasmuch as the notice was issued by the plaintiffs through their lawyer requiring the defendants-appellants to surrender possession of the land in favour of the plaintiffs/landlord and the plaintiffs filed the suit after expiry of the prescribed period mentioned in the notice from the date of receipt of it by the tenant like the present defendants-appellants. Though the notice was issued through a lawyer, the practically this notice was issued by the landlords who are not disowning the same. So, it is a valid notice as required under the law. 8. The suit is not barred by res judicata with the following reasons: The defendants-appellants pleaded that a fresh agreement was entered relating to the reduction of 10 lechas of land to 4l/2 lechas i.e. the suit land and. According to them, they constructed permanent structures on the land of 4l/2 lechas and they are protected from erecting under section 5 of the Act. Since the appellants/ defendants admitted the fact that there was no permanent structure on the suit land till 1953, the question of permanent structure prior to that stage shall not arise and, apart from it, the appellants/defendants have attorned the plaintiffs/respondents as their landlord and as such the plaintiffs have the right to sue against the defendants-appellants for ejectment. After the disposal of the earlier Title Suit No.226 of 1953, the defendants-appellants attorned and recognised the plaintiffs-respondents as owners of the suit land.
After the disposal of the earlier Title Suit No.226 of 1953, the defendants-appellants attorned and recognised the plaintiffs-respondents as owners of the suit land. Over and above this, it is not disputed that the defendants admitted that originally, the land was 10 lechas of land but the area has been reduced by virtue of the fresh agreement to 4l/2 lechas and, as such, the plaintiffs-respondents had every right to file ejectment suit against the appellants-defendants after the disposal of the earlier suit being Title Suit No.226 of 1953. 9. On further perusal of the available materials on record, I am of the view that the defendants-appellants could not prove about the existence of fresh agreement between the parties after 1953 and about the permanent structures over the suit land within 5 years of their so called fresh agreement inasmuch as the appellant No. 1 in his deposition categorically stated that after the dismissal of Title Suit No. 226 of 1953 no further construction has been done over the suit land. This fact is also corroborated by DW 2 and, apart from it, there is absence of written agreement about the construction of permanent structures over the suit land between the parties. In this regard, the learned first appellate Court made an exhaustive finding which in my considered view, it is a reasonable finding. 10. So far the argument advanced by Mr. NM Lahiri, learned senior counsel that the suit is bad for non-joinder of parties as the plaintiffs having not made the heirs of Ganesh Thakur and Gobardhan Sharma; in my considered view, this argument holds a little water as it is an admitted fact that only the appellants-defendants are in possession of the suit land to the exclusion of the heirs of Ganesh Thakur and Gobardhan Sharma. Hence, the suit is not bad for nonjoinder of those heirs of Ganesh Thakur and Gobardhan. 11. Concurrent findings have been made by the learned Courts below on the related issues. It is well settled that the High Court is not empowered to interfere with a concurrent finding of facts in second appeal on the ground of being erroneous unless there is substantial error or defect in the procedure prescribed by law; which may have produced error or defect in the decision of the case on its own merit.
It is well settled that the High Court is not empowered to interfere with a concurrent finding of facts in second appeal on the ground of being erroneous unless there is substantial error or defect in the procedure prescribed by law; which may have produced error or defect in the decision of the case on its own merit. Even finding of facts are wrong or grossly perverse, that by itself does not entitled the High Court to interfere with such findings in the absence of error of law. In the instant case, both the learned Courts below dealt with the matter exhaustively and made the reasoned finding and there is no error of law, in other words, there is no infirmity or illegality in the impugned judgments and decrees passed by the learned Courts below. 12. For the reasons, observations and discussions made above, the appellants--defendants could not make out a case to justify the interference with the impugned judgments and decrees passed by the learned Courts below. In the result, this second appeal is devoid of merit and, accordingly, it is dismissed. The related ad-interim order passed by this Court on 22nd December, 1993 stands vacated. No costs.