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2000 DIGILAW 213 (GAU)

Kamakhya Prasad Agarwalla v. Pradeep Kumar Yadav

2000-06-16

D.BISWAS

body2000
This petition under Rule 36A of the Rules for Administration of Justice and Police as applicable in the State of Meghalaya read with Article 227 of the Constitution has been directed the order dated 15.10.99 passed by the learned Additional Deputy Commissioner (Judicial), Shillong, in Title Civil Appeal No. 1 (T) 1 998. 2. The learned Additional Deputy Commissioner (Judicial) by the impugned order dated 15.10.99, passed in Title Civil Appeal No l of 1998 set aside the judgment and decree of eviction of the defendant to the extent that the defendant who was dispossessed, the restored back to possession of the suit premises measuring 6'2" x 3'8" within a period of 3 (three) months. It is pertinent to mention here that the said order of the learned first appellate Court was put into execution and the defendant-tenant who was earlier evicted in execution of the judgment and decree of the learned trial Court was put back into possession. 3. Before we examine the legality and validity of the impugned order dated 15.10.99, it is necessary to abreast ourselves with the facts which eventually culminated into this petition. 4. Late Shri Mayurdhaj Agarwalla, instituted Title Suit No.35 (T) 97 before the Court of the Assistant to the Deputy Commissioner, Shillong, for ejectment of the defendant-tenants on the ground that the defendants had extended the shop room let out to him towards the left, covering an area of 7' in breach of the provisions of tenancy agreement. Other grounds were, of default in payment of rent and bona fide requirement by the plaintiff for business purposes by his two unemployed sons. The defendant, who is the respondent here, contested the suit and after conclusion of trial, the learned trial Judge by the judgment and order dated 25.6.93 decreed the suit for eviction. An appeal was accordingly preferred before the Court of the Additional Deputy Commissioner, and the learned Additional Deputy Commissioner disposed of the same vide judgment and order dated 6.9.94 confirming the judgment and decree passed by the learned Assistant to Deputy Commissioner. A revision petition was also directed against the aforesaid judgment. The said revision petition was disposed by this Court. Thereafter, the defendant moved the Hon'ble Supreme Court by a Special Leave Petition. A revision petition was also directed against the aforesaid judgment. The said revision petition was disposed by this Court. Thereafter, the defendant moved the Hon'ble Supreme Court by a Special Leave Petition. The Hon'ble Supreme Court set aside not only the judgment and order of this Court passed in civil revision but also the judgments passed by the learned trial Court and the first appellate Court, and remitted the matter back to the Additional Deputy Commissioner, Shillong, for adjudication of the dispute on all other grounds except the ground of default. On remand, the Additional Deputy Commissioner has passed the impugned order after hearing both the parties. 5. The learned counsel for the revision petitioner vehemently argued that the learned first appellate Court failed to consider the matter in its proper perspective and passed the impugned order directing restoration of possession to the defendant-tenant on consideration of subsequent developments. According to the learned counsel, the learned first appellate Court fell in error in taking into consideration the subsequent developments in directing restoration of possession of the defendant-tenant which virtually amounted to dismissal of his suit for eviction. 6. I have examined the impugned judgment. It would appear that the original plaintiff Shri Mayurdhaj Agarwalla died during the pendency of the findings and by virtue of a family arrangement the petitioner, Shri Kamakhy a Prasad Agarwalla, who is the brother of late Mayurdhaj Agarwalla, became owner of the suit premises. The revision petitioner submitted an application supported by an affidavit before the Hon'ble Supreme Court for substitution of the legal heirs of the deceased plaintiff. Smti Madhulika Mukim, daughter of late Mayurdhaj Agarwalla, by an affidavit submitted that the legal heirs of late Mayurdhaj Agarwaila have no right, title or interest over the suit property and prayed for rejection of the application for substitution. The learned first appellate Court came to the conclusion that in view of what was stated by the legal representatives of late Mayurdhaj Agarwalla before the Supreme Court, the question of bona fide requirement of the suit premises ceased to exist and, there being a change of circumstances occasioned by the family arrangement and the suit property having been fallen to the share of the present plaintiff, there remains no necessity for eviction of the defendant-tenant on the ground of bona fide requirement. The learned Court while coming to this aforesaid conclusion relied upon the observation of the Hon'ble Supreme Court in AIR 1981 SC 1711 . The learned Court also relied upon a decision of this Court reported in (1995) 2 GLR 323 (1995 (1) GLJ 278), wherein it has been held that the bona fide requirement as a ground must be made out in the plaint as well as in the evidence and that bona fide requirement must exist all through even at the time of the passing of the judgment and decree by the revisional Court. It has been made clear by this Court in the said quoted judgment that even the Court of revision may set aside the decree if the bona fide requirement is a ground is found to be not in existence even when the revision is adjudicated. 7. It would, therefore, appear that the original plaintiff of this suit died during pendency of the proceedings and his brother Shri Kamakhya Prasad Agarwalla substituted himself as plaintiff in place of his late brother. The other legal representatives of the original plaintiff including his sons who were sought to be made parties had raised objection on the ground that they have no right, title or interest over the suit land in pursuance of a family arrangement made by them. This is an admitted position. The affidavit submitted by Smti Madhulika Mukim before the Hon'ble Supreme Court also clearly shows that a deed of family arrangement was made amongst the legal heirs on 16.7.96 and as per arrangement, the suit property fell to the share of the younger brother of late Mayurdhaj Agarwalla. The younger brother, namely Kamakhya Prasad Agarwalla, the present plaintiff, became owner of the suit property in his absolute right to the exclusion of all others. There appears to be no notice of alternment to the defendant-tenant and therefore, it cannot be said that the present plaintiff is the landlord of the defendant-respondent in respect of the suit premises and he can still pursue the remedy for recovery of the suit premises by evicting the defendant-tenant for use of the same by the two unemployed sons of the original plaintiff. It is more so because the two unemployed sons of the erstwhile plaintiff are no longer having any interest in the suit property. It is more so because the two unemployed sons of the erstwhile plaintiff are no longer having any interest in the suit property. The element of the bona fide requirement having been non-existent, the plaintiff in his present capacity as owner by family partition cannot be allowed to proceed with the suit for eviction of defendant-tenant under the provisions of the Meghalaya Urban Areas Rent (Control Act) 1972. Since the suit as it stands now is bound to fail, the restoration of possession to the defendant-tenant who was evicted in execution of the judgment and decree passed by the trial Court cannot be faulted with. The revision petitioner, perhaps, may like to file a separate suit for eviction of the defendant-tenant based on his title in accordance with the provisions of law. He cannot be allowed to succeed in the instant suit based tin tenancy on the basis of his title. The suit based on tenancy for recovery of possession cannot be maintained and no relief can be granted to the present plaintiff on the basis of his title acquired subsequently. 8. On consideration of the gamut of the entire situation, I find no reason to exercise the powers of this Court under Article 227 of the Constitution to disturb the findings of the learned first appellate Court. 9. Consequently, the petition stands dismissed. No order as to costs.